                                   November     21,    1988




Honorable  Mike Driscoll                    opinion     NO. JR-983
Harris County Attorney
1001 Preston, Suite 634                     Re:   Authority   of Harris        County
Houston,  Texas  77002                      to   establish    a system          which
                                            monitors   telephone  calls
                                            (RQ-1497)

Dear   Mr.    Driscoll:

      You ask whether Harris    County may  utilize a                         station
message detail recording  system to monitor telephone                         calls.

       YOU    furnish     the   following     background      information:

                The     Station     Message     Detail     Recording
             (SMDR) is a computer which interfaces            with    a
             PBX switchboard      via a data point       information
             switch.     The   SMDR records      every    electronic
             event related to the long distance            functions
             of a telephone       line.    Briefly,     by means    of
             the SMDR, a record is made of the number               of
             long    distance     calls   made,     the    telephone
             number     called,    the   County     telephone     from
             which the call was made, length of each call,
             time    of   the    call   and   the    long    distance
             carrier used.        Incoming    traffic     to   county
             telephone      instruments      is   also     recorded,
             although no record is made of the originating
             telephone    number.

      While the system     is currently    used by the county                      to
monitor   long distance telephone     calls, you advise that                      the
county contemplates    extending   its use to local calls.

      You state that             the system    is      presently   being   used    by
the Harris   County             Department     of      Communications      for    the
following  purposes:

             Harris County  Department                of   Communications
             uses the SMDR  to monitor                volume, to    enable
             the system to switch calls               if a telephone    PBX




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            switching   cabinet   becomes    overloaded:    for
            billing,  and gathering   administrative   data.

                The SMDR helps  the   County    to   identify
            unauthorized  long distance    telephone    usage
            and avoid waste of County funds.

      The planned    extension   of   "its application      to    gather
local telephone     call   data"    results    from   the   fact    that
"substantial    amounts    of   county    funds   are   expended       on
'directory   assistance'   and 'emergency break-in8       calls."     YOU
advise that the purpose for       utilizing    the system for      local
calls is as follows:

                By monitoring   local telephone   call data an
            assessment   could be made of the necessity      of
            such calls and     measures  instituted   to avoid
            unnecessary   expenditure   of county funds.

      Article    16.03 of the Penal Code prohibits   the use of    a
pen register      but provides  for exceptions   and   affirmative
defenses.     Article 16.03 provides:

                (a) Except as authorizedby        a court    order
            obtained    under     Article    18.21,     Code     of
            Criminal   Procedure,    1965, a person commits an
            offense if he knowingly       installs or    utilizes
            a pen    register to    record telephone      numbers
            dialed from a telephone       instrument.

                (b) In this   section,  'pen   resister'     has
            the same   meaninc as    is siven    that term    in
             rticle 18.21,    Code of   Criminal     Procedure,
            !L.

                (c) It is an exception      to the    application
            of Subsection      (a) of   this section      that    an
            officer, employee,     or   agent of a communica-
            tions common carrier,       as defined by      Section
            153(h),    Title     47,   United     States      Code,
            installs or utilizes      a device or equipment       to
            record the     numbers dialed      from a telephone
            instrument   in the    normal course of       business
            of the   carrier or      assists a peace       officer
            commissioned     by   the    Department    of    Public
            Safety in    executing     an order     issued    under
            Article 18.21,      Code of    Criminal    Procedure,
            1965.




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                (d) It is an affirmative      defense to prose-
            cution under this section that the          installa-
            tion or    utilization   of    a pen   register    was
            made by an officer,      agent, or employee of        a
            lawful   enterprise      while    engaged      '
            activity that is a necessarv        incident :E    tk:
            rre     on 0                                        0
            pr nertv    of   or   services    nrovided    bv   the
            gn:ernrise.    and was not made for the       nurnose
            of cratheriag information       for a law enforce-
            ment acencv or nrivate investiaative          acencv.
            other than information       related to the theft
            f
            0     c     un'                                        ices
            provided     bv the   ented.

                (e) An offense under   this         section       is   a
            felony of the third degree.

                (0 A Pen      register used     in violation     of
            this section is subject to seizure and may be
            forfeited   to the Department      of Public    Safety
            in the    manner    provided   for   disposition     of
            seized property      by   Article 18.18,     Code    of
            Criminal      Procedure,      1965,    as    amended.
            (Emphasis added.)

     "Pen register"   is defined in article               18.21   of the   Code
of Criminal Procedure   as follows:

            'Pen   register'     means     a    mechanical     or
            electronic    device     that     attaches     to
            telephone   line   and is capable of       recordin;
            outgoing numbers dialed from that line but is
            not capable    of recording      the origin    of  an
            incoming communication       to that    line or   the
            content of    a communication      carried   between
            that line and another line.

      Article 18.21 provides   for a procedure   whereby a judge
may order the installation    and utilization   of a pen register
by an   officer  commissioned    by the   Department    of Public
Safety.

      The information   you   furnish reflects   that the    system
presently  used by    the county records    the telephone    number
called.   Such a device falls within the definition       of a "pen
register"  as that term is defined in article 18.21.

     Section  (c) of article 16.03 provides for an   exception
to the prohibition  of the use  of a "pen register*' where   I1a




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communications   common carrier, as defined by Section 153(h),
Title 47, United States Code, installs or utilizes    a device
or equipment   to record the numbers dialed."

     Section     153(h),    47    U.S.C.A.,   defines    "common   carrier"
as follows:

                'Common carrier'    or *carrier*    means    any
            person engaged as a common carrier for        hire,
            in interstate    or  foreign    communication     by
            wire or    radio or  in  interstate    or   foreign
            radio transmission    of energy,     except   where
            reference   is made   to   common    carriers    not
            subject to this chapter: but a person engaged
            in radio broadcasting     shall not, insofar      as
            such person is so engaged, be deemed a common
            carrier.

      Clearly,  a county is not a llcommon carrier," nor is the
equipment   in question apparently  owned by a common   carrier
and operated   for the county.

      While use by the county    of a mechanical   or   electronic
device that attaches to a telephone      line and is capable     of
recording  outgoing numbers such    as the system you     describe
is prohibited,    section   (d) of article    16.03 provides    for
certain affirmative    defenses to prosecution.

      Whether the    county has     an affirmative       defense     under
article 16.03     is dependent     upon   whether     the    information
gathered by use of this       system "is a necessary        incident     to
the rendition    of service or to the protection         of property     of
or services provided by the enterprise,          and was not made for
the purpose of gathering       information    for a law      enforcement
agency    or   private     investigative      agency,      other      than
information    related    to   the   theft    of    communication
information   services    provided     by   the   enterprise."1        TEE
resolution    of   these   factual     issues    is   not    within    the
province   of the opinion process.




      1. Under     article   2.04(d)    of  the Penal    Code    the
defendant    must    prove    an   affirmative   defense      by
preponderance    of the evidence.    Graham v. State, 566     S.W.2:
941 (Tex. Crim. App. 1978).




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                  The use by a county of any mechanical         or
            electronic   device     that     attaches      to    a
            telephone  line   and is    capable of     recording
            outgoing numbers     is' prohibited     by   article
            16.03 of the Penal Code.      Whether the      county
            has an affirmative     defense to a prosecution
            for such   violation    is dependent       upon    the
            resolution  of   factual    issues    that    is   not
            within the province    of the opinion process.




                                               JIM      MATTOX
                                               Attorney  General   of Texas

MARYRELLER
First  Assistant      Attorney    General

IOU MCCRHARY
Executive  Assistant      Attorney     General

JUDGE ZOLLIE STRARLRY
Special Assistant  Attorney          General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by Tom G. Davis
Assistant Attorney General




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