A Primer on Texas Recording Laws
Texas law gives police officers and judges a lot of leeway in determining what the term "secrete" means, so there can be no hard and fast rule about what is legal or illegal under Texas law. But there are some guidelines.
If you are making a recording of a private conversation, you want to make sure that you are a party to that conversation. If you are not a party, it is a crime for you to record that conversation without consent. If you are a party, the law says you can make a recording without having permission from the other party. This has become commonly known as "one-party consent." So, if you are one of the people who are speaking, you do not need permission from the other person, the other party, to make a recording of that conversation.
The "one-party consent" rule pertains to conversations in which one of the parties has an expectation of privacy, so the rule does not apply to conversations in which there is no expectation of privacy. Therefore, you can record a telephone conversation with the 911 emergency operator and it is not illegal. You can record a call to your best friend, your spouse, or your grandmother and it is not illegal. But you cannot, for example , record a conversation between someone you don’t know and a police officer at a traffic stop because neither person in that conversation has an expectation of privacy.
The Texas legal codes that deal with this issue can be found at Texas Penal Code §§ 16.02 (wiretapping), 16.03 (illegal interception, use, or disclosure of communications) and 16.04 (illegal use of telephone or telegraph). The law is a little confusing because there are two different laws that make it a criminal act to record a conversation without permission of the other party. Under § 16.02, as a person recording the conversation, we can’t use a recording device to overhear or record a conversation unless we are a party to the conversation. The other law, § 16.03, outlaws the interception of a wire communication as described above in this article. So the two laws are in direct conflict. The way it has been explained to me is that the legislature intended to outlaw the interception of communications but left the prohibition from § 16.03 out of § 16.02. That is the way courts have interpreted the two conflicting laws. But the bottom line is, if you want your recording to be admissible in court, you need to be a party to the conversation.
Admissibility Factors
In order for a recorded conversation to be admissible in Texas courts, several evidentiary requirements must be satisfied. The threshold question is whether the recording is relevant, as defined under the Texas Rules of Evidence. In order to be relevant under Texas Rule of Evidence 401, the recorded conversation must have any tendency to make the existence of the fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Of course, the recording must also be lawfully obtained. While there may be an issue as to the legality of recording a conversation that occurs in a jurisdiction where all parties must consent to the recording, in Texas the legal threshold is lower; Texas law allows a single party consent. So as long as you are a party to the conversation itself and have the capacity to comprehend what is being said, it will be presumed that you consented to the recording, making the evidence foundationally admissible. There are, however, many other evidentiary requirements that may need to be satisfied in some cases. For example, authentication and business records requirements must be satisfied in some situations.
Exceptions and Other Special Situations
While the general rules and standards are the same, the Texas Family Code provides some exceptions to the rules for either recordings or introduction of recorded conversations in family law cases. First, the Texas Family Code Section 9.001 governs the admissibility of any recording used to prove the grounds for divorce.
The elements discussed above refer to the recording of statements of the spouse who has committed domestic violence against the other spouse or their children or family pets. The admission of an audio recording of a voice without a tape written transcript and without the testimony of a qualified expert is admissible to establish the presence of domestic violence and may be considered to determine all issues in a divorce without the necessity of proving a ground for divorce.
Now, there can be other exceptions and special cases that might allow evidence into court that would otherwise be excluded. For example, if you are the subject of a criminal investigation, then the State’s attorney may be able to get authorization from a judge to record the alleged conversation.
Effect of Illegally-Obtained Recordings
In addition to the issue of whether consent was obtained, the use of a recording may have legal ramifications under other parts of the Texas Penal Code. A person who uses a phone to record a conversation without consent may be committing an invasion of privacy. This is a Class C misdemeanor that can be filed by a peace officer, district attorney, and city prosecutor. This offense should not be confused with the legal reception of a transcript of a conversation made by a police tap into a drug dealer’s phone. Exemption is made for peace officers acting within the scope of their authority.
The privacy invasion statute states: "A person commits an offense if , with the intent to commit an unlawful act or to aid or encourage another to commit an unlawful act, he intentionally overhears, or records, by eavesdropping upon, a conversation . . . unless the person is a party to the conversation or one of the parties to the conversation has given prior consent to the interception." The penalty for this offense is fine only, not to exceed $500.
In civil cases, there may also be a cause of action for invasion of privacy with respect to an individual taking an oral statement. This would not directly restrict admissibility of the statement in a lawsuit, but damages for invasion of privacy would be a separate cause of action against the employer or individual responsible for the unauthorized recording.
Recent Texas Case Law
Included in this section would be a review of relevant recent case examples in Texas law. For example, in Kelly vs. Case, the topic of whether taped conversations are admissible in Texas state courts. The federal case of Rabin v. Kerr-McGee Corp. involved a federal court’s refusal to admit taped conversations without a showing of sufficient authentication by the party offering the recording in evidence. In Kelly v. Case, heard at the El Paso Court of Appeals in 1978, pre-trial and post-trial rulings established that the taped conversations were admissible, thus allowing the jury to determine the authenticity of the tapes in question (Kelly v. Case, 574 S.W.2d 911, El Paso 1978).
Practical Tips for Legal Recording in Texas
Practical advice for legal recording in Texas is to maintain compliance with Texas law. First consider the Texas statute which makes it a felony to intercept, record, or disclose an oral or wire communication, without consent of one of the participants. Chapter 16 of the Texas penal code is the Wiretapping Code and is authored by an experienced Texas prosecutor, state Rep. David Simpson. He attracted national attention and criticism when he said on the House floor that if a Texan sees a person being raped or seeing a person about to commit a rape, that witness should stand by and not intervene if there is anyone else present, unless that witness was recording the event so that the state can prosecute the alleged assailant. State Representative Simpson made that argument to bolster his support of Senate Bill 1168, a bill that as passed, takes effect September 1, 2011, and allows Texans to legally record police officers while they are performing official duties. Simpson’s bill has already been criticized as being vague in the definition of "official duties". In contrast to many other states, Texas does not have a general "sunshine" law allowing citizens to record anything in public. Texas’ Wiretap law allows a person to record anything that they can hear unless they intend to commit a criminal act. For example, the statute does not require public employees and officers, such as judges or the police, to give their consent before they can be recorded, because it is reasonable to presume that as public servants, they should know that their acts may be open to scrutiny by the public.
So a good rule is to record any conversations "where you have the right to be" and always obtain written consent if it is possible to do so. To improve your chances of being able to legally introduce your recording into evidence in a private court case, have the person that you are recording sign a written consent form as they are about to be recorded. The questionable cases for admission are where you conceal your recording equipment by making a recording in a place where the victim assumes it will not be located or that the person whose conversation is being recorded will never discover. To improve your chances of getting the tape admitted , make a tape yourself of you persuading the person to allow you to record, or ask the person to sign a consent form agreeing to the recording. This practice is best where there is no expectation of privacy such as in public buildings or where the person you are recording has a clear expectation that their conversation is not being overheard, such as in a closed office. The statute allows exceptions for recordings of express and implied threats and illicit conversations, including recordings to gather evidence of a crime. The potential issue is whether the recording can be admitted into evidence in court. Specifically, the question is whether or not it was recorded for the purpose of committing or aiding the commission of a crime or tort or intending to commit or conceal an illegal act.
One of the Texas Court of Appeals has held that the recording of a conversation with a police officer investigating a report of driving while intoxicated was not for the purpose of committing a crime. As a practical matter, this exception will be hardest to analyze where the crime is otherwise obvious. For example, the offense of stalking requires that the defendant’s conduct is intended to cause "fear of bodily injury" or intent to cause serious bodily injury or death. When the stalker records the conversation, the defendant may later claim that it was a "coincidental recording" and that he fear of bodily injury or death was based on another source. The true facts are often more complicated than the legal elements of an offense, and that vagueness is what lends itself to interpretation by lawyers in court. So if a private citizen wants to avoid the criminal offense of wiretapping another person’s conversation, it is usually advisable to get consent and never to secretly record a conversation. If there is an objection, have the person sign a release giving his consent to the recording. It is also best to classify your recording as a legal evidence collection device, and to always release a copy to the person that you were taping along with a release in writing.