       OFFICE OF THE ATTORNEY GENERAL. STATE OF TEXAS

       JOHN     CORNYN




                                                   February 12,200l


  Mr. Thomas A. Davis, Jr., Director                          Opinion No. JC-0337
  Texas Department of Public Safety
  P.O. Box 4087                                               Re: Proper use of magnetic stripe information            on
  Austin, Texas 78773-0001                                    a driver’s license (RQ-03 16-JC)


  Dear Mr. Davis:

         You have requested our opinion regarding the proper use of magnetic stripe information on
  a Texas driver’s license. For the reasons indicated below, we conclude that such information may
  be used only by law enforcement and other governmental officials.’

         House Bill 571, Act of May 30, 1999,76th Leg., R.S., ch. 1340, 5 1, Tex. Gen. Laws 4554,
  added section 52 1.126 to the Transportation Code. That provision states, in its entirety:

                    0 52 1.126. Electronically       Readable Information

                              (a) The department 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) The department 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.

  TEX. TFUNSP. CODE     ANN. 8 521.126 (Vernon Supp. 2001). In response to the command of
 subsection (b), the Texas Department of Public Safety (DPS), on July 12,2000, filed the following
 proposed rule with the Secretary of State:




          ‘We note that Senate Bill 293, filed January 19,200 1, and House Bill 103 1, filed January 29, 200 1, are pending
before the 77th Texas Legislature, and if passed as introduced, will change the outcome of this opinion. See Tex. S.B. 293,
77th Leg., R.S. (2001) (Introduced Version); Tex. H.B. 1031,77th Leg., R.S. (2001) (Introduced Version).
  Mr. Thomas A. Davis, Jr. - Page 2                          (JC-0337)




                      (a)    The information contained in the magnetic stripe of the driver
                      license, commercial driver license, or identification certificate shall
                      only include the information on the face of the license and the
                      physical description of the licensee.

                      (b)     Only law enforcement and governmental agency personnel
                      acting in their oficial capacity can utilize the information provided
                      in this format.

  25 Tex. Reg. 7123 (2000) (emphasis added). You indicate that, “[d]uring the comment period the
  Department [of Public Safety] received 236 comments objecting to the proposed rule, and one
  comment in support.“2 ’On October 12,2000, the DPS withdrew from consideration the proposed
  rule. See 25 Tex. Reg. 10725 (2000). You inquire about “the meaning of ‘law enforcement and
  governmental purpose’ as that term relates to the class of users that may legally obtain and utilize
  information by swiping the magnetic stripe on the back of the driver license and identification card.”
  Request Letter, note 1, at 2. Specifically, you ask “if ‘law enforcement or governmental purposes’
  restricts utilization of the electronically readable information on the back of a driver’s license (DL)
  or identification card (ID) to only law enforcement and governmental agency personnel acting in
  their official capacity.” Id. at 1.

          You have provided us with a list of “Reported                    Uses of the Electronically        Readable
  Information,” which we summarize:

                               Age Restriction Readers [to check identification to determine
                               the age of the buyer of alcohol and tobacco products]

                               Check Verification      Systems

                               Issuance of State Hunting and Fishing Licenses

                               Compliance       with    Federal     Regulations       on   Financial
                               Institutions

                               Identification of United           States    Savings     Bonds     and
                               Government Checks

                      l
                               Foreign Asset Control Regulations

                      .        Private Clubs and Bars




           *Letter from Thomas A. Davis, Jr., Director, Texas Department of Public Safety, to Honorable John Cornyn, Texas
Attorney    General at 2 (Nov. 2 1,200O) (on file with Opinion Committee) Fereinafter Request Letter].
Mr. Thomas A. Davis, Jr. - Page 3                     (JC-0337)




                l
                        Access to Chemical and Petroleum Plants

                l
                        Social Clubs

                        Car Dealerships

                l
                        Hotel-Motel    Registration

                l
                        Public Information    Kiosks

See id. (Attachment 3). You state that “[a]11 users claim that their practice of swiping the magnetic
stripe allows them to more easily comply with the law governing their business, to more easily detect
violations of the law related to their business, or that collection of information contained in the
magnetic stripe is required to be collected or verified by governmental entities.” Id. at 2. At present,
the information contained on the magnetic stripe is the same information contained on the front of
the license, except for a “physical description of the licensee.” See TEX. TRANSP.CODEANN. 5
521.126(a) (Vernon Supp. 2001). You indicate that “[c]urrently that physical description consists
of only the weight of the licensee/ID. cardholder.” Request Letter, supra note 1, at 2.

         There is little in Texas law or elsewhere, for that matter, that provides enlightenment
regarding the meaning of “law enforcement or governmental purposes” in the context of your
inquiry. On the one hand, a literal reading of section 52 1.126 might suggest, like the proposed DPS
rule did in fact, that the statute restricts the use of magnetic stripe information to “law enforcement
and governmental agency personnel acting in their official capacity.” See 25 Tex. Reg. 7 123 (2000)
(withdrawn Oct. 12,2000,25 Tex. Reg. 10725 (2000)). On the other hand, it has been argued that,
for example, an alcoholic beverage retailer’s use of the magnetic stripe information serves a law
enforcement purpose because it enables such a retailer to more easily identify, and thus refuse to
serve minors, and to determine beyond doubt that a particular driver’s license or identification card
is fraudulent. It is significant, however, that subsection (b) of section 52 1.126, commends to the
DPS the duty to “take necessary steps to ensure that the information is used only for law enforcement
or governmental purposes.” See TEX. TRANSP.CODEANN. 8 521.126(b) (Vernon Supp. 2001). We
believe this provision means that the DPS has the initial discretion to determine what those purposes
are. It did in fact do so in its proposed rule.

         In our view, the DPS in its proposed rule has defined those purposes entirely in keeping with
the legislative intent. In construing a statute, we are admonished to consider, inter alia, legislative
history. See TEX. GOV’T CODEANN. 8 3 11.023 (Vernon 1998). In the circumstances of which you
inquire, legislative history provides a clear answer.

        During the public hearing on Senate Bill 571 before the Senate Committee on State Affairs,
held May 11, 1999, an exchange that took place among the committee chair, Senator Florence
Shapiro, Senator Drew Nixon, and Ms. Judy Sibert, manager of the License Issuance Bureau for the
DPS, is summarized as follows:
Mr. Thomas A. Davis, Jr. - Page 4                 (JC-0337)




               Sen. Nixon: It would be my assumption that if this is used in a bar to
               check for validity, that is definitely for a law enforcement purpose.
               I never even assumed that that would have been construed otherwise.
               Do y’all have a different opinion of that?

               Ms. Sibert: I would disagree.. . I would assume that is a retailer not
               . . . law enforcement.  If that bar had somebody from the alcoholic
               beverage commission or some other law enforcement, they’re doing
               a particular operation that evening that would be construed as law
               enforcement, but not being an attorney, my personal opinion would
               be if a bar owner or an employee of a bar wanted to utilize that
               magnetic stripe to verify age, that that would not be considered law
               enforcement.

               Sen Shapiro: It would be to deny service, but it wouldn’t necessarily
               be to charge them with some offense.

               Ms. Sibert: Exactly.

               Sen. Shapiro:   So it wouldn’t apply in this bill.

               Ms. Sibert: Exactly.




               Sen. Shapiro:    On line 16, it says “unauthorized use of the
               information is a Class A misdemeanor.”     What do you think
               “unauthorized use” might mean?

               Ms. Sibert:    My personal interpretation would be utilizing the
               magnetic stripe by somebody other than a law enforcement entity.




Hearings on Tex. S.B. 571 Before the Senate Comm. on State Affairs, 76th Leg., R.S., (May 11,
1999).

         At the conclusion of the hearing, Senator Nixon, in keeping with his view that retailers
should be permitted access to the magnetic stripe information for purposes of law enforcement,
proposed an amendment to the bill that would eliminate subsections (b) and (c). On May 25,1999,
Senator Jane Nelson offered a floor amendment to remove those subsections. The amendment was
adopted without objection and the bill passed the full Senate. Subsections (b) and (c) were, however,
reinstated in conference committee. The present form of Senate Bill 571 finally passed both the
Mr. Thomas A. Davis, Jr. - Page 5                 (JC-0337)




House and the Senate on May 30,1999.       It was subsequently   signed by the Governor and became
effective on September 1, 1999.

         It is apparent that all members of the Senate Committee on State Affairs accepted the
construction placed on subsections (b) and (c) by Ms. Sibert, on behalf of the DPS: that access to
the magnetic stripe information is limited to law enforcement agency and other government
personnel acting in their official capacities. Even Senator Nixon, who disagreed with this reading,
understood that his colleagues acquiesced in the DPS view, as evidenced by his attempt to strike
those subsections, and Senator Nelson’s floor amendment to eliminate them. We may also infer that
the refusal by the House to accede to Senator Nelson’s amendment demonstrates the significance
that body attached to subsections (b) and (c). Thus, in our opinion, legislative history makes a
compelling case that the DPS, in its proposed rule, correctly interpreted the legislature’s intent in
enacting Senate Bill 571. We conclude, therefore, that magnetic stripe information contained on a
driver’s license or identification card issued by the Department of Public Safety may be utilized only
by law enforcement and other governmental agency personnel acting in their official capacities.
Mr. Thomas A. Davis, Jr. - Page 6                   (JC-0337)




                                        SUMMARY

                         Magnetic stripe information contained on a driver’s license or
               identification card issued by the Department of Public Safety may be
               utilized only by law enforcement and other governmental agency
               personnel acting in their official capacities.

                                               Yo    s ve   truly,



                                             dJ-(T
                                               JOAN     COR%YN
                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
