
    Kenneth JENSEN d/b/a Jensen Welding, Petitioner, v. FIRST CITY NATIONAL BANK, Respondent.
    No. C-523.
    Supreme Court of Texas.
    Oct. 21, 1981.
    Rehearing Denied Dec. 16, 1981.
    Heath & Knippa, Larry D. Knippa and Lee J. Keller, Houston, for petitioner.
    Vinson & Elkins, D. Bobbitt Noel, Jr., Houston, for respondent.
   PER CURIAM.

This is a suit for breach of trust. A construction subcontractor, Kenneth Jensen doing business as Jensen Welding, sued First City National Bank on the theory that the bank participated in a misappropriation of construction funds declared trust funds for his benefit under section 1 of article 5472e, Vernon’s Texas Civil Statutes Annotated. After a non-jury trial, the court rendered judgment that Jensen take nothing. The court of civil appeals affirmed, holding that section 4 of that statute exempted the bank from liability even if it participated in trust fund misappropriation. 616 S.W.2d 452 (Tex.Civ.App.).

Because Jensen failed to prove any participation by the respondent bank in any misappropriation of trust funds, we refuse the application for writ of error, no reversible error. We reserve the question of the scope of the section 4 exemption of banks and lending institutions in article 5472e addressed by the court below.  