November 21, 1988
Honorable Mike Driscoll opinion NO. JR-983
Harris County Attorney
1001 Preston, Suite 634 Re: Authority of Harris County
Houston, Texas 77002 to establish a system which
monitors telephone calls
(RQ-1497)
Dear Mr. Driscoll:
You ask whether Harris County may utilize a station
message detail recording system to monitor telephone calls.
YOU furnish the following background information:
The Station Message Detail Recording
(SMDR) is a computer which interfaces with a
PBX switchboard via a data point information
switch. The SMDR records every electronic
event related to the long distance functions
of a telephone line. Briefly, by means of
the SMDR, a record is made of the number of
long distance calls made, the telephone
number called, the County telephone from
which the call was made, length of each call,
time of the call and the long distance
carrier used. Incoming traffic to county
telephone instruments is also recorded,
although no record is made of the originating
telephone number.
While the system is currently used by the county to
monitor long distance telephone calls, you advise that the
county contemplates extending its use to local calls.
You state that the system is presently being used by
the Harris County Department of Communications for the
following purposes:
Harris County Department of Communications
uses the SMDR to monitor volume, to enable
the system to switch calls if a telephone PBX
p. 5018
Honorable Mike Driscoll - Page 2 (JR-983)
switching cabinet becomes overloaded: for
billing, and gathering administrative data.
The SMDR helps the County to identify
unauthorized long distance telephone usage
and avoid waste of County funds.
The planned extension of "its application to gather
local telephone call data" results from the fact that
"substantial amounts of county funds are expended on
'directory assistance' and 'emergency break-in8 calls." YOU
advise that the purpose for utilizing the system for local
calls is as follows:
By monitoring local telephone call data an
assessment could be made of the necessity of
such calls and measures instituted to avoid
unnecessary expenditure of county funds.
Article 16.03 of the Penal Code prohibits the use of a
pen register but provides for exceptions and affirmative
defenses. Article 16.03 provides:
(a) Except as authorizedby a court order
obtained under Article 18.21, Code of
Criminal Procedure, 1965, a person commits an
offense if he knowingly installs or utilizes
a pen register to record telephone numbers
dialed from a telephone instrument.
(b) In this section, 'pen resister' has
the same meaninc as is siven that term in
rticle 18.21, Code of Criminal Procedure,
!L.
(c) It is an exception to the application
of Subsection (a) of this section that an
officer, employee, or agent of a communica-
tions common carrier, as defined by Section
153(h), Title 47, United States Code,
installs or utilizes a device or equipment to
record the numbers dialed from a telephone
instrument in the normal course of business
of the carrier or assists a peace officer
commissioned by the Department of Public
Safety in executing an order issued under
Article 18.21, Code of Criminal Procedure,
1965.
p. 5019
Honorable Mike Driscoll - Page 3 (JM-983)
(d) It is an affirmative defense to prose-
cution under this section that the installa-
tion or utilization of a pen register was
made by an officer, agent, or employee of a
lawful enterprise while engaged '
activity that is a necessarv incident :E tk:
rre on 0 0
pr nertv of or services nrovided bv the
gn:ernrise. and was not made for the nurnose
of cratheriag information for a law enforce-
ment acencv or nrivate investiaative acencv.
other than information related to the theft
f
0 c un' ices
provided bv the ented.
(e) An offense under this section is a
felony of the third degree.
(0 A Pen register used in violation of
this section is subject to seizure and may be
forfeited to the Department of Public Safety
in the manner provided for disposition of
seized property by Article 18.18, Code of
Criminal Procedure, 1965, as amended.
(Emphasis added.)
"Pen register" is defined in article 18.21 of the Code
of Criminal Procedure as follows:
'Pen register' means a mechanical or
electronic device that attaches to
telephone line and is capable of recordin;
outgoing numbers dialed from that line but is
not capable of recording the origin of an
incoming communication to that line or the
content of a communication carried between
that line and another line.
Article 18.21 provides for a procedure whereby a judge
may order the installation and utilization of a pen register
by an officer commissioned by the Department of Public
Safety.
The information you furnish reflects that the system
presently used by the county records the telephone number
called. Such a device falls within the definition of a "pen
register" as that term is defined in article 18.21.
Section (c) of article 16.03 provides for an exception
to the prohibition of the use of a "pen register*' where I1a
P. 5020
Honorable Mike Driscoll - Page 4 (JM-983)
communications common carrier, as defined by Section 153(h),
Title 47, United States Code, installs or utilizes a device
or equipment to record the numbers dialed."
Section 153(h), 47 U.S.C.A., defines "common carrier"
as follows:
'Common carrier' or *carrier* means any
person engaged as a common carrier for hire,
in interstate or foreign communication by
wire or radio or in interstate or foreign
radio transmission of energy, except where
reference is made to common carriers not
subject to this chapter: but a person engaged
in radio broadcasting shall not, insofar as
such person is so engaged, be deemed a common
carrier.
Clearly, a county is not a llcommon carrier," nor is the
equipment in question apparently owned by a common carrier
and operated for the county.
While use by the county of a mechanical or electronic
device that attaches to a telephone line and is capable of
recording outgoing numbers such as the system you describe
is prohibited, section (d) of article 16.03 provides for
certain affirmative defenses to prosecution.
Whether the county has an affirmative defense under
article 16.03 is dependent upon whether the information
gathered by use of this system "is a necessary incident to
the rendition of service or to the protection of property of
or services provided by the enterprise, and was not made for
the purpose of gathering information for a law enforcement
agency or private investigative agency, other than
information related to the theft of communication
information services provided by the enterprise."1 TEE
resolution of these factual issues is not within the
province of the opinion process.
1. Under article 2.04(d) of the Penal Code the
defendant must prove an affirmative defense by
preponderance of the evidence. Graham v. State, 566 S.W.2:
941 (Tex. Crim. App. 1978).
p. 5021
Honorable Mike Driscoll - Page 5 (JM-983)
The use by a county of any mechanical or
electronic device that attaches to a
telephone line and is capable of recording
outgoing numbers is' prohibited by article
16.03 of the Penal Code. Whether the county
has an affirmative defense to a prosecution
for such violation is dependent upon the
resolution of factual issues that is not
within the province of the opinion process.
JIM MATTOX
Attorney General of Texas
MARYRELLER
First Assistant Attorney General
IOU MCCRHARY
Executive Assistant Attorney General
JUDGE ZOLLIE STRARLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 5022