Legality of Recording Conversations in Texas

Some contested divorces involve recorded evidence, such as audio files or video snippets. If you’re fighting a custody battle, documenting conversations with your estranged spouse, or protecting yourself in a property dispute, you should know the legality of recording conversations in Texas and Texas’s one-party rule to keep this evidence admissible and avoid civil and criminal penalties.

Overview of One-Party Consent in Texas

In Texas, recording a conversation is legal if at least one of the parties consents. Even the person doing the recording can consent if they are actively involved in the conversation.

The legal basis for the one-party rule lies in Texas Penal Code § 16.02, which prohibits intercepting oral, electronic, or wire communications without consent. This includes each of the following types of communication:

• In-person conversations
• Phone calls
• Text messages
• Emails
• Instant messages

If the recorder is a party to the conversation, or if they’ve obtained consent from at least one party, they have a defense so long as the recording has a lawful purpose. We’ll explain some caveats and exceptions to the general one-party consent rule in a later section.

Recording Conversations: In-Depth Scenarios

Laws governing recorded conversations may come into play in a variety of situations.

Recording Private Conversations (Phone and In-Person)

In some conversations, each participant has a reasonable expectation of privacy under the law. This includes conversations in homes, private offices, or over confidential lines. In divorce cases, conversations between you and your attorney are private, as are one-on-one discussions with your spouse in the marital home.

Under Texas Penal Code § 16.02, recording conversations without at least one party’s consent is illegal if there is a reasonable expectation of privacy.

Involvement as a Party to the Conversation

If you’re actively participating in a conversation, you can record it without notifying the other parties as long as your purpose is lawful. This applies both to phone calls and face-to-face discussions.

For example, if your spouse calls you to discuss child support, you are a party to the conversation and can provide the consent to record it legally. Similarly, if you meet face-to-face to negotiate an issue, you can record the conversation as long as you’re an active participant.

Recording Without Involvement: Legal Risks

If you’re not actively involved in a conversation, you can’t legally provide the consent to record it. This includes secretly recording private conversations between your spouse and their attorney, family members, or friends. Violating the rule constitutes unlawful interception, which can carry both civil and criminal penalties.

Recording Public Conversations: What You Need to Know

There is generally no reasonable expectation of privacy if the parties to a conversation are in a public place. This can include malls, parks, restaurants, bars, and streets where others could reasonably hear your conversation.

The specific circumstances of the conversation matter. You would probably be able to record a loud argument between spouses in a public park. However, you would probably be unable to record a quiet conversation on a secluded bench without consent. Your attorney can determine how the legal standard may apply to a particular place and context.

Recorded Conversations as Evidence

A legally obtained recording can make for robust evidence in a divorce proceeding. However, it must meet these two criteria outlined in Texas Rules of Evidence Rule 901:

• Relevance – The recording must relate to facts that matter in your case. 
• Authentication – The recording is proven to be genuine and accurate. For example, the recorder may need to testify about when, where, and how they made the recording and identify each participant’s voice. 

Remember, courts will refuse to admit any illegally obtained recordings as evidence. These could both weaken your case and expose you to further legal liability.

Consequences and Legal Implications

In Texas, unlawful interception of communications occurs in any of these situations:

• Recording a conversation without at least one party’s consent 
• Using a wiretapping device to intercept phone calls
• Accessing someone’s emails or texts without permission
• Disclosing the contents of an intercepted communication, if you know it was obtained illegally.

Texas Penal Code §16.02 specifies that any of these actions are second-degree felonies. If you’re convicted of unlawful interception, you could face 2-20 years in prison and fines of up to $10,000. The specific sentence is generally based on the party’s intent and the value of what was recorded.

Under Texas Civil Practice & Remedies Code §123.002, parties to an unlawfully recorded conversation can also file a civil claim. Damages awarded in an unlawful interception case can include the actual losses to the victim, attorney’s fees, and punitive damages if a judge or jury decides to award them. 

To stay in the best possible position, it’s best to speak with your attorney before making any recording you plan to use in legal proceedings. A mistake could harm your case and make you more vulnerable to penalties.

Recognizing Legal Exceptions to One-Party Consent

While one-party consent is the standard in Texas, there are still some important exceptions and caveats. These include:

• Recording for an unlawful purpose – You cannot record a conversation for the purpose of harassment, blackmail, or extortion, even if you’re a party in it. 
• Recording between states – Some states, like California, Florida, and Pennsylvania, have “two-party consent” rules requiring all parties to a conversation to consent to recording. If you’re calling outside of Texas to a two-party consent state, you may need to follow that state’s rules.
• Federal wiretapping laws – Federal wiretapping laws may also be involved for conversations across state lines. While 18 USC § 2511 establishes a one-party consent standard, making an illegal recording involving interstate communications could carry federal prison time of up to five years.

Contact a Divorce Attorney in Dallas Today

The family law attorneys of Balekian Hayes, PLLC are ready to answer your questions about recorded evidence in a contested divorce. For over two decades, we’ve served clients in Dallas with honesty, compassion, and courage. Our attorneys are Board Certified by the Texas Board of Legal Specialization, an official credential that recognizes deep knowledge, extensive experience, and dedication to the practice of family law. Contact our office today for an initial consultation.