                                                              244
      OFFICE   OFTHE   ATTORNEYGENERAL       OFTEXAS
                          AUSTIN




                                            8lsnsw APtiae
                                             6, rhluh read0
as follovs,




                                    ati 6uPplltm In f&o
                                     be law&l In its se&l
                                 d aorpQretion shall
                       lied to the StateB*nldngBoard
                              ger&wlon to make a
                             ants    rillowadhe!Wunder~
                            sslen shallbe entered
                             amgularmt3etLng Of
       seia banking oarporation.6

*A banking corporation reamtlg  inoorporated uWaF the
laws of this State, had.zq a aa@tal etoek ef $!3S,OOO,OO,
surplus OS $10~~00.00and debeaturee outetaznW& in the
                                                              245
iionorable Lee hrady   - we   2




costing $2 *295 .oo. It has also installed a vault door
at a Cost of !$SOO.OO, Venitian blinds at a cost of
$71.20 and a Xeon sign at the entranae of the ouotoxers*
vault at a ooet of $20.00. These items have been ndiled
to the cost of tiiebuildiug, nskln& a total 0P $l!J,lS9.l2,
at which f'igurtithe building is aarried on the books of
the bank. This hank has invested In amvablc fl.xturso a
sux equal to 15% 0P its oapltal and surplue.

alho bauk has taken the position that the built-in xarble
fixtures above mentioned heving been ooustruafod on brlok
walle, constitute a part of the buildlug and, therefore,
are not fixturee within the plrview of Article 6j.2 above
tintioned.  The fame poeition ie taken tfth reference to
the vault door, Venltlan blinda and Beon aigu.

*Please adv&   whether or not them marble fixturea, this
vault door, blinds and sign are *fAxture6i* u&thin the pur-
vier of Artiole Sl2, or whether they Coustitute a part
of the bapldne house within the meanIn& oi that Statute.*


          Pour inquiry ie incapable of a derin.&te or flual
nn8wer one way or the other, for the reaaous hereinafter
etatod.

           Zhe term Vixtures*, in legal contemplation,
ordinarily means thoee articles or things that are per-
uanantly attached to the laud, with the iotention that
they abould become a part thereof. Obvimely, the word
is not ueed in this muse in the bauk statute, but rather
it is used in the sense ~of personal property comaonly
known aa atrade Bxture8*.     These trade f?xturee may,
and In nm5t inetanoes do, con&at 0P articles ~uaaable
of perxanout attachment to the Land, but on tbs other
baud, they are llk%oi.se equally sapable of use a6 per-
sonal proyerty , with no intention whatwer of peman-
ently attaohing them to the realty.

          The Biatter is not determined by any rule of
physical or structural attaohment of the Pixture to the
land, such #ysica.l attaobmant, and the extent aud nature
thereof, aPe merely clmm5stan ocs tendlng to evtienoe the
real intenti-on of the person or persons WVI%~~ the build-
5,ng md the fixtures.   sa& and wery artlole mentioned
by you may, preeent the proper intention,  become aod be a
honorable Lee Brady - psgo 3




part of the building, and therefore a part of'the lad.
On the other hand, each and avery at%iole mentioned by
you, prseant such an intention , may become and be trade
fixtures -- personal property -- and not a part of the
buLlding in whioh thay are locatsd, and to whhioh they
may even be to sop10 extent phyeloally attsohed.

            Aa early as tlutchina v. tiaatsraon, 40 Tex.
661(3877)    our BupFeme Court said;

            'It is said, the weight of the uodern
     authoritiesestabllah the doctrine tbst the
     true criterion for deteradnlng whether a
     chattel has become an iamovabla fixture, aon-
     slsta in the united applfcstion of the Pol-
     lowing tester

          "lat. has there been a real or con-
     structive annexation of the artiole in quoa-
     t&on to the realty?

          '26. Uaa there a fitness or adsptatlon
     of such article to the use6 or pzrposea of
     the realty with whish it is connectadt

          "3cz. Uhether or not it was the intsn-
     tion of the @rty making tha snnexation that
     the chattel abould beaome a permanent aaaem-
     alon to the freekoldt - this intention being
     Inferable Prom the nature of the article,
     the rsletion and situation of the parties
     interested, the policy of the law in respect
     thereto, the mode of annexa tion, aad plrposs
     or use for which the snnexation is made.

          "And of' thcae thrse teats, preemtaencs
     is to be given to the question of intention
     to ma&e the artiole a permanent aoseaaion
     to the freehold, whlls tha others are ohief-
     ly of value as evidanoe as to this intention.
     (&%311 on Fixtures, 21, 22.)"


          In Moody v. Aiken, 50 Tex. $a (lW73) a banksr(s
safe was involvad, and while tba safe itself was not eesurad
to the buflbing, it waa, however, enaloosd withln the malla
of a vault in such way as it could not be remwed. tithout
tlonorableLeeYrady-page4




destroying    the walls In part, and was thus effeotually
ma&faftftau     the building.  In that oaee the Supreme


           Vore    reoent declsiohs have, however,
      to 803118
              extent,   brought order out of this
      confusion, and have established for our
      guidance oertain rules Sounded on reason
      am oustom. These make the true test of
      a removable flnture at least to depcmd not
      so vaxh on the m3re taot of *a ligature, a
      bolt, or a acre+    a6 upon constructive an-
      nexation,the intention of the party in mak-
      ing the same, and the relation which the
      artiole bears to the uses of the freehold.*

         . The oourtfurther            adds*

         Wzxler the authority OS the ease OS
     Sutehine ve. liastereon and others aited
     above, the intention of the parties be-
     domes a controlling element in the detor-
     m&nation of the question whether a par-
     ticrular annexation has or has not aeeumed
     the oharaoter of a f'lxture*, and affirmed the judgment
of the trial oourt, holding the safe to be peraonalty and
not a part of the realty.

         In the ease of Inge Y. First State Bank of Donton,
67 8. 8. (2) 217, involting a timt#-lock deer to a vault
used by a bank, Juatiae Lattimore said;

          *The obligation of the appellee by
      ita lease was to return the building
      'llsit nor is.' Ue are thus relogat%d
      to the rules izl Hutahhs  Y. bisetsrson,
      46 Tex. 554, 26 &u. Rep. 266. The ru13s
      therein set out, when read in the light
      of bioG6.yVS. diken, 60 73X. 66, mak% it
      plain that our rule of publLc polio7 and
      in favor of trade and to enoourage indus-
      try encoura&~ the tenant to install
      trade f&xturos which, if sreated for a
      mere temporary purpose and without any
      intention on the part OS the tenant that
       fame   besome   a   p8rt   of   ti3   realty,   and   IS
ii3nwable Leo Mwdy    - page 2




       not so attached as to begoms a part thereof,
       maybe removed. It is the intention which
       is the important factor, hems tb3 erfdenoe
       of the bank officials that appellee did not
       Intend for the articles to beoome a part of
       ths realty. This testimony was admissible,
       but it was not arcluslve; *the intentton be-
       lng inferable from the nature of the artiole,
       the situation of the psrtiosinterested, the
       mode of annexation, the oiroumstanosa vhioh
       require the installation and the use to be
       made thereof.*

            The court then heltl:

            lThs time lock dooraod  the bank cages
       and windows are trade f&&urea.  a~@ OS suah
       the tenant is entitled to C3mwe then. It
       is of no importanae that the aloeet door
       (hold to be roalty) mat&he8 in appearanae
       the oages, but it is of importance that the
       the lock door is espeoially a bank vault
       doer. The one Uor is not a trade fixture,
       the other Is.~

            See aleo, Dallas Joint Btock Land Bank t.Lan-
caster,   106 6. W1. (2) 1929) Clark YO Clark, 107 6. W. (2)
421.

          Tikeae 09308 are cit.& and quotsd for the ptrpoee
of empha~iziug the fact that the matter of classification
of the fixture is largely if not altogether one of inten-
tion. By ~intention~ we mean, of oourse, the intention of
the party ,putting in or install$ng the fixture.

           PI-0~3what we have said, it followa that if the
bank in question in oonstmoting    its btilding plaaed or fn-
stalled its narble fixtures, cages, vault door, Venetian
            Neon oipp, intending at ttle time that these
blirxls itnii
tbing,s should be a permanent part of the building, they
would be such in law. This presents a queetion of fact
which you are auUloriead to determine from the evidence before
you. 1n this conneotion, we will say that auoh fact quea-
tion should be doter&n&l    from all the faots an5 circus-
stanoes surrauxxiing the eitmti.on, and not alone by the
mre pesmt      statewmt of' the Board members who oonstrucf-
PomorableLee irr%dy - page 6



ed the building;. The faot that the bank has amried
on its books the banking house at a value to Include
the oost of these Mxtur~a , is a cogent olraumatanee
supporting the present oontention of the hank with
reseronoe to the oh%ractar of the fixtures, or in
other words, with respect to the intantion of the
b%nk at the time the building v%a constructed and
the fixtures inatall3d.

          Under date of J%nu%ry 8, lQg+t, the vriter of
this opinion, then counsel to the Bw       Ctnmnlaeloner,
advised your Department with reapeot to the statue o? %
bank vault door %s % r3al fixture or trod3 fixture, a
oopy of shioh opinion is before us, %nd % ooy~ ot whleh
you luayhave if the original is hot %va&lable to you at
thistime.

            Trustingthat what we hare said vi11 be a auf-
fici3nt   3nsver   to   your   inquiry,   vs   3rs



                                    Verytlulyyoure
