Robert Bernstein, M.D., F.A.C.P. Opinion No. JM-1073
Commissioner of Health
Texas Department of Health Re: Reconsideration of
1100 West 49th Street JM-983 (igaa), regarding
Austin, Texas 78769 the use of Station Message
Detail Recordings (RQ-1641)
Dear Dr. Bernstein:
You have asked that we reconsider Attorney General
Opinion JM-983 (1988), in which we concluded that a Station
Message Detail Recording device (SMDR) was a pen register.
We have received a number of letters and briefs arguing that
an SMDR is not in fact a pen register.
In reviewing those letters and briefs we conclude that
we based our determination that an SMDR is a pen register on
a rather scant description of the device at issue in that
opinion. The letters and briefs we received contain
persuasive arguments that an SMDR is not in fact a pen
register. We decline, however, to make a determination
about whether an SMDR as described in those briefs and
letters is or is not a pen register since we cannot make a
determination that requires the resolution of fact issues.
We emphasize again, however, that even if a device is a
pen register, its use is permissible if the use "is a
necessary incident to the rendition of service or to the
protection of property of or services provided by the
enterprise" and ,is not used for law enforcement or private
investigative purposes. Penal Code art. 16.03(d). . The use
at issue in Attorney General Opinion JM-983 was to help the
county "to identify unauthorized long distance telephone
usage and avoid waste of County funds." We think such a use
is clearly a permissible one under article 16.03(d) of the
Penal Code.
In conclusion, we withdraw Attorney General Opinion
JM-983 and decline to make determinations about whether
particular devices are or are not pen registers. Regardless
of whether a device is a pen register, however, the use of
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Dr. Robert Bernstein - Page 2 (JM-1073)
the device to protect state property by recording the origin
of incoming communications as well as outgoing numbers
called in order to prevent the public from paying for
private calls is permissible under article 16.03(d) of the
Penal Code.
SUMMARY
Regardless of whether a device is a pen
register, the use of su.ch a device to protect
state property by recording the origin of
incoming communications as well as outgoing
numbers called in order to prevent the public
from paying for private calls is permissible
under article 16.03(d) of the Penal Code.
Attorney General Opinion JM-983 is withdrawn.
J
Very truly you
A/;,
JIM MATTOX
Attorney General of Texas
WARY KELLER
First Assistant Attorney General
LOU-MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
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