THEAITORNEY GENERAL
OFTEXAS
Honorable H. A. Jamison
Commissioner, Department of Banking
Austin, Texas
Dear Sir: Opinion No. 0-5612-A
Re: Liability of banks in connection
with the rights of survivors in
respect to a joint account, etc.
Your request concerning the above subject matter is as follows:
"A few days ago we observed aoondensed reference to your
Opinion No. 0-5612 in your September monthly report, this
being an opinion addressed to the Honorable Geo. h. Shep-
pard, and having to do with the liability of banks in con-
nection with the rights of survivors in respect to a joint
account maintained by the bank and in respect to the ques-
tion of access to a joint safety deposit box. This con-
densed reference reads as follows:
~~f0-5d12TO: George H. Sheppard, Comptroller of Public Ac-
counts. Date: September 30, 1943. Since Arts. 541d and
54le, R.C.S., have oeen repealed by Acts 1943, 48th Leg.,
H.B. 79, Ch. 97, 7. 12'7,Art. 7144~3,Sets. 16a, 16b,
~:As:~.s.,governs the liability of banks for allowing the
survivor depositor of a joint account to check on the account
or to have access to a joint safety deposit box.'
"Accordingly we wrote you under date of April 4, requesting
a copy of the opinion which you transmitted to us under date
of April 7. We have read this opinion along with your opin-
ion No. O-5836 and we are wondering if any conflict exists
in respect to the subject matter.
Although the Texas Ranking Code repealed those sections of
the law set out in your opinion No. O-.%&Z the code contained
new sections on the subject matter; to-wit, Article 10
Chapter 7 and Article 6 Chapter 9 of the Code, to which your
attention is invited. We would appreciate your further
views in the matter."
Honorable H. A. Jamison, page 2 O-5&Z-A
Sections 1 and 1-A of Senate Bill No. 61, Ch. 117, of the l+lst
Legislature (192Y), being Articles 541d and 541e, respectively,
of Vernon's codification of the Revised Civil Statutes, are as
follows:
"SECTION 1. When a deposit shall be made in any bank organ-
ized and operating under the laws of this State or in any
natlonal 'bankor other banking institution doing 'businessin
this State by any person in the name of such depositor or
in the name of such depositor and another person and with
notice to the bank that such deposit shall be paid to either
or the survivor of them, such deposit and any additions there-
to made by either of such persons after the making thereof,
shall be held for the exclusive use of such persons and may
be paid to either during the lifetime of 'bothor to the sur-
vivor after the death of one of them, and such payment shall
be a valid and sufficient release and discharge to such bank
or banking institution for all payments made on account of
such deposit prior to the receipt by such bank or banking
institution of notice in writing not to pay such deposit
in accordance with the terms thereof.
"SEC. 1-A. That when any safety deposit box has been* or
shall hereafter be, rented by any bank, savings bank or
trust company transacting business in this State, in the
names of two or more persons, with the right of access given
to either,.or to the survivor or survivors of said persons,
either of such persons, whether the other be living or not,
shall have the right of access to such deposit box and may
remove therefrom the contents thereof, and in all such cases
where such removal shall have been made the said oank, savings
bank, or trust company, shall be exempt from all liability
whatsoever to any person whomsoever for permitting such
access to, or removal of contents from, said safety deposit
box."
This Act was expressly repealed ‘by the Texas Banking Gode of 1943.
(H.B. No. 79, Ch. y'/,l+tith
Leg., G. L., p* 127)
As pointed out by you, the Banking Code contains express provi-
sions upon these two matters thus contained in the repealed sta-
tutes, oeing Chapter Vii, Art. 10, and Chapter IX, Art. 6, res-
pectively, as follows:
"A bank may pay a resent or future deposit, payaole to or
on the order of (a7 any one of two or more persons, or (b)
a minor, married woman, or other person under disaoillty,
or in form payable to or on the order of one person, for the
oenefit of or in trust for another, without the terms of
the trust being disclosed to the bank in writing, to any one
Honorable H. A. Jamison, page 3 0-5612-A
of such joint depositors (before or after the death of the
other joint depositor or depositors), or to such minor,
married woman,,or other person under disability, or on the
death or disaoility of the trustee, to the beneficiary of
such trust."
"Any state, national or private bank may maintain safety
deposit boxes and rent the same. In all such transactions
the relationsnip of the 'bankand the renter shall, in the
absence of a contract to the contrary, be that of lessor and
lessee and landlord and tenant and the rights and liabilities
of the bank shall 'begoverned accordingly, and the lessee
shall be deemed in law for all purposes to be in possession
of the box and the content thereof, If a safety deposit box
is held in the name of two (21)or more persons jointly, any
one of such persons shall be entitled to access to such box
and shall oe permitted to remove the content thereof and the
bank shall not be responsiole for any damage arisin$io;h;ason
of such access or removal oy one of -aid persons. '
box rental is delinquent for six (6) months, the bank after
at least sixty (60) days' notice by mail addressed to the
lessee at his address on the books of the bank, may, if the
rent is not paid within the time specified in said notlce,
open the 'boxin the presence of two (2) executive officers
of the bank and a notary public and place the content of the
box in a sealed envelope or container 'bearingthe name of
the lessee. The bank shall then hold the content of the box
and the damages in connection therewith. If such rental,
cost and damages are not paid within two (2) years from the
date of opening of such box, the bank may sell any part or
all of the content at public auction in like mannerand
upon like notice as is prescribed for the sale of real
property under deed of trust."
The 'TexasBanking Code, therefore contains the law applicaole to
the suoject formerly governed oy Articles .541dand 541e.
Our opinion No. O-5612 addressed to Honorable Geo. H, Sheppard,
Comptroller of Public Accounts,) dealt with the question of whether
or not Article 71&a, Sec. lo, Vernon's Revised Civil Statutes,
superseded Articles 541d and 5l+le. Article 7144a was enacted by
the 43rd Legislature (1933), and Sec. lo provides as follows:
"(a) No safe deposit company, trust company, corporation,
bank or other institution, person or persons, having in
possession or under control securities, deposits, or other
assets belonging to a decedent who was a resident or non-
resident, or belonging to such a decedent and one or more
persons, shall deliver the same to the executors, adminis-
trators, heirs or legal representatives of said decedent,
or to the survivor or survivors when held in the joint names
._.,.
honoraole h. A. Jamison, page 4 0-5612-A
of a decedent and one or more other persons, or upon their
order or request, unless notice of the time and place of
such intended delivery or transfer be served upon the Gomp-
troller at least ten days prior to said delivery or trans-
fer, and delivery to 'bemade only in the presence of the
Comptroller or his duly authorized agent, who may be the
County Judge of the county in which said transfer transpires,
unless the Comptroller in writing consents to the transfer
without his presence. And it shall he lawful for the said
Comptroller or his representative to examine all of said
securities, deposits or assets at the time of such dellvery
or transfer, Fail.ureto serve such notice or failure 'to
allow such examination shall render such safe deposit com-
pw , trust company, corporation, oank or other institution,
person or persons liable to the payment of the amount of
the tax or interest due or thereafter to become due upon
said securities, deposits or other assets delivered or trans-
ferred, and in addition thereto, a penalty of not less than
one thousand or more than five thousand +ollars; and the pay-
ment of such tax and interest thereon, or the penalty above
prescribed, or both, may be enforced in an action brought by
the Comptroller in any court of competent jurisdiction.
l'(b)When it is made to appear to a County Judge in this
State that a safe deposit company, trust company, bank, per-
son or corporation has in its possession, or under its con-
trol papers of a decedent or whose estate such court has
jurisdiction, or that the decedent has leased from such a
corporation a safe deposit box, and that such papers or
such sal'cdeposit box may contain a twill of the decedent,
or a deea to a ourial plot in which the decedent is to hoe
interred‘ or a policy of insurance issued in the name of
the decedent and payable to a named 'beneficiary,he may
make an order directing such deposit company, trust com-
pany, onnk, person, or corporation to permit a person named
in the order to examine such papers or safe deposit box in
the presence of himself, or his duly authorized representa-
tive, or a representative of the Comptroller, and an officer
of such safe deposit company, trust company, Dank or cor-
poration, or agent of such person. and if such documents are
found among such papers, or in such box, to deliver said
will to the Clerk of the Probate Court of such co;:ntyor
said deed to such persons as may be desjgnated in such or-
der, or salcipolicy of insurance to the beneficiary named
therein. 'TheClerk of said court shall furnish a receipt
upon the delivery of the will to him."
We answered the Comptroller's inquiry as follows:
Honorable H. A. Jamison, page 5 0-5612-A
"Any doubts existing therefore as to whether said Articles
541d and 541e are still in effect have been dispelled by
the express repeal of these Articles by the 4bth Legisla-
ture."
The writer of that opinion conferred with the Comptroller and was
advised that information as to the repeal of Articles 5lJd and
54le sufficiently answered his inquiry, and further development
of the matter was deemed unnecessary. The question of the effect
of the Banking Code on Article 7144a was not passed upon in the
opinion.
An answer to your present inquiry requires that we consider
whether the Banking Code repealed Article 7144a, Sec. 16. The
settled law in Texas is reflected in the following text statement:
"According to numerous pronouncements of the Texas courts,
the repeal of statutes by implication is never favored
nor presumed. The two acts will persist unless the con-
flicting provisions are so antagonistic and repugnant that
'bothcannot stand.