Unlawful Installation of Tracking Device: Texas Penal Code §16.06

The Texas Unlawful Installation of Tracking Device law is a criminal offense that is intended to prevent people from monitoring the movements of an automobile without the owner’s consent.

If you do not have the owner’s consent to install a tracking device on someone’s car, then you must obtain a court order or court authorization to install the tracking device if you are not a police officer “who installed the device in the course of a criminal investigation.”

The law says that this offense does not apply to a peace officer who installed the device in the course of a criminal investigation. However, such an installation without a court order might be a violation of the individual’s Constitutional rights.

The Texas legislature codified this criminal offense in Texas Penal Code Section 16.06. The legislature did not update this law in 2023. In fact, this law has not been amended since 2009.

The Penal Code classifies the Texas Unlawful Installation of Tracking Device 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 Installation of Tracking Device below.

What is the current Texas law about Unlawful Installation of Tracking Device?

Texas law currently defines the offense of Unlawful Installation of Tracking Device in Penal Code Section §16.06 as follows:^[1]

(b) A person commits an offense if the person knowingly installs an electronic or mechanical tracking device on a motor vehicle owned or leased by another person.

In short, it is a crime to put a tracking device (such as GPS) on a car that belongs to someone else. Section 16.06(a)(2) says that “motor vehicle” has the meaning assigned by Section 501.002, Transportation Code.^[2]

What exactly is a “electronic or mechanical tracking device“?

An electronic or mechanical tracking device is any device that can emit an electronic frequency or signal that can be used to monitor, identify or record someone’s location.^[3] The most common example would be a GPS device that tracks the location of a vehicle, but even a device such as a odometer would be considered a mechanical device that can monitor someone’s location.

What are the affirmative defenses to the offense?

There are three affirmative defenses to the offense of Unlawful Installation of Tracking Device:^[4]

• 1. You obtained the effective consent of the owner of the motor vehicle before the device was installed. For example, if your husband or wife asks you to install a GPS tracker on their car, you have their consent.
• 2. You assisted another whom you reasonably believed to be a peace officer with proper authorization to install the device. If someone deceives you by pretending to be a peace officer (or a person is a peace officer but does not have the proper authorization to install a tracking device), and you have a reasonable basis to believe that person, your criminal lawyer may be able to argue this affirmative defense and win your case.
• 3. The individual that installed the device is a licensed private investigator and has authorization from a court or has written consent (meaning a document that grants permission) to install the device from the owner or lessee of the vehicle. The written consent scenario would be applicable if someone is attempting to track a child’s vehicle or a spouse’s vehicle.

Because these are affirmative defenses, it is up to you and your criminal attorney to raise these issues.

How can I get “effective consent” from the owner or lessee?

Effective Consent can mean explicit consent or implied consent. Effective consent can mean that you were directly informed either verbally or in writing that you have their full permission to install a tracking device. For example, if you take a car into a mechanic and ask them to install a GPS device, you have given them your express consent. Bear in mind that your attorney will have to argue this defense to a jury or a judge, so it is not a 100% sure bet.

Alternately, effective consent can be implied. For example, a parent might ‘lease’ a car to their child, and still put a tracking device because they are still a minor. The minor child might not have ever given their express consent, but because they are still under the protection and control of their parents the consent is assumed.

I didn’t know that what I was putting on the car qualified as a tracking device. Can I still be charged?

Under Texas law, it is required that you know that they were putting a tracking device on the car. That requirement of knowledge applies to every element of the offense. That means that you must know that the device is a tracking device, you must know that you’re installing it, and you must know that the motor vehicle is owned or leased by someone else. If you believed that the car you placed the device on was one that you owned, you would not be guilty of the offense. If you were misled and told the device was not a tracking device, and believed it to be so, then you would not be guilty of the offense. However, it is not a defense that you simply did not know that it was a crime.

What is the statute of limitation for Unlawful Installation of Tracking Device in Texas?

As a misdemeanor, Unlawful Installation of Tracking Device charges have a two-year limitations period.^[5]

What is the penalty for a Texas Unlawful Installation of Tracking Device offense?

Unlawful Installation of Tracking Device is punishable as a Class A Misdemeanor.^[6] A Class A Misdemeanor is punishable by time in county jail for up to one year, and a fine of no more than $4,000. However, note that just because this is the maximum punishment does not mean that this is the most likely punishment that you will receive.

Can you get probation for Unlawful Installation of Tracking Device in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Unlawful Installation of Tracking Device, 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 Installation of Tracking Device in Texas?

The Penal Code classifies the punishment for Unlawful Installation of Tracking Device as a Class 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 §16.06. This law is current as of 2024.^2. A motor vehicle is defined in Texas Transportation Code §501.002(17) as:

(A) any motor driven or propelled vehicle required to be registered under the laws of this state;

(B) a trailer or semitrailer, other than manufactured housing, that has a gross vehicle weight that exceeds 4,000 pounds;

(C) a travel trailer;

(D) an all-terrain vehicle or a recreational off-highway vehicle, as those terms are defined by Section 502.001, designed by the manufacturer for off-highway use that is not required to be registered under the laws of this state; or

(E) a motorcycle, motor-driven cycle, or moped that is not required to be registered under the laws of this state.

^3. Texas Penal Code §16.06(a)(1) – ‘”Electronic or mechanical tracking device” means a device capable of emitting an electronic frequency or other signal that may be used by a person to identify, monitor, or record the location of another person or object.’

^4. Texas Penal Code §16.06(d) –

(d) It is an affirmative defense to prosecution under this section that the person:

(1) obtained the effective consent of the owner or lessee of the motor vehicle before the electronic or mechanical tracking device was installed;

(2) assisted another whom the person reasonably believed to be a peace officer authorized to install the device in the course of a criminal investigation or pursuant to an order of a court to gather information for a law enforcement agency; or

(3) was a private investigator licensed under Chapter 1702, Occupations Code, who installed the device:

(A) with written consent:

(i) to install the device given by the owner or lessee of the motor vehicle; and

(ii) to enter private residential property, if that entry was necessary to install the device, given by the owner or lessee of the property; or

(B) pursuant to an order of or other authorization from a court to gather information.

^5. See Code of Criminal Procedure 12.02(a)^6. Texas Penal Code §16.06(c)^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