Texas is considered a “one-party consent” state, but the Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications crime in the state of Texas makes it illegal to intercept communications in a variety of circumstances, and it also makes it a crime to impede law enforcement from surveilling someone if you know they have the authority to do so.

Texas is considered a “one-party consent” state because it is not illegal to record a conversation if you are one of the participants. However, if you are not one of the participants in the conversation and no one in the conversation is consenting to the recording, then you are conducting surveillance, which may be illegal under this law.

Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications is classified in the Texas Penal Code under Title 4 “Inchoate Offenses,” Chapter 16 “Criminal Instruments, Interception of Wire or Oral Communication, and Installation of Tracking Device.” Learn more detailed information about the Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications offense below.

What is the current Texas law about Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications?

The current Texas law defines the offense of Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications in Penal Code Section §16.02 as follows:^[1]

(b) A person commits an offense if the person:

(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;

(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(3) intentionally uses or endeavors to use the contents of a wire, oral, or electronic communication if the person knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(4) knowingly or intentionally effects a covert entry for the purpose of intercepting wire, oral, or electronic communications without court order or authorization; or

(5) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any interception device to intercept any oral communication when the device:

(A) is affixed to, or otherwise transmits a signal through a wire, cable, or other connection used in wire communications; or

(B) transmits communications by radio or interferes with the transmission of communications by radio.

(d) A person commits an offense if the person:

(1) intentionally manufactures, assembles, possesses, or sells an interception device knowing or having reason to know that the device is designed primarily for nonconsensual interception of wire, electronic, or oral communications and that the device or a component of the device has been or will be used for an unlawful purpose; or

(2) places in a newspaper, magazine, handbill, or other publication an advertisement of an interception device:

(A) knowing or having reason to know that the device is designed primarily for nonconsensual interception of wire, electronic, or oral communications;

(B) promoting the use of the device for the purpose of nonconsensual interception of wire, electronic, or oral communications; or

(C) knowing or having reason to know that the advertisement will promote the use of the device for the purpose of nonconsensual interception of wire, electronic, or oral communications.

Subsection (g) describes another way to violate this law:

(g) A person commits an offense if, knowing that a government attorney or an investigative or law enforcement officer has been authorized or has applied for authorization to intercept wire, electronic, or oral communications, the person obstructs, impedes, prevents, gives notice to another of, or attempts to give notice to another of the interception.

How can I be charged with Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications?

You can be charged with Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications if the state’s attorneys believe that each of the elements of 16.02 (b), (d) or (g), as described in the section above have been met.

What is the punishment for Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications?

A conviction for Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications is punished as a felony of the second degree, unless the offense is committed under Subsection (d) or (g), in which event the offense is a state jail felony.^[2]

Is Texas considered a one-party consent state?

Texas is considered a “one-party consent” state because any of the participants in a conversation may record the conversation. The other participants in the conversation do not need to consent to the recording or even be aware that they are being recorded. Any person participating in the conversation may discreetly or openly record a conversation.

However, under the Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications offense in Texas, it is generally illegal to “surveil” or “intercept” communications of which you are not a participant.

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Legal References:

^1. Texas Penal Code §16.02^2. Texas Penal Code §16.02(f)