Can a Texas government office monitor phone call records to stop unauthorized long-distance calls?

Texas AG Opinion JM-1073: Can an Agency Track Phone Records to Stop Private Calls?

Plain-English summary

The Commissioner of Health asked the Attorney General to take another look at a 1988 opinion, JM-983, which had concluded that a Station Message Detail Recording device (an SMDR, the kind of equipment that logs the numbers dialed and other call data on a phone system) was a "pen register." After that opinion issued, the AG's office received several letters and briefs arguing that an SMDR is not really a pen register at all.

The Attorney General agreed the earlier conclusion rested on a thin description of the device. The new briefs made persuasive arguments the other way. But rather than swing to the opposite conclusion, the AG stepped back from deciding the classification question at all. Whether a particular SMDR counts as a pen register depends on exactly what the device does and how it works, and those are fact issues an attorney general opinion cannot resolve. So the opinion declined to rule on whether any given SMDR is or is not a pen register.

What the opinion did make clear is that the label does not change the bottom-line answer for the use in question. Even if a device is a pen register, its use is permissible when it "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 investigation. Penal Code article 16.03(d). The use behind JM-983 was to help a county identify unauthorized long-distance telephone usage and avoid wasting county funds. The AG called that a clearly permissible use under article 16.03(d).

So the opinion withdrew JM-983 and reframed the answer around the permitted-use rule instead of the pen-register label: regardless of whether a device is a pen register, using it to protect public property by recording the origin of incoming communications and the outgoing numbers called, in order to keep the public from paying for private calls, is allowed under Penal Code article 16.03(d).

Currency note

This opinion was issued in 1989. 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.

The Penal Code provision cited here has been amended and the surrounding law on electronic surveillance, pen registers, and call records (both state and federal) has changed substantially since 1989. The statute citation here reflects the law as it stood in 1989. Anyone dealing with a present-day question about monitoring telephone usage on a government or business phone system should check current Texas law and applicable federal law before relying on this opinion.

Who this opinion affected (as of 1989)

Government offices monitoring their phone systems: The opinion told agencies and counties they could use call-detail recording to catch unauthorized long-distance calls and prevent waste of public funds, treating that as a permitted use under Penal Code article 16.03(d).

Anyone relying on JM-983: The opinion withdrew JM-983, so its conclusion that an SMDR is a pen register no longer stood. The AG declined to substitute a new classification, leaving the pen-register question as a fact-specific matter.

Vendors and users of SMDR equipment: The opinion signaled the AG would not resolve, in the opinion process, whether a particular device is a pen register, because that depends on the device's specific functions.

Common questions

Could a Texas government office use a device that logs phone numbers to stop unauthorized calls?
Yes. The Attorney General concluded that using such a device to protect public property and prevent the public from paying for private calls was permissible under Penal Code article 16.03(d), whether or not the device is a pen register.

Did the AG decide whether an SMDR is a pen register?
No. The AG declined to decide, because whether a given SMDR is a pen register turns on fact issues about how the device works, which an attorney general opinion cannot resolve.

What happened to the earlier opinion, JM-983?
It was withdrawn. The AG concluded JM-983's classification of an SMDR as a pen register rested on a scant description of the device and reframed the answer around the permitted-use rule instead.

What makes such monitoring permissible?
Penal Code article 16.03(d) allows the use of a device when it is a necessary incident to providing service or protecting property, and it is not used for law enforcement or private investigation. Catching unauthorized long-distance usage to avoid wasting public funds fit that description.

Background and statutory framework

The Commissioner of Health asked the office to reconsider Attorney General Opinion JM-983 (1988), which had concluded that a Station Message Detail Recording device (SMDR) was a pen register. The office received letters and briefs arguing that an SMDR is not in fact a pen register. On review, the opinion concluded that JM-983's determination rested on a rather scant description of the device at issue, and that the new materials contained persuasive arguments to the contrary. The opinion nonetheless declined to determine whether an SMDR as described in those briefs and letters is or is not a pen register, because that determination requires resolving fact issues.

The opinion emphasized 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 JM-983 was to help a county identify unauthorized long-distance telephone usage and avoid waste of county funds, which the opinion found clearly permissible under article 16.03(d).

Accordingly, the opinion withdrew Attorney General Opinion JM-983 and declined to decide whether particular devices are pen registers, concluding that regardless of that classification, using a device to protect state property by recording the origin of incoming communications and the outgoing numbers called, in order to prevent the public from paying for private calls, is permissible under Penal Code article 16.03(d).

Citations

Statutory authority:

• Penal Code art. 16.03(d) (permissible use of a device that is a necessary incident to rendition of service or protection of property, not used for law enforcement or private investigation)

Attorney General materials referenced:

• Withdrawn: JM-983 (1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1073
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1073.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

July 13, 1989

Robert Bernstein, M.D., F.A.C.P.
Commissioner of Health
Texas Department of Health
1100 West 49th Street
Austin, Texas 78769

Opinion No. JM-1073

Re: Reconsideration of JM-983 (1988), regarding 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 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 such 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.

JIM MATTOX
Attorney General of Texas

MARY 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