Texas Recording Law Summary:
Is Texas a One Party Consent State?
Texas recording law stipulates that it is a one-party consent state. In Texas, it is a criminal offense to use any device to record or share communications, whether they are wire, oral or electronic, without the consent of at least one person taking part in the communication. This means that in Texas, you are legally allowed to record a conversation if you are a contributor or with prior consent from one of the involved parties, barring any criminal intentions. It is also lawful to record electronic communications that are easily available to the public. Tex. Penal Code Ann. § 16.02 (Vernon 2011).
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Is it Legal to Record a Conversation in Texas?:
You may not record or share conversations that you are not a part of without the consent of at least one party.
However, state and federal laws make an exception in cases where the person or people communicating are doing so in an environment where they should not be under the expectation of privacy. Tex. Code Crim. Proc. Ann. art. 18.20.
If you are a third-party and require consent from the parties taking part in the conversation, the Federal Communications Commission (FCC) states that you may gain consent to make a recording by:
- Getting verbal or written consent prior to the recording being made.
- A verbal notification being played before the conversation begins. (For example: “This phone call is being recorded for quality control purposes…”).
- An audible beep tone being repeated at steady intervals during the duration of the conversation.
Because Texas is a one party consent state it is legal for you to record a conversation that you are taking part in.
When is it a Crime to Record a Conversation in Texas?
Tex. Penal Code Ann. § 16.02 refers to intent, privacy, and consent when deciding if a recording is illegal.
Intent: Texas law aims to prevent private conversations from being secretly recorded by third parties. 16.02 has 2 clauses that deal with intent and state quote:
(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;Sec. 16.02. UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS.
(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(3) intentionally uses or endeavors to use the contents of a wire, oral, or electronic communication if the person knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(4) knowingly or intentionally effects a covert entry for the purpose of intercepting wire, oral, or electronic communications without court order or authorization; or
(5) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any interception device to intercept any oral communication when the device:
Privacy: It must be a confidential conversation with a reasonable expectation of privacy. This allows for some wiggle room in the law as there is a large difference between an intimate restaurant and a public bench in terms of illegal recordings. Note – You must follow the rules if you are on private property.
Consent: Texas is a one party consent state, so if you take part in the conversation or gain the consent of one of the parties you may legally record the conversation.
Affirmative Defenses for Recording in Texas
Texas law has multiple affirmative defenses for secretly making recordings of private conversations:
- A person who works as a switchboard officer for a communication carrier who works with electronic communication intercepts wire communications in the regular course of their work. An example of this in the modern day would be a Verizon employee who hears a call accidentally while doing some testing. Communication carrier employees are also allowed to engage in things like recording telephone calls if they are assisting law enforcement. This law was much more relevant when switchboard operators were common.
- A person who is acting under the color of law is allow is allowed to record conversations if they are:
- Party to the communication or have been given prior consent by someone in the private conversation.
- Acting under the authority of Chapter 18A (The Code of Criminal Procedure).
- Intercepting electronic communication from a computer trespasser as long as it does not acquire a communication other than the one between a protected computer and the hackers. They may also legally intercept electronic communication if they have permission from the owner of the protected computer or the person acting for law enforcement is actively engaged in an investigation.
- An immediate life-threating situation exsists
- Officers of the Federal Communications Commission are allowed to intercept electronic communication in the regular course of duty
- The transmission is intentionally public
- The transmission is causing harmful interference
- You are allowed to record in areas where there is no expectation of privacy.
- As Texas is a one party consent state if you are party to the conversation then you are legally within your rights to record it.
Examples of Illegal Recording in Texas
Here are some common situations that would be considered eavesdropping and would be illegal for Texas residents.
- Recording conversations between your coworkers in a meeting without their consent if you are not party to the conversation
- Intentionally recording your neighbour’s private conversations while in an apartment building
- Using a recording device to intentionally eavesdrop on a private conversation in an intimate restaurant
- Secretly recording phone calls by intercepting your neighbours wireless phone
Texas Video Recording Laws
It is against the law, with the intention of invading another person’s privacy and without that person’s consent, to:
- Photograph, videotape, or by other electronic means record, broadcast, or transmit a visual image of an intimate area of another person if that person has a reasonable expectation that the intimate area is concealed from public view.
- Photograph, videotape, or by other electronic means record, broadcast, or transmit a visual image of another person in a bathroom or changing room.
- Knowingly promote (distribute, sell, disseminate) a photograph, recording, broadcast, or transmission described by the above paragraphs.
Tex. Penal Code Ann. § 21.15(b)
It is also an offense to disclose visual material depicting another person’s intimate parts or sexual conduct without the depicted person’s consent and with the intention of harming that person. Also illegal is if, during the disclosure, the person responsible for the disclosure knows or has reason to believe that the visual material was obtained or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private. Tex. Penal Code Ann. § 21.16(b)
Example – Disclosing explicit material depicting your ex-partner, without their consent is illegal.
Tex. Penal Code Ann. § 16.02: Recording a conversation in violation of Texas law is considered a felony.
Tex. Penal Code Ann. § 21.15(c); 21.16(g): Violating Texas video recording laws is a state jail felony punishable by imprisonment in state jail for 180 days to 2 years and a fine not exceeding $10,000.
Can I Record a Phone Call in Texas?
Yes! Since Texas is a one-party consent state, wiretapping laws allow you to record conversations that you are a part of. One thing to note is that if you are recording a conversation with someone from an all-party consent state that the laws will typically apply in the state where the recording is being made. However, it is best practice to follow the strictest laws that would apply for recording (especially for businesses).
Is Texas a two-party consent state?
No, Texas is a one-party consent state.
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