                              THE         ATTORNEY    GENERAL
                                             OF TEXAS

                                                August 4.    1987
Jrm BlATrux
-         -PJRAu.



              Mr. Don R. Stiles                                Opinion No.   JM-762
              Executive Director
              Adult Probation Commission                       Re: Constitutional   validity of
              6100 Cameron Road                                electronic monitoring of proba-
              Suite 600, Building B                            tioaers
              Austin, Texas     78753

              Dear Mr. Stiles:

                     You inform us that the Adult Probation Commission is considering
              a proposal     to permit the use of electronic     monitoring devices as a
              condition    of probation.     The devicas will be employed primarily     to
              monitor a probationer’s       compliance with curfew hours imposed by the
              court.     Some of the monitoring systems require the probationer    to wear
              an electronic      device attached to his or her body at all times; all
              require the probationer      to have access to a telephone in his or her
              residence.       Concern about the constitutionality       of this   use of
              electronic    monitoring devices has prompted the following questions:

                                 1. Do probationers    have any constitutionally
                             protected interest which would prohibit    the use of
                             electronic   monitoring in the home as a condition
                             of probation   over the objections  of the [proba-
                             tioner]?

                                 2. Do family      members or      cohabitants    [OfI
                             probationers    have any constitutionally      protected
                             interest     which   would  prohibit      the    use   of
                             electronic   monitoring in the home they share with
                             probationers   over their objections?

                                3. Does the requirement of some system     that
                             the probationer  wear a device attached to his or
                             her body at all times have any influence   on the
                             answers to questions 1 and 2’1

                                 4. Does the requirement of some systems that
                             an.electronic monitoring device be attached to the
                             telephone in the home have any influence    on the
                             answers to questions 1 and 2?

                        In our opinion,     the employment of electronic     monitoring devices
              as    a     condition  of    probation  does not violate       a constitutionally



                                                   p. 3560
Mr. Don R. Stiles    - Page 2      (JM-762)




protected   Interest    of the probationer or a third person residing     in
the probationer’s     home. Neither do we believe that the attachment of
the particular     devices you have described   to either a probationer’s
body or a telephone         in his home violates     any constitutionally
protected   interest    of the probationer or a third person residing     in
the probationer’s    home.

                                          I.

      In your request letter  you describe   three types of electronic
monitoring systems under consideration.    The first type of system is
called an “active” monitoring system:

           Active monitoring.     This requires that the proba-
           tioner have a standard telephone in his home. A
           monitoring device is hooked up to the phone.      The
           probationer   wears a device that transmits signals
           which the monitor can detect        within a certain
           small radius.      The monitor is connected through
           the telephone    line to a computer which is pro-
           gramed with the schedule that the probationer     has
           been ordered by the court to observe.      Comunica-
           tlon between the monitor and the computer shows
           whether the probationer    is at home at the time he
           is supposed to be.

A fuller description  of the active monitoring system was provided in a
report recently issued by the Texas Criminal Justice Policy Council:

           The first      type of these systems. referred              to in
           the    earliest      literature       as    ‘active’     systems
           consists    of a transmitter        unit, a receiver-dialer
           unit,    and a central       office     computer or receiver
           unit.     A transmitter,.       which is strapped to the
           offender,     broadcasts      an encoded signal          to the
           receiver     located     in the offender’s           home.     The
           receiver     is connected by the telephone               to the
           central    office    computer or receiver          unit.      When
           the transmitter         being worn by the offender              is
           within range of the home receiver,                   the system
           indicates     that they are at the residence.                 When
           the offender goes beyond the range of the receiver
           unit, i.e.,      leaves the home. the signal from the
           transral~r        is    not    received      and the       system
           indicates     absence.      If the offender leaves home
           during an unauthorized            period,     in violation      of
           their    turf ew, a violation          report    is generated.
           If,   however, the offender           leaves the home at a
           time they are authorized            to do so, the times of
           arrival and departure are noted, but no violation
           report is generated.


                                     p. 3561
 .

     Mr. Don R.~ Stilts    - Page 3       (JM-762)




     J. Vaughn, Electronic    Monitoring of Offenders 6 (July 1986)                 (prepared
     for Texas Criminal      Justice   Policy CouucLl) (hereinafter                 cited   as
     Electronic Monitoring).

            The   second type of device         described     in   your    letter    are   the
     so-called    “passive” systems:

                  Passive monitoring.     This also requires a standard
                  telephone    and a monitoring    device  in the home.
                  The device worn by the probationer       does not send
                  signals.   but must be placed in the monitor when
                  the central computer calls the probationer’s      home
                  at random Intervals     during the periods when the
                  probationer   is ordered to be at home. The monitor
                  verifies   that the correct device has been used to
                  respond to the call.

     ‘The Criminal Justice      Policy    Council    report   provided    this   description
     of passive monitors:

                      A second type of unit utilizing        telephone lines
                  for comaunication        has been referred        to in the
                  earlier     literature     as a ‘passive’       system.      It
.-                consists     of a central office     computer. au encoder
                  device, and a verifier       box.   The encoder device is
                  worn either on the wrist or anRle by the offender.
                  The computer is programmed to generate                  tither
                  random calls or to call at specific            times to the
                  offender’s       hone.   The offender     is required        to
                  provide voice identification         and then insert the
                  encoder device into the verifier          box. confirming
                  their identity.        The system will provide exception
                  reports if the phone is not answered, if a busy
                  signal     is received.      if   an operator       intercept
                  message is detected,        or If the offender       fails   to
                  properly       insert   the encoder     device      into    the
                  verifier    box.

     Electronic     Monitoring,        supra,  at 6.    The report     explained   the
     difference    between active and passive systems in terns of the amount
     of monitoring accomplished by each type of system.             “Active” systems
     operate    continuously        and monitor the probationer    from the moment
     the transmitter      is within the range of the receiver.           In contrast,
     “passive.”    systems are activated         by the telephone    calls   from the
     central    reception      office   and operate only for the duration of the
     telephone call.       -Id.
           The third type of monitoring system under consideration   does not
     require the probationer   to wear any device at all but dots involve the
     use of a telephone.     A centralized computer sakes telephone calls to
     the probationer’s   home at random times during the period in which the



                                           p. 3562
Mr. Don R. Stiles     - Page 4 ,(JM-762)




probatiouer   is required by the court's      order to be at home.     The
probatfoner   is directed  to repeat selected    words and phrases or to
auswer a series of questions.    Sea Electronic   Monitoring, supta, at 6.
The probationer's   voice is then electronically    compared with a voice
print previously  supplied by the probationer.

      As of July 1986, electronic           monitoring systems of one type or
another were in use in eight states.               Electronic    Uonitoring,    supra,
(Aootudix
   __        D).    The  state   of   California     recently     enacted   a  statute
authorizing-the      use of electronic        monitoring     devices   as part of a
three-year    home detention     pilot    project.     Cal. Penal Code 51203.015
(West Supp. 1987).          The Texas Legislature           recently    approved the
employment of electronic        monitoring devices in probation            and parole
programs, but its provisions           affect    probations    granted or modified
after Septexber 1. 1987. Acts 1987. 70th Leg., ch. 1, 057, 15, at 1,
14    (S.B.     No.    215).     ThiS      opinion      does     not    address     the
constitutionality     of the provisions       of this legislation.       It addresses
ouly the general        question    of the constitutionality           of electronic
monitoring devices.

                                         II.

       The Adult Probation La" states that the terms and conditions            of
probatiou    may Include,    but are not limited      to,    those conditions
expressly    provided in the act.    Code Crix. Proc. art. 42.12,         $6(a).
The courts are not limited to the conditions      enumerated in the act but
have tide discretion      in setting reasonable    conditions     of probation.
Macias v. State, 649 S.W.Zd 150 (Tex. App. - El Paso 1983. no pet.).
Conditions of probation     should bear a reasonable      relationship   to the
treatment of the accused and the protection        of the public.      Tamea V.
State, 534 S.W.2d 686 (Tex. Grim. App. 1976); Macias v. State, supra.
Whather the use of au electronic     monitoring device bears a reasonable
relationship     to the treatment of a particular       probationer     and the
protection     of the public    is a question     of fact      that cannot be
determined in an Attorney General's      Opinion.    See generally Attorney
General Opinion JM-307 (1985) at 5.

      Your first       question    concerns    whether a probationer           has any
constitutionally      protected    interest    which "ill      prohibit    the use of
electronic    monitoring devices as part of-his             probation.      It is well
understood     that, because of their special            status,    probationers    are
subject     to limitations      of their     constitutional      rights    from which
ordinary citizens      are free.     Macias v. State. 649 S.W.Zd at 152. Any
restriction     placed upon these rights,        however, can be justified         only
to the extent actually          required    by the legitimate         demands of the
probation process and necessary for the probationer's                 reformation and
rehabilitation.       &, * see also Taxes v. State, 534 S.W.Zd at 692.

      In the Maclas case,        the court      adopted the test articulated        in
United States  v. Tony,           605 P.2d       144. 150 (5th Cir.    1979),       to




                                      p. 3563
Ur. Don R. Stiles     - Page 5       (JM-762)




detenaiue    whether a condition    of probation           is   unduly   intrusive     on
constitutioua1l.y   protected freedoms:

            The conditions       must be ‘reasonably        related’    to
            the purposes of the [Federal Probation]            Act. Cou-
            sideration       of  three   factors     is    required     to
            determine       whether    a   reasonable      relationship
            exists:    .(l) the purposes sought to be served by
            probation;     (2) the extent to which constitutional
            rights enjoyed by law-abiding         citizens     should be
            accorded to probationers;        and (3) the legitimate
            needs of law enforcement.

Uacias v. State,      649 S.W.Zd at 152.          Whether it IS reasonable         to
require    a particular     probationer   to wear an electronic         monitoring
device as a condition       of his probation     requires an evaluation of the
facts    surrounding    his    illegal  activity     and his     probation.       See
Attorney General Opinion JM-307 (1985).            It is nevertheless      possia
to review the relevant authorities         to determine whether the mere use
of electronic    monitors in the probation system impermissibly infringes
upon a constitutionally       protected interest    of a probationer    or a third
person residing     in the home of a probationer.           Your questions     raise
issues under the First,        Fourth, Eighth, and Fourteenth Amendments to
the United States Constitution.           We will      devote   the bulk of our
discussion    to the issue of privacy in the probationer’s         home.

First   Amendment Considerations

        The First Amendment to the United States Constitution                  generally
protects    an individual’s        speech, associations,       movement, travel,       and
religious     beliefs    from excessive       governmental limitations.         See also
Tex. Coast. art. I, 996. 8, 27.                A related    concept is the right to
travel interstate,         derived from the privileges         and immunities clause
of %he Fourteenth Amendment. See Edwards v. California,.                   314 U.S. 160
(1941).     Although persons serv=            a probated sentence are entitled          to
enjoy     these     rights     to    a significant       degree.    the    courts    have
consistently       held that such rights           may be limited        to serve the
purposes of probation.            Bowever, because of the preferred            nature of
these     rights,      courts      critically     evaluate     probation      conditions
restricting      them.      See Cohen and Gobert. The Law of Probation                 and
P;;zo:;    55.10 (1983Td          Supp. 1986) [hereinafter        cited as Cohen and
          . The interests        which are implicated by your request are those
relating    to associations.       movement, tad travel.

      The courts    have concluded    that conditions  curtailing     a pro-
bationer’s    associations    with   certain   named persons      does   not
impermissibly Infringe upon the right of freedom of association.        Tyra
v. State,    644 S.W.Zd 865 (Tex. App. - Amarillo        1982, no pet.).
Conditions which prohibit    any contact whatsoever between a probationer
and a complainant       have been upheld as reasonable       conditions   of
probation.   Pequeno v. State, 710 S.W.Zd 709 (Tex. App. - Rouston [lst


                                       p. 3564
Mf; Don R. Stiles      - Page 6      (JM-762)




Dist.]    1986. no pet.).      In appropriate     cases,   probation    conditions
imposing a c&few       are reasonable,      notwithstanding     the limits      they
inpose ou a probationer's      freedom of movamaut and travel.        See Salinas
v. State,     514 S.W.2d 754 (Tex. Grim. App. 1974).            Conditions which
require the probationer      to remain in a specified     area are valid.      See.
*.       Miller   v.  State,    330 S.W.Zd 466 (Tex.         Grim. App. 1959).
However, a condition which effectively         banishes a probationer       from a
particular     area is invalid.       See Johnson v. State,      672 S.W.Zd 621
(Tex. App. - Corpus Christi        1984, no pet.)    (banishment from county).
Also, it has been suggested that conditions           limiting   a probationer's
associations     could threaten     the probationer's     right    of privacy     if
construed to extend to family members. Cohen and Gobert, suprs. 16.16
(citing Roe v. Wade, 410 U.S. 113, 152-53 (1973)).

       Given these permissible        limitations , we are not persuaded that a
probatiouar     may object to the use of electronic             monitoring devices on
the grounds that it           interferes     with his freedom of association,
movement, or travel.          Electronic     monitoring      devices    appear no wore
restrictive     than a condition       directly    limiting     movement; they simply
provide     greater    assurance     that the probationer           is conforming his
conduct     to the limitations          attached     to his conditional         liberty.
Because the devices are incapable of monitoring conversations,                      we do
not believe     that they will affect         a probationer's       freedom of sp~eech.
The fact that the probationer            way be required under some systems to
utter particular      words or phrases into a telephone does not change our
minion.
.~~~~~~~~I orovided
             ~~~ ~~       the condition       reauirinn      this    conduct   otherwise
serves    the purposes       of probation.       -Cf.    kited      Starts   v. William
Anderson Co., Inc.,        698 F.2d 911, 913 (8th Cir. 1982) (referring                  to
terms of probation which required price-fixers                 to deliver speeches to
civic    groups about the ev&            of -price-fixing).        overruled   on other
grounds, United States v. Missouri Valley Constr. Co., 741 F.2d 1542
(8th Cir. 1984); United States v. Franks, 511 F.2d 25 (6th Cit.),
cert.   denied,     422 U.S. 1042 (1975) (requiring             arrested defendant to
submit voice exemplars violates            no constitutional        rights   so long as
underlying seizure of the person was proper).

Privacy   Considerations

      The privacy interests       of probationers    and nonprobationers   do not
draw protection     from a specific     guaranteeof the federal Constitution,
but are instead        protected     by concepts    derived   from the various
guarantees     of the Bill       of Rights     and the Fourteenth      Amendment,
particularly     the Fourteenth Amendmant's concept of personal liberty.
See Rot v. Wade, 410 U.S. 113 (1973).             Some of these interests     were
addressed    in our discussion        of the First Amendment. Here, we "ill
discuss    that privacy      interest    which we believe     is most directly
implicated by the proposal to employ electronic           monitoring devices in
the probation system --,namely,          the reasonable expectation    of privacy
a probationer     may have with respect to the 'contents and happenings in
his home.      See generally      Alderman v. United States,       394 U.S. 165
(1969).


                                       p. 3565
!fr.   Don   R. Stilts   - Page 7   ,(,7&762)~




      The Fourth Ameudment’s ban on unreasouable searches and seizures
has supported    challenges  to probation    conditions  requiring  the
probationer  to undergo random searches.  See also Tex. Coast. art. I,
$9.

       In Tames v. State, supra, the defendant was placed on probation
after entering a plea of nolo contendere on a charge of possession                 of
marijuana.      One of the conditions     of probation required the defendant
to submit his person, residence and vehicle            to a starch by any peace
officer    at any time.       The Court of Criminal Appeals invalidated           the
condition,     stating    it was too broad and too sweeping and infringed
upon the probationer’s         rights under the Fourth and Fourteenth Axend-
meats of the federal         Constitution   and article   I, section    9. of the
state constitution.         534 S.W.Zd at 692.    The condition     did not serve
the ends of probation             and permitted   harassing     and intimidating
starches totally       unrelated to his prior conviction       or rehabilitation.
p&      An identical    condition was invalidated      by the Court of CrFminal
Appeals one year after the Tamez decision.               Basaldua v. State,       558
S.W.Zd 2 (Tex. Crib. App. 1977).

       In the years following         the Taxes and Basaldua decisions,            the
courts have exhibited a willingness?accept                conditions    of probation
which require       the probationer     to undergo what are arguably limited
searches and seizures.        In Macias v. State, e,             the court approved
a condition requiring a probationer who had pled guilty to a charge of
delivery     of a controlled     substance to submit to weekly urinalysis
tests administered by his probation officer.             The court concluded that
the taking of urine samples constituted             a search but determined the
condition     was reasonably    related     to the purposes of probation under
Texas law for three reasons.              First,    it served to dissuade          the
probationer      from possessing    illegal    drugs.    Second, it promoted his
rehabilitation       by providing     the probation      officer     with means of
determining      whether rehabilitation        was taking place.         Finally,   it
protected      society  by deterring        the probationer       from engaging in
unlawful drug activities         and by giving        the probation      officer   the
ability    to detect any such activity.         649 S.W.Zd at 152-53.        The court
noted that the terms of the condition             were not overly broad and un-
restricted      so as to permit the kind of intimidating               and harassing
searches condemned in the Tamex and Basaldua cases.                 See also Clay v.
State, 710 S..W.Zd 119 (Tex. App. - Waco 1986, no pet.)                (upholding an
identical    condition of probation).

      The earliest       decision  considering     the constitutionality        of
electronically      enhanced surveillance    reflected   the prevailing      view
that for there to be a search under the Fourth Amendment, the police
must have physically      intruded into a constitutionally     protected    area.
In Olmstead v. United States,       277 U.S. 438 (1928).    the Supreme Court
held that the placement of an eavesdropping device on the defendant’s
telephone and the subsequent monitoring of his conversations             did not
constitute     a search under the Fourth Amendment because the “wires are
not part of his house or office,       any wore than are the highways along



                                       p. 3566
Mr. Don R. Stiles    - Page 8      (J&762),




which they are stretched."       277 U.S. at 465.     The Court later upheld
00. similar   grounds electronic    eavesdropping   upon conversations  in a
neighboring    office   by the use of a "detectaphone"     placed against a
cmaou wall.        Goldman v. United States,     316 U.S. 129 (1942).     In
Silverman v. United States, 365 U.S. 505 (1961). the Court ruled that
eavesdroooiun     bv means of a "mike"       microohone which Dtuetrated     a
common w& Eon&ltuted a Fourth ;\mendmeat &arch.

     The Supreme Court's decision   in Katz v. United States.   389 U.S.
347 (1967).  ushered in a new era of Fourth Amendment analysis.       In
that case, the Court abandoned the "trespass"   doctrine employed in the
Olmstead and Goldman decisions,  declaring that

           the Fourth Amendment protects    people, not places.
           What a person knowingly exposes to the public,
           even in his owu home or office    is not a subject of
           Fourth Amtndment protection.     . . .   But what he
           seeka to preserve    as private,     even in au area
           accessible  to the public,  may be constitutionally
           protected.

389 U.S. at 351.      The Court ruled that eavesdropping  by way of an
electronic  listening  and recording device attached to the exterior of
a public   telephone booth was a search for purposes of the Fourth
Amendment, requiring   government agents to obtain a starch warrant in
advance.

      Justice Barlan, in a concurring opinion that was to eventually
serve as a guide to other courts,      added that the majority opinion of
the Court established    a twofold requirement -- first,     that the person
have exhibited   au actual (&.       subjective)   expectation    of privacy,
and second, that the expectation      be one that society      is prepared to
recognize as reasonable.     389 U.S. at 361.    See California   v. Ciraolo,
476 U.S. -,    106 S.Ct. 1809. 90 L.Ed.Zd ZlO(1986);       Stewart V. State,
681 S.W.Zd 774 (Tex. App. - Houston [14th Dist.]      1984, pet. ref'd).

      In the years following         the Katz decision,        the Supreme Court
considered     the    constitutional      ramifications         of    surveillance
accomplished    by meaus of other          electronic     ~devices such as pen
registers,    Smith v. Maryland. 442 U.S. 735 (1979).              and electronic
tracking devices,    or beepers.       United States v. Karo, 468 U.S. 705
(1984); United States v. Knotts, 460 U.S. 276 (1983).              The devices you
describe   have been compared to beepers,          devices which emit periodic
signals that can be picked up by a radio receiver.               United States v.
Knotts,    460 U.S.    at 277.        See Note,      Electronic     Monitoring     of
Probationers:    A Step Toward Bisrotherl,            14 Golden Gate U. L. Rev.
431 (1984); Electronic    Monitoring, supra.

     In Knotts, the Supreme Court held that the warrantless monitoring
of a beeper placed inside a container of chloroform did not violate
the Fourth Amendment because it revealed no information that could not



                                     p. 3567
Ur. Don R. Stiles    - Page 9      (JM-762)




have been obtained through visual surveillance.        The Court concluded
that the monitoring     of the beeper while the container        was being
transported over public thoroughfares      did not invade any legitimate
expectation of privacy on the defendant’s        part.   One question  left
unanswered was whether the monitoring      of a beeper falls    within the
scope of the Fourth Amendment when it reveals information        that could
not be obtained     through visual    surveillance.     This question   was
answered in the affirmative   in United States v. Karo. supra.

      In Karo the Court was confronted with the monitoring of a beeper
located -de       a private   residence,   an area not open to visual
surveillance.   The Court concluded such monitoring in the absence of a
search warrant or an exception to the warrant requirement violated    the
Fourth Amendment rights of persons having ,,a justifiable   interest   in
the privacy of the residence.”      468 U.S. at 714. The Court rejected
the contention that law enforcement officials

            should be completely free from the. constraints      of
            the Fourth Amendment to determine by means of an
            electronic      device . . .   whether   a particular
            article    -- or a person, for that matter -- is in
            an individual’s     home at a particular  time.

468 U.S. at 716.

       In addition     to the two-point        analysis    originating    with Katz,
Texas courts have directed          attention     to the nature of the actxy
claimad to be a “search.”              Where the activity         is not aimed at
discovering    evidence of a crime , some courts art inclined to rule that
the activity      is not a search.         These courts view a “search” as a
“quest for,     a looking for,       or a seeking out of that which offends
against the law.,,       Vargas v. State. 542 S.W.2d 151, 153 (Tex. Grim.
App. 1976). cert. denied, 429 U.S. 1109 (1977); Garber v. State.~ 671
S.W.2d 94, 97 (Tax. App. - El Paso 1984, no pet.).                 See also Marshall
v. United States, 422 F.2d 185. 189 (5th Mr. 1970) (“search” implies
a probing,     exploratory    quest for evidence of a crime).             Given this
definition,    it can be argued that the monitoring of electronic             devices
in the manuer under consideration             here is not a search,        since the
purpose of the monitoring           is not to uncover evidence of criminal
activity,    but to confirm compliance with a condition                of probation.
The monitoring      devices    (unlike beepers)        are not to be employed in
conjunction with criminal investigations             and therefore will not convey
information      suggesting    criminal     activity     is taking place      in the
probationer’s      home.    The report       submitted     to the Texas Criminal
Justice Policy Council advanced a similar argument:

            It could . . . be argued that the use of an
            electronic device which merely indicates whether a
            person is complying with his curfew restriction,
            would not constitute    a search.   The . . . device
            currently utilized   as a condition of probation is



                                     p. 3568
l4r. Don R. Stiles    - Page 10      (JM-762)




             not capable of monitoring conversations,         uor can
             it determine what the individual         Is doing inside
             the confines of his homa. Its sole purpose is to
             tusure   that the probationer        is complying with
             the conditions     of probation.       It is true that
             the . . . device generates information which could
             not otherwise    be obtained by visual surveLllance,
             but that alone should not taint the device because
             its installation     is with the client's   consent.

Electronic    Monitoring,   supra,   at E-17-E-18.

       These arc persuasive arguments.       However, given the conclusion   in
Macias v. State,        supra.  that the taking of urine samples from a
probationer     is a search and the fact         that electronic    monitoring
devices serve the needs of law enforceneat         in a mauner similar to the
detection   and investigation     of crime , we will assume for the sake of
argument that the electronic!      monitoring of probationers    is a "search"
for the purposes of the Fourth Amendment. Assuming that a search
occurs when an electronic      device worn by a probationer    is monitored by
probation    officials,     it is clear     that such monitoring    cannot be
justified   in this state ou a theory of consent or waiver.

      The Court of Criminal Appeals analyzed the issue of consent in
Tamez v. State, supra.      After observing that a "probationer,        like a
parolee,   has the right to enjoy a significant      degree of privacy,"    the
court ruled that the probationer's        acceptance    of the condition     of
probation permitting warrantless     searches did not authorize      searches
in violation   of the Fourth Amendment:

                It Is clear that protection         afforded   by the
             Fourth Amendment and Article        I. Sec. 9, Texas
             Constitution,   extends to probationers.      This court
             has consistently      and knowingly made this clear
             in ruling     01) appeals     from    orders    revoking
             probation.    (Citations  omitted).

                A diminution of Fourth &mmdment protection          and
             protection    afforded    by Article    I. Sec. 9, Texas
             Constitution.     can be justified     only to the extent
             actually necessitated      by the legitimate    demands of
             the probation       process.     A probationer     may be
             entitled    to a diminished expectation        of privacy
             because of the necessities           of the correctional
             system, but his expectations           may be diminished
             only to the extent necessary for his reformation
             and rehabilitation.

                Further,   it is clear    that in accepting      the
             condition   of probation  the appellant's    'consent'
             was not in fact freely and voluntarily    given.    The



                                      p. 3569
     Hr. Don R. Stiles      - Page 11     (JM-762)




                 choice   to reject  probation   aud go to prison or
                 accept    the probationary    condition   was really
                 no choice at all.    It was in legal effect  coerced.
                 (CLtation omitted).

     534 S.W.Zd at 692.      Thus, the use of electronic   monitoring devices               in
     the probation     system may not be justified  on the theory of consent.

           The passage from Tames just quoted above does, however. provide
     the theory under which we believe         the use of electronic       monitoring
     devices can be coustitutionally      justified.      As the Court of Criminal
     Appeals observed,    probationers,    because of the conditional         liberty
     they are granted.    do not enjoy the same expectation            of privacy as
     non-probatlouers.    Their expectation      of privacy is diminished only to
     the extent necessary      for their    rehabilitation       and the legitimate
     demands of the probation process.       Thus, where it is determined that a
     probationer   may be subjected to reasonable limitations          on his freedom
     of movement or associations,       WC believe    that reasonable     and minimal
     intrusions    into  the probationer’s        privacy    interests    to  confirm
     compliance with the conditions     of probation are permissible.

            Indeed, the Code of Criminal Procedure has authorized                     minimal
     Intrusions      of the probationer’s            privacy     in the home for years.
,-   Article    42.12,     section   6(a)(S).      aut+orisss     the court having juris-
     diction    to impost as a condition           of probation the condition        that the
     probationer      shall “[plermit      the probation officer       to visit   him at his
     home or elsewhere.”          We believe      the privacy intrusion      resulting    from
     the monitoring of the electronic               devices you describe      is strikingly
     different     from the intrusion           resulting    from an actual visit        by a
     probation      officer.       Our research        has yielded      no Texas decision
     invalidating       a condition     of probation       based on section      6(a)(5)     of
     article    42.12.       The reason for this may be that conditions               of this
     type are considered an integral pert of the probation process and have
     been routinely        sustained    elsewhere.      even against a claim that they
     infringe    on a probationer’s         right of privacy.        See Cohen and Gobert,
     supta,-   06.67 (siting       United States v; Manfredo~.             341 F.Supp. 790
     (S.D.N.Y.),     aff,      459 F.2d 1392 (2d Cit.),         cert. denied, 409 U.S. 851
     (1972)).     Thus, it is worth noting the courts have had little                 quarrel
     with wre intrusive         conditions     in the past.

           Our discussion   to this    point has centered     on the privacy
     interests  of the probationer.    We must now address the interests    of
     third persons residing   in the home of the probationer,   the subject of
     your second question.

           In those   states   in which warrantless    search  conditions   of
     probation have been approved under the theory of consent or waiver,
     the courts have not required special procedures,     such as obtaining a
     warrant prior to the search, to safeguard the rights of third persons
C
     residing-with  the probationer.  See People v. Mason, 488 P.2d 630, 634
     (Cal. 1971). cert. denied, 405 UT    1016 (1972); State v. Griffin,   376



                                            p. 3570
Mr. Don R. Stiles          - Page 12   (JM-762)




H.W.2d 62, 67 (Wis. Ct. App. 1985). aff'd,       388 N.W.Zd 535. 541 (Wls.
1986).     But see State v. Velasquez,     672 P.2d 1254. 1260 a.3 (Utah
1983) (dicta     suggesting   that a warrant be obtained     prior   to such
searches).    The rights of such third parsons will be affected       whether
or not a varraat is required,      and in view of the protection   given the
probationer's   rights,   there is no need to require a warrant simply to
protect third persons' rights.      State v. Griffin, 388 N.W.2d at 541.

     Understandably, Texas courts have not had occasion .to consider
this issue following the Tames decision.   Out court which did address
the rights of third persons in this coutext framed the issue thus:

               We recognize   that probationary       status can and
           should carry with it a reduced expectation                  of
           privacy.      But a probationer       is    living    vithiu
           society,      not confined     to    a penal       institu-
           tion.    . . ~. A search of the probationer's            home
           cannot avoid invading the privacy of those with
           whom he way be living,      whether they be ismediate
           family, other relatives,     or friends.       Probationary
           status does not convert a probationer's              family,
           relatives      and  friends     into     'second      class'
           citizens.

               .   .   .    .

               We can only assume a 'respectable      position'     [in
           the debate over the validity      of warrantless starch
           coaditfons      of probation]   if xc can give fair
           consideration      to the rights     of innocent      third
           parties    who way be caught up in the web of the
           probationary       system   or  probationary      process.
           These people are not stripped         of their right of
           privacy because they may be living with a proba-
           tioner or he way be living         with them.      While a
           probationer's     right of privacy may be justifiably
           diminished while on probation,      the rights of these
           people are not so diminished.        We, as veil as the
           trial   courts,   would be derelict     in our duties if
           we failed to consider the rights of these imoceat
           others so that they are not swept away by the
           probationary process.

               .   .   .    .

               These privacy considerations      are inextricably
           interwoven    in   the    relationships    between     a
           probationer   and his family and friends       no less
           than in the relationships    between a nonprobationer
           and his family and friends.          The starch    of a



                                       p. 3571
     Mr. Don R. Stilts      - Page 13       (m-762)




                 probationer's   home will  inevitably    affect               the
                 privacy of those with whom he is living.

     State v. Fogarty.        610 P.2d 140, 151-52 (Wont. 1980).           Quoting and
     relying in part on Tamez, the Montana Supreme Court concluded that an
     unlimited    search condition      was patently     unconstitutional    under both
     the federal     and Montana constitutions.         The court also held that in
     order to protect        the legal    interests   of innocent third persons,         a
     search warrant based on probable             cause must be obtained before          a
     probationer's      residence    may be starched.        It is doubtful      that a
     condition    authorizing     a search of a probationer's       person or property
     authorizes    starches of third persons or their property.           See People v.
     Veronica, 166 Cal. Rptr. 109 (Cal. App. 1980).            The courtBare     divided
     as to whether evidence seized in a search conducted, pursuant to a
     condition   of probation may be used against third persons residing with
     the probationer.         Compare People v. Veronica,        supra, vi2     Luke v.
     State, 344 S.E.2d 452 (Ga. App. 1986).

           The cases discussed in the preceding paragraphs involved physical
     searches      of the probationer's              person    or property       conducted     by
     probation      officials      or police.       Each incident       involved     an actual,
     physical     intrusion      into the privacy of third persons.               We refer to
     these cases only to demonstrate the difficulties                     that inhere when a
C    condition      of probation         authorizes     a physical     invasion    of property
     shared by a probationer            and family or household members. Electronic
     monitoring       devices     do not threaten         third party interests          in this
     manner.      Therefore,       the assumptions wade in the discussion                 of the
     probationer's        privacy interests        cauuot be made with regard to third
     party     privacy       interests.       By the same measure,             we think       the
     distinctions       drawn la the same discussion            between the use of beepers
     and electronic        monitoring devices,         distinctions     not relevant       to the
     privacy      interests       of    the probationer,         are relevant       here.     The
     comparison       betveen      the nature       and level       of intrusion       posed by
     electronic      wnitors      and home visits      by probation officers       is pertinent
     here, too.

            In our opinion,      the possibility     that the privacy interests          of
     third persons residing with electronically          monitored probationers       will
     be comprom&sed is rewte          and the effects     of any intrusion       into the
     privacy     of the home ephemeral.          As you describe      them, electronic
     monitoring devices convey no information            regarding activities       within
     the home other than the presence of the probationer.                    Indeed. the
     devices     impart no information      whatsoever concerning the presence or
     activities     of third persons in the home.           With one exception,         the
     systems you advocate         do not subject       the probationer      to constant
     surveillance     in the home and thus pose the prospect of only sporadic
     and transient        intrusions.      We do acknowledge         the ever-present
     possibility     that a condition of probation , constitutional         on Its fact,
     may be unconstitutionally         applied in a given situation.           See, e.g.,
r‘   Cohen and Gobert, supra. $6.16.           Bowever, you do not suggest, and we
     shall    not speculate,      under what specific        factual   circumstances       a



                                            p. 3572
Mr. Don R. Stiles    - Page 14     (JM-762)




condition     of probation  lmpermlssibly    interferes    with the coastitu-
tioual   rights   of third persons.     Suffice    it to say that under the
information     we have been provided and upon our review of relevant
authorities,     we camot  conclude that the mere use of such devices
compromises the privacy       interests   of third      persons  living  in a
probationer's    home.

Due Process   Considerations

       The Fourteenth  Amendment's guarantee   of due process   may be
relevant   in determining   whether a probatlouer    may object   to a
particular   condition  of probation.   See
                                        -    Cohen and  Gobert,  supra,
95.10.

       The due process clause has been invoked to contest conditions             of
probation which are vague or interfere          with a probationer's    access to
courts.     Id.    Due process and the Texas guarantee of due course of
law, Tex.?%st.        art. I, 519, require a defendant to receive a hearing
before    the imposition     of conditions    which restrict   personal    freedom
and liberty      of movement. Warr v. State, 591 S.W.Zd 832 (Tex. Grim.
App. 1979).       The conditional    freedom afforded probationers    may not be
terxiuated      without    appropriate    procedural  safeguards.     Gagaon v.
Scarpelli.      411 U.S. 778 (1973).        Whether a probationer    may demand
certain conditions      of probation Is doubtful,    however.

       In order to support a violation        of due process,       a person must
establish   a deprivation    of liberty   or property by government action.
Greenholtz v. Wtbraska Penal Inmates, 442 U.S. 1 (1979).                 The courts
look to the nature of the individual's        interest    and require the person
to have a legitimate     claim of entitlement      to it.    Id.    In Greenholts.
the Supreme Court concluded that a statute which crzed                a possibility
of parole provided prison inmates no more than a mere hope that parole
would be obtained.     The parole eligibility       provisions    of article    42.12
have been held to create no protectlble        interest under the due process
clause.    Moncier v. State. 704 S.W.Zd 451 (Tex. App. - Dallas 1986, no
pet.).    Whether Greenholtx requires probationers           to locate a liberty
interest     in  a statute,      administrative       rule,    or   coastitutlonal
provision   is open to debate.     See
                                   -    Cohen  and   Gobert,   supra,   52.27.

       If Greenholts is extended to probation granting procedures,        it is
unlikely that a potential      probationer will be deemed to have a liberty
interest    in receiving   particular    conditions   of probation.    A person
convicted    of a crime has no inherent right to probation.           See Cohen
and Gobert. supra, 14.02.         In the parole setting,      it has beea held
that terms specifying     where a parolee shall live are not subject to a
due process challenge.        Alonxo v. Rosanski,      808 F.2d 637 (7th Cir.
1986).    Article  42.12, section 6(a), of the Cede of Criminal Procedure
neither    limits   nor requires      the court     to impose the conditions
specified    in that section.     See Macias v. State, supra.       The primary
limitation    on the setting ofynditions         of probation is that they be
reasonably related to the treatment of the accused and the protection



                                     p. 3573
    Mr. Don R. Stiles    - Page 15      (JM-762)




    of the public.      Tams v. State,    supsa.    Assuming that a potential
    probationer  is au appropriate   subject for restrictions       on his freedom
    of movameat and associations,     we  do not  believe    that   either  article
    42.12 or e       create an expectation    that these restrictions       will be
    imposed in a particular   manner. Since we have already concluded that
    electronic   monitoring  devices   are no wrt       restrictive     than other
    acceptable  conditions,  we do not believe    a probationer      may object to
    their use as a condition of his probation.

         Your first     two questions   are answered in the negative.

                                          III.

          Your third question.      concerning the possible        requirement that a
    probationer    wear a device attached to his body during the period of
    probation,   raises an issue under the Eighth Amendment to the United
    States    Constitution,   which prohibits         the infliction     of cruel   and
    unusual punishment.      See also Tex. Coast. art. I. 113.           The few cases
    raising this issue suggest that conditions which are excessively              harsh
    or impossible     to comply with may be invalid under this constitutional
    provision.     Cohen and Gobert. w,             05.10.    The Eighth Amendment is
    relevant to your third question because It has beta raised to contest
    the validity       of conditions      requiring     the probationer     to wear a
    particular    item of clothing      or publicly      display a symbol signifying
    his conviction     for a particular     crime.

          The Supreme Court has stated            that   the   inquiry     into     the
    excessivenass    of a particular  punishment involves two aspects:          first,
    the punishment must not involve. an unnecessary and wanton infliction
    of pain, and second, It must not be grossly out of proportion               to the
    severity of the crima being punished.       Gregg v. Georgia. 428 U.S. 153,
    173 (1976).     The second aspect is implicit      in the requirement that a
    condition of probation bear a reasonable relationship          to the treatment
    of the accused and the protection      of the public and Is. in every case,
    a fact    question.     See Tames v. State,      supra.    We will      therefore
    consider    whether    ayondition     of   probation     which    requires      the
    probationer    to wear an electronic       monitoring     device    involves       an
    unnecessary tad wanton infliction      of pain.

           In one case,    the defendant.    on probation    as a result     of his
    conviction    in a purse-snatching    incident,  was ordered to wear shoes
    with leather soles and metal taps on the heels and toes anytime he
    left his house.      People v. McDowell, 130 Cal. Rptr. 839 (Cal. App.
    1976).    The probationer   complained that this condition        of probation
    was tantamount to requiring him to wear a sign proclaiming             he was a
    thief.     The court disagreed    with the notion that persons who wore
    shoes vith metal taps were thought to be thieves by the public and
    noted that the condition      bore a direct     relationship    to the proba-
P
    tioner's    budding carter as a purse snatcher.        130 Cal. Rptr. at 843.
    Compliance with the condition would foster rehabilitation           and promote
    public   safety.    The sound of the taps,      the court concluded,       would



                                        p. 3574
                                                                                      .

UT. Doll R. Stiles   - Page 16      (33-762)




remind the probationer   of the fact that he was on probation and would
quell auy temptation he might have during the period of probation        to
engage In this typo of criminal behavior.    Id.  The court accepted the
substance of the condition,   but ordered theyial   court to clarify    the
condition in light of an ambiguity concerning its application.      Id.
                                                                    -
      A recent Florida         case upheld a condition       imposed as part of
probation    for a conviction        of driving under the influence    of alcohol
vhich required       the probationer      to affix   to his personal    vehicle   a
bumper sticker        reading,    "CONVICTEDD.U.I.      -- RESTRICTEDLICENSE.,,
Golds&mitt      v. State, 490 So.Zd 123 @la.         Dist. Ct. App. 1986).      The
probationer      likened    the condition      to outmoded forms of publicly
suffered     punishment such as the stock             and pillory.     The court
observed.     however, that "[tlhe         mere requirements    that a defendant
display     a 'scarlet       letter'    as part    of his     punishment is     not
accassarily    offensive     to the Constitution."     490 So.Zd at 125.

      The Florida court believed the rehabilitative  effect   of probation
way be enhanced if it "inflicts    disgrace and contumely in a dramatic
and spectacular    manner.,,   &,    guoting  United States    v. William
Anderson Co., Inc.,   698 F.2d 911, 913 (8th Cir. 1982). overruled on
other grounds, United States v. Missouri Valley Constr. Co., 741 F.2d
1542 (8th Cir. 1984).     The court in the William Anderson case also
approved behavioral    sanctions  imposed as conditions     of probation,
citing their deterrent effect:

           Heasures art effective    which have the impact of
           the    'scarlet  letter'   described   by Nathaniel
           Bawthorne, or the English equivalent     of 'wearing
           papers' in the vicinity   of Westminister Rail like
           a sandwich-man's     sign describing  the culprit's
           transgressions.

698 F.2d at 913.

      The Golds&mitt    court  also  considered   the possibility    that
inuocent third persons might be punished by the use of the bumper
sticker,  insofar  as such persons might own or operate        the proba-
tioner's vehicle.   Its doubts were removed when It was wade clear that
the message on the sticker    would be obscured with a special     device
when persons other than the probationer    were using the vehicle.    490
So.Zd at 126 a. 5.

      The courts will not, however, sanction probation conditions which
are excessively   harsh and demeaning.   The Goldschmitt court cited as
an example Bians v. State, 343 So.Zd 913 (Fla. Dist. Ct. App. 1977).
Bieaz concerned a probationer  who vas placed in a halfway house with
directions   that he obey all orders.    The rules of the halfway house
stated that the probationer    was free to leave If any task seemed
demeaning.    A supervisor at the facility   accused the probationer of
behaving like a baby and, as a learning experience,      ordered him to



                                   p. 3575
.

    Mr. Don R. Stiles     - Page 17      (JM-762)




    wear diapers over his clothing.        The probationer  balked at the order,
    choosing    to leave the facility       instead.    His probation was later
    revoked.     The court resolved the case on other grounds but commented:
    “[slufflce     it to say that a command . . . that au adult male wear
    diapers    in public     would certainly     be demaaaiag in the minds of
    so-called     reasonable   men.”   343 So.Zd at 915; see Gold&mitt         V.
    State, 490 So.2d at 126.

          It is apparent, then. that a probation condition            which requires
    the probationer    to wear a prescribed      item will not offend the Eighth
    Amendment merely because it subjects          the probationer    to some measure
    of public disgrace or embarrassment, provided the condition             otherwise
    serves the goals of probation.         The electronic   monitoring devices you
    describe do bear the possibility       of exposing the probationer      to public
    obloquy’ particularly     those which must be worn on the probationer’s
    body.    We do not believe        the potential      for such stigmatization,
    though, readers the employment of such devices an excessive               form of
    punishment.     Moreover, we think the use of electronic              monitoring
    devices would enhance the rehabilitation          of a probationer    for whom a
    curfew is a permissible         condition.      The monitors would not only
    encourage compliance      with curfew,      but act as a reminder of the
    probationer’s   conditional    freedom.     We cannot foresee the possibility
    that third persons residing        with the probationer      will themselves be
    exposed to cruel and unusual punishment by this use df an electronic
    monitoring    device,   particularly     since   there appears to be little
    chance that the device        can be applied       to persons other than the
    probationer.

                                             IV.

          With respect        to your fourth       question.   a requirement       that a
    monitoring device be attached to a telephone in the probationer’s                  home
    (so-called    “passive” monitoring systems) does not change our answers
    to your first         two questions.        There are four reasons          for    this
    conclusion.      First,     it is clear     that the devices    you describe         are
    incapable of transmitting anything wre than an electrical               signal or a
    voice exemplar of the probationer.              Second, as we concluded in our
    discussion     of First Amendment concerns,           we do not believe         that a
    probationer     may object      to the employment of a device which requires
    him to provide voice samples for the purposes of monitoring compliance
    with a condition        of probation.      Cf. United States v. Franks, supra;
    Macias v. State, supra.            Third, whatever intrusion     is occasioned        by
    devices    which must be attached           to a telephone,     it is brief          and
    significantly     less intrusive      than other means available    for monitoring
    a probationer’s        progress.       Compare Code Grim. Proc.        art.      42.12,
    06(a)(5).      Fourth,      the   telephone    requirement   notwithstanding’         we
    remain convinced that electronic            monitoring devices ultimately         serve
    the purposes of the probation process by promoting the rehabilitation
    and reformation of the probationer while providing for the protection
    of the public at large.           We hasten to add that this discussion          should
    not imply that passive monitoring systems are preferable                to “active”



                                          p. 3576
                                                                                              .

Mt. Don R. Stiles      - Page 18       (JR-762)
                                                                                              .




waitoring        systems.   Such a decision         must be made in the first
instance    by     those with administrative         authority and not by this
office.

                                           V.

       To summarize, we conclude             that the employment of electronic
monitoring     devices     as a condition        of probation       does not violate      a
constitutionally       protected interest       of a probationer       or a third person
residing     In the probationer's         home, provided the probationer            may be
subjected     to reasouable       limitations      on his freedom of wvewnt             and
associations.        The attachment of electronic               monitoring    devices    to
either a probationer's           body or to a telephone           in the probationer's
how does wt violate             a constitutioually         protected    interest    of the
probationer     or a third person residing in the probationer's                  how.    We
caution     that vt are here expressing                  no judgment regarding          the
reliability      of any particular       monitoring system and the Implications
of   that     reliability       on the probation           revocation     process.      See
generally,     People v. Ryan, 510 N.Y.S.Zd 828, 832 (N.Y. Grim. Ct. 1987)
(dicta     suggesting     that in-depth       scientific      and technical      testimony
will    be required       when the accuracy          or reliability        of electronic
monitoring       devices     is    made an issue            in probation       revocation
proceedings).

                                     SUMI4ARY

                 The employment of electronic       monitoring devices
             as a condition       of probation    does not violate       a
             constitutionally        protected      interest       of    a
             probationer      or a third person residing           in the
             probationer's      how,  provided the probationer         may
             be subjected       to reasonable     limftations      on his
             freedom     of     movement and associations.             The
             attachment of electronic          monitoring    devices    to
             tither   a probationer's     body or to a telephone in
             the    probationer's      how     does    not    violate    a
             constitutioually          protected        interest        of
             the probationer      or a third person residing        in the
             probationer's     home.




                                                  JIM     MATTOX
                                                  Attorney General of Texas

MARYXRLLRR
Executive Assistant       Attorney   General




                                       p. 3577
Mr. Don R. Stiles   - Page 19      (JM-762)




JUDGEZOLLIE STJ!AKLEy
Special Assistant Attorney      General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




                                   p. 3578
