Mr. James L. Pledger Opinion No. JM-1171

Commissioner Savings and Loan Department Re Applicability of the disofTexas closure requirements of sec2601North Lamar, Suite 201 tion 5ofarticle 342-705 of Austin, Texas 78705 the Texas Banking Code to a savings and loan association (RQ-1903)

Dear Commissioner Pledger:

Article 342-705, V.T.C.S., limits required disclosure by a "financial institution" of "records pertaining to the deposits, accounts, loans, or other transactions of a depositor, owner, borrower, or customer." V.T.C.S. art. 342-705, 51. Article 342-705 ispart of the Texas Banking Code of 1943.

Prior to its amendment in 1989, article 342-705 contained three sections, the disclosure limitations of which applied to "banks" and "bank" records. The 1989 amendment substituted the phrase "financial institutions" for the word "banks" in those sections. S.B. 962, Acts 1989, 71st Leg., ch. 1196, 5 7,at 4885-06. The bill also added anew section defining "financial institution" as used inthe article tomean

a state or national bank or state or federal savinss and loan association mainthining an office, branch, or agency office in this state or otherwise engaged inthebusiness of lending money or extending credit in this state. (Emphasis added.)

Id. §4.

Section 7of Senate Bill 962also added anew section 5 to article 342-705, which repeatedly makes reference to "bank": 

### (a) This article does not restrict or

apply to amendment ofadepository contract, addition of anew term orprovision to a

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production of deposits or of records of accounts and other &~k records if the amendment, addition, ordisclosure is made under or in substantial compliance with ;p;cable. federal law, including regulaThis article does not restrict or apply'to the use or disclosure by aw of information or records pertaining to deposits, accounts, or bank transactions if the use or disclosure ismade ingood faith in the usual course of the financial business of the bank, ismade by thebank in the
course of the litigation affecting its interests, or ismadewith express or implied consent of the depositor or customer. This article does not apply to the investigation
orprosecution ofcriminal offenses.

(b) Failure of the depositor or &B& customer to receive anotice given under this article respecting adepository contract or a copy of a subpoena, request, or other order does notmake thenotice, subpoena, request,
or order ineffective if it was mailed or served.as provided by this article. (Emphasis added.)

Your letter suggests

that in the rush to complete the Bill, the drafters simply failed.to substitute the term 'financial institution' for the term 'bank' in Section 5,and that therewas no Legislative intent that Section 5 apply only to banks. The amendment toArticle 342-705 was intended, among other .things,to make the requirements for production of records applicable to all financial institutions.

You ask for our opinion as towhether section 5 of article 342-705 "applies to savings and loan associations as well asbanks."

The legislative history of Senate Bill 962 indicates that section 7 of that bill, amending sections 1through 3 and adding sections 4and 5ofarticle 342-705, was added to the bill as ahouse flooramendment. See H.J. of Tex., 71st Leg., Reg. Sess. 2679'et sea. (1989). Moreover, itappears that the provisions of section 5ofthe article, which were eventually adopted aspart of section 7of Senate Bill 962, had previously appeared inacommittee substitute for Senate

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Bill 1099,which was introduced at the same session. Senate Bill 1099, as filed originally, would have amended the first three sections of article 342-705 and added section 4 defining "financial institution" in the same manner as Senate Bill 962 eventually did in section 7of the latter bill. The provisions of what isnow section 5of article 342-705 were added to Senate Bill 1099 in a committee substitute, and eventually became apart of Senate Bill 962, section 7,with the other amendments to article 342-705, by way of floor amendment as noted above. See Bill File, S.B. 1099, 71st Leg. (1989).

InAttorney General Opinion JM-1110 (1989), we had occasion to consider the provisions of article 342;705, as amended in 1989by Senate Bill 962, inconjunction with the provisions of section 8.02 of article 852a, aprovision of the Savings and LoanAct authorizing the savings and loan commissioner to obtain financial records inconnection with examinations of savings and loan associations. We concluded there that although article 342-705 did not itself specifically make an exception to its limitations ondisclosures of records of financial institutions for records sought to be obtained frombanks inconnection with the commissioner's examinations of savings and loan associations, the restrictions ondisclosure inarticle 342-705 did not apply tobank records sought in such examinations. **Our** conclusion in Attorney General Opinion JM-1110 **was** based primarily on our understanding that the savings and loan department had long construed the record disclosure limitations in article 342-705 asnot applicable to the department's obtaining of bank records in connection with,its examinations of savings and loan associations.

Your question herewith respect to section 5, however, points tono conflict with other provisions or unreasonable results which will obtain ifthe section's provisions are taken at face value as applying only tobanks and not to savings and loan associations. Neither do considerations of long-standing agency practice come into play since the provisions of section 5are new, having been added only in 1989. We findnothing in the relevant bill analyses, tapes,
orother legislative history available tous showing legislative intent that the provisions of section 5 apply to savings and loan associations aswell as tobanks.

Where statutory provisions are not ambiguous or in conflict with other provisions, and are not unreasonable if read literally, the courts generally look to thewords of suchprovisions themselves as evidencing the legislature's intent. It is not the function of courts to correct legislative errors or omissions. They will not SUPPlY

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language in a provision on the supposition that it was omitted **by** inadvertence. s e. Q 

### Wtrix Inc. V. pr de tAmerican Ins. Co., 6:8- z.W:& 665 (Tex.App. - ovi n **Dallas** 1983, no writ); Bavlor UniV. Medical Center v. Borders 581 S.W.2d 731 (Tex.Civ.App. -Dallas 1979,writ ref'd n1r.e.); Citv of Fort Worth v.Westchester House, **274** S.W.2d 732 (Tex. Civ.App. - **Fort** Worth 1954,writ ref'd n.r.e.); 67Tex. Jur. 3dStatutes 5594, 98, 112, 115, 117.

We think that the provisions of section 5of article 342-705, making exceptions to thedisclosure limitations in the article, apply unambiguously on their face only tobanks andnot to savings and loan associations. Ifthe legislature inadvertently omitted savings and loan ass;r$;:ions* records from the scope of section 5, we think the business of the legislature and not this office to rectify such discrepancy.

SUMMARY

Section 5 of article **342-705,** V.T.C.S., making exceptions to the article's limitations on disclosure of financial records, applies tobanks' records butnot to savings and loan associations8 records.

Attorney General of Texas

MARYKELLER FirstAssistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

RICK GILPIN Chairman, opinion Committee

Prepared byWilliam Walker Assistant Attorney General

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