                            ATTORNEY GENERAL OF TEXAS
                                        GREG       ABBOTT




                                              June 3,2004



The Honorable Mike Krusee                           Opinion No. GA-01 96
Chairman, Committee on Transportation
Texas House of Representatives                      Re: Whether Transportation Code section 521.126
Post Office Box 2910                                prohibits a private security guard from running a
Austin, Texas 78768-29 10                           driver’s license through a device that electronically
                                                    reads driver’s license information to enable the
                                                    Port of Houston Authority police officers to access
                                                    and use the information (RQ-0 143-GA)

Dear Representative Krusee:

        You ask whether Transportation Code section 521.126, as recently amended, prohibits a
private security guard from running the holder’s license through a device that reads electronic license
information to enable the Port of Houston Authority police officers to access and use the information
“as part of its security procedures to control access to its terminals.“’ Section 52 1.126(b) provides
that a person commits an offense if the person:

                        (1) accesses or uses electronically readable information
                derived from a driver’s license, commercial driver’s license, or
                personal identification certificate; or

                        (2) compiles or maintains a database of electronically
                readable information derived from driver’s licenses, commercial
                driver’s licenses, or personal identification certificates.

TEX. TRANSP. CODE      ANN. 9 52 1.126(b)(1)-(2) (Vernon Supp. 2004). As pertinent here, subsection
(d) makes an exception for “a peace officer, as defined by Article 2.12, Code of Criminal Procedure,
acting in the officer’s capacity.” Id. $521.126(d)(2).

         You state that the Port Authority has proposed, as part of a federally-mandated security plan,
for visitors to its facilities who do not possess a Port Authority-issued identification badge to present
their state driver’s license to gain entry. See Request Letter, supra note 1, at 1. According to the



         ‘See Letter from Honorable Mike Krusee, Chairman, Committee on Transportation, Texas House of
Representatives, to Honorable Greg Abbott, Texas Attorney General at 1 (Dec. 9, 2003) (on file with Opinion
Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Mike Krusee - Page 2                   (GA-01 96)



plan, a security guard, or perhaps the license holder, would run the license through a device that
electronically reads the digital information on the license’s magnetic stripe.’ The device will be
connected to a computer maintained by the Port Authority’s Port Police Department (the “Police
Department”). See Port Authority Brief, supra note 2, at 4. The Police Department computer will
store in a database the driver’s license information as well as the time, date, and gate of entry. Id.
As explained:

                 The Port Authority’s proposal does not intend to give Security Guards
                 or visitors the ability to retrieve, access or use the database created
                 from the electronic reading of the driver’s licenses. The ability to
                 access the database is intended to be solely available to the Port
                 Authority’s Police Officers in the Police Department.

Id. From information in the database the Police Department may determine that an individual is a
frequent visitor and may require the individual to obtain a Port Authority identification badge. Id.
Also, the Police Department’s access to other law enforcement information sources will enable the
Police Department to determine if a presented driver’s license is valid. Id. If not, a Police
Department officer will be dispatched to the gate to investigate. Id.

        The Port Authority is an independent political subdivision of the State of Texas originally
created under article III, section 52 of the Texas Constitution and currently operated under that
section and article XVI, section 59 of the Texas Constitution.3 The Port Authority has general
rulemaking power to “protect [terminals and other] property and to promote the health, safety, and
general welfare of persons using the property. ” TEX.WATERCODE ANN. $60.071 (Vernon 2004);
see also id. 5 60.072 (granting specific enforcement powers relating to trespass, loitering, and other
matters). The Port Authority is authorized to employ peace officers, who may enforce Port Authority
ordinances, rules, or regulations, and “make arrests, serve criminal warrants, subpoenas, or writs,
and perform any other service or duty which may be performed by any sheriff, constable, or
other duly constituted peace officer of the State of Texas in enforcing other laws of this state.” Id.
$60.077; see also Tex. Att’y Gen. Op. Nos. JM-742 (1987) at 4, JM-878 (1988) at 3-4.

       The security guards at the Port Authority’s gates, however, are not peace officers under the
Code of Criminal Procedure. See Port Authority Brief, supra note 2, at 4; TEX. CODEGRIM.PROC.



         *See Brief from Wade Battles, Managing Director, Port of Houston Authority, to Nancy S. Fuller, Chair,
Opinion Committee, Office of the Attorney General at 2 (Jan. 2 1,2004) (on file with Opinion Committee) [hereinafter
Port Authority BriefJ.

         3Act approved June 6, 1927,4Oth Leg., 1st C.S., ch. 97, 1927 Tex. Gen. Laws 256,256-259 (creating Harris
County Houston Ship Channel Navigation District), amended by Act of Apr. 11,1957,55th Leg., R.S., ch. 117,1957
Tex. Gen. Laws 241,241-253,      amended by Act of Mar. 24, 1971,62d Leg., R.S., ch. 42, 1971 Tex. Gen. Laws 79
(changing name to Port of Houston Authority), amended by Act of May 25,1987,7Oth Leg., R.S., ch. 1042,1987 Tex.
Gen. Laws 3506,3506-08 (organization and powers), amended by Act ofMay 29,1989,71st Leg., R.S., ch. 1019,1989
Tex. Gen. Laws 4115,4116-17 (organization and powers); see TEX.WATERCODEANN.$5 60.001-.414 (Vemon2004).
See also Guilloly v. Port ofHouston Auth., 845 S.W.2d 812,813 (Tex. 1993); Tex. Att’y Gen. Gp. No. H-137 (1973).
The Honorable Mike Krusee - Page 3                    (GA-0196)




ANN. art. 2.12 (Vernon Supp. 2004). A private security company provides those security guards
under contract with the Port Authority, and they act at the direction of the Police Department.4 See
Port Authority Brief, supra note 2, at 4.

         Section 521.126 of the Transportation Code, as amended in 2003, provides:

                          (a) The [Department of Public Safety] may not include any
                  information on a driver’s license, commercial driver’s license, or
                  personal identification certificate in an electronically readable form
                  other than the information printed on the license and a physical
                  description of the licensee.

                          (b) Except as provided by Subsection (d), a person commits
                  an offense if the person:

                                    (1) accesses or uses electronically readable
                           information derived from a driver’s license,
                           commercial driver’s license, or personal identification
                           certificate; or

                                   (2) compiles or maintains a database of
                           electronically readable information derived from
                           driver’s licenses, commercial driver’s licenses, or
                           personal identification certificates.

                        (c) An offense            under Subsection         (b) is a Class A
                  misdemeanor.

                           (d) The prohibition provided by Subsection (b) does not apply
                  to:

                                   (1) an officer or employee of [DPS] who
                           accesses or uses the information for law enforcement
                           or government purposes;

                                    (2) a peace off&r, as defined by Article 2.12,
                           Code of Criminal Procedure, acting in the officer’s
                           official capacity;




         4We assume that the Port Authority is authorized to use contract security guards who are not peace offkers for
the duties assigned to them See Tex. Att’y Gen. Op. Nos. JM-742 (1987), JM-878 (1988) (determining that Port
Authority is not authorized to employ security guards who are not commissioned peace offkers to perform law
enforcement duties).
The Honorable Mike Krusee - Page 4             (GA-0196)



                               (3) a license deputy, as defined by Section
                       12.702, Parks and Wildlife Code, issuing a license,
                       stamp, tag, permit, or other similar item through use
                       of a point-of-sale system under Section 12.703, Parks
                       and Wildlife Code; or

                               (4) a person acting as authorized by Section
                        109.61, Alcoholic Beverage Code.

                       (e) The prohibition provided by Subsection (b)(l) does not
               apply to a financial institution if the information is assessed and used
               only for purposes of identification of an individual [and for certain
               other uses with consent].

                       (f) [generally prohibiting the use of electronically readable
               driver’s license information for telephone solicitation].

TEX.TRANSP.CODE ANN. 5 521.126(a)-(f) (V emon Supp. 2004). Under subsection (d)(2), Port
Authority peace officers acting in that capacity may use electronically readable driver’s license
information without violating section 52 1.126. Your question, however, is whether a security guard
may facilitate a Port Authority peace officer’s access or use of the information by running the license
through an electronic reader.

         Courts construing a criminal statute seek to effectuate the intent of the Legislature, focusing
on the statute’s literal text, and attempt to discern the fair, objective meaning of that text. Soykkz
v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). When application of a statute’s plain
language is ambiguous or would lead to absurd consequences, courts consider, among other things,
the object of the legislation, the consequences of a particular construction, the circumstances of the
statute’s enactment, prior statutory provisions, and legislative history. State v. Mancuso, 919 S.W.2d
86,88 (Tex. Crim. App. 1996) (citing TEX.GOV’T CODE ANN. 9 3 11.023).

          Section 521.126@1)(1) and (2) prohibits accessing or using electronically readable information
derived from a driver’s license, or compiling or maintaining a database of such information. When
read in isolation, subsection (b) is somewhat ambiguous because “access” and “use” are not precise
terms. However, they must be read in the statute’s context. Patterson v. State, 769 S.W.2d 938,
940-41 (Tex. Crim. App. 1989) (stating that, while the verb “use” can mean many things, as used
in a statute denying the possibility of probation to one who “used” a deadly weapon during the
commission of a felony, “used” means that the deadly weapon was employed or utilized in order to
facilitate the felony). In subsection (b)(l) and (2), the object of the verbs “access” and “use” is
“information.” In subsection (a), “information” which may be in electronically readable form is
substantive information such as the information that is printed on the license and a physical
description of the license holder. See TEX.TRANSP.CODEANN. 5 52 1.126(a) (Vernon Supp. 2004).
Consequently, in context, when section 52 l.l26(b)( 1) prohibits access or use of“information derived
from a driver’s license,” it denotes something more than physically running a license through the
The Honorable Mike Krusee - Page 5             (GA-0196)




Police Department’s electronic reader. Id. $ 521.126(b)(l). The reader captures digital data and
transmits it to the Police Department computer, where peace officers access and otherwise use the       .
information. By running a license through an electronic reader, a license holder or security guard
has not accessed or used the electronically readable information.

        Subsection (d)(2) expressly exempts peace officers acting in their official capacity from the
prohibitions in subsection (b)(l) and (2). See id. 3 521.126(d)(2). Subsection (d)(2) would not
permit peace officers to simply delegate their authority to access or otherwise use electronically
readable information to a security guard or other person who is not a peace officer. See id.; Tex.
Att’y Gen. Op. No. JM-742 (1987) (determining that Port of Houston Authority is not authorized
to employ private security personnel to perform peace officer functions). But nothing in section
521.126 precludes non-peace officers, who do not themselves access or use information, from
mechanically assisting peace officers acting in that capacity to do so.

        Such a construction is consistent with the statute’s apparent purpose. The statute as a whole
reveals an intent to protect the license holder by limiting the permissible uses of electronically
readable driver’s license information. It is difficult to discern what legislative purpose would be
served by criminalizing conduct by a license holder or other individual who does no more than
enable a peace officer to use the information as permitted under subsection (d)(2).

        Further, the history of section 521.126 prior to the 2003 amendment does not lead to a
contrary conclusion. As originally enacted, section 521.126 provided:

               ELECTRONICALLY READABLE INFORMATION. (a) [DPS] may
               not include any information on a driver’s license, commercial driver’s
               license, or identification certificate in an electronically readable form
               other than the information printed on the license and a physical
               description of the licensee.

               (b) [DPS] shall take necessary steps to ensure that the information is
               used only for law enforcement or governmental purposes.

               (c) Unauthorized use of the information is a Class A misdemeanor.

Act of May 30,1999,76th Leg., R.S., ch. 1340,§ 1,1999 Tex. Gen. Laws 4554,4554 (amended
2003). The courts have not interpreted the statute. Opinions from this office have focused on the
statute’s pre-2003 limitation to law enforcement and governmental use that was eliminated in the
2003 amendment. See Tex. Att’y Gen. Op. Nos. JC-0337 (2001) (concluding that magnetic stripe
information could “be utilized only by law enforcement and other governmental agency personnel
acting in their official capacities”); JC-0423 (2001) (recognizing exception to prevent violations of
the Alcoholic Beverage Code, such as underage drinking, and citing section 109.6 1 of the Alcoholic
Beverage Code); JC-0499 (2002) (same). Most recently, in Attorney General Opinion JC-0540, this
office determined that Texas Transportation Code section 521.126’s allowance for law enforcement
and governmental uses did not authorize financial institutions to access magnetic stripe information
The Honorable Mike Krusee - Page 6                    (GA-0196)



on Texas driver’s licenses, and that the state statute was not preempted by the USA PATRIOT Act’s
requirements that a financial institution verify the identity of certain customers engaging in certain
transactions. See Tex. Att’y Gen. Op. No. JC-0540 (2002); USA PATRIOT Act of 2001, Pub. L.
No. 107-56.

        From the scant legislative history available, it appears that the principal purpose of the 2003
amendment was to provide financial institutions limited authority to use electronically readable
driver’s license information as a means of fulfilling USA PATRIOT Act requirements, effectively
superseding Attorney General Opinion JC-0540 (2002). See SENATECOMM. ON INFRASTRUCTURE
DEVELOPMENT & SECURITY,BILLANALYSIS,              Tex. S.B. 1445, 78th Leg., R.S. (2003)(enrolled
version). Nothing in the amendment’s history suggests an intent to criminalize conduct that does
nothing more than enable a peace officer to utilize electronically readable information for the
purposes allowed under section 52 1.126(d)(2). Consequently, we conclude that section 521,126 of
the Transportation Code does not prohibit a private security guard from running a driver’s license
through an electronic reader, merely to enable Port Authority peace officers acting in that capacity
to access and use the information.5




         5We confine our opinion to the facts presented, and do not address situations in which the information may be
accessed or used by a person or entity not excepted from section 521.126’s prohibition.
The Honorable Mike Kmsee - Page 7            (GA-0196)



                                      SUMMARY

                      Section 52 1.126 of the Transportation Code does not prohibit
              a private security guard from running a driver’s license through a
              device that electronically reads driver’s license information to enable
              the Port Authority peace officers acting in that capacity to access and
              use the information.

                       Attorney General Opinion JC-0540 (2002) is superseded in
               part by statute.

                                             Very truly yours,




                                             Attommeneral        of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
