Recording conversations, to use in legal strategy and submit as evidence in court, is illegal in the State of Texas, unless one party to the conversation consents. You may record your own conversation with another person, without their knowledge or consent, but you may not record two or more other people unless one of the people in the conversation consents to a recording. There are a few exceptions to this rule, and special rules for recording court hearings and public meetings. Individuals who violate the Texas Wiretapping Law may be subject to criminal penalties and civil fines. While open communication can be useful in many legal cases, the Texas Wiretapping Law can be a double-edged sword. It is always best not to say anything to people that you would not want others to know.
The one-party consent rule and exceptions
The Texas Wiretapping Law, a one-party consent law, makes it a crime to record any “wire, oral, or electronic communication” unless one party to the conversation consents.[i] You may consent to record yourself in your own conversations with others. You may also obtain prior permission from one of the people in a conversation, to record their conversation with others. You may not, however, spy on and record the conversations of others, where they do not give you prior consent to record the conversation.
An exception to the consent requirement occurs when you record a conversation in which the people speaking do not have an “expectation that such communication is not subject to interception under circumstances justifying such exception.[ii]” This exception applies when the people having the conversation do not have an expectation to privacy, for example, in an elevator with other passengers, on a train or plane with other people nearby, in clear earshot, or in any other setting where people not involved in the conversation can clearly hear what is being said and there is no effort to keep the conversation private.
Recording court hearings and open meetings
When a court reporter is not available, or where you want your own independent recording of what happens at a court hearing, you may be allowed to record conversations and testimony in court, depending on the rules of the court. Each local court has its own rules for conduct in the courtroom, and recording may or may not be allowed by local court rules. In state trial courts in Texas you can record audio and video if you first obtain consent by the trial court judge, the parties and witnesses you plan to record. At the Texas appellate court you may record audio and video if you first submit a written request within 5 days of the court proceeding. In Texas federal courts you may not record any audio or video, it is strictly prohibited.
Recording meetings in Texas is allowed when the meeting is open to the public and subject the Texas Open Meetings Act. The use of audio and video may be limited based on the imposition of “reasonable rules to maintain order in a meeting.[iii]” In order to record an open meeting, you must be present at the meeting and be the one in control of the audio and, or video recording equipment.
Violating and challenging the Texas Wiretapping Law
Restating that the general rule of law in Texas is that it is illegal to record (or intercept) the communications of others, unless one of the parties gives consent, there are criminal and civil penalties and liabilities for violating the Texas Wiretapping Law. An offense of the Texas Wiretapping Law can be a second-degree felony, or a state jail felony in under certain circumstances, as identified in the Texas Penal Code.
Additionally, A party to a communication may sue a person who: “(1) intercepts, attempts to intercept, or employs or obtains another to intercept or attempt to intercept the communication; (2) uses or divulges information that he knows or reasonably should know was obtained by interception of the communication; or (3) as a landlord, building operator, or communication common carrier, either personally or through an agent or employee, aids or knowingly permits interception or attempted interception of the communication.[iv]”
The facts and circumstances in each instance of recording audio and video of conversations and others may be subject to a legal defense or challenge, when suing or defending under the Texas Wiretapping Law. Issues of consent and intent to give consent or record can all be the subject of disagreement and may be properly decided by a judge or jury.
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[i] Texas Penal Code, Section 16.02
[ii] Texas Code of Criminal Procedure, Section 18.02
[iii] Texas Government Code, Section 551.023
[iv] Texas Civil Practice and Remedies Code, Section 123.001