Can a Texas lottery vending machine scan your driver's license to check your age?

TX AG Opinion GA-0675: Can a lottery vending machine scan a driver's license to verify age?

Plain-English summary

The Chairman of the Texas Lottery Commission asked whether the Commission may use the electronically readable information on the magnetic stripe of a driver's license to verify a person's age at self-service terminals and vending machines that sell lottery tickets. The Commission explained the machine would read the stripe only to check the buyer's age, would not store or compile the data, and the retailer would not have access to it.

The starting point is the State Lottery Act, which makes it a Class C misdemeanor for a sales agent or its employee to knowingly sell a lottery ticket to someone under 18. The age check is meant to comply with that ban.

The hurdle is Transportation Code section 521.126, which generally makes it an offense to access or use the electronically readable information derived from a driver's license. But section 521.126(d) exempts access for a law enforcement or governmental purpose and lists examples, including age checks tied to alcohol and tobacco sales. Drawing on a 2006 opinion (GA-0464) that treated a pharmacy's methamphetamine-precursor age check as serving a law enforcement or governmental purpose, the opinion reasoned that the word "including" introduces an illustrative, non-exclusive list, and that an unlisted activity qualifies if it is like the listed ones. Verifying age to enforce the no-sale-to-minors rule for lottery tickets is analogous to the listed alcohol and tobacco checks. So the sole purpose of the access, enforcing section 466.3051(a), is a governmental purpose, and the Commission is not prohibited from using the machines for that.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Transportation Code section 521.126 and the State Lottery Act have been amended since 2008. Confirm the current text before relying on this analysis.

Who this opinion affected (as of 2008)

The Texas Lottery Commission: The opinion concluded section 521.126 did not bar the Commission from using self-service terminals and vending machines that read a driver's license stripe to verify age.

Lottery retailers and machine operators: The opinion noted the described setup, where the machine (not the retailer) reads the data and nothing is stored, was even less intrusive than the pharmacy scenario in the earlier opinion.

Consumers buying lottery tickets: The opinion treated the age scan as serving the governmental purpose of keeping ticket sales away from anyone under 18.

Common questions

Did the AG say the lottery could scan licenses to check age?
Yes. The opinion concluded the Commission is not prohibited by section 521.126 from using self-service terminals and vending machines to read the license and verify the buyer is 18.

Isn't reading a driver's license stripe generally an offense?
Generally yes under section 521.126(b), but subsection (d) exempts access for a law enforcement or governmental purpose, and the opinion held the lottery age check fits that exception.

Why did the alcohol and tobacco exceptions matter?
The opinion found the lottery age check analogous to the listed exceptions for alcohol (section 521.126(d)(4)) and tobacco (section 521.126(d)(6)) age verification, which helped show it served a governmental purpose.

Was any of the scanned data kept?
The opinion relied on the Commission's representation that the data would not be collected or maintained by the machine, the lottery operator, or the retailer, and that only the machine accesses it on the Commission's behalf.

Background and statutory framework

The State Lottery Act makes it a Class C misdemeanor for a sales agent or employee to knowingly sell a lottery ticket to a person under 18 (Tex. Gov't Code Ann. §§ 466.001, 466.3051(a), (e) (Vernon 2004)). Transportation Code section 521.126(b)(1) generally makes it an offense to access or use electronically readable information derived from a driver's license, except as provided by listed subsections, and section 521.126(d) exempts access for "a law enforcement or governmental purpose," giving examples that include peace officers, voter identification under the Election Code, alcohol sales under Alcoholic Beverage Code section 109.61, and tobacco sales under Health and Safety Code section 161.0825 (Tex. Transp. Code Ann. § 521.126(b)(1), (d) (Vernon Supp. 2008); "department" means the Department of Public Safety, id. § 521.001 (Vernon 2007)). A prior opinion treated a retailer's age check under Health and Safety Code section 486.014 as serving such a purpose and explained that "include" is a term of enlargement, while an unlisted activity must be like the enumerated ones (Tex. Att'y Gen. Op. No. GA-0464 (2006) at 3-5 (quoting Tex. Gov't Code Ann. § 311.005(13)); County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978)). The opinion applied the same reasoning to the lottery age check.

Citations

Statutes and opinions:

• Tex. Transp. Code Ann. § 521.126(b)(1), (d) (Vernon Supp. 2008); § 521.001 (Vernon 2007)
• Tex. Gov't Code Ann. § 466.001; § 466.3051(a), (b), (e), (f) (Vernon 2004)
• Tex. Gov't Code Ann. § 311.005(13)
• Tex. Health & Safety Code Ann. § 486.014
• Tex. Att'y Gen. Op. No. GA-0464 (2006)

Cases:

• County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0675
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0675.pdf

Original opinion text

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

October 30, 2008

Mr. James A. Cox, Jr.
Chairman, Texas Lottery Commission
Post Office Box 16630
Austin, Texas 78761-6630

Opinion No. GA-0675

Re: Whether section 521.126 of the Transportation Code permits the Texas Lottery Commission to use electronically readable information encoded on the magnetic stripe of a driver's license to verify the age of persons using self-service terminals and vending machines to purchase lottery tickets (RQ-0705-GA)

Dear Mr. Cox:

You ask whether section 521.126 of the Transportation Code permits the Texas Lottery Commission (the "Commission") to use electronically readable information encoded on the magnetic stripe of a driver's license to verify the age of persons using self-service terminals and vending machines to purchase lottery tickets.

We first address the authority of the Commission. Chapter 466 of the Government Code relates to the state lottery. See TEX. GOV'T CODE ANN. § 466.001 (Vernon 2004) ("This chapter may be cited as the State Lottery Act."). Under this chapter, a "sales agent or an employee of a sales agent commits an offense if the person intentionally or knowingly sells or offers to sell a [lottery] ticket to an individual that the person knows is younger than 18 years of age." Id. § 466.3051(a). An offense under this subsection is a Class C misdemeanor. Id. § 466.3051(e). You explain the operation of a self-service terminal or vending machine as related to compliance with this statutory restriction:

[This] approach would be to access the electronically readable information encoded on the magnetic stripe on the back of the Texas driver's license. The information accessed would not be stored in the machines. Rather, the machines would simply check the age to determine whether or not to allow the transaction to go forward. The information accessed would not be maintained, compiled or used for any purpose other than verifying [that] the purchaser is over the age of 18. Further, the licensed retailer would not have access to information encoded on the magnetic stripe on the back of the Texas driver's license.

Request Letter, supra note 1, at 1 (footnote omitted).

The access or use of electronically readable information on a driver's license is governed by section 521.126 of the Transportation Code. That statute provides in relevant part that "[e]xcept as provided by Subsections (d), (e), (g), (i), and (j), 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." TEX. TRANSP. CODE ANN. § 521.126(b)(1) (Vernon Supp. 2008). Section 521.126(d) sets out exceptions to the access and use of electronically readable information from a driver's license and reads as follows:

(d) The prohibition provided by Subsection (b) does not apply to a person who accesses, uses, compiles, or maintains a database of the information for a law enforcement or governmental purpose, including:

(1) an officer or employee of the department [of Public Safety] carrying out law enforcement or governmental purposes;

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

(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;

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

(5) a person establishing the identity of a voter under Chapter 63, Election Code;

(6) a person acting as authorized by Section 161.0825, Health and Safety Code; or

(7) a person screening an individual who will work with or have access to children if the person is an employee or an agent of an employee of a public school district or an organization exempt from federal income tax under Section 501(c)(3), Internal Revenue Code of 1986, as amended, that sponsors a program for youth.

Id. § 521.126(d) (emphasis added) (footnote added). Thus, the issue before us is whether compliance with section 466.3051(a) of the Government Code as effectuated in relation to a lottery self-service terminal or vending machine may be said to have a "law enforcement or governmental purpose" as contemplated by section 521.126(d) of the Transportation Code.

In 2006, this office said that the general prohibition of section 521.126 "does not prohibit a retailer, acting in compliance with section 486.014 of the Health and Safety Code, from electronically recording and storing personal data from the driver's license of a person who purchases certain nonprescription drugs that could be used in the manufacture of methamphetamine." Tex. Att'y Gen. Op. No. GA-0464 (2006) at 5. Because section 521.126(d) of the Transportation Code does not specifically list compliance with section 486.014 of the Health and Safety Code as one of the exceptions to the general prohibition, GA-0464 considered whether compliance with that section could be said to have a "law enforcement or governmental purpose" as contemplated by section 521.126. See TEX. TRANSP. CODE ANN. § 521.126(d) (Vernon Supp. 2008); Tex. Att'y Gen. Op. No. GA-0464 (2006) at 4. The opinion, relying on section 311.005(13) of the Government Code, first noted that the term "include" in a statute "is a 'term[] of enlargement and not of limitation or exclusive enumeration, and use of the term[] does not create a presumption that components not expressed are excluded.'" Tex. Att'y Gen. Op. No. GA-0464 (2006) at 3 (quoting section 311.005(13) of the Government Code). The opinion then cautioned, however, that "to be included with a statute's illustrative list, an unenumerated activity must be like the items enumerated." Id.; see also County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978) (construing the phrase "such as" in a statute listing "special defects such as" in light of the ejusdem generis doctrine "to include those defects of the same kind or class as the ones expressly mentioned").

Although a retailer of pharmaceutical drugs was not specifically listed among those persons exempted from the section 521.126 general prohibition, the opinion primarily focused on the fact that section 486.014, Health and Safety Code, forbade the sale of certain products to persons under the age of sixteen years. Tex. Att'y Gen. Op. No. GA-0464 (2006) at 2-3. The opinion then analogized the requirement found in section 486.014 of the Health and Safety Code to those listed in the specific exceptions to section 521.126(d) of the Transportation Code, permitting a retailer's access or use of electronically readable information on a driver's license to aid enforcement of a state law. See id. at 4. The opinion concluded that the sole purpose of the retailer's access to or use of the information was to serve a law enforcement or governmental purpose. Id. at 4-5.

Likewise, in the situation you pose, the purpose and operation of the restriction on the sale of lottery tickets to persons under the age of eighteen years is analogous to certain specific exceptions listed in section 521.126(d), especially those having to do with the sale of alcoholic beverages to persons under the age of twenty-one years in section 521.126(d)(4), and with the sale of tobacco products to persons under the age of eighteen years in section 521.126(d)(6). The sole purpose of accessing the information in question is to permit the Commission to enforce the requirement of section 466.3051(a) of the Government Code: to prohibit the sale of lottery tickets to persons under the age of eighteen years. As such, section 466.3051(a) describes a law enforcement or governmental purpose exception to section 521.126 of the Transportation Code.

In answer, then, to your specific question, because the use of electronically readable information on a driver's license to verify the age of a person attempting to purchase a lottery ticket serves a legitimate law enforcement or governmental purpose, the Commission is not prohibited by section 521.126 of the Transportation Code from using self-service terminals and vending machines to accomplish that purpose.

SUMMARY

Because the use of electronically readable information on a driver's license to verify the age of a person attempting to purchase a lottery ticket serves a legitimate law enforcement or governmental purpose, the Texas Lottery Commission is not prohibited by section 521.126 of the Transportation Code from using self-service terminals and vending machines to accomplish that purpose.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes:

1 Letter from James A. Cox, Jr., Chairman, Texas Lottery Commission, to Honorable Greg Abbott, Attorney General of Texas (Apr. 24, 2008) (on file with the Opinion Committee, also available at www.texasattorneygeneral.gov) [hereinafter Request Letter].

2 Likewise, a person under the age of eighteen years commits an offense if he or she purchases a lottery ticket or falsely represents himself or herself to be at least eighteen years of age in order to purchase a lottery ticket. TEX. GOV'T CODE ANN. § 466.3051(b) (Vernon 2004). Such an offense is punishable by a fine not to exceed $250. Id. § 466.3051(f).

3 The term "department" is defined for purposes of chapter 521 of the Transportation Code as "the Department of Public Safety." TEX. TRANSP. CODE ANN. § 521.001 (Vernon 2007).

4 In fact, the use of the machine-reading device of which you inquire is substantially less intrusive upon the privacy of an individual than was the case in Attorney General Opinion GA-0464. A letter from your assistant general counsel informs us that the Commission, rather than the retailer, "has control of the ITVM and SST machines placed in retailer locations." In addition, "GTECH, as the lottery operator and through the lottery operator contract, places the machines and performs maintenance on the machines." Most significantly, "[t]he data from the driver's license magnetic stripe would not be collected or maintained in any way by the machine, GTECH, or the retailer." To summarize, "only the machine itself, on behalf of the Texas Lottery Commission, accesses the data from the driver's license." Letter from Deanne F. Rienstra, Assistant General Counsel, Texas Lottery Commission, to Rick Gilpin, Assistant Attorney General, Opinion Committee, at 1 (July 24, 2008) (on file with the Opinion Committee).