ATTORNEY GENERAL OF TEXAS
                                              GREG         ABBOTT




                                                 October 30, 2008



Mr. James A. Cox, Jr.                                    Opinion No. GA-0675
Chairman, Texas Lottery Commission
Post Office Box 16630                                    Re: Whether section 521.126 of the Transportation
Austin, Texas 78761-6630                                 Code permits the Texas Lottery Commission to use
                                                         electronically readable information encoded on the
                                                         magnetic stripe of a driver's license to verify the age
                                                         of persons using self-service terminals and vending
                                                         machines to purchase lottery tickets (RQ-0705-GA)

Dear Mr. Cox:

        You ask whether section 521.126 of the Transportation Code permits the Texas Lottery
Commission (the "Commission") to use electronically readable information encoded on the magnetic
stripe of a driver's license to verify the age of persons using self-service terminals and vending
machines to purchase lottery tickets. 1

         We first address the authority of the Commission. Chapter 466 of the Government Code
relates to the state lottery. See TEX. GOV'T CODE ANN. § 466.001 (Vemon 2004) ("This chapter may
be cited as the State Lottery Act."). Under this chapter, a "sales agent or an employee of a sales
agent commits an offense if the person intentionally or knowingly sells or offers to sell a [lottery]
ticket to an individual that the person knows is younger than 18 years ofage." Id. § 466.3051(a). An
offense under this subsection is a Class C misdemeanor. Id. § 466.3051(e).2 You explain the
operation of a self-service terminal or vending machine as related to compliance with this statutory
restriction:

                         [This] approach would be to access the electronically readable
                  information encoded on the magnetic stripe on the back ofthe Texas


         lLetter from James A. Cox, Jr., Chairman, Texas Lottery Commission, to Honorable Greg Abbott, Attorney
General ofTexas (Apr. 24, 2008) (on file with the Opinion Committee, also available atwww.texasattorneygeneral.gov)
[hereinafter Request Letter].

          2Likewise, a person under the age of eighteen years commits an offense ifhe or she purchases a lottery ticket
or falsely represents himself or herself to be at least eighteen years of age in order to purchase a lottery ticket. TEX.
GOV'T CODE ANN. § 466.3051(b) (Vernon 2004). Such an offense is punishable by a fme not to exceed $250. Id §
466.3051 (t).
Mr. James A. Cox, Jr. - Page 2                      (GA-0675)



                 driver's license. The information accessed would not be stored in the
                 machines. Rather, the machines would simply check the age to
                 determine whether or not to allow the transaction to go forward. The
                 information accessed would not be maintained, compiled or used for
                 any purpose other than verifying [that] the purchaser is over the age
                 of 18. Further, the licensed retailer would not have access to
                 information encoded on the magnetic stripe on the back ofthe Texas
                 driver's license.

Request Letter, supra note 1, at 1 (footnote omitted).

        The access or use ofelectronically readable information on a driver's license is governed by
section 521.126 ofthe Transportation Code. That statute provides in relevant part that "[e]xcept as
provided by Subsections (d), (e), (g), (i), and G), a person commits an offense if the person: (1)
accesses or uses electronically readable information derived from a driver's license, commercial
driver's license, or personal identification certificate." TEX. TRANSP. CODE ANN. § 521.126(b)(1)
(Vernon Supp. 2008). Section 521.126(d) sets out exceptions to the access and use ofelectronically
readable information from a driver's license and reads as follows:

                 (d) The prohibition provided by Subsection (b) does not apply to a
                 person who accesses, uses, compiles, or maintains a database of the
                 information for a law enforcement or governmental purpose,
                 including:

                       (1) an officer or employee of the department [of Public
                 Safety] carrying out law enforcement or governmental purposes;3

                      (2) a peace officer, as defined by Article 2.12, Code of
                 Criminal Procedure, acting in the officer's official capacity;

                      (3) a license deputy, as defined by Section 12.702, Parks and
                 Wildlife Code, issuing a license, stamp, tag, permit, or other similar
                 item through use of a point-of-sale system under Section 12.703,
                 Parks and Wildlife Code;

                      (4) a person acting as authorized by Section 109.61, Alcoholic
                 Beverage Code;

                       (5) a person establishing the identity ofa voter under Chapter
                 63, Election Code;



         3The term "department" is defmed for purposes ofchapter 521 ofthe Transportation Code as "the Department
of Public Safety." TEX. TRANSP. CODE ANN. § 521.001 (Vernon 2007).
Mr. James A. Cox, Jr. - Page 3                 (GA-0675)



                    (6) a person acting as authorized by Section 161.0825, Health
               and Safety Code; or

                     (7) a person screening an individual who will work with or
               have access to children ifthe person is an employee or an agent ofan
               employee of a public school district or an organization exempt from
               federal income tax under Section 501(c)(3), Internal Revenue Code
               of 1986, as amended, that sponsors a program for youth.

Id. § 521.126(d) (emphasis added) (footnote added). Thus, the issue before us is whether compliance
with section 466.3051 (a) ofthe Government Code as effectuated in relation to a lottery self-service
terminal or vending machine may be said to have a "law enforcement or governmental· purpose" as
contemplated by section 521.126(d) of the Transportation Code.

         In 2006, this office said that the general prohibition of section 521.126 "does not prohibit a
retailer, acting in compliance with section 486.014 of the Health and Safety Code, from
electronically recording and storing personal data from the driver's license of a person who
purchases certain nonprescription drugs that could be used in the manufacture ofmethamphetamine."
Tex. Att'y Gen. Ope No. GA-0464 (2006) at 5. Because section 521.126(d) of the Transportation
Code does not specifically list compliance with section 486.014 of the Health and Safety Code as
one ofthe exceptions to the general prohibition, GA-0464 considered whether compliance with that
section could be said to have a "law enforcement or governmental purpose" as contemplated by
section 521.126. See TEX. TRANSP. CODE ANN. § 521.126(d) (Vernon Supp. 2008); Tex. Att'yGen.
Ope No. GA-0464 (2006) at 4. The opinion, relying on section 311.005(13) of the Government
Code, first noted that the term "include" in a statute "is a 'term[] ofenlargement and not oflimitation
or exclusive enumeration, and use of the term[] does not create a presumption that components
not expressed are excluded.'" Tex. Att'y Gen. Ope No. GA-0464 (2006) at 3 (quoting section
311.005(13) ofthe Government Code). The opinion then cautioned, however, that "to be included
with a statute's illustrative list, an unenumerated activity must be like the items enumerated." Id.;
see also County o/Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978) (construing the phrase "such
as" in a statute listing "special defects such as" in light of the ejusdem generis doctrine "to include
those defects of the same kind or class as the ones expressly mentioned").

        Although a retailer ofpharmaceutical drugs was not specifically listed among those persons
exempted from the section 521.126 general prohibition, the opinion primarily focused on the fact
that section 486.014, Health and Safety Code, forbade the sale of certain products to persons under
the age of sixteen years. Tex. Att'y Gen. Ope No. GA-0464 (2006) at 2-3. The opinion then
analogized the requirement found in section 486.014 of the Health and Safety Code to those listed
in the specific exceptions to section 521.126(d) of the Transportation Code, permitting a retailer's
access or use ofelectronically readable information ona driver's license to aid enforcement ofa state
law. See id at 4. The opinion concluded that the sole purpose of the retailer's access to or use of
the information was to serve a law enforcement or governmental purpose. Id at 4-5.
Mr. James A. Cox, Jr. - Page 4                         (GA-0675)



        Likewise, in the situation you pose, the purpose and operation of the restriction on the sale
of lottery tickets to persons under the age of eighteen years is analogous to certain specific
exceptions listed in section 521.126(d), especially those having to do with the sale of alcoholic
beverages to persons under the age oftwenty-one years in section 521.126(d)(4), and with the sale
of tobacco products to persons under the age of eighteen years in section 521.126(d)(6). The sole
purpose of accessing the information in question is to permit the Commission to enforce the
requirement of section 466.3051 (a) ofthe Government Code: to prohibit the sale of lottery tickets
to persons under the age of eighteen years. As such, section 466.3051(a) describes a law
enforcement or governmental purpose exception to section 521.126 of the Transportation Code. 4

        In answer, then, to your specific question, because the use of electronically readable
information on a driver's license to verify the age ofa person attempting to purchase a lottery ticket
serves a legitimate law enforcement or governmental purpose, the Commission is not prohibited by
section·521.126 ofthe Transportation Code from using self-service terminals and vending machines
to accomplish that purpose.




          4In fact, the use of the machine-reading device of which you inquire is substantially less intrusive upon the
privacy of an individual than was the case in Attorney General Opinion GA-0464. A letter from your assistant general
counsel informs us that the Commission, rather than the retailer, "has control ofthe ITVM and SST machines placed in
retailer locations." In addition, "GTECH, as the lottery operator and through the lottery operator contract, places the
machines and performs maintenance on the machines." Most significantly, "[t]he data from the driver's license magnetic
stripe would not be collected or maintained in any way by the machine, GTECH, or the retailer." To summarize, "only
the machine itself, on behalfofthe Texas Lottery Commission, accesses the data from the driver's license." Letter from
Deanne F. Rienstra, Assistant General Counsel, Texas Lottery Commission, to Rick Gilpin, Assistant Attorney General,
Opinion Committee, at 1 (July 24, 2008) (on file with the Opinion Committee).
Mr. James A. Cox, Jr. - Page 5              (GA-0675)



                                     SUMMARY

                      Because the use of electronically readable information on a
              driver's license to verify the age of a person attempting to purchase
              a lottery ticket serves a legitimate law enforcement or governmental
              purpose, the Texas Lottery Commission is not prohibited by section
              521.126 ofthe Transportation Code from using self-service terminals
              and vending machines to accomplish that purpose.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee