Texas Penal Code 16.03 – Unlawful Use of Pen Register or Trap and Trace Device

WHAT IS UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE DEVICE IN TEXAS?

A person commits unlawful use of a pen register or trap and trace device by attaching any mechanical or electrical device to a telephone line that records incoming or outgoing numbers.

• What is a trap and trace device? A trap and trace device is a mechanical or electronic device that attaches to a telephone line, and is capable of recording an incoming electronic or other impulse that identifies the originating phone number. Caller-ID is an example of a trap and trace device.

• What is a pen register? A pen register is an electronic device that records the phone numbers dialed from a particular phone line. In other words, an outgoing call log.

WHAT IS THE UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE DEVICE LAW IN TEXAS?

Tex. Penal Code § 16.03. UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE DEVICE.

(a) A person commits an offense if the person knowingly installs or uses a pen register or trap and trace device to record or decode electronic or other impulses for the purpose of identifying telephone numbers dialed or otherwise transmitted on a telephone line.

(c) It is an affirmative defense to prosecution under Subsection (a) that the actor is:

(1) an officer, employee, or agent of a communication common carrier and the actor installs or uses a device or equipment to record a number dialed from or to a telephone instrument in the normal course of business of the carrier for purposes of:

(A) protecting property or services provided by the carrier; or

(B) assisting another who the actor reasonably believes to be a peace officer authorized to install or use a pen register or trap and trace device under Chapter 18B, Texas Code of Criminal Procedure;

(2) an officer, employee, or agent of a lawful enterprise and the actor installs or uses a device or equipment while engaged in an activity that:

(A) is a necessary incident to the rendition of service or to the protection of property of or services provided by the enterprise; and

(B) is 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 or information services provided by the enterprise; or

(3) a person authorized to install or use a pen register or trap and trace device under Chapter 18B, Texas Code of Criminal Procedure.

(d) An offense under this section is a state jail felony.

WHAT IS THE PENALTY CLASS FOR UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE DEVICE IN TEXAS?

Unlawful use of a pen register or trap and trace device is a state jail felony, punishable by 180 days to two years in a state jail facility.

WHAT IS THE PUNISHMENT RANGE FOR UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE DEVICE IN TEXAS?

A person charged with unlawful use of a pen register or trap and trace device, a state jail felony, faces between 180 days and two years in a state jail facility, and a maximum fine of $10,000.

WHAT ARE THE PENALTIES FOR UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE DEVICE IN TEXAS?

As an alternative to state jail time, a person may be placed on either probation after a conviction, or deferred adjudication without a conviction, for a period between two and five years.

WHAT ARE THE DEFENSES TO UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE DEVICE IN TEXAS?

The statute authorizes affirmative defenses to unlawful use of a pen register or trap and trace device. A person accused of using a pen register or trap and trace device may assert it was lawful under the following circumstances:

• The person installing the device is an officer, employee, or agent of a communication common carrier, and installs or uses the device or equipment in the normal course of business to either protect property or services by the carrier, or assist a peace officer legally authorized to install the device;
• The person is an officer, employee, or agent of a lawful enterprise, and the actor installs or uses a device or equipment while rendering services or protecting property or services provided by the enterprise, and is not made for gathering information for a law enforcement agency or private investigative agency.
• The person is authorized by law to install the device, after securing a warrant under Chapter 18B of the Code of Criminal Procedure.

WHAT IS THE STATUTE OF LIMITATIONS FOR UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE DEVICE IN TEXAS?

The limitation period for unlawful use of a pen register or trap and trace device, a state jail felony, is three years.

UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE DEVICE IN TEXAS

The lawful use of a pen registers or trap and trace devices grows more prevalent as technology advances, and as society’s reasonable expectations of privacy in phone numbers and incoming and outgoing calls diminish.

Using pen registers and trap and trace devices is only unlawful if installed by a private person, without authorization from a judge, or to protect the property or services of a lawful enterprise or communication common carrier.

TEXAS UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE DEVICE COURT CASES

The case law regarding unlawful use of a pen register or trap and trace device in Texas shows the narrow circumstances in which using a pen register or trap and trace device is unlawful.

• In Lasater v. State, the defendant and victim were neighbors living on separate sides of a duplex, and were friends. While the victim was in the defendant’s home with his permission, she found a tape recorder, a caller-ID box, a notepad, and earphones. She confirmed her suspicions the defendant was listening in on her phone conversations, and reported him to police. The defendant was convicted of unlawful use of a pen register or trap and trace device, and the appellate court affirmed. Lasater v. State, No. 03-04-00426-CR (Tex. App.—Austin Aug. 28, 2007, pet. ref’d).