              THEA         ORNEY          GENERAL
                          OF       XAS




                           June 6, 1962


Honorable J. M. Falkner            Opinion No. WW-1351
Commissioner
Department of Banking              Re:    Whether it is necessary
Austin, Texas                             for the liquidator to
                                          comply with the provi-
                                          sions of Article 3272b?
                                          V.C.S., where the banking
                                          institution has been
                                          closed and is in the
                                          process of being liqui-
Dear Mr. Falkner:                         dated.

       You have asked this office whether the provisions of
Article 3272b, Vernon's Civil Statutes, other than Section 5,
apply to funds In state banks which have been closed and are
in the process of being liquidated.

       In brief, Article 3272b, V.C.S., requires depositories
to advertise by publication in a newspaper during May of 1962,
all deposits which have remained dormant for seven years and to
turn over such deposits of $25 or less to the State Treasurer
before May 1 of 1963 if unclaimed within nine months.  The statute
authorizes the depository to deliver unclaimed dormant deposits
in excess of $25 to the State Treasurer if the depository con-
cludes that further effort to locate the depositor would be un-
warranted, otherwise such deposits must be held by the depository
and advertised annually,  Further, depositories are required by
the statute to preserve all such deposits intact without making
any charge against or transfer from the same except for paying
certain expenses incurred in attempting to locate the depositors.

       The term "depository" as used in Article 3272b is defined
in Section la as follows:
              110 . .any bank, savings and loan association,
       banking institution or organization which receives
       and holds for others deposits of money or its equi-
       valent in banking practice or other personal property
       in this State, or in other States for residents last
       known to have resided in this State."
Honorable J. M. Falkner, page 2 (WW-1351)


       Thus, it is seen that the statute does not in plain terms
apply to the State Banking Commissioner or to any other liquidator,
but only to the banking institution itself--an entity which ceases
to function as a going concern with the commencement of liquidation
proceedings.  In fact, the only provision of Article 3272b which
expressly imposes any duties on the State Banking Commissioner in
connection with the escheat of dormant deposits and inactive accounts
is Section 5, which provides in part:

             "The State Banking Commissioner shall transfer
      to the State Treasurer for deposit in the State Con-
      servator Fund all dormant deposits and other funds
      formerly owned by or deposited in liquidated deposi-
      tories which have been held by the Commissioner for
      more than twenty (20) years and of which the where-
      abouts of the depositors, creditors, or owners have
      been unknown to him for more than twenty (20) years.
      Upon delivery, together with a certificate of such
      facts under oath of the State Banking Commissioner,
      the funds shall be subject to conservation and dis-
      position under the terms of this Article. The State
      Banking Commissioner shall deliver to the State
      Treasurer a record of the names of the liquidated
      depositories? and the names and last known addresses
      of the depositors and creditors and the amounts of
      the deposits, credits, or other funds."

       The quoted provision fails to disclose any intention on the
part of the Legislature to require the Commissioner or any liqui-
dator of a bank to preserve, advertise, report, and deliver funds
under the procedures applicable to funds of seven years' dormancy.
Indeed, by providing a special procedure for the escheat of funds
in the hands of the Banking Commissioner, it may be inferred that
the Legislature intended to exclude the application of all other
escheat procedures to these funds, It is a well settled rule of
statutory construction that the express mention of one thing in a
statute is tantemount to an express exclusion of all others--the
"Expressio Unius" rule, 39 Tex.Jur. 188, Statutes, Sec. 100.

       We deem this rule of construction to be controlling in this
situation even though we view Section 5, for reasons which will here-
inafter be explained, as relating only to funds left over for
depositors at the termination of a liquidation, as opposed to funds
of a bank in the process of being liquidated.  In either event the
specific language of Section 5 with reference to the State Banking
Commissioner militates against the conclusion that the more general
 Honorable J. M. Falkner, page 3 (WW-13511


 language of the Act requiring advertising, preservation intact,
 reporting and delivery to the State Treasurer of funds of seven
 years' dormancy was intended to apply to funds in the hands of
 liquidators.  Section 5 discloses that the Legislature at the
 time it enacted this statute was not unaware of the existence of
 dormant deposits and inactive accounts in the hands of liquidators
 and that the Legislature was disposed to use precise terms appli-
 cable to this situation where it intended such funds to be covered
 by the act.

        This construction of the statute is further premised on the
 fact that a contrary ruling would afford the State and the missing
 depositors an advantage and the creditors of the bank a correlative
 disadvantage which is counter to the whole purpose of our State's
 liquidation laws with reference to State banks. Statutory enact-
 ments are to be construed so as to avoid hardship and inconvenience
 where they are susceptible of a different construction,   25 Tex.Jur.
 227, Statutes, Sec. 119. Moreover, a statute will be construed
 with reference to the entire body of law existing at the time of its
 enactment and with reference to the general system of legislation
 of which it farms a part. 25 Tex.Jur. 252, Statutes, Sec. 134.
 The liquidation statutes on state banks and the subject escheat
 statute relative to banks are in pari materia by virtue of relating
 to the same class of things, and hence are to be taken, read, and
 construed together.  25 Tex.Jur. 253, Statutes, Sec. 135.

        The liquidation statutes (Articles 342-801; 342-816, V.C.S.)
 contemplate payment on the basis of the assets available to meet
 the liabilities of the bank and the nature and time of presentment
 of claims against such assets. At the conclusion of the liquida-
 tion proceedings the Commissioner must deposit all unclaimed
 dividends and all funds available for nonclaiming depositors and
 creditors in a bank or banks for the benefit of such persons should
 they appear and demand payment. Articles 342-815, V.C.S. These
 funds may or may not approximate the amount of the deposit originally
 credited to the depositor,

         The subject escheat statute (Article 3272b, V.C.S.) on the
  other hand, contemplates payment to the depositor (or, in other
  words, to the State Conservator Fund in the case of the depositor
  whose whereabouts has been unknown for seven years) of the full
  amount of the deposit, less only the cost of efforts to locate the
, depositor.  It is readily seen that where a bank has been liquidated
  or is under liquidation proceedings, the creditors and depositors
  who file their claims in the time prescribed by law are likely to
  be placed at a disadvantage in consequence of allowing the payment
  to the missing depositor (i.e., the State Conservator Fund) on a
Honorable J. M. Falkner, page 4 (WW-1351)


different basis than the other depositors and creditors.  The
effect would be to constitute the missing depositors a preferred
class to the detriment of the other depositors and creditors.

        It is our opinion that so long as liquidation proceedings
are pending! neither the State Banking Commissioner nor any other
liquidator is required to advertise, preserve, and deliver funds
of seven years' dormancy to the State Treasurer,

        Your inquiry raises the further question of whether Section
5 requires a transfer of funds of twenty years' dormancy to the
State Conservator Fund before the termination of the liquidation
proceedings,   Significantly, Section 5 refers to: 'I, , 0 funds
                liquidated depositories , . ."! as opposed to funds
in"'iec&.it&ies   under liquidation" or "depositories being liqui-
dated."  Further, the special treatment which would be accorded
missing depositors by allowing transfer to the State Conservator
Fund before all other claims have been settled would, again, appear
to be contrary to the object of the liquidation statutes.   Since the
State Banking Commissioner remains responsible for the payment of
unclaimed deposits even after his final discharge as liquidator
(Article 342-815, V.C.S.), the requirement of Section 5 that the
Commissioner transfer the funds is in no way inconsistent with the
view that such transfer is to be made only after final discharge of
the liquidator.   It is our opinion that Section 5 applies only to
funds of twenty years' dormancy which have survived the liquidation
process and have been deposited in Court for the benefit of non-
claiming depositors.

                            SUMMARY

               So long as liquidationproceedings  are pending,
        neither the State Banking Commissioner nor any other
        liquidator is required to advertise, preserve, and
        deliver funds of seven years' dormancy to the State
        Treasurer.  Under the terms of Section 5 the liquidator
        is required to deliver funds of twenty years' dormancy
        to the State Conservator Fund, after the liquidation
        proceedings have been terminated.

                                      Very truly yours,

                                      WILL WILSON
                                      Attorney General of Texas



                                 By He&ry G. Braswell
                                    Assistant
Honorable J. M. Falkner, page 5 (WW-1351)


APPROVED:

OPINION COMMITTEE

W. V. Geppert, Chairman
Morgan Nesbitt
Jack Price
Coleman Gay
Pat Bailey

REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
