When Is Wiretapping a Crime in Texas?

Eavesdropping is an old human activity. Who hasn’t listened in on another person’s private conversations or snooped around their email, especially if you had access to their phone? However, Texas law sometimes criminalizes the interception or disclosure of private communications.

At Tad Nelson & Associates, we can defend anyone accused of illegally recording a private conversation. As electronic communication has increased, the possibility of eavesdropping has increased as well. Many innocent people accidentally intercept someone’s phone call, email, or text without criminal intent. Yet, they could face serious penalties under Section 16.02 of the Texas Penal Code. Please contact our Houston criminal defense lawyers for assistance with your case.

Can You Record Your Own Conversations?

Yes. Texas is a “one party” consent state. In other states, all parties to a communication must consent to legally record it. In Texas, only one party must consent. And if you are part of the conversation, then you can give consent and record the conversation without telling anyone.

However, what happens if you try to record a conversation when you are not at a party? That’s where Texas law comes into play. In most cases, you will have violated Section 16.02 of the Penal Code if you intercept or record someone without their permission.

What Communications Are Covered?

The law protects against people intercepting communications made orally or electronically or those transmitted by wire. Essentially, this will cover phone calls, text or email messages, and in-person conversations. So the law covers most communications.

What is Illegal?

Under the statute, you can’t:

1.       Intentionally intercept or try to intercept a communication or get someone else to intercept a communication for you.

2.       Intentionally share or try to share the contents of an intercepted communication with someone else.

3.       Intentionally use or try to use the contents of a communication if you know the communication was intercepted or are reckless in not finding out if it was.

4.       Trying to enter covertly for the purpose of intercepting a communication, such as sneaking into someone’s home to record them.

5.       Intentionally use or try to use an interception device to record oral communication.

As you can see, you can’t record or try to record people and you also can’t use the contents of any intercepted communication.

Can You Record Your Child’s Conversations?

Probably. So long as your child is a minor (under 18), parents have the power to do what’s in their child’s best interest.

Once your child is 18, though, they are an adult. This means you can’t record your child without their permission unless you are a party to the conversation. Some parents think that as long as a child is living in their home, they have the power to record them. But the law doesn’t grant a homeowner that power. At 18, your child is considered an adult and you will need informed consent before you intercept their communications.

Is This a Serious Crime in Texas?

Yes. This is a second-degree felony in Texas, which carries as a penalty 2-20 years in prison for a first-time offense. Each illegal recording is a separate crime, so you could face 10 different charges if you record someone on 10 different occasions. The penalties can add up.

There is also a civil component to eavesdropping. The person you record could sue you for $10,000 for each illegal recording, as well as for actual damages and attorneys’ fees. If they win, you pay them compensation as well as their lawyer’s fees. It truly doesn’t pay to eavesdrop in Texas.

Can You Defend Me from These Charges?

In many cases, yes. The most common defense is that you are a party to the conversation. The law makes that an affirmative defense.

Another common defense is to point out that your interception was not intentional. For example, you might be recording a video of yourself using your phone. If you accidentally caught a conversation in the background, then this is not an intentional interception.

Another defense is that you didn’t catch a conversation at all. It’s not illegal to record people walking around in public. For example, you might be going through a divorce and trying to catch your spouse meeting his new girlfriend. You record them going into the nearest Hyatt hotel. Because you are not recording any conversation, this is not illegal.

Get Advice from an Experienced Houston Criminal Defense Attorney

Tad Nelson can review the facts of your case and decide what is the best defense to bring. Contact our firm today to schedule a meeting.