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Office of the Attorney General
State of Texas


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.

      Very truly yours,

      Mattox signature

      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


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