anyone been charged by at&t for records pursuant to subpoena? and is there a law that says whether the state has to pay in a criminal case?

Nicole Crain

The short answer is, yes you do.

But it depends on what type of records you obtained from AT&T and the amount of cost reimbursement AT&T is seeking for the records they provided.

Communication providers are legally entitled to cost reimbursement for the production of records to governmental entities, regardless if the production of records was judicially authorized by subpoena, grand jury subpoena, court order, or search warrant. It also does not matter if the provider is located in Texas (such as Metro PCS and AT&T's subpoena department being located in Dallas).

Under federal law, 18 USC 2706 requires governmental entities to reimburse communication providers their "reasonable" costs for producing records. In Texas, this requirement is also set forth in Art. 18.21, Sec. 9 CCP, which copies the vernacular from 18 USC 2706. Both 18 USC 2706 and 18.21 CCP state the amount of cost reimbursement can be mutually agreed upon by the provider and governmental entity. If there is no agreement, the court decides the amount of cost reimbursement (the judge who ordered the production of records or the court where the criminal case is pending).

In both 18 USC 2706(c) and 18.21 Sec. 9(c), there is an exception for cost reimbursement if the records produced are only "telephone toll records". The problem with the term "telephone toll record" is it is outdated terminology when referring to communication records. "Telephone toll records" refer to calls made that a provider would bill for individually, usually by the minute. With almost all providers now offering unlimited minute plans, each telephone call is no longer a "toll call" because the provider does not bill for each call. Now when we obtain records of originating/terminating calls, the providers refer to them as "call detail records". So the providers have jumped on the argument that "call detail records" are not "telephone toll records", thus the exception for cost reimbursement does not apply. Basically, both 18 USC 2706 and 18.21 CCP have not kept up with the current terminology used in the industry. If we tried to send a provider a subpoena seeking "toll records", we would likely get a blank page back with "no records found" printed on it.

I have dealt with many communication providers and most will not charge if all you are seeking is call detail records and basic subscriber data, unless the time period you are seeking is very large, such as 6 months or more. Obtaining records above call detail records, such as stored content or cell site location data (i.e. voicemail), providers will usually seek cost reimbursement for that. Some providers in my experience, and AT&T is one of them, seem to seek reimbursement every time no matter how basic the records they are providing. The invoice we normally get for call detail records is usually between $25-50. If AT&T is seeking anything greatly above that (assuming all you obtained were basic call detail records), it may not be reasonable, and you can ask the court to determine the amount of cost reimbursement.

I would agree that you have to reimburse for records if they are produced pursuant to an order issued under Article 18.21. But there is no payment mechanism under Article 24 or 21--dealing with subpoenas and grand jury subpoenas--there, the rule is still that the public is entitled to everyman's evidence. There is a good AG opinion dealing with bank records that we send to companies that try to bill us on these matters.

I found this when a doctor's office wanted to charge us for records in response to a grand jury subpoena:

Pursuant to Hurtado v. United States, 410 U.S. 589 (1973), supplying information in connection with a criminal investigation is normally considered a public duty, no matter how financially burdensome it may be. A business may not recover from the investigating authority the cost of retrieving and producing documents in response to a grand jury subpoena. Texas Attorney General Opinion #JC-0181.

John, is this the AG opinion you were referring to?

That is the one. I have also had to use Hurtado in an ongoing dispute. Note that the JC-0181 opinion was basically codified into the finance code. My position on this is that there is no payment unless an applicable Texas statute says pay. I don't think a federal statute that we don't even use to obtain the records can require us to pay. I'm more sympathetic to situations where the provider actually has to perform some task, i.e. analyze something or download data not normally downloaded, rather than merely transmit electronically stored records.