Honorable             Robert        E.        Stewart                            Opinion         No.          M- 464
Deputy         Commissioner
Department               of Banking                                              Re:        Whether             the      Banking           Com-
John      H.     Reagan         Building                                                    missioner                 has    the     powey,
Austin,          Texas      78711                                                           authority             and       duty     to    require
                                                                                            National             Banks         to    comply
                                                                                            with         the provisions                 of Sec-
                                                                                            tion         la    of Article            342-910a,
Dear      Mr.        Stewart:                                                               v. c. s.


               In your       recent            letter         you     request       this     office           to render             an opinion
on the     following            questions:


                             ‘I( 1)      Does         the     Banking           Commissioner                    have        the
               authority,           power            and duty           to require          National             Banks         to
               cease       and      desist          acceptance                of deposits          on Saturday                under
               the    circumstances                     set    out?


                             “(2)        If your           answer         is    in anywise            in the          negative,
               please       advise            whether          the      Banking          Commissioner                    has
               the    authority,              power           and     duty     to permit           the        State      Banks
               to accept          Saturday              deposits         competitively                   with     the       man-
               ner     of acceptance                  by      the National             Banks.       ‘I


               Two       factual         situations            are      presented           in your            letter.            The     first    in-~
valves         a national           bank       which          has     filed     with      your      office        a resolution               by    its
Board          of Directors           that          it will      be     closed      for     general             banking           purposes         on
Saturday          but     remain          open          to perform             limited      banking              service            on such       day
pursuant          to Section             la    of Article             342-910a,            Vernon’s              Civil       Statutes.            In
the    other         situation,          you        refer      to a national              bank     which          has       not      elected      to
be    closed         on Saturday               or    any      other      weekday           in accordance                    with        Section        la,
supra.          Both      banks       are        accepting              deposits         on Saturday.


               Article       342-910a                reads          in part,       as follows:




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Honorable          Robert       E.      Stewart,            page           2                   (M-464)




                            “Sec.      la.         Any     bank            or     trust        company              doing
            business           in this       State,        may,                at its       option         close        for
            general         banking          purposes~               on Saturday                   or    any       other
            weekday          provided             such         day        is    designated               at least          (15)
            days      in advance             by     adoption               of a resolution                      concurred
            in by      a~majority             of the       Board                of Directors                thereof                 . . ,
            and      by notice         posted          in a conspicuous                            place        in such
            bank      or    trust      company             for           at least           such        time,       and by
            filing     a copy         of     such       resolution                 certified             by the         cashier
            of    such      bank      or     trust        company                in the        office        of the           Com-
            mission          of the        Banking             Department                    of Texas                         Any
            such       election        to    so close               shall        remain             in effect           until       a
            sub sequent             resolution             shall           be adopted                and     notice           there-
            of posted          and     a copy          thereof             filed        in the          manner           above
            provided.               If any        bank         or    trust         company               elects         to close
            for      general        banking            purposes                 on Saturday                or     any      other
            weekday          as herein             provided,                   it may,          at its          option,         re-
            main       open       on such          day     for           the purpose                of     performing
            limited         banking          services                            Limited             banking            services
            shall      mean:          transit          operations,                     cashing           and      certifying
            checks         drawn        on the ba,nk performing                                    such         limited
            services,           receiving              payments                  on obligations                   due     to such
            bank      or    to any         other       party             for    which          such        bank         is acting
            as     collection         agent,           making              change            and providing                    ac-
            cess      to safety            deposit        boxes.                Such         day     upon         which         such
            bank      or    trust      company             may            elect         to be       closed         for        general
            banking         purposes              shall     with           respect            to    such         institution             be
            treated         as Sunday             or    the         Christian               Sabbath          for    all       pur-
            poses        and    not a business                      day;        provided             that       if such         bank
            shall      elect        to perform             limited              banking             services            on such
            day,      the      same        shall       not be            deemed              a legal        holiday           for        the
            performance               of limited               banking             service.                 Any         bank        or
            trust      company             which         elects           to close            for       general          banking
            purposes           on Saturday                or    any            other        weekday             but which
            elects         to perform             limited            banking                services            shall      not be
            subjected           to any        liability             or     loss        of     rights        for     performing
            limited         banking          services               or     refusing             to perform                any       other
            banking          services          on such               day.




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    Honorable                 Robert         E.       Stewart,                page         3                    (M-464)




                                        “Sec.         lb.         The      provisions                      of Section            la      of
                      this     Act        shall       be completely                        permissive                   with       each
                      individual             bank          or    trust            company                 in this       State,          and
                      no bank,             trust       company,                    clearing               house         association,
                      or     group         of banks              or    trust         companies,                       shall      discri-
                      minate            against          or      refuse            its     services                  to any     bank           or
                      trust        company             or        enter        into        any        agreement                 to dis-
                      criminate              against             or     refuse            its        services,               either       di-
                      rectly         or     indirectly                to any         bank            or    trust        company
                      which          may        or    may         not     elect           to exercise                   any     of the
                      options            contained              in Section                la        of this          Act.       The       pro-
                      visions            of the       Antitrust               Laws             of this          State         shall      be
                      applicable             to the provisions                            of this           Act,        and      the At-
                      torney            General            of    Texas            shall            institute          and      prose-
                      cute        any     legal        proceedings                       authorized                  by law        to en-
                      force         the     provisions                 of this            Act,         including              forfeiture
                      of     right        to do business                   in Texas                  for     violation             of    such
                      provisions.               ”


                      It is the           opinion           of this           office           that       Section            la was           enacted             for     the
    benefit           of banks.              Its      primary              purpose                  is to permit                banks           or       trust      companies
    to close           on days             other        than          legal        holidays.                    Furthermore,                        it permits             banks
    or        trust    companies                  to be         open       to perform                      limited           banking            services                without
    subjecting                themselves                 to certain                liabilities               or       loss     of rights                 that     might         other-
    wise         be    incurred              on a regular                 business                   day        or    refusing            to perform                    any     other
    banking            services              on such             day.


                      There             is no language                   in Article                  342-910a               which        makes                it an offense
    for        a bank         to engage              in general                banking                services              on a day            it has           designated
    to be         closed           or     open       for        the    limited             purpose               of performing                      limited         banking
    services.                 On the          contrary,                Section             lb        states          that     Section               la    is    completely
    permissive                 with         each       individual                 bank          or     trust          company.                 The        first         sentence
    of Section               la      reads        that      a bank            or     trust            company               may,         at its          option,          close
    for        general         banking               purposes             on Saturday                      or     any        other      weekday.                   In addi-            .
    tion,         it states             if any       bank         or     trust           company                elects        to close              for        general
    banking,               it may,           at its         option,           remain                 open       on such            day        for        the purpose              of
    performing                    limited         banking              services.


                      In addition,                there          is    no language                     in Article              342-910a                  or     in any        other
    provision                of the        Texas           Bankings               Code         granting              the     Banking            Commissioner



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Honorable               Robert         E.      Stewart,            page         4                    (M-464)




the    power        or     authority               to order            a bank             to cease           and        desist       from         perform-
ing    services           other         than         those       defined             as limited              banking             services           on a day
it has     designated              to be           closed         or     open         for     limited             banking           purposes.


             It is the           opinion             of this          office,         therefore,               that       Section           la     is purely
discretionary               with             each       individual              bank,         and the          Banking              Commissioner
has     no authority,              power                or    duties       with           respect         to Section                la.      The         answer
to your         first     question,,               therefore,              is that           the     Banking              Commissioner                     has
no authority,              power             or     duty       to require                 National           Banks            to cease           and      de-
sist     from       accepting                deposits           on Saturday                  under        the       circumstances                        you     set
out.


             Furthermore,                         you        request        this          office      to advise               “whether             the     Bank-
ing    Commissioner                     has        the       authority,              power          and      duty        to permit               State      Banks
to accept          deposits             competitively                   with         the manner                   of acceptance                  by National
Banks.      ‘I     This      question                has       been      interpreted                 to ask         whether               the     Banking
Commissioner                     can     permit              a State       bank           to accept           deposits              on a day             it has
elected         to be      closed            but        remain          open        for      limited          banking              services            and      con-
tinue,to         gain      the benefit                  of Section            la.


             An administrative                               agency       has        only      such       powers              as     are        expressly
granted          to it by        statute            together            with        those          necessarily                 implied           from          the
authority          conferred                 or     duties       imposed.                   See      Stauffer            v.     San Antonio,                   162
Tex.       139     344 S. W. 2d 158 ( 1961).                                Where             the     Legislature                   acts     with         respect
to a particular                 matter,              the      administrative                       agency         may         not    so act         with        re-
spect      to the matter                    as to nullify               the      Legislature’s                    action           even     though             the
matter      be within              the        agency’s            general             regulatory               field.            State      v.     Jackson,
376 S. W. 2d 341~(Tex.                             Sup.        1964).


             In Section                la,        the    Legislature                 has       expressly                defined           the     type     of
banking          services          a bank               or    trust       company              can      perform                on a limited               bank-
ing     service          day.          Such         definition           does         not     include             the     acceptance               of de-
posits.          No      authority                is found        in the            Act     granting              the    Banking            Commissioner,
expressly           or     impliedly,                   the    authority             to expand               or    limit         this      definition.               .It
is the     opinion          of this           office,           therefore,                 that     the      Banking             Commissioner                        does
not have          the     authority,                power         or      duty        to permit              State        banks           to accept            de-
posits      on a day             it has           designated             to be         closed          for        general           banking          purposes
but open          to perform                 limited           banking              services.                The        State       bank,         like     the




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    Honorable            Robert         E.     Stewart,          page        5               (M-464)




    National          bank,       may        receive       deposits              on such      day;     however,           it would         be
    subjecting           itself       to liabilities            or    loss       of rights      that    it might          incur     on a
    regular       business             day     and would             be waiving           any benefits        it might            derive
    from       Section        la.


                                                     SUMMARY


                                  The     Banking          Commissioner                   has    no authority,
                 power         or     duty     to force         a National            bank      to comply          with
                 the     provisions             of Section            la     of Article         342-910a,          Ver-
                 non’s        Civil      Statutes,          nor       does       he have        the power,          author-
                 ity     or   duty      to permit           State          banks     to accept         deposits        on a
                 day        it has      designated          to be          closed     for     general       banking
                 purposes,              but    open       for    limited           banking       services         with-
                 out having             said       bank    waive           the    benefits      provided          by   said
                 Section.




                                                                                            eneral      of Texas


    Prepared           by     Edward          H.    Esquivel
    Assistant          Attorney           General


    APPROVED:
    OPINION            COMMITTEE


    Kerns       Taylor,           Chairman
    George        Kelton,           Vice-Chairman
    James        McCoy
    Gordon        C.     Cass
    James       Quick
    Fielding          Early


    Meade        F.     Griffin
    Staff     Legal       Assistant


    Hawthorne            Phillips
    Executive           Assistant

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