Can a Texas county track the phone numbers its employees dial from county phones?

Texas AG Opinion JM-983: Can a County Log the Numbers Dialed From Its Phones?

Plain-English summary

Harris County ran a system, a Station Message Detail Recording setup wired into its phone switchboard, that logged the details of long-distance calls made from county phones: the number called, which county phone placed the call, how long it lasted, when it happened, and which carrier handled it. The county used it for practical reasons, spotting overloaded lines, billing, gathering administrative data, and catching unauthorized long-distance use to avoid wasting public money. It wanted to extend the system to local calls too, to see whether pricey directory-assistance and operator break-in calls were really necessary. The county attorney asked whether any of this was legal.

The catch is a Texas criminal statute about "pen registers." A pen register, in the legal definition, is a device that attaches to a phone line and can record the outgoing numbers dialed, without capturing the content of the call or the source of incoming calls. The Attorney General concluded that the county's system fits that definition squarely, because it records the numbers called. And article 16.03 of the Penal Code makes installing or using a pen register a criminal offense, a third-degree felony, unless a specific exception or defense applies.

There is an exception for telephone "common carriers," the phone companies themselves, who obviously need to record dialed numbers to run their networks. But a county is not a common carrier, and the equipment here was not owned by a carrier and operated on the county's behalf. So that exception was no help.

That left an affirmative defense built into the statute. It protects an employee of a "lawful enterprise" who uses a pen-register-type device as a necessary incident to providing the enterprise's service or protecting its property and services, as long as the point is not to gather information for a law enforcement or private investigative agency (beyond tracking theft of the enterprise's own phone services). The county's monitoring, aimed at controlling its own phone costs, sounds like it could fit. But the Attorney General stopped short of clearing it. Whether the defense actually applies depends on the specific facts, and a defendant has to prove an affirmative defense by a preponderance of the evidence. Sorting out those facts is a job for a court, not the opinion process, so the opinion could only flag the prohibition and the possible defense, not bless the practice.

Currency note

This opinion was issued in 1988. 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 Texas pen-register statutes have been reorganized and amended since 1988, and federal and state electronic-surveillance law has changed considerably. The pen-register provisions once in article 16.03 of the Penal Code and article 18.21 of the Code of Criminal Procedure have been amended and renumbered over the years, and the federal common-carrier definition has moved as well. Anyone dealing with call-detail monitoring today, whether a government employer or a private one, should consult the current Code of Criminal Procedure electronic-surveillance provisions, current Penal Code law, and current federal law rather than the 1988 article numbers described here.

Who this opinion affected (as of 1988)

Harris County and other county governments: The opinion warned that using a device that records outgoing numbers dialed is prohibited by the pen-register statute, and that the common-carrier exception does not save a county.

Public and private employers monitoring phone use: The opinion identified the affirmative defense for a lawful enterprise recording dialed numbers as a necessary incident to its own service or property protection, while leaving its application to the facts.

County employees and callers: The opinion reflected that logging the numbers dialed from county phones implicates a criminal privacy statute, not just an internal administrative policy.

Common questions

Is logging the numbers dialed from office phones a "pen register"?
Yes, if the device attaches to a phone line and can record outgoing numbers dialed. In this opinion the Attorney General concluded the county's call-detail recording system met that definition under article 18.21 of the Code of Criminal Procedure.

Isn't a county allowed to run this like the phone company does?
No. The common-carrier exception in article 16.03 applies to telephone carriers, and the Attorney General concluded a county is not a common carrier, nor was the equipment owned by a carrier and operated for the county.

So is the county's phone monitoring legal or not?
The Attorney General did not decide. Using such a device is prohibited unless an affirmative defense applies, and whether the county's cost-control monitoring qualifies for the statute's affirmative defense depends on facts the opinion process cannot resolve.

What is the affirmative defense?
It covers an employee of a lawful enterprise using the device as a necessary incident to rendering the enterprise's service or protecting its property and services, and not to gather information for a law enforcement or private investigative agency. The defendant must prove it by a preponderance of the evidence.

Background and statutory framework

The county described its Station Message Detail Recording (SMDR) system as a computer interfacing with a PBX switchboard that records every electronic event related to long-distance functions: the number of long-distance calls, the number called, the county telephone used, the length, time, and long-distance carrier, and it records incoming traffic without the originating number. The Department of Communications used it to monitor volume, switch calls when a PBX cabinet overloads, bill, gather administrative data, identify unauthorized long-distance usage, and avoid waste. The county wanted to extend it to local-call data to assess the necessity of directory-assistance and emergency break-in calls.

Article 16.03 of the Penal Code prohibits the use of a pen register, with exceptions and affirmative defenses. It provides that, except as authorized by a court order under article 18.21 of the Code of Criminal Procedure, a person commits an offense if he knowingly installs or utilizes a pen register to record telephone numbers dialed from a telephone instrument, and that an offense is a felony of the third degree. Article 18.21 defines a "pen register" as a mechanical or electronic device that attaches to a telephone line and is capable of recording outgoing numbers dialed from that line but is not capable of recording the origin of an incoming communication or the content of a communication, and provides a procedure for a judge to order installation and use of a pen register by an officer commissioned by the Department of Public Safety.

Because the county's system records the telephone number called, it falls within the definition of a pen register. Section (c) of article 16.03 provides an exception where a communications common carrier, as defined by section 153(h), title 47, United States Code, installs or utilizes a device to record the numbers dialed. Section 153(h) defines "common carrier" as any person engaged as a common carrier for hire in interstate or foreign communication by wire or radio (excluding radio broadcasting). A county is not a common carrier, nor is the equipment apparently owned by a common carrier and operated for the county, so the exception does not apply.

Section (d) of article 16.03 provides an affirmative defense to prosecution: that the installation or use of the pen register was made by an officer, agent, or employee of a lawful enterprise while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the 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. Whether the county has such an affirmative defense depends on whether the information gathered meets those conditions, and the resolution of those factual issues is not within the province of the opinion process. Under article 2.04(d) of the Penal Code, a defendant must prove an affirmative defense by a preponderance of the evidence. Graham v. State, 566 S.W.2d 941 (Tex. Crim. App. 1978). A pen register used in violation of the section is subject to seizure and forfeiture to the Department of Public Safety under article 18.18 of the Code of Criminal Procedure.

Citations

Statutory authority:

• Penal Code art. 16.03 (prohibition on installing or using a pen register; common-carrier exception; affirmative defense; third-degree felony)
• Penal Code art. 2.04(d) (defendant must prove an affirmative defense by a preponderance of the evidence)
• Code of Criminal Procedure art. 18.21 (definition of "pen register"; court-ordered installation procedure)
• Code of Criminal Procedure art. 18.18 (seizure and forfeiture of property)
• 47 U.S.C. § 153(h) (federal definition of "common carrier")

Cases:

• Graham v. State, 566 S.W.2d 941 (Tex. Crim. App. 1978)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-983
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0983.pdf

Original opinion text

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

November 21, 1988

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002

Opinion No. JM-983

Re: Authority of Harris County 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 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-in' 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 authorized by 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 register' has the same meaning as is given that term in Article 18.21, Code of Criminal Procedure, 1965.

(c) It is an exception to the application of Subsection (a) of this section that an officer, employee, or agent of a 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 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.

(d) It is an affirmative defense to prosecution under this section that the installation or utilization of a pen register was made by an officer, agent, or employee of a lawful enterprise while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the 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.

(e) An offense under this section is a felony of the third degree.

(f) 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 a telephone line and is capable of recording 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 "a 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 "common 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 The 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 a preponderance of the evidence. Graham v. State, 566 S.W.2d 941 (Tex. Crim. App. 1978).

SUMMARY

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

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 Tom G. Davis
Assistant Attorney General