Illegal Divulgence of Public Communications: Texas Penal Code §16.05

The Texas Illegal Divulgence of Public Communications law makes it illegal for providers of an electronic communications services to share the personal communications of others.

The Texas legislature codified this criminal offense in Texas Penal Code Section 16.05. The legislature did not update this law in 2023. In fact, this law has not been amended since 2017, when it clarified the definition of electronic communications service.

When we consider privacy, we often think of personal emails, phone conversations, or traditional mail. However, what about public communications that are not encrypted? This law addresses the unlawful disclosure of such communications. Attorney Paul Saputo explains the concept like this:

Imagine owning a radio that can tune into specific frequencies. You accidentally overhear a conversation that is not intended for public ears, transmitted over an unsecured channel. In Texas, sharing this intercepted information, particularly when it’s not meant for the public, could be viewed as a violation of privacy. The law aims to uphold the integrity and confidentiality of certain communications, even if they are not ‘private’ in the conventional sense.

The Penal Code classifies the Texas Illegal Divulgence of Public 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 Illegal Divulgence of Public Communications below.

What is the current Texas law about Illegal Divulgence of Public Communications?

Texas law currently defines the offense of Illegal Divulgence of Public Communications in Penal Code Section §16.05 as follows:^[1]

(b) A person who provides electronic communications service to the public commits an offense if the person knowingly divulges the contents of a communication to another who is not the intended recipient of the communication.

What affirmative defenses are available?

The law provides three affirmative defenses:^[2]

(c) It is an affirmative defense to prosecution under Subsection (b) that the actor divulged the contents of the communication:

(1) as authorized by federal or state law;

(2) to a person employed, authorized, or whose facilities are used to forward the communication to the communication’s destination; or

(3) to a law enforcement agency if the contents reasonably appear to pertain to the commission of a crime.

Why does the Illegal Divulgence of Public Communications Law Exist in Texas?

The Texas legislature enacted this law to protect communications, even those not traditionally private, for several reasons. Consider professionals like law enforcement officers, firefighters, or emergency medical teams who utilize radios during their work. Their discussions may occur on channels accessible to the general public. Texas Penal Code Ann. §16.05 serves to protect these crucial communications, which are important for public safety and welfare, from being misused or misrepresented.

Trust is another significant factor. Professionals must feel confident that their communications will not be misappropriated or used against them. By securing these channels, Texas upholds professionalism and ensures security in sectors that depend extensively on radio communication.

How can I be charged with an Illegal Divulgence of Public Communications offense in Texas?

You can be charged with Illegal Divulgence of Public Communications in Texas if the state’s attorneys believe that each of the elements of 16.05 as described in the section above have been met.

What is the statute of limitation for Illegal Divulgence of Public Communications in Texas?

Misdemeanor level Illegal Divulgence of Public 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 Illegal Divulgence of Public Communications offense?

A conviction for Illegal Divulgence of Public Communications can be punished anywhere from a Class C misdemeanor to a state jail felony, depending on the circumstances.^[5]

Can you get probation for Illegal Divulgence of Public Communications in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Illegal Divulgence of Public Communications, and judges are also allowed to accept deferred adjudication plea deals.^[6]

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.^[7]

What level of crime is Illegal Divulgence of Public Communications in Texas?

The Penal Code classifies the punishment for Illegal Divulgence of Public Communications as a state jail felony or, under the limited circumstances described under subsection (e), a misdemeanor.

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

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Legal References:

^1. Texas Penal Code §16.05. This law is current as of 2024.^2. Texas Penal Code §16.05(c)^3. Code of Criminal Procedure 12.02(a)^4. See Code of Criminal Procedure 12.01(9)^5. Texas Penal Code §16.05(d)&(e)

(d) Except as provided by Subsection (e), an offense under Subsection (b) that involves a scrambled or encrypted radio communication is a state jail felony.

(e) If committed for a tortious or illegal purpose or to gain a benefit, an offense under Subsection (b) that involves a radio communication that is not scrambled or encrypted:

(1) is a Class A misdemeanor if the communication is not a public land mobile radio service communication or a paging service communication; or

(2) is a Class C misdemeanor if the communication is a public land mobile radio service communication or a paging service communication.

^6. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102^7. Art. 42A.054(b), Texas Code of Criminal Procedure