Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications: Texas Penal Code §16.02

The Texas Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications law 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.

This law prohibits recording a conversation in which you are not a participant unless the participants consent to the recording. If you are a participant in the conversation, then you are allowed to record the conversation. This is why Texas is considered a “one party consent” state. But if you’re not a party to a conversation, this law may apply and make it illegal for you to conduct surveillance on the conversations of other people.

The legislature codified this criminal offense in Texas Penal Code Section 16.02. The law was not updated in 2023. In fact, the legislature has not amended this law since 2017.

The Penal Code classifies the Texas Unlawful Interception of Communications Law 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 Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications below.

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

Texas law currently 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.

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. It is not illegal to record a conversation if you are one of the participants. The other participants in the conversation do not need to consent to being recorded or even be aware that they are being recorded. Any person participating in the conversation may discreetly or openly record a conversation.

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

How can I be charged with an Unlawful Interception of Communications Law offense in Texas?

You can be charged with Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications in Texas 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 statute of limitation for Unlawful Interception of Communications Law in Texas?

Unlawful Interception of Communications Law offenses have a three-year limitations period.^[2]

What is the penalty for a Texas Unlawful Interception of Communications Law offense?

A conviction for Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications in Texas is punished as a felony of the second degree, unless the offense is committed under subsection (d) or (g), in which case the offense is classified as a state jail felony.^[3]

Can you get probation for Unlawful Interception of Communications Law in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Unlawful Interception of Communications Law, and judges are also allowed to accept deferred adjudication plea deals.^[4]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[5] Also, 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.^[6]

What level of crime is Unlawful Interception of Communications Law in Texas?

The Penal Code classifies the punishment for subsection (d) and (g) offenses of Unlawful Interception of Communications Law as a state jail felony. All other offenses under this law are classified as second degree felonies.

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

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Legal References:

^1. Texas Penal Code §16.02. This law is current as of 2024.^2. See Code of Criminal Procedure 12.01(9)^3. Texas Penal Code §16.02(f)

^4. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^5. Art. 42A.053(c), Texas Code of Criminal Procedure^6. Art. 42A.054(b), Texas Code of Criminal Procedure