Texas Wiretap Law - Texas Penal Code § 16.02

Texas wiretapping law can be difficult to navigate, especially in the constantly growing sea of electronic communication devices. Here are some common questions and the answers to them. Most certainly, approach wiretapping activities with caution as the consequences for improperly recording a conversation or phone call are severe. If you think you have been recorded illegally, or if you have been sued as a result of a recording you made, contact Guest and Gray and we can set up a time for a free consult to discuss your matter further.

In short, yes. Texas Law requires that only one contributing member of the conversation give consent to be recorded. This means that if you are a part of that conversation, you are free to record it. This applies to both phone calls and in-person conversations. However, there is a small caveat to this rule; the conversation must be in a reasonably public location. Practically, if other people could easily overhear the conversation, it is a public conversation. Texas law defines this limit on the ability to record conversations as the “reasonable expectation of privacy” exception. If someone reasonably thinks that their conversation is private, they should not have to fear that someone is recording them.

This falls into a category of law which is affected by the parent-child relationship. Generally speaking, the state of Texas gives the power to make a decision for a child to that child’s parent with the expectation that the parent will do what is in the best interest of the child. This is usually coupled with a requirement either that the child be a minor or that they be young enough that they cannot be expected to make reasonable decisions. Texas wiretap laws require that the child be under 18 (unless the parent is part of the conversation). After they have turned 18, the parent is required to obtain the child’s informed consent before they can legally record their conversations or phone calls. Until the child has turned 18, the parent can give vicarious consent on behalf of the child which allows the parent to record that child’s phone calls and conversations without their knowledge. This form of consent is subject to the same privacy rules as regular one-party-consent as described above.

The penalty for illegal wiretapping in Texas has two parts. First, the injured party (the person/people of whom you made a recording) can sue you for an injunction, $10,000 for each time you recorded them, actual damages they sustained as a result, punitive damages determined by a jury, and attorney’s fees. This is only the civil portion of the penalty. In addition to this, a person found to have illegally engaged in wiretapping activities may face criminal prosecution as well. Unlawful interception of communications is a second-degree felony which could result in 2 to 20 years in prison.

The controlling law for this type of activity is the Texas Penal Code § 16.02. It gives a few different scenarios by which somebody might violate the law in this manner: (1) Intentionally intercepting, attempting to intercept, or having someone intercept a wire, oral, or electronic communication; (2) Intentionally disclosing or attempting to disclose to another person the contents of an illegally obtained wire, oral, or electronic communication; (3) Intentionally using or attempting to use the contents of an illegally obtained wire, oral, or electronic communication; (4) Knowingly or intentionally effecting a covert entry for the purpose of illegally obtaining a wire, oral, or electronic communication; or (5) intentionally using an interception device to obtain any oral communication when the device (a) is affixed to or transmits a signal through a wire, cable, or other connection used in wire communications, or (b) transmits communications by radio or interferes with the transmission of communications by radio.