The Attorney General of Texas 

April 23, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin, TX. 76711. 2546 

5121475.2501 

Telex 9101674-1367 

TelecoDier 5121475-0266 

1607 Main St., Suite 1400 

Dallas, TX. 75201.4709 

214/742-6944 

4624 Alberta Ave.. Suite 160 

El Paso. TX. 79905.2793 

9151533.3464 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002.6966 

7131650-0666 

606 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

6061747-5236 

4309 N. Tenth, Suite S 

McAllen, TX. 76501-1665 

5121662.4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 76205.2797 

512/225-4191 

An Equal OpportunityI 

Affirmative Action Employer 

Honorable Oscar H. Mauzy, Chairman Opinion No.MW-463 

Senate Comittee on Jurisprudence 

Texas State Senate Re: Legality under new state 

State Capitol Building wiretap law of certain 

Austin, Texas 78711 products now offered for sale 

in Texas 

Dear Senator Mauzy: 

The Sixty-seventh Legislature enacted House Bill No. 360, 

commonly known as the "wiretap bill." Acts 1981, 67th Leg., ch. 275, 

at 729. This bill amended section 16.02 of the Penal Code and enacted 

article 18.20 of the Code of Criminal Procedure. You have asked 

several questions concerning the relationship between this bill and 

its federal counterpart, 18 U.S.C. sections 2510 et seq., the "Omnibus 

Crime Control and Safe Streets Act of 1968" (hereinafter Omnibus Crime 

Control Act). You have also forwarded copies of advertisements for 

particular electronic devices currently for sale in Texas and asked 

whether these devices are "primarily designed or used for the 

nonconsensual interception of wire or oral coranunications." See Code - 

Crim. Proc. art. 18.20, §1(4). 

Your questions can be more readily addressed if certain 

differences between the state and federal laws are kept in mind. 

Article 18.20, section l(4) of the Texas Code of Criminal Procedure 

defines an "electronic, mechanical, or other device" as: 

a device or apparatus primarily designed or used 

for the nonconsensual interception of wire or oral 

communications. 

This term is defined in the federal law, 18 U.S.C. section 2510(5), 

as: 

Any device or apparatus which can be used to 

intercept a wire or oral communication other than: 

(a) any telephone or telegraph instrument, 

equipment or facility, or any component thereof, 

(i) furnished to the subscriber or user by a 

communications COlUllCXl carrier in the ordinary 

p. 1611 
Honorable Oscar H. Mauzy - Page 2 (MW-463) 

course of its business and being used by the 

subscriber or user in the ordinary course of its 

business; or (ii) being used by a communications 

common carrier in the ordinary course of its 

business, or by an investigative or law 

enforcement officer in the ordinary course of his 

duties; 

(b) a hearing aid or similar device being 

used to correct subnormal hearing to not better 

than normal. 

You ask whether these definitions are the same, and, if they are not, 

how they differ. 

Section 16.02(d) of the Texas Penal Code provides that: 

Except as provided by Subsection (e) of this 

section, a person commits an offense if he 

knowingly or intentionally manufactures, 

assembles, possesses, sells, sends, or carries an 

electronic, mechanical, or other device that is 

designed primarily for nonconsensual interception 

of wire or oral communications. (Emphasis added). 

Section 2512(l) of the federal act provides that: 

Except as otherwise specifically provided in this 

chapter, any person who willfully: 

(a) sends through the mail, or sends or 

carries in interstate or foreign commerce, any 

electronic, mechanical, or other device, knowing 

or having reason to know that the design of such 

device renders it primarily useful for the purpose 

of the surreptitious interception of wire or oral 

communications; 

(b) manufactures, assembles, possesses, or 

sells any electronic, mechanical, or other device, 

knowing or having reason to know that the design 

of such device renders it primarily useful for the 

purpose of the surreptitious interception of wire 

or oral communications, and that such device or 

any component thereof has been or will be sent 

through the mail or transported in interstate or 

foreign commerce; or 

.: 

p. 1612 
Honorable Oscar H. Mauzy - Page 3 (MW-463) 

(c) places in any newspaper, magazine, 

handbill, or other publication any advertisement 

of 

(0 any electronic, mechanical, or 

other device knowing or having reason to know 

that the design of such device renders it 

primarily useful for the purpose of the 

surreptitious interception of wire or oral 

communications; or 

(ii) any other electronic, mechanical, 

or other device, where such advertisement 

promotes the use of such device for the 

purpose of the surreptitious interception of 

wire or oral communications, 

knowing or having reason to know that such 

advertisement will be sent through the mail or 

transported in interstate or foreign commerce, 

shall be fined not more than $10,000 or imprisoned 

not more than five years, or both. (Emphasis 

added). 

You ask: 

Are the Texas law [section 16.02(d) of the Penal 

Code] and federal law [section 2512(l) of the 

federal act] compatible or are they in conflict? 

If they are compatible and the federal law is more 

stringent, can the state law be less so? If they 

are compatible and the federal law is less 

stringent, can the state law be more so? Does the 

federal or the Texas law take precedence? 

You appear to be asking whether section 16.02(d) of the Penal 

Code and article 18.20, section l(4) of the Code of Criminal Procedure 

are preempted by the federal act. We answer in the negative. We also 

conclude that these state laws raise no question of constitutional 

privacy, contrary to what your questions appear to assume. 

Besides defining "electronic, mechanical, and other device" and 

regulating various activities pertaining thereto, the 1968 federal 

Omnibus Crime Control Act regulates the interception of oral and wire 

communications. Section 2516 of the .federal act lists the federal 

officers who may seek a judicial order authorizing electronic 

surveillance, and this section and others specify conditions which 

must be satisfied before such an order may be granted. Section 2516 

p. 1613 
Honorable Oscar H. Mauzy - Page 4 (MW-463) 

of the federal act also permits certain state officers to apply to 

state courts for a wiretapping order. Paragraph (2) provides that: 

The principal prosecuting attorney of any State, 

Or the principal prosecuting attorney of any 

political subdivision thereof, if such attorney is 

authorized by a statute of that State to make 

aoolication to a State court judge of competent 

j;isdiction for an order autho&ing or approving 

the interception of wire or oral communications, 

may apply to such judge for, and such judge may 

grant in conformity with section 2518 of this 

chapter and with the applicable State statute an 

order authorizing, or approving the interception 

of wire or oral communications by investigative or 

law enforcement officers having responsibility for 

the investigation of the offense as to which the 

application is made, when such interception may 

provide or has provided evidence of [certain 

specified crimes] designated in any applicable 

State statute authorizing such interception, or 

any conspiracy to commit any of the foregoing 

offenses. (Emphasis added). 

Case law establishes that Congress has "preempted the field" with 

respect to the regulation of the interception of oral and wire 

communications. As to the significance of section 2516(2), courts 

have declared that: 

Several principles emerge from decisions 

interpreting 18 U.S.C. §2516(2) providing for 

state regulation of electronic surveillance. 

First, the federal act is not self-executing on 

the states; in order to obtain a wiretap warrant 

from a state court there must be a state wiretap 

statute in effect. [Citations omitted]. Second, 

although a state *w adopt a statute with 

standards more stringent than the requirements of 

the federal law [citations omitted], 'a state may 

not adopt a statute with standards more 

permissive.... 

State v. Farha, 544 P.Zd 341, 347-48 (Kan. 1975). _ See State v. 

Seigel, 285 A.2d 671 (Md. App. 1971); People v. Shapiro, 409 N.E.2d 

897 (N.Y. Ct. ADD. . . 1980). In other words. a state must, if it enacts 

concurrent legislation dealing with the interception of oral and wire 

communications, enact laws containing standards at least as strict as 

those set forth in the federal act. 

p. 1614 
Honorable Oscar H. Mauzy - Page 5 (MW-463) 

The portions of the state and federal wiretap laws with which you 

are concerned do not, however, deal with the interception of oral and 

wire communications. Instead, they define "electronic, mechanical, or 

other device" and regulate the manufacture, assembly, etc., thereof. 

The legislative history of Title III indicates that Congress did 

not intend that 18 U.S.C. section 2512 preempt state laws enacted to 

address the same narrow subject matter. See S. Rep. No. 1097, 90th 

Cong . , 2d Sess., U.S. Code Cong. & Admin. News 1968, 2112, 2183, cited 

in United States v. Upton, 502 F. Supp. 1193, 1196 (D.N.H. 1980). 

We conclude that Congress has not preempted the "device" field, 

as it has the field of electronic surveillance. As regards "devices," 

therefore, states are free to legislate as they see fit. In other 

words, they may -- as Texas has -- enact legislation which proscribes 

at the state level conduct which congress has prohibited at the 

federal level. 

The language of the federal act itself shows that it applies to 

certain devices which are sent through the mail or transported in 

interstate or foreign commerce. 18 U.S.C. §2512(1). The Texas laws, 

on the other hand, apply to all devices designed primarily for 

nonconsensual interception of w= or oral communications found in 

Texas, regardless of whether they will be mailed or otherwise placed 

in interstate commerce. To the extent that the state laws apply to 

purely intrastate activities, they are unaffected by the federal act. 

Congress has chosen to regulate activities which have a nexus with 

interstate commerce, regardless of whether it could constitutionally 

have done otherwise. See United States v. Burroughs, 564 F.2d 1111 

(4th Cir. 1977). 

Moreover, even to the extent that the Texas statutes regulate 

activities which have a nexus with interstate commerce, viz., the 

manufacture, assembly, etc., of devices which will be sent through the 

mails or transported in interstate or foreign commerce, they are not 

preempted by the federal act. The federal provisions regulating 

"devices" contain no statute analogous to section 2516(2) which seeks 

to define the parameters within which states may legislate, and there 

is no other evidence to indicate that Congress preempted this 

particular field. 

"preempted" where 

Challenged state action will not be regarded as 

it does not stand "as an obstacle to the 

accomplishment and execution of the full purposes and objectives of 

Congress. " Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Federal 

regulation of a field of commerce will not be deemed preemptive of 

state regulatory power absent "persuasive reasons -- either that the 

nature of the regulated subject matter permits no other conclusion, or 

that the Congress has unmistakably so ordained." Florida Lime and 

Avocado Growers, Inc. v. Paul, 373 U.S. 132. 142 (1963). 

p. 1615 
Honorable Oscar H. Mauzy - Page 6 (m-463) 

In short, insofar as they define "electronic, mechanical, or 

other device" and regulate the manufacture, assembly, etc., thereof. 

we conclude that the Texas wiretap statutes to which you refer are not 

preempted by the federal act and may stand alongside that act. 

Offenses occurring within Texas may, therefore, constitute a ViOlation 

of state law, federal law, or both. In view of our analysis, we deem 

it unnecessary to explore the question of whether, and how, the state 

and federal acts otherwise differ. 

With respect to the privacy issue, it is true that requirements 

in the 1968 Omnibus Crime Control Act which are designed to protect an 

individual's right of privacy are the minimum standard and must be 

construed strictly. see, e.g., United States v. Sotomayor, 592 F.2d 

1219 (2d Cir. 1979); United States v. Marion, 535 F.2d 697 (2d Cir. 

1976). "Privacy" is an issue, however, only in the area of electronic 

surveillance, a, the interception of oral and wire communications. 

There are no federal privacy standards applicable to devices. Unlike 

state i&&xlation in the "interception" field, therefore, legislation 

in the "device" field, &. section 16.02(d) of the Penal Code and 

article 18.20, section l(4) of the Code of Criminal Procedure, raises 

no question of constitutional privacy. 

As previously noted, you have submitted advertisements for 

certain listening and recording devices currently sold in Texas. 

Copies of these advertisements are attached. One such device is 

attached to a telephone and automatically records both sides of phone 

conversations. Others are a voice activated control switch and a 

wireless microphone. You ask whether these devices are prohibited by 

section 16.02(d) of the Penal Code. 

Section 16.02(d) of the Texas Penal Code prohibits, among other 

things, the manufacture, sale, or sending of a "device that is 

designed primarily for nonconsensual interception of wire or oral 

communications." The phrase "designed primarily for nonconsensual 

interception of wire or oral communications" is derived from language 

used in the federal statute. 18 U.S.C. §2512. See Attorney General 

Opinion H-770 (1976). Because the Texas statute isnewly enacted, its 

language has not yet been judicially construed. The language of 

section 2512 from which that of the Texas statute is derived, however, 

has been construed by the federal courts to mean that, in order to be 

prohibited under the "primarily useful"/"primary design" test, the 

design of the device whose legality is questioned must possess 

attributes emphasizing the surreptitious character of its use. United 

States v. Schweihs, 569 F.2d 965, 968 (5th Cir. 1978) (citing S. Rep. 

No. 1097, 90th Cong., 2d Sess.. U.S. Code Cong. & Admin. News, 

2183-84, which notes as examples the martini olive transmitter and 

fountain pen microphone). This construction is consistent with the 

tenor of section 16.01(b) of the Texas Penal Code, which defines a 

p. 1616 
, . 

Honorable Oscar H. Mauzy - Page 7 (MW-463) 

"criminal instrument" as anything "specially designed, made or adapted 

for use in the commission of an offense." 

The answer to your question thus depends upon facts relating to 

the design of the device. Certain facts about these items can be 

discerned from the advertisements. As previously stated, we have 

appended copies of these advertisements to this opinion in order to 

show clearly the facts upon which our answer is based. It is our 

opinion, based on an examination of the advertisements, that these 

devices are not prohibited by this Penal Code provision because they 

do not exhibit design characteristics marking an intent for 

surreptitious use. A device is not prohibited because it is small or 

may be adapted to wiretapping or eavesdropping, but only if its design 

makes the likelihood of covert use apparent, as for example, where the 

device is disguised to mask its true function. 

Thus, we cannot conclude from the advertisements submitted to us 

that the advertised devices are prohibited by section 16.02(d) of the 

Penal Code. 

SUMMARY 

Section 16.02(d) of the Texas Penal Code and 

article 18.20, section l(4) of the Texas Code of 

Criminal Procedure, as enacted and amended by 

House Bill No. 360, are not preempted by federal 

statutes, 18 U.S.C. sections 2510(5) and 2512(l), 

and are compatible with those provisions. 

Azs 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

p. 1617 
Honorable Oscar 11. Mauzy - Page 8 @W-463- 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Joe Foy 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

p. 1618 
ATTACHMENT 

Advertisements for listening and recording devices (information 

about manufacturers is deleted).