WHAT IS UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS IN TEXAS?
Unlawful interception, use, or disclosure of wire, oral, or electronic communications—known as the wiretap statute—prohibits surreptitiously recording a conversation without a person’s consent.
WHAT IS THE UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS LAW IN TEXAS?
Tex. Penal Code § 16.02. UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS.
(b) A person commits an offense if the person:
(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;
(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:
(A) is affixed to, or otherwise 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.
(c) It is an affirmative defense to prosecution under Subsection (b) that:
(1) an operator of a switchboard or an officer, employee, or agent of a communication common carrier whose facilities are used in the transmission of a wire or electronic communication intercepts a communication or discloses or uses an intercepted communication in the normal course of employment while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the rights or property of the carrier of the communication, unless the interception results from the communication common carrier’s use of service observing or random monitoring for purposes other than mechanical or service quality control checks;
(2) an officer, employee, or agent of a communication common carrier provides information, facilities, or technical assistance to an investigative or law enforcement officer who is authorized as provided by this section to intercept a wire, oral, or electronic communication;
(3) a person acting under color of law intercepts:
(A) a wire, oral, or electronic communication, if the person is a party to the communication or if one of the parties to the communication has given prior consent to the interception;
(B) a wire, oral, or electronic communication, if the person is acting under the authority of Chapter 18A, Code of Criminal Procedure; or
(C) a wire or electronic communication made by a computer trespasser and transmitted to, through, or from a protected computer, if:
(i) the interception did not acquire a communication other than one transmitted to or from the computer trespasser;
(ii) the owner of the protected computer consented to the interception of the computer trespasser’s communications on the protected computer; and
(iii) the actor was lawfully engaged in an ongoing criminal investigation and the actor had reasonable suspicion to believe that the contents of the computer trespasser’s communications likely to be obtained would be material to the investigation;
(4) a person not acting under color of law intercepts a wire, oral, or electronic communication, if:
(A) the person is a party to the communication; or
(B) one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing an unlawful act;
(5) a person acting under color of law intercepts a wire, oral, or electronic communication if:
(A) oral or written consent for the interception is given by a magistrate before the interception;
(B) an immediate life-threatening situation exists;
(C) the person is a member of a law enforcement unit specially trained to:
(i) respond to and deal with life-threatening situations; or
(ii) install interception devices; and
(D) the interception ceases immediately on termination of the life-threatening situation;
(6) an officer, employee, or agent of the Federal Communications Commission intercepts a communication transmitted by radio or discloses or uses an intercepted communication in the normal course of employment and in the discharge of the monitoring responsibilities exercised by the Federal Communications Commission in the enforcement of Chapter 5, Title 47, United States Code;
(7) a person intercepts or obtains access to an electronic communication that was made through an electronic communication system that is configured to permit the communication to be readily accessible to the general public;
(8) a person intercepts radio communication, other than a cordless telephone communication that is transmitted between a cordless telephone handset and a base unit, that is transmitted:
(A) by a station for the use of the general public;
(B) to ships, aircraft, vehicles, or persons in distress;
(C) by a governmental, law enforcement, civil defense, private land mobile, or public safety communications system that is readily accessible to the general public, unless the radio communication is transmitted by a law enforcement representative to or from a mobile data terminal;
(D) by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or
(E) by a marine or aeronautical communications system;
(9) a person intercepts a wire or electronic communication the transmission of which causes harmful interference to a lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of the interference;
(10) a user of the same frequency intercepts a radio communication made through a system that uses frequencies monitored by individuals engaged in the provision or the use of the system, if the communication is not scrambled or encrypted; or
(11) a provider of an electronic communications service records the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service towards the completion of the communication, or a user of that service from fraudulent, unlawful, or abusive use of the service.
(d) A person commits an offense if the person:
(1) intentionally manufactures, assembles, possesses, or sells an interception device knowing or having reason to know that the device is designed primarily for nonconsensual interception of wire, electronic, or oral communications and that the device or a component of the device has been or will be used for an unlawful purpose; or
(2) places in a newspaper, magazine, handbill, or other publication an advertisement of an interception device:
(A) knowing or having reason to know that the device is designed primarily for nonconsensual interception of wire, electronic, or oral communications;
(B) promoting the use of the device for the purpose of nonconsensual interception of wire, electronic, or oral communications; or
(C) knowing or having reason to know that the advertisement will promote the use of the device for the purpose of nonconsensual interception of wire, electronic, or oral communications.
(e) It is an affirmative defense to prosecution under Subsection (d) that the manufacture, assembly, possession, or sale of an interception device that is designed primarily for the purpose of nonconsensual interception of wire, electronic, or oral communication is by:
(1) a communication common carrier or a provider of wire or electronic communications service or an officer, agent, or employee of or a person under contract with a communication common carrier or service provider acting in the normal course of the provider’s or carrier’s business;
(2) an officer, agent, or employee of a person under contract with, bidding on contracts with, or doing business with the United States or this state acting in the normal course of the activities of the United States or this state;
(3) a member of the Department of Public Safety who is specifically trained to install wire, oral, or electronic communications intercept equipment; or
(4) a member of a local law enforcement agency that has an established unit specifically designated to respond to and deal with life-threatening situations.
(e-1) It is a defense to prosecution under Subsection (d)(1) that the interception device is possessed by a person authorized to possess the device under Section 500.008, Government Code, or Section 242.103, Human Resources Code.
(f) An offense under this section is a felony of the second degree, unless the offense is committed under Subsection (d) or (g), in which event the offense is a state jail felony.
(g) A person commits an offense if, knowing that a government attorney or an investigative or law enforcement officer has been authorized or has applied for authorization to intercept wire, electronic, or oral communications, the person obstructs, impedes, prevents, gives notice to another of, or attempts to give notice to another of the interception.
WHAT IS THE PENALTY CLASS FOR UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS IN TEXAS?
Unlawful interception, use, or disclosure of wire, oral, or electronic communications is, under most circumstances, a second degree felony, punishable by two to 20 years in prison. It may be charged as a state jail felony, punishable by 180 days to two years in a state jail facility, if:
- the person alerts another that law enforcement is applying for legal authorization to intercept their communications, or otherwise obstructs law enforcement’s lawful interception; or
- sells, attempts to sell, or promotes the use of an interception device designed for the non-consensual recording of another’s communications.
WHAT IS THE PUNISHMENT RANGE FOR UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS IN TEXAS?
The punishment range for unlawful interception, use, or disclosure of wire, oral, or electronic communications charged as a second degree felony is two to 20 years in prison, and a maximum fine of $10,000. If charged as a state jail felony, it carries a possible 180 to two years in a state jail facility, and up to a $10,000 fine.
WHAT ARE THE PENALTIES FOR UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS IN TEXAS?
As an alternative to prison, a person charged with the state jail felony unlawful interception, use, or disclosure of wire, oral, or electronic communications may be placed on probation after a conviction, or deferred adjudication without a conviction, for up to five years.
If charged as a second degree felony, a person may be placed on probation or deferred adjudication for up to ten years.
WHAT ARE THE DEFENSES TO UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS IN TEXAS?
The statute delineates certain affirmative defenses for law enforcement or those “acting under color of law” when intercepting a wire, oral, or electronic communication, if:
- one of the people involved in the conversation is law enforcement and gives consent to record;
- law enforcement was authorized by a judge to intercept communications;
- an illegally-obtained interception was transmitted to a “protected computer,” and the owner of the protected computer consented to giving law enforcement the interception as part of an ongoing investigation;
- law enforcement gets permission from a magistrate to intercept a communication for responding to a life-threatening situation;
- the Federal Communications Commission intercepts communications in its normal course of business and responsibilities;
Texas law also permits:
- one of the parties to the communication to consent to its recording;
- intercepting or accessing an electronic communication made through a system that is readily accessible to the general public;
- users of the same frequency to intercept radio communications;
- intercepting a transmission causing harmful interference to a lawful operating station or consumer electronic equipment to identify the source of the interference;
- electronic communications service providers to record wire or electronic communications for their protection and the protection of their users from fraudulent, unlawful, or abusive use of their services.
In defense of the state jail felony charge of manufacturing, assembling, possessing, or selling a device designed for illegally intercepting communications, the statute permits law enforcement and common carriers or service providers to have such devices for their normal course of business, or for law enforcement to specifically deal with life-threatening situations.
WHAT IS THE STATUTE OF LIMITATIONS FOR UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS IN TEXAS?
The limitation period for unlawful interception, use, or disclosure of wire, oral, or electronic communications charged as either a second degree or state jail felony is three years.
UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS IN TEXAS
Texas is a “one-party consent” state, which means it is not illegal to record a telephone call, or distribute a recorded communication, if the person making the recording is a party to the call or communication, or one of the parties has given prior consent.
TEXAS UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS COURT CASES
The case law regarding unlawful interception, use, or disclosure of wire, oral, or electronic communications in Texas shows the wiretap statute only prohibits recording or intercepting communications in limited, narrow circumstances.
- In Long v. State, a parent encouraged her daughter to record a coach’s speech in a locker room. The defendant showed her daughter’s illegal recording to the assistant principal. A jury found her guilty, and the Court of Criminal Appeals affirmed. The locker room was a protected space where the coach had a reasonable expectation of privacy in his speech, regardless of the likelihood that the team members would disseminate the contents of his speech. And the defendant could not use the affirmative defense that one of the parties gave consent to the interception, because it was intercepted for the purpose of committing an unlawful act.
- In White v. State, three defendants were on trial for engaging in organized criminal activity and money laundering. The trial court admitted into evidence an audio recording between two of the defendants and another man, only known as “Brandon.” Brandon apparently called the victim and gave him the audio recording, but never testified nor met the victim face-to-face. However, because there was sufficient evidence (a preponderance standard for admissibility) that Brandon consented to the recording, and the voices were identified, the recording was legally obtained. Texas is a one-party consent state for recorded conversations.
- In Alameda v. State, a mother was suspicious that the defendant, a family friend, was getting inappropriately close with her 12-year-old daughter. The mother attached a recording device to her phone jack, which recorded all calls on her home phone. She found out the defendant was having sex with her 12-year-old, and the recordings were admitted at trial. The appellate court found the recordings were legally obtained: “[a] parent may vicariously consent on behalf of . . . her child to a recording of the child’s conversations so long as the parent has an objectively reasonable, good-faith basis” for believing it “is in the child’s best interest.”
