. 

ATTORNEW GENEECAI.. 

~FTEXAS 

Honorable A. Ross Rommel 

Traffic Safety Administrator 

Executive Department 

Drawer P 

205 Sam Houston slag., 

Austin, Texas 78711 

opinion No. M- 692 

Re: Several questions relative to whether a partieular traffic surveillance 

Dear Mr. Rommel: system is legak~.. 

Your request for an opinion as to whether the operation 

of the described traffic surveillance system is legal, presents the following questions: 

1. Is there an actionable invasion of the 

right of privacy of a person whose 

photograph is taken ona public highway 

by the described traffic surveillance 

system when the photo is used solely for 

speed enforcement purposes? 

2. Is there an actionable invasion of the 

right of privacy of a person whose photo 

is taken on a public highway by the above 

system when used for traffic surveying' 

purposes? 

Your third question has been withdrawn and is therefore omitted. 

4. Assuming that the chain of possession of the 

film is unbroken from the time it is placed 

in the camera until the time of trial of a 

defendant to a speeding violation, would 

the photograph be admissible in evidence 

was proof of identification of the defendant 

and of the speed at which he was driving 

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Hon. A'. 

5. 

, 1 

Ross Rommel, page 2 (M- 692) 

when'the traffic surveillance unit is 

left unattended during its operation? 

With the same assumption as stated in 

Question 4, would the photograph be a'dmlssible in evidence as proof of ldentlfication of the driver and of the speed at 

which he ,was traveling when the traffic 

surveillance unit is attended,by a police 

officer who &es not apprehend the de-~ 

fendant at the time ,of violation? 

According to your letter, this system consists of a 

sensing device, a computer, and a camera with illwinatin~ " 

attachment to measure the spee~d of a,motor vehicle, .photograph the,front view of the,vehicle,. the driver,,its 'reglstration plate, and showing the date, time, location'~and~ 

posted speed limit. The only service requirement ~1s the 

occasional change of film cassettes, and no attendant is 

required for the operation of the system. Its primary intended uses are for traffic speed control and traffic 

engineering survey purposes. Your questions raise issues 

of first impressions in Texas, as there are no court declsions which have decided these issues. 

With reference to your first two questions, "it' is well 

settled that the individual's right to preserve hispersonal 

seclusion must give way to the state's reasonable exercise 

of the police power. Consequently, for example, statutes 

making reasonable provision for taking and keeping fingerprints and photographs of persons accused of crime have been 

sustained. 14 A.&.R.2d 761, Right of Privacy, Sec. 9, Police 

Power., 

In the case of Voelker v. T.yndall. 75 N.E.2d 548 find. 

Sup. 1957:app. denied 7~~ 33 U.S. 834 reh. denied 133 U;S. 8581 

appellant was arrested on a misd&eanor charge end claimed ' 

,an invasion of his right of privacy. The Court, in upholding the right to take his fingerprints and photograph, said: 

"The purpose issingle, clear and 

quite salutary to promote the public safety, by achieving greater 

success in preventing and detect; 

ing crimes and apprehending criminals. The accomplishment of this 

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Hon. A. ROSS Rommel, Page 3 (M-692) 

object has been an important duty of 

government in all times. Not infrequently a lack of accurate identification has been a serious handicap in 

clearing up a crime. It is probable 

that an accurate identification system, 

faithfully administered, may be an 

assistance not only in finding the 

guilty criminal, but in clearing an innocent suspect." 

The rule generally is also stated in 41 Am.Jur. 945, 

Privacy, Sec. 27: 

"It is generally held that the customary 

photographing and measuring of a prisoner 

for the purpose of police records do not 

amount to an invasion of the prisoner's 

right of privacy." 

It is our opinion that a person driving on a public 

highway in an automobile, is subject to public view and to 

the state's reasonable exercise of the police power to promote the public safety. Accordingly, we answer your questions 1 and 2 that there is not an actionable invasion of 

the right of privacy. We find no case authorities recognizing such a right of privacy. Our Courts have 80 far oonfined their decisions in upholding a right of privacy to 

matters relating to marriage. familv and sex. 56 American 

Bar Assn. Journ; 673-677,land see California v: Belous, 

80 Cal.Reptr. 01 Id 

Connecticut, 3 1 U.S. 479 (1965). Tl!i Czu:E h " 

$54, 458 =d 194 (1969 

ave refused 

to extend a riaht of privacy where public health or safety 

or other nolice powers of the state-are a comoetlna'in- - 

terest. Public Unilities Commission v. Poll&, 343 U.S. 451 

(1952); Frank v. Maryland, 359 U.S. 360 (195g . 

Your letter expresses concern as to whether the described 

system can become accepted as a scientifically reliable speed 

testing device. 

The evldentiary proof required In Court for the reception of evidence in this system would be the same as for 

any other photographic system in a criminal case. 

The rule stated in Wigmore, The Science of Judicial 

Proof, p. 450, as quoted in Wilson v. State, 168 Tex.Cr. 

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Hon. A. Ross Rommel, page 4 (M-692) 

239; 328 S.W.28 311 (1959), applies to your questions 4 and 

: 

II 0.. since the additions made possible 

to our unaided senses are due to the.uae of 

instruments constructed on knowledge of 

scientific laws, it is plain that the correctness of the data thus obtainable must 

depend upon the correctness of the instrument in construction and the ability of 

the technical witness to use it. Hence, 

the following three fundamental propositions apply to testimony based on the use 

of all such instruments: 

' 'A. The type of apparatus purporting 

to be constructed on scientific principles 

must be accepted as dependable for the proosed purpose by th profession concerned 

n that branch of s:ience or its related art. 

This can be evidenced by qualified expert 

testimony; or, If notorious, it will be judicially noticed by the judge without evidence.' 

' 'B. The particular apparatus used by 

the witness must be constructed according to 

an accepted type and must be in good condition 

for accurate work. This may be evidenced by 

a qualified expert.' 

" 'C. The witness using the apparatus as 

the source of his testimony must be one 

qualified for its use by training and experience. I" 

As stated in Wilson v. State, supra, "... there 

must be proof that the machine has been properly set up and 

recently tested for accuracy." 

As to your questions 4 and 5 regarding the admissibility in ,evldence of photographs from the traffic surveillance system as proof of identification of defendants and 

speed of driving, the established rules of evidence would 

apply and the burden is upon the prosecution to qualify the 

evidence for submission and to connect up and prove the 

identity.of the defendant committing the offense. This 

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. 
Hon. A. Ross Rommel, page 5 (M- 692) 

would probably be more difficult when the system's units are 

left unattended and the defendant is not apprehended at the 

time and at the scene of the speeding violation. The Court 

would have to be satisfied that the photographs comply with, 

the usual rules of evidence and accurately depict what they 

purport to represent. However, admissibility of the photos 

does not necessarily require identification by an attendant 

or an eye witness. See Scott, Photographic Evidence, 2nd Ed., 

Sec. 1026; Vardilos v, Reed, 320 S.W.2d 419 (Tex.Civ.App. 1959, 

no writ.) 

The speed of motor vehicles may be measured by use of 

a "phototraffic camera",and the "Foto-Patrol" ,which operates 

on an electronic impulse which activates a strobe light camera. 

"It has been held that expert testimony as to the scientific 

principles underlying it and as to its accuracy at the time 

of an alleged speedinff offense is necessary in order to base 

a conviction thereon. 7 Am.Jur.26 871, 872, Sec. 328, Automobile% and Highway Traffic, which cites People v. Pett, 13 

Misc.2d, 975, 178 N.Y.S.2d 550. 

In People v. Hlldebrant, 308 N.Y. 397, 126 N.E.2d 377,’ 

N.Y.Ct.App.(l955), the offense was speeding. Police officers, 

to measure the speed, had used a "phototraffic camera." The 

Court said, "there should be applicable the criminal-law rules 

of presumption of innocence and necessity ,of proof of guilt 

beyond a reasonable doubt." The Court, holding that the 

identity of the driver must be proven, and that proof of 

vehicle ownership alone will not give rise to a presumption 

that the owner was the driver, said: 

,t . . ..Apparently. the question is a new 

one, but that is because speeders are usually pursued and arrested after pursuit, 

whereas this identity question arises because of the use of a photographic spe,ed 

recorded, without pursuit or arrest. The 

device used may be efficient and scientifically trustworthy, its use may make pursuit and immediate arrest Inconvenient or 

unnecessary, and highway safety may be 

promoted by eliminating such pursuits. 

But it takes more than necessity to validate a presumption in a criminal case. 

Tot v. United States, 319 U.S. 463, 467, 

63 S.Ct. 1241;~ 87 L.Ed. 1519, and here 

we do not even have a presumption." 

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Ron. A. ROSS Rommel, page 6 (M-692) 

However, positive identification of the defendant is. 

not required if a witness can testify that the photo~~is a~ 

fair and accurate representation of the scene. 

403 F.2d 977 (6th Mr., 1968). 

U.S. v.Hobbs, 

In Commonwealth v. Buxton,, 205 Mass: 49, 91~ N.E. 128 

(lglC), a speed vlolat$.on case, the question was the CornEetency, of an instrument ‘known as a “photo-speed recorder,. 

The Court said: 

“As a rule the question whether evidence of experiments shall be admitted 

depends largely upon the discretion of 

thetrial judge; and his action in the. 

exercise of this discretion will not be 

reversed unless plainly wrong.?. In thls~ : 

case the result of the experiments did 

not depend upon the fluctuations of human. ‘. 

agencies, nor on conditions whose relations to the result were uncertain, but 

upon the immutable working of natural 

;‘laws; and upon the evidence the preslding judge may well have found thatsuch 

experiments were likely to be more reliable as to the speed of the automobile 

than the conjectural statement ol an eye 

witness or the interested statement of a 

chauffeur. We cannot say as a matter of 

law that the evidence would not justify 

the judge in coming to the conclusion 

that the experiments would be usefu;,? ,, 

determining the speed of the car. - 

deed, it would seem desirable to have 

some machine whose action being dependent 

upon the uniform working of the laws of 

nature would record the speed of a moving object . ” 

It is, therefore, our opinion in answer to your questions, 4 and 5 that the traffic surveillance photographs would 

be admissible in evidence as proof of identification of defendants and their speed of driving, subject to the requirements and rules of evidence hereinabove stated. 

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. 

Hon. A. Ross Rommel, 'page.7 (M-692) 

------- SUMMARY 

There is no actionable Invasion of the right 

of privacy of a person whose photograph is taken 

on a public highway by a traffic surveillance 

system when such photo is used solely for speed 

enforcement or traffic surveying purposes. Such 

photographs would be admissible in evidence as 

proof of identification of defendants and their 

speed of driving, provided they comply with the 

rules of evidence applicable thereto. 

Prepared by Ben M. Harrison 

Assistant Attorney General 

OPINION COMMITTEE 

KERNS TAYLOR, Chairman 

W. E. ALLEN, Co-Chairman 

Houghton Brownlee 

Jim Broadhurst 

Howard Fender 

John Banks 

Tom Bullington 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER, 

Executive Assistant 

NOLA WHITE 

First Assistant 

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