Robert Bernstein, M.D., F.A.C.P.    Opinion No. JM-1073
Commissioner of Health
Texas Department of Health          Re:     Reconsideration   of
1100 West 49th Street               JM-983  (igaa),    regarding
Austin, Texas 78769                 the use of Station Message
                                    Detail Recordings (RQ-1641)

Dear Dr. Bernstein:

     You have asked that we reconsider Attorney      General
Opinion JM-983 (1988), in which we concluded that a Station
Message Detail Recording device  (SMDR) was a pen register.
We have received a number of letters and briefs arguing that
an SMDR is not in fact a pen register.

     In reviewing those letters and briefs we conclude  that
we based our determination that an SMDR is a pen register on
a rather scant description  of the device at issue in that
opinion.   The letters and briefs we received        contain
persuasive arguments that an SMDR is not in fact a pen
register. We decline, however, to make a determination
about whether  an SMDR as described    in those briefs and
letters is or is not a pen register since we cannot make a
determination that requires the resolution of fact issues.

     We emphasize again, however, that even if a device is a
pen register,  its use is permissible     if the use "is a
necessary incident to the rendition    of service or to the
protection of property of or services provided         by the
enterprise" and ,is not used for law enforcement or private
investigative purposes.   Penal Code art. 16.03(d). . The use
at issue in Attorney General Opinion JM-983 was to help the
county "to identify unauthorized long distance       telephone
usage and avoid waste of County funds."   We think  such  a use
is clearly a permissible one   under article 16.03(d)  of   the
Penal Code.

     In conclusion,  we withdraw Attorney   General  Opinion
JM-983 and decline to make determinations     about whether
particular devices are or are not pen registers.  Regardless
of whether a device is a pen register, however, the use   of




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the device to protect state property by recording the origin
of incoming communications   as well as outgoing     numbers
called in order to prevent the public      from paying   for
private calls is permissible  under article 16.03(d) of the
Penal Code.

                       SUMMARY

           Regardless of whether a device    is a pen
        register, the use of su.ch a device to protect
        state property  by recording the origin of
        incoming communications as well as outgoing
        numbers called in order to prevent the public
        from paying for private calls is permissible
        under article  16.03(d) of the Penal Code.
        Attorney General Opinion JM-983 is withdrawn.




                                  J
                                    Very truly you

                                         A/;,
                                    JIM     MATTOX
                                    Attorney General of Texas

WARY KELLER
First Assistant Attorney General

LOU-MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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