                                  1976


The Honorable Robert C. Flowers    Opinion No. H-770
Executive Director
Criminal Justice Division          Re: Propriety of the
Office of the Governor             funding of certain dicta-
411 West 13th Street               ting, recording, transcrib-
Austin, Texas 78701                ing and amplifying equipment
                                   by the Criminal Justice
                                   Council.
Dear Mr. Flowers:
     You have asked our opinion concerning a provision of
the General Appropriations Act, Acts 1975, 64th Leg., ch.
743, p. 2417, as it applies to the operations of the Criminal
Justice Division. Your office approves grants made to Texas
law enforcement agencies from federal funds awarded under
the provisions of the Omnibus Crime Control and Safe Streets
Act of 1968, as amended, 42 U.S.C. 9 3701 et.seq. These
federal funds are appropriated to your office.
     Article V, Section 45 of the General Appropriations Act
provides:
          None of the funds herein appropriated
          may be used for the purchase, rental
          or contractual agreement for any type
          of electronic, mechanical or other
          interception devices usea for the
          purpose of overhearing or recording
          oral conversation made in private or
          conversation made by wire.
     In reference to this provision, you ask:




                       p. 3248
The Honorable Robert C. Flowers - page 2 (H-770)


         1. May the Criminal Justice Division,
         under Article V, Section 45, fund
         dictating, transcribing or recording
         systems, including multitrack recording
         systems that are to be used in the
         normal, routine operation of law enforce-
         ment and criminal justice agencies?
         2.  May the Criminal Justice Division,
         under Article V, Section 45, fund police/
         citizen contact monitoring and recording
         devices, portable tape recorders designed
         and capable of concealment on the body,
         portable microphones and transmitters
         designed for concealment on the body,
         attache cases with recorders, transmitters
         and amplifiers, and similar equipment
         which is designed for concealment on or
         with the body, all of which has as its
         primary design and use for consensual
         operations under 18 U.S.C.A., Section
         2511(2) (c)?
         3.  May the Criminal Justice Division,
         under Article V, Section 45, fund direc-
         tional, parabolic or 'shotgun' microphones,
         room transmitters of sundry descriptions,
         telephone adapters, couplers, transmitters
         and induction coils and similar equipment
         to be used only in a consensual manner but
         which may have as its primary design and
         use in a nonconsenting situation7
     The appropriation act provision is ambiguous. Your
questions demonstrate that it is not clear whether it
prohibits funding of the most innocuous devices, such as
ordinary tape recorders or telephone answering devices,
which might be used to record any conversation made by wire.

     The intention of the Legislature in enacting this
provision may be ascertained by consideration of the circum-
stances of its enactment and the federal law from which it
is apparently derived.




                       p.   3249
The Honorable Robert C. Flowers - page 3 (H-770)


     This type of prohibition first appeared in the Appro-
priation Act enacted in 1969 (See Acts 1969, 61st Leg., 2d
C.S., art. V, 9 50 at 1033) shortly after the 1968 enactment
of the federal act prohibiting wiretapping and electronic
surveillance except in strictly limited circumstances.
Title III of the Omnibus Crime Control and Safe Streets Act
of 1968 added chapter 119 to title 18 of the United States
Code. 18 U.S.C. 99 2510-2520.
     Inspection of these sections demonstrates that the
language of the Texas appropriation act provision is clearly
derived from the federal act. Accordingly;the federal act
may be consulted to assist in determining the meaning of the
Texas provision as to what types of interception devices are
prohibited from being funded.
     The federal law is designed to restrict the interception
of private communications whether made orally or by wire.
We believe the intent of the Texas provision is the same.
Despite the awkward placement.of the phrase "conversation
made by wire," we believe that the modifying phrase "made
in private" is intended to refer to wire conversation as
well as oral.
     We believe that the reference to "conversations made in
private" means those communications made with a justifiable
expectation of privacy.
     The federal act at 18 U.S.C. 9 2510 defines "oral
communication" as follows:

          (2)  "oral communication" means any
          oral~communication uttered by a
          person exhibiting an expectation that
          such communication is not subject
          to interception under circumstances
          justifying such expectation. . . .
     The Senate ReDCart exolains that this definition was
intended to reflect existing law, citing Katz v. United
States, 389 U.S. 347 (1967). Senate Rpt. No. m97,April    29,
-1968      U.S. Code Cong. and Admin. News pp. 2112, 2178.




                        p. 3250
The Honorable Robert C. Flowers - page 4 (H-770)


     It is clear under the federal act and the cases inter-
preting it that the interception of oral or wire communications
is not prohibited when a party to the communication consents
to the interception. 18 U.S.C. 9 2511(2)(c) provides:
          (c) It shall not be unlawful under
          this chapter for a person acting under
          color of law to intercept a wire or
          oral communication, where such person
          is a party to the communication or one
          of the parties to the communication has
          given prior consent to such intercep-
          tion.
The rationale of this provision was explained in United States
v.
- White, 401 U.S. 745, 752 (1971), as follows:
          [T]he law permits the frustration of
          actual expectations of privacy by
          permitting authorities to use the
          testimony of those associates who for
          one reason or another have determined
          to turn to the police, as well as by
          authorizing the use of informants
          in the manner exemplified by Hoffa
          and Lewis. If the law gives no
          protection to the wrongdoer whose
          trusted accomplice is or becomes
          a police agent, neither should it
          protect him when that same agent
          has recorded or transmitted the
          conversations which are later offered
          in evidence to prove the State's case.
The Court concluded in White that the recording and trans-
mitting of conversation-a     consenting police agent "do not
invade [a] defendant's constitutional expectations of
privacy. . . ."




                        p. 3251
The Honorable Robert C. Flowers - page 5 (H-770)


     The federal law makes non-consensual wiretapping or
eavesdropping by state or local officials illegal unless the
state enacts a statute which meets federal standards, including
high prosecutorial official initiation of the application
and judicial approval of the action. 18 U.S.C. 5 2516(2).
Texas does not have such an authorizing statute.

     It would seem that the Texas appropriation act prohibi-
tion is designed to prohibit funding of devices which are
likely to be used illegally, as by tapping conversations
made in private.
     Thus, we believe that the type of conversations referred
to in the appropriation act provision are only those to
which neither party has consented to the overhearing or
recording.
     The provision in question refers to "interception
dev$es used for the purpose of overhearing-or recording. .
. .   This is ambiguous, because the prohibition against
funding is prospective, but there is no standard such ,as
"intended to be used" or "designed to be used" or "which can
be used," or some combination or variation of these.
     The federal law defines "electronic, mechanical, or
other device" broadly as follows:

          (5) 'electronic, mechanical, or other
          device' means any device or apparatus
          which can be used to intercept a wire
          or orai?oGustion      other than --
               (a) any telephone or telegraph
          instrument, equipment 'or facility,
          or any component thereof, (i) furn-
          ished to the subscriber or user by
          a communications common carrier in
          the ordinary course of its business
          and being used by the subscriber or
          user in the ordinary course of its




                        p. 3252
The Honorable Robert C. Flowers - page 6 W-770)


         business; or (ii) being used by a
         communications common carrier in the
         ordinary course of its business. or
         by an investigative or law enforce-
         ment officer in the ordinary course
         of his duties. 18 U.S.C. S 2510.
         (Emphasis added).
       While the "which can be used to intercept" standard
used here is arguably the appropriate one to be applied, we
do not believe that the Texas Legislature intended to prohibit
the funding of devices primarily designed for lawful use
merely   because of the possibility of their illegal use.
     The federal law generally prohibits the manufacture,
distribution, possession, and advertising of "any electronic,
mechanical, or other device" the design of which "renders it
primarily useful for the purpose of the surreptitious inter-
ception of wire or oral communications." 18 U.S.C. S 2512(l).
     This "primary design" standard seems to us to be the
most reasonable one by which to .gaugedevices under the
appropriation act provision. It is similar to the standard
used in Texas Penal Code section 16.01, which defined criminal
instrument as anything "specially designed, made or adapted
for use in the commission of an offense."
     In light of these provisions, we believe that the Texas
appropriation act prohibition was intended to apply to
"electronic, mechanical, or other interception devices"
which are either (1) intended to be used or (2) primarily
designed to be used "for the purpose of overhearing or
recording [wire or] oral conversation made in private [i.e.,
without the consent of any party thereto]."
     So interpreted, we consider your questions in regard to
the application of this provision to types or categories of
equipment mentioned.




                        p. 3253
The Honorable Robert C. Flowers - page 7 (~-770)


      In response to your first question, in our opinion, you
may, fund dictating, transcribing, telephone answering or
recording systems, (including multi-track recording systems
used to record incoming calls made to law enforcement agencies)
used in the normal, routine and lawful operation of law
enforcment and criminal justice agencies. Such equipment is
neither intended nor primarily designed to be used to over-
hear or record private conversation.
     your second question pertains to portable transmitting
and recording devices intended and primarily designed for
use on or about the person. The conversations recorded by
such devices, when used as intended and designed, would not
be *private" as we have interpreted that term since a party
thereto would have consented to the interception, and thus
we believe that you may fund such equipment for this purpose.
     Your third question lists several types of equipment,
and we believe it is necessary for the Criminal Justice Divi-
sion to decide in each instance whether the particular device
is either primarily designed or intended to be used for the
purpose of overhearing or recording conversations made in
private. You describe these specific devices as being pri-
marily designed for that purpose. If that is the case, it
is our opinion that the appropriation act provision prohibits
the funding of such devices, even though not intended to be
used for the primary purpose for which they are designed.
                      SUMMARY
          Section 45 of Article V of the General
          Appropriations Act prohibits appropriated
          monies from being used to fund electronic,
          mechanical, or other interception devices
          which are either (1) intended to be used or
          (2) primarily designed to be used for the
          purpose of overhearing or recording wire
          or oral conversations made without the
          consent of any party thereto.




                        p. 3254
The Honorable Robert C. Flowers - page 8 (H-770)


APPROVED:




Opinion Committee
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