Unlawful Access to Stored Communications: Texas Penal Code §16.04

The Texas Unlawful Access to Stored Communications law gives police the right to arrest you if they believe you accessed, altered, or prevented authorized access to stored wires or electronic communications by obtaining access to the facilities through which the wire or communication is provided, unless you have proper authorization to do so.

The Texas legislature codified this criminal offense in Texas Penal Code Section 16.04. The legislature did not update this law in 2023. In fact, this law has not been amended since 2017.

Texas legislators enacted this law to safeguard the immense amount of private information that all of now store and access in electronic form. This law aims to criminalize attempts to access this private elctronic information from unauthorized uses.

Given the frequency with which we access electronic information daily, it’s surprisingly easy to find yourself accused of breaching this statute. Such violations can escalate to felony charges if a court determines that the offense was committed to gain a benefit or inflict harm on someone, underscoring the importance of taking such charges seriously.

The Penal Code classifies the Texas Unlawful Access to Stored Communications law under Title 4 “Inchoate Offenses,” Chapter 16 “Criminal Instruments, Interception of Wire or Oral Communication, and Installation of Tracking Device.” Learn more about the Texas offense of Unlawful Access to Stored Communications below.

What is the current Texas law about Unlawful Access to Stored Communications?

Texas law currently defines the offense of Unlawful Access to Stored Communications in Penal Code Section §16.04 as follows:^[1]

(a) In this section:

(1) “Electronic communication,” “user,” and “wire communication” have the meanings assigned by Article 18A.001, Code of Criminal Procedure.

(2) “Electronic storage” has the meaning assigned by Article 18B.001, Code of Criminal Procedure.

The Affirmative Defenses provided in the statute

There are three affirmative defenses described by the statute:^[2]

(e) It is an affirmative defense to prosecution under Subsection (b) that the conduct was authorized by:

(1) the provider of the wire or electronic communications service;

(2) the user of the wire or electronic communications service;

(3) the addressee or intended recipient of the wire or electronic communication; or

(4) Chapter 18B, Code of Criminal Procedure.

How can a Unlawful Access to Stored Communications lawyer fight these charges?

In the complex realm of digital communications, it’s easy for lines to become blurred. Charges may arise from accidental access, misunderstandings, or even baseless accusations. The Unlawful Access to Stored Communications statute provides several affirmative defenses to prosecution. Additional defense strategies to contest these charges include:

• Contesting the element of intent.
• Demonstrating that the service provider granted access.
• Showing that the service user authorized access.
• Confirming that the intended recipient permitted access.
• Highlighting any procedural mistakes in the enforcement process.

Your Unlawful Access to Stored Communications attorney can assist in identifying and preserving crucial evidence to counter the charges and effectively present this evidence to secure the best possible outcome for you.

How can I be charged with an Unlawful Access to Stored Communications offense in Texas?

You can be charged with Unlawful Access to Stored Communications in Texas if the state’s attorneys believe that each of the elements of 16.04 as described in the section above have been met.

What is the statute of limitation for Unlawful Access to Stored Communications in Texas?

Misdemeanor level Unlawful Access to Stored Communications charges have a two-year limitations period.^[3] Felony level offenses have a three-year limitations period.^[4]

What is the penalty for a Texas Unlawful Access to Stored Communications offense?

A conviction for Unlawful Access to Stored Communications is punished by default as a Class A misdemeanor,^[5] with a maximum possible fine under Texas state law of up to $4,000 and jail time of up to one year. However, if committed to obtain a benefit or to harm another, the offense is classified as a state jail felony.^[6]

Can you get probation for Unlawful Access to Stored Communications in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Unlawful Access to Stored Communications, and judges are also allowed to accept deferred adjudication plea deals.^[7]

Note, however, that judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[8]

What level of crime is Unlawful Access to Stored Communications in Texas?

The Penal Code classifies the punishment for Unlawful Access to Stored Communications as a Class A misdemeanor, except that it’s a state jail felony if the offense was committed to obtain a benefit or to harm another.

Learn more about the penalty range for this offense in the section above.

---

Legal References:

^1. Texas Penal Code §16.04. This law is current as of 2024.^2. Texas Penal Code §16.04(e)^3. Code of Criminal Procedure 12.02(a)^4. See Code of Criminal Procedure 12.01(9)^5. Texas Penal Code §16.04(c)^6. Texas Penal Code §16.04(d)^7. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^8. Art. 42A.054(b), Texas Code of Criminal Procedure