One of the most pervasive questions I get is whether a party can record conversations either in person or on the phone. Here is a short breakdown of applicable laws and cases in Texas.
The General Rules:
No matter the form of communication, the general rule is - assuming you aren't doing it for an illegal reason (harassment, etc.) - if you are recording a communication between yourself and another person, and the other person knows you are recording it, you are probably alright in recording it. If you are recording a conversation with another person who DOES NOT know you are recording it, you MAY (and I stress MAY) be ok to record it under certain circumstances. BUT, if you secretly record a conversation between two other people without their knowledge, that is classic wiretapping and you most likely will get in very big trouble.
There are many exceptions and precautions to these general rules!
Summary of statute(s):
An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it, unless the person is doing so for the purpose of committing a criminal or tortious act. A person also can lawfully record electronic communications that are readily accessible to the general public. Tex. Penal Code Ann. § 16.02 (Vernon 2011).
The consent of at least one party to a conversation is required to record an “oral communication,” which is defined as “any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.” Tex. Code Crim. Proc. Ann. art. 18.20. Thus, an ex-wife can record a conversation with her ex-husband at a Starbucks because she does not need consent to record conversations in public where there is no reasonable expectation of privacy. However if she records the same conversation in the privacy of the home, where privacy is usually expected, then she should get the ex-spouses permission before recording or she may be breaking the law.
Things can get VERY SERIOUS when recording electronic communications because Federal Wiretapping Laws may come into play.
The consent of at least one party to any telephone communication is required to record it. And because the provision of the statute dealing with wireless communications applies to “a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. Id. The burden will be on YOU to prove that you obtained informed consent prior to recording. Either have the consent given verbally and plainly at the beginning of the recording and/or get it in writing.
It is a felony to photograph or record a person without the person’s consent in a public place “with the intent to arouse or gratify the sexual desire of any person,” or in a bathroom or private dressing room “with the intent to invade the privacy of the person, or arouse or gratify the sexual desire of any person,” and to disclose any images obtained by these means. Tex. Penal Code Ann. § 21.15.
The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (i.e., filming conversations on public streets or a hotel lobby). The state’s highest court for criminal cases recently held that the statutory prohibition on photographing or videotaping a person in public without that person’s consent with the intent to arouse or gratify a sexual desire did not implicate, much less violate, a defendant’s free-speech rights because the statute was not a regulation of speech or the contents of a visual image but rather a regulation of the photographer’s or videographer’s intent in creating the image. Ex parte Nyabwa, 366 S.W.3d 710 (Tex. Crim. App. 2012).
Illegally recording an in-person conversation or electronic communication is a felony offense. Tex. Penal Code Ann. § 16.02.
Anyone whose wire, oral or electronic communication has been recorded or disclosed in violation of the law can bring a civil suit to recover $10,000 for each occurrence, actual damages in excess of $10,000, punitive damages, attorney’s fees and court costs. Under the statute, an aggrieved person also is entitled to an injunction prohibiting further unlawful interception or disclosure. Tex. Civ. Prac. & Rem. Code Ann. § 123.004.
Not only can you get in serious trouble for illegally recording a communication, if you then show the illegal recordings to anyone, you may be breaking additional laws. Trying to get your attorney to listen to, watch or hold on to such illegal recordings counts. And then if your attorney tries to use illegal recordings in court, you BOTH can be violating the law.
Disclosing the contents of a wire, oral or electronic communication obtained through illegal recording is a felony. Tex. Penal Code Ann. § 16.02
The bottom line
The bottom line is that if you plan to record conversations without informing everyone that you are recording them, then make sure you follow these guidelines:
1. There are no circumstances when you can record a person for an illegal purpose such as to harass them or for sexual gratification.
2. At least one party to the conversations needs to be aware they are being recorded;
3. Do not record someone when they should reasonably expect privacy (such as in their home);
4. If you have an illegal recording in your possession, do not try to show it to anyone.
It is best to consult with a lawyer before attempting to do any sort of fact gathering on your case. If you have any further questions about taping phone calls, recording conversations or taking videos in relation to your family law case in Texas you may schedule a consultation with an attorney on our website at thepalmerlawfirm.com.
Attorney Sean Y. Palmer has over 20 years of legal experience as a Texas Attorney and over 25 years as a Qualified Mediator in civil, family and CPS cases. Palmer practices exclusively in the area Family Law and handles Divorce, Child Custody, Child Support, Adoptions, and other Family Law Litigation cases. He represents clients throughout the greater Houston Galveston area, including: Clear Lake, NASA, Webster, Friendswood, Seabrook, League City, Galveston, Texas City, Dickinson, La Porte, La Marque, Clear Lake Shores, Bacliff, Kemah, Pasadena, Baytown, Deer Park, Harris County, and Galveston County, Texas.
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