In this original proceeding, Texas National Bank of Victoria seeks an order from this Court requiring the Honorable Marion Lewis to rescind an order, signed on October 5, 1989, denying the bank's motion for protection of customer bank records. We deny the writ.
In August 1988, the bank entered into an employment contract with Bobby Jacob, the real party in interest in this proceeding. In September 1988, the bank terminated its employment agreement with Jacob. The bank filed a declaratory judgment action against Jacob, seeking a declaration that Jacob was owed no money under the contract. There was a provision in the contract that Jacob would receive severance pay if it was determined that he was terminated without cause. Jacob filed a counterclaim, alleging various causes of action sounding in tort. During the course of discovery, Jacob requested the bank produce for his inspection all documents contained in any files for 224 of the bank's customers. The bank filed a motion for protection, stating, among other things, that Jacob had not met the prerequisites of Tex.Rev.Civ.Stat.Ann. art. 342-705 § 1 (Vernon 1990), which require that the bank not disclose information concerning borrower transactions without a court order and without written consent of the person to whom the record pertains. Jacob argued that the bank had named each of the requested files in support of its allegations against him.
The controversy concerns the interpretation of two sections of art. 342-705 of the *Page 85 banking laws. The two sections at issue are set forth as follows:
Sec. 1. No financial institution shall be required to recognize the claim of any third party to any deposit, or withhold payment of any deposit to the depositor or to his order, unless and until the financial institution is served with citation or other appropriate process issuing out of a court of competent jurisdiction in connection with a suit instituted by such third party for the purpose of recovering or establishing an interest in such deposit; neither shall any financial institution be required to disclose or produce to third parties, or permit third parties to examine the amounts deposited by any depositor or other records pertaining to the deposits, accounts, loans, or other transactions of a depositor, owner, borrower, or customer except [i] where the depositor, owner, borrower or customer to whom the information is to be disclosed is a proper or necessary party to a proceeding in a court of competent jurisdiction in which event the records pertaining to the deposits, accounts, loans, or other financial institution of such depositor . . . shall be subject to disclosure or [ii] where the financial institution itself is a proper or necessary party to a proceeding in a court of competent jurisdiction, except that records pertaining to the deposits, accounts, loans, or other transactions of a depositor, owner, borrower, or customer may not be disclosed unless the court orders and the financial institution subsequently obtains the written consent of the depositor, owner, borrower, or customer to whom the records pertain, or. . . .
Section 5. [a] [T]his article does not restrict or apply to the use or disclosure by a bank of information or records pertaining to deposits, accounts, or bank transactions if the use or disclosure is made in good faith in the usual course of the financial business of the bank, is made by the bank in the course of the litigation affecting its interests, or is made with express or implied consent of the depositor or customer.
The bank argues that section 1 is clearly applicable to the situation at bar and the trial court erred in allowing the discovery of the customer files. Jacob argues that if he is required to follow section 1, then the statute is unconstitutional as a violation of due process and equal protection. He also argues that he was not required to follow section 1 because section 5[a] applies in this case.
The bank's theory is that section 5[a] is a narrow exception which is to be utilized in situations allowing the bank to disclose records of a depositor it has sued in order to substantiate its claims or to defend claims against it if it has been sued by the depositor. Jacob argues that section 5[a] applies in situations in which the real party in interest is the bank and the customer files are sought incidentally concerning a claim between the bank and the litigant. He reasons that section 1 applies in situations where the real target of discovery is the customer whose files are sought and in which the bank is brought in simply to get that customer's files. We find that a reconciliation of these sections is unnecessary to our disposition of this limited mandamus action.
Mandamus will lie to correct a clear abuse of discretion.State v. Sewell, 487 S.W.2d 716, 718 (Tex. 1972). A trial court abuses its discretion when it reaches a decision that is so arbitrary or unreasonable to amount to a clear and prejudicial error of law. Johnson v. Fourth Court ofAppeals, 700 S.W.2d 916, 917 (Tex. 1985). The question is whether the trial court acted without reference to any guiding principles of law. Downer v. Aquamarine Operators,Inc., 701 S.W.2d 238, 241-242 (Tex. 1986). A relator who attacks the ruling of a trial court as an abuse of discretion labors under a heavy burden. Johnson at 917. A relator must establish that under the circumstances of the case, the facts and law of the case permit only one conclusion. A reviewing court must conclude that the facts and circumstances of the case extinguish any discretion in the matter. Id. at 918.
*Page 86 A mandamus is also proper to compel a trial judge to perform a clearly ministerial act. Jessen Assocs., Inc. v.Bullock, 531 S.W.2d 593, 602 (Tex. 1975). An act is ministerial if the law provides the duty to be performed by the judge with such precision and certainty that nothing is left to the court's discretion. State Bar of Texas v. Heard,603 S.W.2d 829, 832 (Tex. 1980). An act is not deemed ministerial if it involves the exercise of discretion or judgment in determining if the duty exists. Id. at 832. The duty sought to be enforced must have already been imposed by a plain, unambiguous and positive statute and be imperatively required. Erbs v. Bedard, 760 S.W.2d 750, 755 (Tex.App. — Dallas 1988, orig. proceeding). Mandamus is an extraordinary remedy which should be used sparingly. A trial court's discretion should be given deference in matters of discovery when the law does not clearly compel the conclusion contrary to the one reached by the trial judge.
Here, we have a statute that is unclear. The bank was using the information Jacob sought to discover in its defense against Jacob's claim. At the time the trial court acted, there was no case law to guide the trial court in the manner in which he should interpret the statute. During the hearing, relator's attorney stated that they planned to refer to the files by number rather than by name, and thus maintain as much confidentiality as possible. The order allowing discovery required that the records be produced in accordance with a prior order which designated the documents confidential.
The trial court fashioned an order allowing the discovery but provided some protection of confidentiality for the bank's customers. This balancing of interests under an ambiguous statute to achieve the necessary discovery while protecting the privacy addressed by the statute is a proper exercise of the trial court's discretion. The statute is not so clear and unequivocal that it imposes an absolute duty on the trial court to compel protection.
Relator's petition for writ of mandamus is DENIED.