


 
NUMBER 13-00-318-CV



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI
___________________________________________________________________



IN RE: HIBERNIA NATIONAL BANK

___________________________________________________________________



On appeal from the County Court at Law No. 2
of Cameron County,
Texas.
___________________________________________________________________



O P I N I O N



Before Chief
Justice Seerden and Justices Dorsey and Yañez 
Opinion by Justice Dorsey



In this original mandamus proceeding, the relator Hibernia National Bank
(Hibernia) asks us to issue a writ of mandamus directing the County Court at
Law No. 2 of Cameron County to withdraw its order sustaining the plea in
abatement filed by the real party in interest, Thomas G. Sharpe, Jr., and to
order the court to deny the plea in abatement. We conditionally grant the
petition for writ of mandamus. 
I. Procedural History
Hibernia, a national banking association organized under U.S. law, sued
Sharpe in County Court at Law No. 2 to recover $35,873.55 that he allegedly
owed on a Hibernia Capital Access Visa Card. Sharpe filed a plea in abatement
asserting that Hibernia is a foreign corporation with its principal place of
business in Louisiana. Thus article 8.18A of the Texas Business Corporation Act
prevented Hibernia from bringing this suit because it had not obtained a
certificate of authority to transact business in this state. Hibernia responded
to the plea in abatement, contending that federal law and its preemptive effect
over state law defeated the application of article 8.18A. Hibernia relied on 12
U.S.C. § 24, which states, in relevant part, that national banks have
power "[t]o sue and be sued, complain and defend, in any court of law or
equity, as fully as natural persons." 12 U.S.C. § 24, subd. 4 (West
1989). 
On March 29, 2000, the
trial court signed an order, stating that it was undisputed that Hibernia
is a national bank with its principal office in Louisiana
and that it had not obtained a certificate of authority to transact business in
Texas. Therefore the court
granted the plea in abatement and abated Hibernia's
causes of action until it presents evidence of having obtained a certificate of
authority to transact business in Texas.
The court ordered Hibernia to obtain the certificate of
authority within sixty days of the signing of the order. Failure to obtain the
certificate within the sixty-day period would result in dismissal(1)
of its causes of action. 
I. Applicable Law
The law is well settled that mandamus relief is available only to correct a
clear abuse of discretion when there is no other adequate remedy at law. In
re Alcatel USA, Inc., 11 S.W.3d 173, 175 (Tex.
2000). See Walker
v. Packer, 827 S.W.2d 833, 839-44 (Tex.
1992). 
Article 8.18A provides, in relevant part: 
A. No foreign corporation which is transacting, or has transacted, business
in this State without a certificate of authority shall be permitted to maintain
any action, suit, or proceeding in any court of this State (whether brought
directly by the corporation or in the form of a derivative action by a
shareholder) on any cause of action arising out of the transaction of business
in this State, until such corporation shall have obtained a certificate of authority.
. . . 


Tex. Rev. Civ. Stat. Ann. art. 8.18A (Vernon
1980). 
II. Federal
Preemption
Hibernia argues that 12 U.S.C. § 24 preempts the
application of article 8.18A. Hibernia has not cited us
to any Texas case law to support
this argument, and we are unable to find any. However the U.S. Supreme Court
has stated that "national banks are subject to state laws, unless
those laws infringe the national banking laws or impose an undue burden on
the performance of the banks' functions." Anderson Nat'l Bank v. Luckett,
321 U.S. 233,
248 (1944) (emphasis added). See First Nat'l Bank v. Missouri,
263 U.S. 640,
658 (1924). In Miller v. King, 223 U.S. 505 (1912) the Court stated
that a national bank "may do those acts and occupy those relations which
are usual or necessary in making collections of commercial paper and other
evidences of debt." Id.
at 511. 
At least one court has decided whether 12 U.S.C. § 24 preempts a state
law prohibiting a foreign corporation from maintaining suit in the state
without first obtaining a certificate of authority. In Indiana Nat'l Bank
v. Roberts, 326 So.2d 802 (Miss.
1976), Indiana National Bank, a national banking corporation, brought suit in Mississippi
to recover on a promissory note. The debtor filed a motion to dismiss, arguing that
the bank was a foreign corporation not qualified to do business in Mississippi
and, therefore, not entitled to maintain the suit. The trial court granted the
motion and dismissed the suit. The bank argued on appeal that it is a national
banking corporation organized under U.S.
law and, therefore, not subject to Mississippi
law.(2) The Mississippi Supreme Court, citing to
decisions which had addressed similar issues, stated: "Unanimously, other
state courts have held that a statute, similar to Mississippi's, prohibiting a
foreign corporation not qualified to do business in the State from maintaining
any action in any court of the State, does not apply to a national banking
corporation." Roberts, 326 So.2d at 803. 
In the instant case it is undisputed that Hibernia is
a national bank organized under U.S.
law. Thus Hibernia is subject to state laws, unless
those laws infringe the national banking laws. Anderson
Nat'l Bank, 321 U.S.
at 248. Because 12 U.S.C. § 24 gives national banks the power to sue in
any court of law and equity, as fully as natural persons, article 8.18A would
infringe upon that power because it would require a foreign bank to obtain a
certificate of authority before it could maintain a suit in this state. Thus 12
U.S.C. § 24 will preempt the application of article 8.18A. Anderson
Nat'l Bank, 321 U.S.
at 248; Roberts, 326 So.2d at 803. 
III. Article 8.01B(8)
In addition, although a foreign corporation is required to procure a
certificate of authority to have the right to transact business in Texas,
the type of action pursued by Hibernia is exempted from
that requirement. Under article 8.01B(8) of the Texas Business Corporation Act,
"a foreign corporation shall not be considered to be transacting business
in this state, for the purposes of [the Business Corporation Act], by reason of
carrying on in this state any one (1) or more of the following activities: . .
. (8) Securing or collecting debts due to it or enforcing any rights in
property securing the same." Tex. Rev. Civ. Stat. Ann. art. 8.01B(8)
(Vernon Supp. 2000). In the instant case Hibernia is maintaining a suit to
collect a debt owed to it by Sharpe. Accordingly Hibernia had standing to bring
this suit against Sharpe without first obtaining a certificate of authority. See
Tex. Rev. Civ. Stat. Ann. art. 8.01B(8) (Vernon Supp. 2000); Pasket v.
Federal Deposit Ins. Corp., 785 S.W.2d 172, 173 (Tex. App.--Houston [14th
Dist.] 1990, writ dism'd w.o.j.) (FDIC though foreign corporation was not
required to get certificate to do business in Texas in order to have standing
to sue in Texas to enforce rights acquired from insolvent local bank). 
We conditionally grant the writ of mandamus. The writ will issue only if the
County Court at Law No. 2 does not withdraw its order granting the plea in
abatement. 
J. BONNER DORSEY, 
Justice 


Publish. 
Tex. R. App. P. 47.3(b). 


Opinion delivered and filed 
this 22nd day of June, 2000. 
1. The order provided that if Hibernia challenged the
order before any higher court within the sixty-day deadline for obtaining the
certificate of authority then the order would be stayed until final disposition
of the challenge to the order. 
2. The complained-of statute provided: "No foreign
corporation transacting business in this state without a certificate of
authority shall be permitted to maintain any action, suit or proceeding in any
court of this state." Roberts, 326 So.2d at 802. 

