Untitled Texas Attorney General Opinion

Hon. P. Frank Lake, page 2 (WW-12&)

otherwise, when and to the extent that the District of Colum-
bia or territory or other Lstate in which such foreign bank or
trust company is organized and ha s, its principal office grants
authority to serve in like fiduciary capacity to a bank or trust
company organized under the laws of, and having its princi-
pal office in the State of Texas.

(b) Before qualifying or serving in the State of Texas in
any fiduciary capacity, as aforesaid, such a foreign bank or
trust
of the State of Texas (1) a copy of its charter, articles of
incorporation or of association, and all amendments thereto,
certified by its secretary under its corporate seal; (2) a duly
executed instrument in writing, by its terms of indefinite
duration and irrevocable, appointing the Secretary of State
and his successors its agent for service of process upon whom
all notices and processes issued by any court of this state
may be served in any action or proceeding relating to any
trust, estate, fund or other matter within this state with res-
pect to which such foreign bank or trust company is acting
in any fiduciary capacity, including the acts or defaults of
such foreign bank or trust company with respect to any such
trust, estate or fund; (3) a written certificate of designation,
which may be changed from time to time thereafter by the
filing of a new certificate of designation, specifying the
name and address of the officer, agent or other person to
whom such notice or process shall be forwarded by the
Secretary of State. Upon receipt of such notice or process,
it shall be the duty of the Secretary of State forthwith to for-
ward same by registered or certified mail to the officer,
agent or other person so designated. Service of notice or
process upon the Secretary of State as agent for such a
foreign bank or trust company shall in all ways and for all
purposes have the same effect as if per,sonal service had
been bad within this state upon such foreign bank or trust
company. II (Emphasis added)

Subparagraph (a) authorizes a ‘foreign bank or trust company,
having the corporate power to so act’ to be appointed and to serve
in Texas in a fiduciary capacity to the extent that the place of such for-
eign bank’s organization permits a Texas bank to act in like capacity
in such state.
. -

Hon. P. Frank Lake, page 3 (WW-12B%)

Subparagraph (b) requires that such bank file certain docu-
ments with the Secretary of State before qualifying or serving in
Texas in a fiduciary ;capacity.

You have r,equested our opinion specifically upon the follow-
ing three questions:

1. Is your office authorized to file the instruments enumer-
ated in subsection (b) of Section 105a Texas Probate Code?

2. Is your office authorized to charge a fee for filing such
papers?

3. Is your office authorized to issue a Certificate of Recip-
rocity to a foreign bank or trust company which submits such papers
for filing?

With respect to the first of these questions, it is our opinion
that you are not only authorized but required to accept and file the
documents enumerated in subsection (b) when submitted to you by
“such a bank or trust company, 11as defined in subsection (a) of the
statute, that is, a foreign bank or trust company having the power
to act in a fiduciary capacity, Although the statute specifically dir-
ects itself only to the foreign bank or trust company, directing it to
file such documents with your office, there is an implied duty on
your office to accept and file such documents. You are not required
or authorized to pass on whether a Texas bank or trust company
would be permitted by the State of such foreign bank’s domicile to
act in the specific fiduciary capacity in which “such bank or trust
company” seeks to act in Texas; you should, however, satisfy your-
self that the institution seeking to file such documents is in fact qual-
ified to act in some fiduciary capacity within the state of its domicile.

With respect to question No. 2, it is our opinion that your
office is not authorized to charge such a fee. Section 105(a), Texas
Probate Code, does not specifically authorize such a fee, and such
authority is not generally implied. Cf. McLennan County v. Boggess,
104 Tex. 311, 137 S. W. 346, answer to certified question conformed
to 139 s. w. 1054.

With respect to Question No. 3, it is our opinion that you are
not authorized to issue a Certificate of Reciprocity .to such foreign
bank or trust company,~ since the statute does not require that you
Hon. P. Frank Lake, page 4 (WW-1288)

determine the reciprocity, if any, of the Texas statutes and those
of the foreign bank or trust company’s domicile. You are, however,
authorized to furnish such foreign bank or trust company an instru-
ment indicating that it has filed with you the documents enumerated
in subsection (b) of’Sec. 105(a) of the Texas Probate Code.

SUMMARY

The Secretary of State shall file instruments
submitted by a foreign bank or trust company in
accordance with subsection (b) of Sec. 105(a) of
the Texas Probate Code, may not charge a fee
for so doing and shall, if requested, furnish
said bank or trurt company an instrument in&
eating that raid documents, have been filed.

Very truly yours,

WILL WILQON
Attorney General of Texaa

Coleman Gay, Iq

CG:lmc

APPROVED:

OPINION COMMITTEE:

W. V. Geppert, Chairman
Arthur, Sandlin
Henry Braswell
Virgil Pulliam
John Reeves

REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee