OFFICE OF THE ATTOREEY GENERAL - STATE OF TEXAS 

JOHN ~~RNYN 

October 19,200l 

The Honorable Tony Goolsby Opinion No. JC-0423 

Chair, Committee on House Administration % 

Texas House of Representatives Re: Limitation on disclosure of driver’s license 

P. 0. Box 2910 information imposed by the Federal Driver’s 

Austin, Texas 78768-29 10 Privacy Protection Act (RQ-03 8 1 -JC) 

Dear Representative Goolsby: 

House Bill 3016, adopted by the 77th Texas Legislature, “permits the use of information 

accessed by using the magnetic strip on a . . . driver’s license by persons other than law enforcement 

officials when used to prevent the purchase of alcoholic beverages by minors and to comply with 

Texas Alcoholic Beverage Commission record keeping rules regarding private club memberships.” 

HOUSE COMM. ON LICENSING &ADMINISTRATIVE PROCEDURES, BILL ANALYSIS, Tex. H.B. 3016,77th 

Leg., R.S. (2001). You ask whether this legislation falls afoul of the Federal Driver’s Privacy 

Protection Act, 18 U.S.C. § 2721. In our view, it does not. 

*. 

House Bill 3016 amends the Alcoholic Beverage Code by adding section 109.61, which 

provides: 

(a) A person may access electronically readable information on a 

driver’s license, commercial driver’s license, or identification 

certificate for the purpose of complying with this code or a rule of the 

commission, including for the purpose of preventing the persop from 

committing an offense under this code. 

(b) A person may not retain information accessed under this section 

unless the commission by rule requires the information to be retained. 

The person may not retain the information longer than the 

commission requires. 

(c) Information accessed under this section may not be marketed in 

any manner. 
The Honorable Tony Goolsby - Page 2 (JC-0423) . 

(d) A person who violates this section commits an ‘offense. An 

offense under this section is a Class A misdemeanor. 

Act of May 27’2001’77th Leg., R.S., ch. 1163,200l Tex. Sess. Law Serv. 2486 (to be codified at 

TEX. ALCO. BEV. CODE ANN. 0 109.61). 

As the bill analysis indicates, House Bill 3016 was drafted in response to an opinion of this 

office, Attorney General Opinion JC-0337 (2001). That opinion considered whether the Department 

of Public Safety (the “DPS”), in adopting rules under section 52 1.126 of the Transportation Code 

to insure that magnetic stripe information “is used only for law enforcement or governmental 

purposes,” TEX. TRANSP. CODE ANN. 8 521.126 (Vernon Supp. 2001)’ could restrict usage of the 

information provided on the magnetic stripe to law enforcement and government agency personnel 

acting in their official capacity. See Tex. Att’y Gen. Op. No. JC-0337 (2001). The opinion 

concluded, based on the language and legislative history of the Transportation Code section, that the 

proposed DPS rule “correctly interpreted the legislature’s intent . . . [and] that magnetic stripe 

information contained on a driver’s license or identification card issued by the Department of Public 

Safety may be utilized only by law enforcement and other governmental agency personnel acting 

in their official capacities.” Id. at 5. / 

The opinion specifically rejected the view that “an alcoholic beverage retailer’s use of the 

magnetic stripe information serves a law enforcement purpose because it enables such a retailer to 

more easily identify, and thus refuse to serve minors, and to determine beyond doubt that a particular 

driver’s license or identification card is fraudulent.” Id. at 3. While acknowledging the argument, 

the opinion took the view “that the DPS has the initial discretion to determine what [law enforcement 

or governmental] purposes are,” and had done so in the proposed rule in question. Id. House Bill 

30 16, however, permits the use of magnetic stripe information by private parties to prevent underage drinking or other violations of the Alcoholic Beverage Code. 

You express concern about the relation of House Bill 3016 to the Federal Driver’s Privacy 

Protection Act, 18 U.S.C. 0 2721, which provides in relevant part: 

(a) IN GENERAL. - A State department of motor vehicles, and any 

officer, employee, or contractor thereof, shall not knowingly d&close 

or otherwise make available to any person or entity: 

(1) personal information, as defined in 18 U.S.C. 2725(3), about 

any individual obtained by the department in connection with a motor 

vehicle record, except as provided in subsection (b) of this section; 
The Honorable Tony Goolsby - Page 3 (JC-0423) . 

(b) PERMISSIBLE USES. - Personal information referred to in 

subsection (a) . . . may be disclosed as follows: 

(1) For use by any government agency, including any court or law 

enforcement agency, in carrying out its functions, or any private 

person or entity acting on behalf of a Federal, State, or local agency 

in carrying out its functions. 

(3) For use in the normal course of business by a legi 

business or its agents, employees, or contractors, but only - 

timate 

(B) if such information as so submitted is not correct or is no 

longer correct, to obtain the correct information, but only for the 

purposes of preventing fraud by, pursuing legal remedies against, or 

recovering on a debt or security interest against, the individual. 

(14) For any other use specifically authorized under the law of 

the State that holds the record, if such use is related to the operation 

of a motor vehicle or public safety. 

Driver’s Privacy Protection Act of 1994’18 U.S.C. 8 2721 (a), (b) (1994 & Supp. V 1999)’ amended 

hy Pub. L. No. 106-346. 114 Stat. 1356 (2000) (amendment to be codified at 18 U.S.C. 9 2721(a)). 

The purpose of the Driver’s Privacy Protection Act (the “DPPA”), as the Supreme Court 

noted in Reno v. Condon, 528 U.S. 141,144 (2000), is to establish “a regulatory scheme that restricts 

the States’ ability to disclose a driver’s personal information without tde driver’s consent.” 

Representative James Moran, who introduced the legislation in the United States House of 

Representatives, described the problem the statute seeks to correct thus: 

In 34 states across the country, there are virtually no restrictions on 

who has access to the name and address of licensees. In fact, very 

few Americans realize that by registering their car or obtaining a 
The Honorable Tony Goolsby - Page 4 (JC-0423) 

driver’s license through the DMV, they are surrendering their 

personal and private information to anyone who wants to obtain it. 

139 CONG. REC. E2747-02 (1993) (statement of Rep. James P. Moran). Accordingly, Representative 

Moran described the DPPA as “safeguard[ing] the privacy of drivers and vehicle owners by 

prohibiting the release of personal information - including a person’s name and address - to anyone 

without a specific business-related reason for obtaining the information.” I& 

As the statutory language, legislative history, and case law recited above all make clear, it 

is the dissemination of private information by state departments of motor vehicles such as the Texas 

Department of Public Safety that the DPPA seeks to regulate. But the transactions at issue in House 

Bill 3016 do not directly involve the DPS. The person accessing information from the magnetic 

stripe has presumably obtained possession of the license from the licensee, rather than from the DPS. 

Accordingly, it does not appear to be the case that in this situation the DPS has, in the terms of the 

DPPA, “knowingly disclose[d] or otherwise [made] available” any information. (We note as an 

aside that, given that the magnetic stripe information is “the information printed on the license and 

a physical description of the licensee,” TEX. TRANSP. CODE ANN. 0 521.126(a) (Vernon Supp. 2001)’ 

a transaction permitted by House Bill 3016 would not seem to implicate the DPPA any more than 

would any other instance in which a driver’s license was used as proof of age for a commercial 

transaction.) 

Assuming for the sake of argument, however, that a court were to take the view that allowing 

the use of magnetic stripe information by persons who sell alcoholic beverages to check for underage drinkers did constitute the making available of information protected under the DPPA, we 

believe a case could be made that transactions permitted under House Bill 3016 are permissible 

under at least two separate exceptions permitted by the federal statute - the exceptions for use in the 

normal course of business to verify the accuracy of personal information submitted, see 18 U.S.C. 

8 272 1 (b)(3) (1994 & Supp. V 1999)’ and for “any other use specifically authorized [by state law] . 

. . related to . . . public safety.” Id. tj 272 1 (b)( 14). 

While there is little case law interpreting the DPPA, and accordingly little guidance 

concerning the breadth of the statutory exceptions, we note that subsection (b)(3)‘s exception of 

“use in the normal course of business by a legitimate business . . . to verify the accuracy of personal 

information submitted by the individual” appears to us precisely to describe the activity popularly 

known as “carding” by those who sell alcoholic beverages. That is, a person attempting to purchase 

such a beverage is asked to provide verification for the claim that he or she is twenty-one years of 

age. What House Bill 3016 provides is a method by which that claim may be verified. When the 

license is provided, its electronic reading assures that the information on the face of the license has 

not been tampered with. Such a use as this is exactly the sort excepted by the language of 18 U.S.C. 

6 272 1 (b)(3). 
The Honorable Tony Goolsby - Page 5 (JC-0423) 

Further, subsection (b)( 14)’ the DPPA’s “catch-all” provision, excepts from its coverage “any 

other use specifically authorized under the law of the State that holds the record, if such use is related 

to the operation of a motor vehicle or public safety.” 18 U.S.C. 9 2721(b)(14) (1994). The laws 

related to the possession of alcohol by minors are to be found in chapter 106 of the Alcoholic 

Beverage Code. The public policy which that Code articulates, and in light of which it is to be 

construed, is stated in section 1.03 of the Code: 

This code is an exercise of the police power of the state for the 

protection of the welfare, health, peace, temperance, and safety of the 

people of the state. It shall be liberally construed to accomplish this 

purpose. 

TEX. ALCO. BEV. CODE ANN. 8 1.03 (Vernon 1995). 

In light of the fact that preventing minors from acquiring alcoholic beverages is therefore a 

matter related to the public safety, and the use of magnetic stripe information is specifically 

authorized by House Bill 3016 for that purpose, as well as for the other reasons articulated above, 

we conclude that House Bill 3016 does not fall afoul of the Federal Driver’s Privacy Protection Act. 
The Honorable Tony Goolsby - Page 6 (Jc-0423) 

SUMMARY 

House Bill 3016, which permits the use of magnetic stripe 

information on drivers’ licenses and identification cards issued by the 

Texas Department of Public Safety for the purpose of compliance 

with the Alcoholic Beverage Code and rules promulgated by the 

Alcoholic Beverage Commission, does not violate or conflict with the 

Federal Driver’s Privacy Protection Act, 18 U.S.C. 5 2721. 

Yo rs very trul , 

4Qb-r 

JO&N C&RNYN 

Attorney General of Texas 

HOWARD G. BALDWIN, JR. 

First Assistant Attorney General 

NANCY FULLER 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

James E. Tourtelott 

Assistant Attorney General, Opinion Committee