The Texas Unlawful Use of Pen Register or Trap and Trace Device law gives police the right to arrest you if they believe you used surveillance equipment, specifically a pen register or trap and trace device, except for three exceptions for which the law allows you to plead an affirmative defense.
FAQs about the
Pen Registers and Trap and Trace Devices law in Texas
- What is the current Texas law about Unlawful Use of Pen Register or Trap and Trace Device?
- What affirmative defenses are available?
- How can I be charged with an Pen Registers and Trap and Trace Devices offense in Texas?
- What is the statute of limitation for Pen Registers and Trap and Trace Devices in Texas?
- What is the penalty for a Texas Pen Registers and Trap and Trace Devices offense?
- Can you get probation for Pen Registers and Trap and Trace Devices in Texas?
- What level of crime is Pen Registers and Trap and Trace Devices in Texas?
The Texas legislature codified this criminal offense in Texas Penal Code Section 16.03. The legislature did not update this law in 2023. In fact, this law has not been amended since 2017.
Have you been charged with Unlawful Use of Pen Register or Trap and Trace Device? Book a consultation to discuss legal representation with attorneys Paul Saputo and Nicholas Toufexis today.
This law is almost obsolete, as fewer and fewer people are using telephone lines for dialing phone numbers.
The Penal Code classifies the Texas Pen Registers and Trap and Trace Devices 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 Use of Pen Register or Trap and Trace Device below.
What is the current Texas law about Unlawful Use of Pen Register or Trap and Trace Device?
Texas law currently defines the offense of Unlawful Use of Pen Register or Trap and Trace Device in Penal Code Section §16.03 as follows:[1]
(a) A person commits an offense if the person knowingly installs or uses a pen register or trap and trace device to record or decode electronic or other impulses for the purpose of identifying telephone numbers dialed or otherwise transmitted on a telephone line.
What affirmative defenses are available?
The law provides three affirmative defenses:[2]
(c) It is an affirmative defense to prosecution under Subsection (a) that the actor is:
(1) an officer, employee, or agent of a communication common carrier and the actor installs or uses a device or equipment to record a number dialed from or to a telephone instrument in the normal course of business of the carrier for purposes of:
(A) protecting property or services provided by the carrier; or
(B) assisting another who the actor reasonably believes to be a peace officer authorized to install or use a pen register or trap and trace device under Chapter 18B, Code of Criminal Procedure;
(2) an officer, employee, or agent of a lawful enterprise and the actor installs or uses a device or equipment while engaged in an activity that:
(A) is a necessary incident to the rendition of service or to the protection of property of or services provided by the enterprise; and
(B) is not made for the purpose of gathering information for a law enforcement agency or private investigative agency, other than information related to the theft of communication or information services provided by the enterprise; or
(3) a person authorized to install or use a pen register or trap and trace device under Chapter 18B, Code of Criminal Procedure.
How can I be charged with an Pen Registers and Trap and Trace Devices offense in Texas?
You can be charged with Unlawful Use of Pen Register or Trap and Trace Device in Texas if the state’s attorneys believe that each of the elements of 16.03 as described in the section above have been met.
What is the statute of limitation for Pen Registers and Trap and Trace Devices in Texas?
Pen Registers and Trap and Trace Devices offenses have a three-year limitations period.[3]
What is the penalty for a Texas Pen Registers and Trap and Trace Devices offense?
The Unlawful Use of Pen Register or Trap and Trace Device offense is classified as a state jail felony,[4] with a maximum possible fine of up to $10,000 and state jail prison time of up to two years.
Can you get probation for Pen Registers and Trap and Trace Devices in Texas?
The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Pen Registers and Trap and Trace Devices, and judges are also allowed to accept deferred adjudication plea deals.[5]
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.[6]
What level of crime is Pen Registers and Trap and Trace Devices in Texas?
The Penal Code classifies the punishment for Pen Registers and Trap and Trace Devices as a state jail felony.
Learn more about the penalty range for this offense in the section above.
Legal References:
^1. Texas Penal Code §16.03. This law is current as of 2024.^2. Texas Penal Code §16.03(c)^3. See Code of Criminal Procedure 12.01(9)^4. Texas Penal Code §16.03(d)^5. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^6. Art. 42A.054(b), Texas Code of Criminal Procedure
