Texas’s One Party Consent Law
The Texas One-Party Consent Law is defined under Section 16.02 of the Texas Penal Code. Technically referring to the "interception and recording of oral communications," its general legal definition is the recording of an oral communication — made with the consent of the person who is doing the recording — by any device capable of being heard by the person speaking or by another. What this means in practice is that, as long as any party to the recorded conversation grants permission, the recording does not need the approval of an outside party . Thus, since the individual has already granted permission to record, no other third-party approval is needed. It is critical to note that permission for the recording must be granted in both a two-party or more conversation, which is important in workplaces, for example, wherein consent by one party is not sufficient. Additionally, this two-party arrangement also applies to telephone conversations. Third-party consent — unless certain statutes come into play that may require outside approval — is not required.
Exceptions to this Law
Although one-party consent is the default rule for recording conversations in Texas, there are a handful of exceptions. For example, an exception has been recognized by the Texas Court of Appeals, Fifth District at Dallas, in Inwood Oaks II Joint Venture v. Duda, the court held that one-party consent did not apply where an accommodation had been made with the police in the recording of a conversation with the defendant and the subsequent transcription of that recording: While it is true that we have held that [a] conclusion necessarily follows that if the person doing the eavesdropping had probable cause that a crime was being committed or had been committed, he would have been permitted under [TEX. CODE CRIM. PROC. ANN. art.] 18.20 (Vernon 1981) to obtain a search warrant to search for evidence of the crime, including any incriminating conversations. But in this case, a judge had issued such a warrant before the recording was made, and [the State] claims that the recording was made pursuant to that warrant … we do not think a warrant under Article 18.20 was necessary here. We think it sufficient that the police obtained probable cause that a crime was being committed or had been committed and made an accommodation with [the defendant] to record his statements. In addition, there are federal and state law exceptions to the consent rule. For example, a recording of a conversation made by a government agent as part of a court-authorized wiretap may be admissible in a civil or administrative proceeding even if recorded without the consent of one of the parties. See 18 U.S.C. §§ 2517-2518. Further, the United States Supreme Court has noted a "Fourth Amendment ‘overhear’ exception" to the consent rule, which "arises when, again, the witness is a government agent and the overheard communication is beyond the zone of confidentiality: When a government agent regularly and contemporaneously monitors a residential intercom, and one of the parties to the conversation knows of the practice, there is no reasonable expectation of privacy." United States v. White, 401 U.S. 745, 752 (1971). Finally, unlike most eavesdropping statutes, the Texas statute does not grant a party the right to sue another party who records its conversations. The Texas law permits civil actions "against anyone who, through eavesdropping upon a wire, electronic, or oral communication, obtains information from that wire, electronic, or oral communication that is intercepted, transmitted, or conveyed in violation of [this] chapter," but not against a party to the conversation. TEX. PENAL CODE § 16.034(a). However, in Adams v. State, 769 S.W.2d 876 (Tex. Crim. App. 1989), the Texas Court of Criminal Appeals held that a party to the conversation sued for a TEX. PENAL CODE § 16.02 violation could assert a "defense of self-help," meaning that the defendant can assert the defense that they believed they were being "invaded and trespassed upon" or "mistreated or wronged."
Legal and Practical Implications and Considerations
How the law looks at how recordings are used personally and in business will help you understand how it might impact you. Your conversations can be recorded in person, over the telephone, or through the use of technology.
In personal settings, the law makes a distinction between consent to record someone’s voice in person versus over the phone or technology. The law provides special guidelines for recording phone calls or messages.
Recording a call made to or from a cellular phone may implicate Federal laws (47 U.S.C. Section 605, as amended by Telecommunications Acts of 1996, or 18 U.S.C. 2511, known as The Federal Wiretap Act). Federal law requires consent of all parties where at least one party to the communication is a citizen of the United States, and the communication is carried via a wire that runs through an interstate connection. The Federal Wiretap Act also imposes civil and criminal liability up to $5000 for the first offense, and $10000 for subsequent violations.
Texas law provides other means to record a conversation, including phone conversations, over the telephone and in person. For example, Texas law allows a person to record a telephone conversation or electronic communication with the consent of either you or the person being recorded. A conversation is considered recorded by either a tape or by other means, including through the use of an automatic telephone dialing system (ATDS), auto-dialer, or computer. An ATDS means any equipment that can dial phone numbers automatically from a database that is not a phone book. Texas law also allows a person to record a conversation in person or through an electronic device or wiretapping if the consent of either you or the person being recorded is obtained.
All but the most intimate matters may be subject to the law and law enforcement activity. Even if there is no criminal element, violating someone’s privacy rights can lead to a private action in which damages of $1000 per occurrence and attorney’s fees may be awarded to the person whose privacy has been invaded. For example, the law prohibits a business from taping a telephone conversation with a customer without the customer’s consent and Wednesday Morning Corporation has settled a case for stalking its customers for over four years.
Additionally, the Texas Occupational Code, Section 54.001, restricts the recording of any individual in a nursing home that receives underneath the Texas Department of Aging and Disability Services or the Texas Department of Health. Federal law, Section 483.10 provides that residents of nursing homes have the right to arrange for the use or placement of communications or video equipment in their private rooms and, where appropriate, to arrange for the use or placement of communications or video equipment in their semi-private rooms or in other shared living areas.
The Penalties and Consequences of Illegal Recordings
If an individual or organization records a conversation without the necessary consent of one of the parties, there are several potential legal consequences. The severity of these consequences often depends on the specific circumstances of the case and the applicable state or federal laws. That said, here are some common legal ramifications of illegal recordings in Texas:
Criminal Penalties
Under Texas Penal Code Section 16.02, it is unlawful to intentionally or knowingly use any electronic, mechanical, or other means to record the telephone conversation of another unless you are a party to the communication or one of the parties has obtained prior consent. If you are a parent who has legally given consent to have your child’s conversations with you recorded, but your spouse has not provided his or her consent, you may be charged with a felony under Texas Penal Code Section 16.02 – unless you can demonstrate that you had good reason to believe that your child’s other parent had consented.
Liability for Damages
If a person suffers damages as a result of an illegal recording or interception of a phone call, Texas Penal Code Section 16.2 (and Section 18, including Chapter 96) permit your attorney to file a civil action. This civil action may involve the recovery of actual damages, the possibility of recovering additional liquidated damages in the amount of $100 per day for each day of the violation, plus any and all attorney fees, litigation costs, and other reasonable costs. Many people may assume that because they are in Texas that the law does not apply to them. Incidentally, this is not the case. The law for electronic surveillance is a combination of Texas state law and federal law. Both have strict punitive provisions. Further, as alluded to above, the law has the potential to impact turn on interstate rather than intrastate communications. Your recording may affect individuals and entities out of state. You could face § 1983 federal lawsuits , as discussed further below. The Electronic Communications Privacy Act of 1986 ("ECPA") determines how federal law applies to wiretaps, body recorders, and other surveillance devices. Section 2511 of the ECPG provides that "any person who…intentionally intercepts …any wire, oral, or electronic communication shall be punished…by a fine under this title or imprisoned not more than five years, or both." Under Section 2520, anyone who has been "aggrieved by any violation of this chapter in which the action is brought" (that is the plaintiff claiming to have suffered damages and loss) may sue for "damages under this section, but not less than the sum of $100 a day for each day of the violation…." Fines under the Act must be levied in addition to any other fines or penalties pursuant to a state statute. Presuming that the person who has wrongfully recorded your confidential communications in your home for public dissemination is not open to smiling charges from law enforcement, you may be left with the option of filing a civil action against the alleged wrongdoer for damages caused by the invasion of your privacy. If their actions rise to the level of intentional or reckless conduct, you may also be able to obtain punitive damages. That is, under some circumstances, it may be possible for a private citizen to obtain exemplary damages from a defendant who invaded your privacy or wrongfully disclosed private facts. Under the Texas Rules of Civil Procedure, the amount is generally limited to $200,000, but there is always the possibility of recovery above that amount by showing the defendant intentionally, willfully, or maliciously violated your rights. This is often difficult to prove. As mentioned, there are time limits on these claims so bring any issues that arise to the attention of your attorney immediately.
Some Practical Advice for Recording Telephone Conversations
Based on the complexities of the Texas Wiretapping Law, the best defense against a lawsuit for recording a conversation is obtaining the consent of all parties before the recording begins. For those concerned about what happens if you’ve already recorded the conversation without notifying the other parties, consider deleting the recording and communicating with them about the issue. With this being said, here are a few suggestions to legally record conversations in Texas:
• Use of the right device. For many, using personal recording devices such as smartphones can be a convenient method to record a conversation. However, the capacity of the smartphone may not be enough to record the entire length of the conversation. Instead, consider a voice recording app that can run out of battery or run out of space.
• Get everyone’s consent. No matter what you’re recording, be upfront about the process. If you’re on the phone and the conversation may last a longer than your phone’s battery life, let the person know and take steps to ensure they have agreed to continue once the phone restarts. In most instances, it’s best to ask everyone to agree to record via email, text, or another documented form of communication.
• Verify that everyone consented. A simple "hey can I record this conversation" may alert the person you’re speaking with that you’re recording. It’s useful to wait a few seconds for them to answer, as this can be long enough for someone to say no.
• Be mindful of whom you include. When it comes to including more than two people in a recorded conversation, ask each person individually for their consent. You may also want to send out a group message to ensure everyone’s on board.
• Watch for storage issues. If your recording device is set to automatically delete files to free up space, that can work on your behalf when the unwitting offenders come knocking. But be cautious with this approach, as it may impact recordings you want to keep.
We know, not everyone is going to have a perfectly functioning memory. But from time to time we may find ourselves in a position where having a record of a conversation is going to prove to be extremely helpful. It’s okay to record calls from time to time, but just make sure you’ve followed some of the tips above to obtain consent legally.
Federal and State Laws: What’s the Difference?
In some instances, Texas wiretap law may be implicated by relevant federal statutes, such as the Federal Wiretap Act.
The Federal Wiretap Act is codified at 18 U.S.C. § 2511 et seq. While the Federal Wiretap Act generally prohibits wiretaps or recording by a third party, one of the major differences between the Federal Wiretap Act and Texas law is the exception for the "one-party-consent" rule:
…it shall not be unlawful under this chapter for a person to intercept or access an electronic communication of a committing offense against" the wiretap act, if the person voluntarily obtains the contents of an electronic communication, if the electronic communication is with:
• A person
• A party to the communication;
• If one of the parties has given prior consent to the interception of the communication.
18 U.S.C. § 2511(2)(c) .
The important aspect here is that the Federal Wiretap Act, like the Texas wiretap laws, and has an exception for one-party consent to the recording if prohibited by the Federal Wiretap Act because a third party who records the conversation would be guilty of wiretapping under this law, namely;
"It shall not be unlawful under this chapter for a person —
• (A) Not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception."
By understanding how both the state and federal law interacts when recording a conversation, disputants can ensure they are choosing the right method of recording in their case. For example, if you are required to have the consent of all parties in order to record the conversation under federal law, but in Texas you do not, Texas and Wells Fargo Bank Inc., 843 S.W.2d 77 (Tex. App.—Dallas 1992, no pet.), this does not mean you should disregard the Federal Wiretap Act.