THE ATTORNEY GENERAL 

OF TEXAS 

Jrm BlATrux 

August 4. 1987 

- -PJRAu. 

Mr. Don R. Stiles 

Executive Director 

Adult Probation Commission 

6100 Cameron Road 

Suite 600, Building B 

Austin, Texas 78753 

Opinion No. JM-762 

Re: Constitutional validity of 

electronic monitoring of probatioaers 

Dear Mr. Stiles: 

You inform us that the Adult Probation Commission is considering 

a proposal to permit the use of electronic monitoring devices as a 

condition of probation. The devicas will be employed primarily to 

monitor a probationer’s compliance with curfew hours imposed by the 

court. Some of the monitoring systems require the probationer to wear 

an electronic device attached to his or her body at all times; all 

require the probationer to have access to a telephone in his or her 

residence. Concern about the constitutionality of this use of 

electronic monitoring devices has prompted the following questions: 

1. Do probationers have any constitutionally 

protected interest which would prohibit the use of 

electronic monitoring in the home as a condition 

of probation over the objections of the [probationer]? 

2. Do family members or cohabitants [OfI 

probationers have any constitutionally protected 

interest which would prohibit the use of 

electronic monitoring in the home they share with 

probationers over their objections? 

3. Does the requirement of some system that 

the probationer wear a device attached to his or 

her body at all times have any influence on the 

answers to questions 1 and 2’1 

4. Does the requirement of some systems that 

an.electronic monitoring device be attached to the 

telephone in the home have any influence on the 

answers to questions 1 and 2? 

In our opinion, the employment of electronic monitoring devices 

as a condition of probation does not violate a constitutionally 

p. 3560 
Mr. Don R. Stiles - Page 2 (JM-762) 

protected Interest of the probationer or a third person residing in 

the probationer’s home. Neither do we believe that the attachment of 

the particular devices you have described to either a probationer’s 

body or a telephone in his home violates any constitutionally 

protected interest of the probationer or a third person residing in 

the probationer’s home. 

I. 

In your request letter you describe three types of electronic 

monitoring systems under consideration. The first type of system is 

called an “active” monitoring system: 

Active monitoring. This requires that the probationer have a standard telephone in his home. A 

monitoring device is hooked up to the phone. The 

probationer wears a device that transmits signals 

which the monitor can detect within a certain 

small radius. The monitor is connected through 

the telephone line to a computer which is programed with the schedule that the probationer has 

been ordered by the court to observe. Comunicatlon between the monitor and the computer shows 

whether the probationer is at home at the time he 

is supposed to be. 

A fuller description of the active monitoring system was provided in a 

report recently issued by the Texas Criminal Justice Policy Council: 

The first type of these systems. referred to in 

the earliest literature as ‘active’ systems 

consists of a transmitter unit, a receiver-dialer 

unit, and a central office computer or receiver 

unit. A transmitter,. which is strapped to the 

offender, broadcasts an encoded signal to the 

receiver located in the offender’s home. The 

receiver is connected by the telephone to the 

central office computer or receiver unit. When 

the transmitter being worn by the offender is 

within range of the home receiver, the system 

indicates that they are at the residence. When 

the offender goes beyond the range of the receiver 

unit, i.e., leaves the home. 

transral~r 

the signal from the 

is not received and the system 

indicates absence. If the offender leaves home 

during an unauthorized period, in violation of 

their turf ew, a violation report is generated. 

If, however, the offender leaves the home at a 

time they are authorized to do so, the times of 

arrival and departure are noted, but no violation 

report is generated. 

p. 3561 
. 

Mr. Don R.~ Stilts - Page 3 (JM-762) 

.- 

J. Vaughn, Electronic Monitoring of Offenders 6 (July 1986) (prepared 

for Texas Criminal Justice Policy CouucLl) (hereinafter cited as 

Electronic Monitoring). 

The second type of device described in your letter are the 

so-called “passive” systems: 

Passive monitoring. This also requires a standard 

telephone and a monitoring device in the home. 

The device worn by the probationer does not send 

signals. but must be placed in the monitor when 

the central computer calls the probationer’s home 

at random Intervals during the periods when the 

probationer is ordered to be at home. The monitor 

verifies that the correct device has been used to 

respond to the call. 

‘The Criminal Justice Policy Council report provided this description 

of passive monitors: 

A second type of unit utilizing telephone lines 

for comaunication has been referred to in the 

earlier literature as a ‘passive’ system. It 

consists of a central office computer. au encoder 

device, and a verifier box. The encoder device is 

worn either on the wrist or anRle by the offender. 

The computer is programmed to generate tither 

random calls or to call at specific times to the 

offender’s hone. The offender is required to 

provide voice identification and then insert the 

encoder device into the verifier box. confirming 

their identity. The system will provide exception 

reports if the phone is not answered, if a busy 

signal is received. if an operator intercept 

message is detected, or If the offender fails to 

properly insert the encoder device into the 

verifier box. 

Electronic Monitoring, supra, at 6. The report explained the 

difference between active and passive systems in terns of the amount 

of monitoring accomplished by each type of system. “Active” systems 

operate continuously and monitor the probationer from the moment 

the transmitter is within the range of the receiver. In contrast, 

“passive.” systems are activated by the telephone calls from the 

central reception office and operate only for the duration of the 

telephone call. Id. 

- 

The third type of monitoring system under consideration does not 

require the probationer to wear any device at all but dots involve the 

use of a telephone. A centralized computer sakes telephone calls to 

the probationer’s home at random times during the period in which the 

p. 3562 
Mr. Don R. Stiles - Page 4 ,(JM-762) 

probatiouer is required by the court's order to be at home. The 

probatfoner is directed to repeat selected words and phrases or to 

auswer a series of questions. Sea Electronic Monitoring, supta, at 6. 

The probationer's voice is then electronically compared with a voice 

print previously supplied by the probationer. 

As of July 1986, electronic monitoring systems of one type or 

another were in use in eight states. Electronic Uonitoring, supra, 

(Aootudix D). The state of California recently enacted a statute __ 

authorizing-the use of electronic monitoring devices as part of a 

three-year home detention pilot project. Cal. Penal Code 51203.015 

(West Supp. 1987). The Texas Legislature recently approved the 

employment of electronic monitoring devices in probation and parole 

programs, but its provisions affect probations granted or modified 

after Septexber 1. 1987. Acts 1987. 70th Leg., ch. 1, 057, 15, at 1, 

14 (S.B. No. 215). ThiS opinion does not address the 

constitutionality of the provisions of this legislation. It addresses 

ouly the general question of the constitutionality of electronic 

monitoring devices. 

II. 

The Adult Probation La" states that the terms and conditions of 

probatiou may Include, but are not limited to, those conditions 

expressly provided in the act. Code Crix. Proc. art. 42.12, $6(a). 

The courts are not limited to the conditions enumerated in the act but 

have tide discretion in setting reasonable conditions of probation. 

Macias v. State, 649 S.W.Zd 150 (Tex. App. - El Paso 1983. no pet.). 

Conditions of probation should bear a reasonable relationship to the 

treatment of the accused and the protection of the public. Tamea V. 

State, 534 S.W.2d 686 (Tex. Grim. App. 1976); Macias v. State, supra. 

Whather the use of au electronic monitoring device bears a reasonable 

relationship to the treatment of a particular probationer and the 

protection of the public is a question of fact that cannot be 

determined in an Attorney General's Opinion. See generally Attorney 

General Opinion JM-307 (1985) at 5. 

Your first question concerns whether a probationer has any 

constitutionally protected interest which "ill prohibit the use of 

electronic monitoring devices as part of-his probation. It is well 

understood that, because of their special status, probationers are 

subject to limitations of their constitutional rights from which 

ordinary citizens are free. Macias v. State. 649 S.W.Zd at 152. Any 

restriction placed upon these rights, however, can be justified only 

to the extent actually required by the legitimate demands of the 

probation process and necessary for the probationer's reformation and 

rehabilitation. &, * see also Taxes v. State, 534 S.W.Zd at 692. 

In the Maclas case, the court adopted the test articulated in 

United States v. Tony, 605 P.2d 144. 150 (5th Cir. 1979), to 

p. 3563 
Ur. Don R. Stiles - Page 5 (JM-762) 

detenaiue whether a condition of probation is unduly intrusive on 

constitutioua1l.y protected freedoms: 

The conditions must be ‘reasonably related’ to 

the purposes of the [Federal Probation] Act. Cousideration of three factors is required to 

determine whether a reasonable relationship 

exists: .(l) the purposes sought to be served by 

probation; (2) the extent to which constitutional 

rights enjoyed by law-abiding citizens should be 

accorded to probationers; and (3) the legitimate 

needs of law enforcement. 

Uacias v. State, 649 S.W.Zd at 152. Whether it IS reasonable to 

require a particular probationer to wear an electronic monitoring 

device as a condition of his probation requires an evaluation of the 

facts surrounding his illegal activity and his probation. See 

Attorney General Opinion JM-307 (1985). It is nevertheless possia 

to review the relevant authorities to determine whether the mere use 

of electronic monitors in the probation system impermissibly infringes 

upon a constitutionally protected interest of a probationer or a third 

person residing in the home of a probationer. Your questions raise 

issues under the First, Fourth, Eighth, and Fourteenth Amendments to 

the United States Constitution. We will devote the bulk of our 

discussion to the issue of privacy in the probationer’s home. 

First Amendment Considerations 

The First Amendment to the United States Constitution generally 

protects an individual’s speech, associations, movement, travel, and 

religious beliefs from excessive governmental limitations. See also 

Tex. Coast. art. I, 996. 8, 27. A related concept is the right to 

travel interstate, derived from the privileges and immunities clause 

of %he Fourteenth Amendment. See Edwards v. California,. 314 U.S. 160 

(1941). Although persons serv= a probated sentence are entitled to 

enjoy these rights to a significant degree. the courts have 

consistently held that such rights may be limited to serve the 

purposes of probation. Bowever, because of the preferred nature of 

these rights, courts critically evaluate probation conditions 

restricting them. See Cohen and Gobert. The Law of Probation and 

P;;zo:; 55.10 (1983Td Supp. 1986) [hereinafter cited as Cohen and 

. The interests which are implicated by your request are those 

relating to associations. movement, tad travel. 

The courts have concluded that conditions curtailing a probationer’s associations with certain named persons does not 

impermissibly Infringe upon the right of freedom of association. Tyra 

v. State, 644 S.W.Zd 865 (Tex. App. - Amarillo 1982, no pet.). 

Conditions which prohibit any contact whatsoever between a probationer 

and a complainant have been upheld as reasonable conditions of 

probation. Pequeno v. State, 710 S.W.Zd 709 (Tex. App. - Rouston [lst 

p. 3564 
Mf; Don R. Stiles - Page 6 (JM-762) 

Dist.] 1986. no pet.). In appropriate cases, probation conditions 

imposing a c&few are reasonable, notwithstanding the limits they 

inpose ou a probationer's freedom of movamaut and travel. See Salinas 

v. State, 514 S.W.2d 754 (Tex. Grim. App. 1974). Conditions which 

require the probationer to remain in a specified area are valid. See. 

*. Miller v. State, 330 S.W.Zd 466 (Tex. Grim. App. 1959). 

However, a condition which effectively banishes a probationer from a 

particular area is invalid. See Johnson v. State, 672 S.W.Zd 621 

(Tex. App. - Corpus Christi 1984, no pet.) (banishment from county). 

Also, it has been suggested that conditions limiting a probationer's 

associations could threaten the probationer's right of privacy if 

construed to extend to family members. Cohen and Gobert, suprs. 16.16 

(citing Roe v. Wade, 410 U.S. 113, 152-53 (1973)). 

Given these permissible limitations , we are not persuaded that a 

probatiouar may object to the use of electronic monitoring devices on 

the grounds that it interferes with his freedom of association, 

movement, or travel. Electronic monitoring devices appear no wore 

restrictive than a condition directly limiting movement; they simply 

provide greater assurance that the probationer is conforming his 

conduct to the limitations attached to his conditional liberty. 

Because the devices are incapable of monitoring conversations, we do 

not believe that they will affect a probationer's freedom of sp~eech. 

The fact that the probationer way be required under some systems to 

utter particular words or phrases into a telephone does not change our 

minion. .~~~~~~~~I orovided ~~~ ~~ the condition reauirinn this conduct otherwise 

serves the purposes of probation. -Cf. kited Starts v. William 

Anderson Co., Inc., 698 F.2d 911, 913 (8th Cir. 1982) (referring to 

terms of probation which required price-fixers to deliver speeches to 

civic groups about the ev& of -price-fixing). overruled on other 

grounds, United States v. Missouri Valley Constr. Co., 741 F.2d 1542 

(8th Cir. 1984); United States v. Franks, 511 F.2d 25 (6th Cit.), 

cert. denied, 422 U.S. 1042 (1975) (requiring arrested defendant to 

submit voice exemplars violates no constitutional rights so long as 

underlying seizure of the person was proper). 

Privacy Considerations 

The privacy interests of probationers and nonprobationers do not 

draw protection from a specific guarantee of the federal Constitution, 

but are instead protected by concepts derived from the various 

guarantees of the Bill of Rights and the Fourteenth Amendment, 

particularly the Fourteenth Amendmant's concept of personal liberty. 

See Rot v. Wade, 410 U.S. 113 (1973). Some of these interests were 

addressed in our discussion of the First Amendment. Here, we "ill 

discuss that privacy interest which we believe is most directly 

implicated by the proposal to employ electronic monitoring devices in 

the probation system --,namely, the reasonable expectation of privacy 

a probationer may have with respect to the 'contents and happenings in 

his home. See generally Alderman v. United States, 394 U.S. 165 

(1969). 

p. 3565 
!fr. Don R. Stilts - Page 7 ,(,7&762)~ 

The Fourth Ameudment’s ban on unreasouable searches and seizures 

has supported challenges to probation conditions requiring the 

probationer to undergo random searches. See also Tex. Coast. art. I, 

$9. 

In Tames v. State, supra, the defendant was placed on probation 

after entering a plea of nolo contendere on a charge of possession of 

marijuana. One of the conditions of probation required the defendant 

to submit his person, residence and vehicle to a starch by any peace 

officer at any time. The Court of Criminal Appeals invalidated the 

condition, stating it was too broad and too sweeping and infringed 

upon the probationer’s rights under the Fourth and Fourteenth Axendmeats of the federal Constitution and article I, section 9. of the 

state constitution. 534 S.W.Zd at 692. The condition did not serve 

the ends of probation and permitted harassing and intimidating 

starches totally unrelated to his prior conviction or rehabilitation. 

p& An identical condition was invalidated by the Court of CrFminal 

Appeals one year after the Tamez decision. Basaldua v. State, 558 

S.W.Zd 2 (Tex. Crib. App. 1977). 

In the years following the Taxes and Basaldua decisions, the 

courts have exhibited a willingness?accept conditions of probation 

which require the probationer to undergo what are arguably limited 

searches and seizures. In Macias v. State, e, the court approved 

a condition requiring a probationer who had pled guilty to a charge of 

delivery of a controlled substance to submit to weekly urinalysis 

tests administered by his probation officer. The court concluded that 

the taking of urine samples constituted a search but determined the 

condition was reasonably related to the purposes of probation under 

Texas law for three reasons. First, it served to dissuade the 

probationer from possessing illegal drugs. Second, it promoted his 

rehabilitation by providing the probation officer with means of 

determining whether rehabilitation was taking place. Finally, it 

protected society by deterring the probationer from engaging in 

unlawful drug activities and by giving the probation officer the 

ability to detect any such activity. 649 S.W.Zd at 152-53. The court 

noted that the terms of the condition were not overly broad and unrestricted so as to permit the kind of intimidating and harassing 

searches condemned in the Tamex and Basaldua cases. See also Clay v. 

State, 710 S..W.Zd 119 (Tex. App. - Waco 1986, no pet.) (upholding an 

identical condition of probation). 

The earliest decision considering the constitutionality of 

electronically enhanced surveillance reflected the prevailing view 

that for there to be a search under the Fourth Amendment, the police 

must have physically intruded into a constitutionally protected area. 

In Olmstead v. United States, 277 U.S. 438 (1928). the Supreme Court 

held that the placement of an eavesdropping device on the defendant’s 

telephone and the subsequent monitoring of his conversations did not 

constitute a search under the Fourth Amendment because the “wires are 

not part of his house or office, any wore than are the highways along 

p. 3566 
Mr. Don R. Stiles - Page 8 (J&762), 

which they are stretched." 277 U.S. at 465. The Court later upheld 

00. similar grounds electronic eavesdropping upon conversations in a 

neighboring office by the use of a "detectaphone" placed against a 

cmaou wall. Goldman v. United States, 316 U.S. 129 (1942). In 

Silverman v. United States, 365 U.S. 505 (1961). the Court ruled that 

eavesdroooiun bv means of a "mike" microohone which Dtuetrated a 

common w& Eon<uted a Fourth ;\mendmeat &arch. 

The Supreme Court's decision in Katz v. United States. 389 U.S. 

347 (1967). ushered in a new era of Fourth Amendment analysis. In 

that case, the Court abandoned the "trespass" doctrine employed in the 

Olmstead and Goldman decisions, declaring that 

the Fourth Amendment protects people, not places. 

What a person knowingly exposes to the public, 

even in his owu home or office is not a subject of 

Fourth Amtndment protection. . . . But what he 

seeka to preserve as private, even in au area 

accessible to the public, may be constitutionally 

protected. 

389 U.S. at 351. The Court ruled that eavesdropping by way of an 

electronic listening and recording device attached to the exterior of 

a public telephone booth was a search for purposes of the Fourth 

Amendment, requiring government agents to obtain a starch warrant in 

advance. 

Justice Barlan, in a concurring opinion that was to eventually 

serve as a guide to other courts, added that the majority opinion of 

the Court established a twofold requirement -- first, that the person 

have exhibited au actual (&. subjective) expectation of privacy, 

and second, that the expectation be one that society is prepared to 

recognize as reasonable. 389 U.S. at 361. See California v. Ciraolo, 

476 U.S. -, 106 S.Ct. 1809. 90 L.Ed.Zd ZlO(1986); Stewart V. State, 

681 S.W.Zd 774 (Tex. App. - Houston [14th Dist.] 1984, pet. ref'd). 

In the years following the Katz decision, the Supreme Court 

considered the constitutional ramifications of surveillance 

accomplished by meaus of other electronic ~devices such as pen 

registers, Smith v. Maryland. 442 U.S. 735 (1979). and electronic 

tracking devices, or beepers. United States v. Karo, 468 U.S. 705 

(1984); United States v. Knotts, 460 U.S. 276 (1983). The devices you 

describe have been compared to beepers, devices which emit periodic 

signals that can be picked up by a radio receiver. United States v. 

Knotts, 460 U.S. at 277. See Note, Electronic Monitoring of 

Probationers: A Step Toward Bisrotherl, 14 Golden Gate U. L. Rev. 

431 (1984); Electronic Monitoring, supra. 

In Knotts, the Supreme Court held that the warrantless monitoring 

of a beeper placed inside a container of chloroform did not violate 

the Fourth Amendment because it revealed no information that could not 

p. 3567 
Ur. Don R. Stiles - Page 9 (JM-762) 

have been obtained through visual surveillance. The Court concluded 

that the monitoring of the beeper while the container was being 

transported over public thoroughfares did not invade any legitimate 

expectation of privacy on the defendant’s part. One question left 

unanswered was whether the monitoring of a beeper falls within the 

scope of the Fourth Amendment when it reveals information that could 

not be obtained through visual surveillance. This question was 

answered in the affirmative in United States v. Karo. supra. 

In Karo the Court was confronted with the monitoring of a beeper 

located -de a private residence, an area not open to visual 

surveillance. The Court concluded such monitoring in the absence of a 

search warrant or an exception to the warrant requirement violated the 

Fourth Amendment rights of persons having ,,a justifiable interest in 

the privacy of the residence.” 468 U.S. at 714. The Court rejected 

the contention that law enforcement officials 

should be completely free from the. constraints of 

the Fourth Amendment to determine by means of an 

electronic device . . . whether a particular 

article -- or a person, for that matter -- is in 

an individual’s home at a particular time. 

468 U.S. at 716. 

In addition to the two-point analysis originating with Katz, 

Texas courts have directed attention to the nature of the actxy 

claimad to be a “search.” Where the activity is not aimed at 

discovering evidence of a crime , some courts art inclined to rule that 

the activity is not a search. These courts view a “search” as a 

“quest for, a looking for, or a seeking out of that which offends 

against the law.,, Vargas v. State. 542 S.W.2d 151, 153 (Tex. Grim. 

App. 1976). cert. denied, 429 U.S. 1109 (1977); Garber v. State.~ 671 

S.W.2d 94, 97 (Tax. App. - El Paso 1984, no pet.). See also Marshall 

v. United States, 422 F.2d 185. 189 (5th Mr. 1970) (“search” implies 

a probing, exploratory quest for evidence of a crime). Given this 

definition, it can be argued that the monitoring of electronic devices 

in the manuer under consideration here is not a search, since the 

purpose of the monitoring is not to uncover evidence of criminal 

activity, but to confirm compliance with a condition of probation. 

The monitoring devices (unlike beepers) are not to be employed in 

conjunction with criminal investigations and therefore will not convey 

information suggesting criminal activity is taking place in the 

probationer’s home. The report submitted to the Texas Criminal 

Justice Policy Council advanced a similar argument: 

It could . . . be argued that the use of an 

electronic device which merely indicates whether a 

person is complying with his curfew restriction, 

would not constitute a search. The . . . device 

currently utilized as a condition of probation is 

p. 3568 
l4r. Don R. Stiles - Page 10 (JM-762) 

not capable of monitoring conversations, uor can 

it determine what the individual Is doing inside 

the confines of his homa. Its sole purpose is to 

tusure that the probationer is complying with 

the conditions of probation. It is true that 

the . . . device generates information which could 

not otherwise be obtained by visual surveLllance, 

but that alone should not taint the device because 

its installation is with the client's consent. 

Electronic Monitoring, supra, at E-17-E-18. 

These arc persuasive arguments. However, given the conclusion in 

Macias v. State, supra. that the taking of urine samples from a 

probationer is a search and the fact that electronic monitoring 

devices serve the needs of law enforceneat in a mauner similar to the 

detection and investigation of crime , we will assume for the sake of 

argument that the electronic! monitoring of probationers is a "search" 

for the purposes of the Fourth Amendment. Assuming that a search 

occurs when an electronic device worn by a probationer is monitored by 

probation officials, it is clear that such monitoring cannot be 

justified in this state ou a theory of consent or waiver. 

The Court of Criminal Appeals analyzed the issue of consent in 

Tamez v. State, supra. After observing that a "probationer, like a 

parolee, has the right to enjoy a significant degree of privacy," the 

court ruled that the probationer's acceptance of the condition of 

probation permitting warrantless searches did not authorize searches 

in violation of the Fourth Amendment: 

It Is clear that protection afforded by the 

Fourth Amendment and Article I. Sec. 9, Texas 

Constitution, extends to probationers. This court 

has consistently and knowingly made this clear 

in ruling 01) appeals from orders revoking 

probation. (Citations omitted). 

A diminution of Fourth &mmdment protection and 

protection afforded by Article I. Sec. 9, Texas 

Constitution. can be justified only to the extent 

actually necessitated by the legitimate demands of 

the probation process. A probationer may be 

entitled to a diminished expectation of privacy 

because of the necessities of the correctional 

system, but his expectations may be diminished 

only to the extent necessary for his reformation 

and rehabilitation. 

Further, it is clear that in accepting the 

condition of probation the appellant's 'consent' 

was not in fact freely and voluntarily given. The 

p. 3569 
Hr. Don R. Stiles - Page 11 (JM-762) 

,- 

C 

choice to reject probation aud go to prison or 

accept the probationary condition was really 

no choice at all. It was in legal effect coerced. 

(CLtation omitted). 

534 S.W.Zd at 692. Thus, the use of electronic monitoring devices in 

the probation system may not be justified on the theory of consent. 

The passage from Tames just quoted above does, however. provide 

the theory under which we believe the use of electronic monitoring 

devices can be coustitutionally justified. As the Court of Criminal 

Appeals observed, probationers, because of the conditional liberty 

they are granted. do not enjoy the same expectation of privacy as 

non-probatlouers. Their expectation of privacy is diminished only to 

the extent necessary for their rehabilitation and the legitimate 

demands of the probation process. Thus, where it is determined that a 

probationer may be subjected to reasonable limitations on his freedom 

of movement or associations, WC believe that reasonable and minimal 

intrusions into the probationer’s privacy interests to confirm 

compliance with the conditions of probation are permissible. 

Indeed, the Code of Criminal Procedure has authorized minimal 

Intrusions of the probationer’s privacy in the home for years. 

Article 42.12, section 6(a)(S). aut+orisss the court having jurisdiction to impost as a condition of probation the condition that the 

probationer shall “[plermit the probation officer to visit him at his 

home or elsewhere.” We believe the privacy intrusion resulting from 

the monitoring of the electronic devices you describe is strikingly 

different from the intrusion resulting from an actual visit by a 

probation officer. Our research has yielded no Texas decision 

invalidating a condition of probation based on section 6(a)(5) of 

article 42.12. The reason for this may be that conditions of this 

type are considered an integral pert of the probation process and have 

been routinely sustained elsewhere. even against a claim that they 

infringe on a probationer’s right of privacy. See Cohen and Gobert, supta,- 06.67 (siting United States v; Manfredo~. 341 F.Supp. 790 

(S.D.N.Y.), aff, 459 F.2d 1392 (2d Cit.), cert. denied, 409 U.S. 851 

(1972)). Thus, it is worth noting the courts have had little quarrel 

with wre intrusive conditions in the past. 

Our discussion to this point has centered on the privacy 

interests of the probationer. We must now address the interests of 

third persons residing in the home of the probationer, the subject of 

your second question. 

In those states in which warrantless search conditions of 

probation have been approved under the theory of consent or waiver, 

the courts have not required special procedures, such as obtaining a 

warrant prior to the search, to safeguard the rights of third persons 

residing-with the probationer. See People v. Mason, 488 P.2d 630, 634 

(Cal. 1971). cert. denied, 405 UT 1016 (1972); State v. Griffin, 376 

p. 3570 
Mr. Don R. Stiles - Page 12 (JM-762) 

H.W.2d 62, 67 (Wis. Ct. App. 1985). aff'd, 388 N.W.Zd 535. 541 (Wls. 

1986). But see State v. Velasquez, 672 P.2d 1254. 1260 a.3 (Utah 

1983) (dicta suggesting that a warrant be obtained prior to such 

searches). The rights of such third parsons will be affected whether 

or not a varraat is required, and in view of the protection given the 

probationer's rights, there is no need to require a warrant simply to 

protect third persons' rights. State v. Griffin, 388 N.W.2d at 541. 

Understandably, Texas courts have not had occasion .to consider 

this issue following the Tames decision. Out court which did address 

the rights of third persons in this coutext framed the issue thus: 

We recognize that probationary status can and 

should carry with it a reduced expectation of 

privacy. But a probationer is living vithiu 

society, not confined to a penal institution. . . ~. A search of the probationer's home 

cannot avoid invading the privacy of those with 

whom he way be living, whether they be ismediate 

family, other relatives, or friends. Probationary 

status does not convert a probationer's family, 

relatives and friends into 'second class' 

citizens. 

. . . . 

We can only assume a 'respectable position' [in 

the debate over the validity of warrantless starch 

coaditfons of probation] if xc can give fair 

consideration to the rights of innocent third 

parties who way be caught up in the web of the 

probationary system or probationary process. 

These people are not stripped of their right of 

privacy because they may be living with a probationer or he way be living with them. While a 

probationer's right of privacy may be justifiably 

diminished while on probation, the rights of these 

people are not so diminished. We, as veil as the 

trial courts, would be derelict in our duties if 

we failed to consider the rights of these imoceat 

others so that they are not swept away by the 

probationary process. 

. . . . 

These privacy considerations are inextricably 

interwoven in the relationships between a 

probationer and his family and friends no less 

than in the relationships between a nonprobationer 

and his family and friends. The starch of a 

p. 3571 
Mr. Don R. Stilts - Page 13 (m-762) 

C 

r‘ 

probationer's home will inevitably affect the 

privacy of those with whom he is living. 

State v. Fogarty. 610 P.2d 140, 151-52 (Wont. 1980). Quoting and 

relying in part on Tamez, the Montana Supreme Court concluded that an 

unlimited search condition was patently unconstitutional under both 

the federal and Montana constitutions. The court also held that in 

order to protect the legal interests of innocent third persons, a 

search warrant based on probable cause must be obtained before a 

probationer's residence may be starched. It is doubtful that a 

condition authorizing a search of a probationer's person or property 

authorizes starches of third persons or their property. See People v. 

Veronica, 166 Cal. Rptr. 109 (Cal. App. 1980). The courtBare divided 

as to whether evidence seized in a search conducted, pursuant to a 

condition of probation may be used against third persons residing with 

the probationer. Compare People v. Veronica, supra, vi2 Luke v. 

State, 344 S.E.2d 452 (Ga. App. 1986). 

The cases discussed in the preceding paragraphs involved physical 

searches of the probationer's person or property conducted by 

probation officials or police. Each incident involved an actual, 

physical intrusion into the privacy of third persons. We refer to 

these cases only to demonstrate the difficulties that inhere when a 

condition of probation authorizes a physical invasion of property 

shared by a probationer and family or household members. Electronic 

monitoring devices do not threaten third party interests in this 

manner. Therefore, the assumptions wade in the discussion of the 

probationer's privacy interests cauuot be made with regard to third 

party privacy interests. By the same measure, we think the 

distinctions drawn la the same discussion between the use of beepers 

and electronic monitoring devices, distinctions not relevant to the 

privacy interests of the probationer, are relevant here. The 

comparison betveen the nature and level of intrusion posed by 

electronic wnitors and home visits by probation officers is pertinent 

here, too. 

In our opinion, the possibility that the privacy interests of 

third persons residing with electronically monitored probationers will 

be comprom&sed is rewte and the effects of any intrusion into the 

privacy of the home ephemeral. As you describe them, electronic 

monitoring devices convey no information regarding activities within 

the home other than the presence of the probationer. Indeed. the 

devices impart no information whatsoever concerning the presence or 

activities of third persons in the home. With one exception, the 

systems you advocate do not subject the probationer to constant 

surveillance in the home and thus pose the prospect of only sporadic 

and transient intrusions. We do acknowledge the ever-present 

possibility that a condition of probation , constitutional on Its fact, 

may be unconstitutionally applied in a given situation. See, e.g., 

Cohen and Gobert, supra. $6.16. Bowever, you do not suggest, and we 

shall not speculate, under what specific factual circumstances a 

p. 3572 
Mr. Don R. Stiles - Page 14 (JM-762) 

condition of probation lmpermlssibly interferes with the coastitutioual rights of third persons. Suffice it to say that under the 

information we have been provided and upon our review of relevant 

authorities, we camot conclude that the mere use of such devices 

compromises the privacy interests of third persons living in a 

probationer's home. 

Due Process Considerations 

The Fourteenth Amendment's guarantee of due process may be 

relevant in determining whether a probatlouer may object to a 

particular condition of probation. See Cohen and Gobert, supra, 

- 

95.10. 

The due process clause has been invoked to contest conditions of 

probation which are vague or interfere with a probationer's access to 

courts. Id. Due process and the Texas guarantee of due course of 

law, Tex.?%st. art. I, 519, require a defendant to receive a hearing 

before the imposition of conditions which restrict personal freedom 

and liberty of movement. Warr v. State, 591 S.W.Zd 832 (Tex. Grim. 

App. 1979). The conditional freedom afforded probationers may not be 

terxiuated without appropriate procedural safeguards. Gagaon v. 

Scarpelli. 411 U.S. 778 (1973). Whether a probationer may demand 

certain conditions of probation Is doubtful, however. 

In order to support a violation of due process, a person must 

establish a deprivation of liberty or property by government action. 

Greenholtz v. Wtbraska Penal Inmates, 442 U.S. 1 (1979). The courts 

look to the nature of the individual's interest and require the person 

to have a legitimate claim of entitlement to it. Id. In Greenholts. 

the Supreme Court concluded that a statute which crzed a possibility 

of parole provided prison inmates no more than a mere hope that parole 

would be obtained. The parole eligibility provisions of article 42.12 

have been held to create no protectlble interest under the due process 

clause. Moncier v. State. 704 S.W.Zd 451 (Tex. App. - Dallas 1986, no 

pet.). Whether Greenholtx requires probationers to locate a liberty 

interest in a statute, administrative rule, or coastitutlonal 

provision is open to debate. See Cohen and Gobert, supra, 52.27. 

- 

If Greenholts is extended to probation granting procedures, it is 

unlikely that a potential probationer will be deemed to have a liberty 

interest in receiving particular conditions of probation. A person 

convicted of a crime has no inherent right to probation. See Cohen 

and Gobert. supra, 14.02. In the parole setting, it has beea held 

that terms specifying where a parolee shall live are not subject to a 

due process challenge. Alonxo v. Rosanski, 808 F.2d 637 (7th Cir. 

1986). Article 42.12, section 6(a), of the Cede of Criminal Procedure 

neither limits nor requires the court to impose the conditions 

specified in that section. See Macias v. State, supra. The primary 

limitation on the setting ofynditions of probation is that they be 

reasonably related to the treatment of the accused and the protection 

p. 3573 
P 

Mr. Don R. Stiles - Page 15 (JM-762) 

of the public. Tams v. State, supsa. Assuming that a potential 

probationer is au appropriate subject for restrictions on his freedom 

of movameat and associations, we do not believe that either article 

42.12 or e create an expectation that these restrictions will be 

imposed in a particular manner. Since we have already concluded that 

electronic monitoring devices are no wrt restrictive than other 

acceptable conditions, we do not believe a probationer may object to 

their use as a condition of his probation. 

Your first two questions are answered in the negative. 

III. 

Your third question. concerning the possible requirement that a 

probationer wear a device attached to his body during the period of 

probation, raises an issue under the Eighth Amendment to the United 

States Constitution, which prohibits the infliction of cruel and 

unusual punishment. See also Tex. Coast. art. I. 113. The few cases 

raising this issue suggest that conditions which are excessively harsh 

or impossible to comply with may be invalid under this constitutional 

provision. Cohen and Gobert. w, 05.10. The Eighth Amendment is 

relevant to your third question because It has beta raised to contest 

the validity of conditions requiring the probationer to wear a 

particular item of clothing or publicly display a symbol signifying 

his conviction for a particular crime. 

The Supreme Court has stated that the inquiry into the 

excessivenass of a particular punishment involves two aspects: first, 

the punishment must not involve. an unnecessary and wanton infliction 

of pain, and second, It must not be grossly out of proportion to the 

severity of the crima being punished. Gregg v. Georgia. 428 U.S. 153, 

173 (1976). The second aspect is implicit in the requirement that a 

condition of probation bear a reasonable relationship to the treatment 

of the accused and the protection of the public and Is. in every case, 

a fact question. See Tames v. State, supra. We will therefore 

consider whether a yondition of probation which requires the 

probationer to wear an electronic monitoring device involves an 

unnecessary tad wanton infliction of pain. 

In one case, the defendant. on probation as a result of his 

conviction in a purse-snatching incident, was ordered to wear shoes 

with leather soles and metal taps on the heels and toes anytime he 

left his house. People v. McDowell, 130 Cal. Rptr. 839 (Cal. App. 

1976). The probationer complained that this condition of probation 

was tantamount to requiring him to wear a sign proclaiming he was a 

thief. The court disagreed with the notion that persons who wore 

shoes vith metal taps were thought to be thieves by the public and 

noted that the condition bore a direct relationship to the probationer's budding carter as a purse snatcher. 130 Cal. Rptr. at 843. 

Compliance with the condition would foster rehabilitation and promote 

public safety. The sound of the taps, the court concluded, would 

p. 3574 
. 

UT. Doll R. Stiles - Page 16 (33-762) 

remind the probationer of the fact that he was on probation and would 

quell auy temptation he might have during the period of probation to 

engage In this typo of criminal behavior. Id. The court accepted the 

substance of the condition, but ordered theyial court to clarify the 

condition in light of an ambiguity concerning its application. Id. 

- 

A recent Florida case upheld a condition imposed as part of 

probation for a conviction of driving under the influence of alcohol 

vhich required the probationer to affix to his personal vehicle a 

bumper sticker reading, "CONVICTED D.U.I. -- RESTRICTED LICENSE.,, 

Golds&mitt v. State, 490 So.Zd 123 @la. Dist. Ct. App. 1986). The 

probationer likened the condition to outmoded forms of publicly 

suffered punishment such as the stock and pillory. The court 

observed. however, that "[tlhe mere requirements that a defendant 

display a 'scarlet letter' as part of his punishment is not 

accassarily offensive to the Constitution." 490 So.Zd at 125. 

The Florida court believed the rehabilitative effect of probation 

way be enhanced if it "inflicts disgrace and contumely in a dramatic 

and spectacular manner.,, &, guoting United States v. William 

Anderson Co., Inc., 698 F.2d 911, 913 (8th Cir. 1982). overruled on 

other grounds, United States v. Missouri Valley Constr. Co., 741 F.2d 

1542 (8th Cir. 1984). The court in the William Anderson case also 

approved behavioral sanctions imposed as conditions of probation, 

citing their deterrent effect: 

Heasures art effective which have the impact of 

the 'scarlet letter' described by Nathaniel 

Bawthorne, or the English equivalent of 'wearing 

papers' in the vicinity of Westminister Rail like 

a sandwich-man's sign describing the culprit's 

transgressions. 

698 F.2d at 913. 

The Golds&mitt court also considered the possibility that 

inuocent third persons might be punished by the use of the bumper 

sticker, insofar as such persons might own or operate the probationer's vehicle. Its doubts were removed when It was wade clear that 

the message on the sticker would be obscured with a special device 

when persons other than the probationer were using the vehicle. 490 

So.Zd at 126 a. 5. 

The courts will not, however, sanction probation conditions which 

are excessively harsh and demeaning. The Goldschmitt court cited as 

an example Bians v. State, 343 So.Zd 913 (Fla. Dist. Ct. App. 1977). 

Bieaz concerned a probationer who vas placed in a halfway house with 

directions that he obey all orders. The rules of the halfway house 

stated that the probationer was free to leave If any task seemed 

demeaning. A supervisor at the facility accused the probationer of 

behaving like a baby and, as a learning experience, ordered him to 

p. 3575 
. 

Mr. Don R. Stiles - Page 17 (JM-762) 

wear diapers over his clothing. The probationer balked at the order, 

choosing to leave the facility instead. His probation was later 

revoked. The court resolved the case on other grounds but commented: 

“[slufflce it to say that a command . . . that au adult male wear 

diapers in public would certainly be demaaaiag in the minds of 

so-called reasonable men.” 343 So.Zd at 915; see Gold&mitt V. 

State, 490 So.2d at 126. 

It is apparent, then. that a probation condition which requires 

the probationer to wear a prescribed item will not offend the Eighth 

Amendment merely because it subjects the probationer to some measure 

of public disgrace or embarrassment, provided the condition otherwise 

serves the goals of probation. The electronic monitoring devices you 

describe do bear the possibility of exposing the probationer to public 

obloquy’ particularly those which must be worn on the probationer’s 

body. We do not believe the potential for such stigmatization, 

though, readers the employment of such devices an excessive form of 

punishment. Moreover, we think the use of electronic monitoring 

devices would enhance the rehabilitation of a probationer for whom a 

curfew is a permissible condition. The monitors would not only 

encourage compliance with curfew, but act as a reminder of the 

probationer’s conditional freedom. We cannot foresee the possibility 

that third persons residing with the probationer will themselves be 

exposed to cruel and unusual punishment by this use df an electronic 

monitoring device, particularly since there appears to be little 

chance that the device can be applied to persons other than the 

probationer. 

IV. 

With respect to your fourth question. a requirement that a 

monitoring device be attached to a telephone in the probationer’s home 

(so-called “passive” monitoring systems) does not change our answers 

to your first two questions. There are four reasons for this 

conclusion. First, it is clear that the devices you describe are 

incapable of transmitting anything wre than an electrical signal or a 

voice exemplar of the probationer. Second, as we concluded in our 

discussion of First Amendment concerns, we do not believe that a 

probationer may object to the employment of a device which requires 

him to provide voice samples for the purposes of monitoring compliance 

with a condition of probation. Cf. United States v. Franks, supra; 

Macias v. State, supra. Third, whatever intrusion is occasioned by 

devices which must be attached to a telephone, it is brief and 

significantly less intrusive than other means available for monitoring 

a probationer’s progress. Compare Code Grim. Proc. art. 42.12, 

06(a)(5). Fourth, the telephone requirement notwithstanding’ we 

remain convinced that electronic monitoring devices ultimately serve 

the purposes of the probation process by promoting the rehabilitation 

and reformation of the probationer while providing for the protection 

of the public at large. We hasten to add that this discussion should 

not imply that passive monitoring systems are preferable to “active” 

p. 3576 
. 

Mt. Don R. Stiles - Page 18 (JR-762) 

. 

waitoring systems. Such a decision must be made in the first 

instance by those with administrative authority and not by this 

office. 

V. 

To summarize, we conclude that the employment of electronic 

monitoring devices as a condition of probation does not violate a 

constitutionally protected interest of a probationer or a third person 

residing In the probationer's home, provided the probationer may be 

subjected to reasouable limitations on his freedom of wvewnt and 

associations. The attachment of electronic monitoring devices to 

either a probationer's body or to a telephone in the probationer's 

how does wt violate a constitutioually protected interest of the 

probationer or a third person residing in the probationer's how. We 

caution that vt are here expressing no judgment regarding the 

reliability of any particular monitoring system and the Implications 

of that reliability on the probation revocation process. See 

generally, People v. Ryan, 510 N.Y.S.Zd 828, 832 (N.Y. Grim. Ct. 1987) 

(dicta suggesting that in-depth scientific and technical testimony 

will be required when the accuracy or reliability of electronic 

monitoring devices is made an issue in probation revocation 

proceedings). 

SUMI4ARY 

The employment of electronic monitoring devices 

as a condition of probation does not violate a 

constitutionally protected interest of a 

probationer or a third person residing in the 

probationer's how, provided the probationer may 

be subjected to reasonable limftations on his 

freedom of movement and associations. The 

attachment of electronic monitoring devices to 

tither a probationer's body or to a telephone in 

the probationer's how does not violate a 

constitutioually protected interest of 

the probationer or a third person residing in the 

probationer's home. 

JIM MATTOX 

Attorney General of Texas 

MARYXRLLRR 

Executive Assistant Attorney General 

p. 3577 
Mr. Don R. Stiles - Page 19 (JM-762) 

JUDGE ZOLLIE STJ!AKLEy 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 3578