I respectfully dissent. This is a case in which a statute allowing disclosure of amounts deposited in a financial institution which is involved in litigation is questioned. The majority would deny the petition for writ of mandamus, thus allowing the real party in interest to discover the contents of certain accounts in relator's bank. I would grant relator's petition for writ of mandamus because the financial institution does not have its depositor's permission to disclose the contents of their accounts.
The majority suggests that the trial court could utilize its discretion to interpret Article 342-705 and fashion a "compromise" order because there was no case law to further an understanding of the statute. However, the trial court failed to consider all of the requirements of the statute in light of the rules of statutory construction and the affidavit on file in this case from the General Counsel to the Texas Department of Banking.
Article 342-705 was amended in 1989 by the 71st Legislature of Texas. At that time, Section 1 was amended and Section 5 was added to form the present statute. See Texas Banking Code, ch. 1196, § 7, 1989 Tex.Gen.Laws 4885-886. The affidavit from Ann Graham, General Counsel of the Texas Department of Banking, stated that she had personal knowledge that the intended objective of the Finance Commission of Texas and, subsequently, the State Legislature was to amend the statute to protect financial institutions from abusive discovery requests in lender liability litigation. Specifically, Section 1 was amended to prohibit a financial institution's disclosure of the records of a depositor, owner, borrower, or customer of the financial institution who is not a party to a proceeding unless the court orders disclosure and the depositor, owner, borrower or customer consents in writing to such a disclosure. By the addition of Section 5(a), the Legislature intended to provide a narrow exception to the general rules of nondisclosure contained in Section 1. Basically, these exceptions allowed a financial institution to disclose *Page 87 the records of a depositor, owner, borrower or customer when that financial institution brought a claim against that person or, conversely, when a depositor, owner, borrower or customer sued a financial institution, the institution could disclose the records of that adverse party in order to defend itself against that party's claims.
The General Counsel underscored the importance that neither the Finance Commission, in drafting and proposing these amendments to the Legislature, nor the Legislature, by adopting and enacting them, intended that Section 5(a) provide that any time a financial institution was a party to a lawsuit the non-disclosure rules stated in Section 1 were rendered inapplicable. The affidavit concluded that the general nondisclosure rule of Section 1 applies in all cases where a third party, including but not limited to the financial institution's depositor, owner, borrower, or customer, seeks the disclosure by a financial institution of the records or identity of a depositor, owner, borrower, or customer of that financial institution who is not a party to the proceeding.
Section 311.023 of the Code Construction Act states in pertinent part:
In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:
(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history; . . . .
(5) consequences of a particular construction;
(6) administrative construction of the statute; . . . .
Tex.Gov't Code Ann. § 311.023 (Vernon 1988). Furthermore, Tex.Gov't Code Ann. § 311.025(b) (Vernon 1988), states:
[I]f amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to the other, the amendments shall be harmonized, if possible so that effect may be given to each. (emphasis added)
In the instant case the trial court should have utilized the information contained in the above-mentioned affidavit to construe the application of Sections 1 and 5(a) so that their provisions would be in harmony with each other. By doing so, the trial court could not have ordered relator to disclose the contents of any of the records at issue which belonged to its depositors, owners, borrowers or customers to a third party asserting a claim against relator without also having obtained written permission from the owner of a record in issue allowing such disclosure.
The trial court's order violates the provisions of Article 342-705 by its failure to properly utilize and apply the provisions of the Code Construction Act. By allowing discovery of a nonparty's bank records under situations of this type, the majority opens the door for discovery abuse in similar lawsuits, even though some of those discovery requests were meritorious. For example, a disgruntled taxpayer could discover any person's bank holdings and deposits in a suit to urge a taxing entity to require the rendition of personal property for taxation. See Wilson v. City of Port Lavaca, 407 S.W.2d 325 (Tex.Civ.App. — Corpus Christi 1966, writ ref'd n.r.e.).
The Texas Constitution guarantees that all persons subject to its jurisdiction "shall be secure in their person, houses, papers, and possessions." Tex. Const. art. 1, § 9. By analogy, common sense dictates that the underlying purpose of Article 342-705 is to assure privacy and to preserve the confidentiality of a nonparty's financial transactions with its financial institution by protecting his bank records from a third-party's unwarranted and unprivileged scrutiny.
I believe that the proper statutory construction of Article 342-705 guards against intrusions of such privacy. Thus, the trial court's action was not guided by reference to any guiding principles of law and constituted an abuse of discretion. I would grant relator's writ of mandamus and not allow the disclosure of the records at issue until the owners of those records give relator *Page 88 written permission to disclose those records pursuant to a court order.