Under certain circumstances, if you record a phone call, you could be guilty of unlawful interception, use, or disclosure of wire, oral, or electronic communication. Likewise, if you intercept an email, or record a conversation, you could also be charged with an unlawful interception, use, or disclosure of wire, oral, or electronic communication.
However, in some instances, it’s not unlawful to record phone calls or other conversations. For example, if you are a party to the phone call or conversation, you cannot be prosecuted for unlawful interception, use, or disclosure of wire, oral, or electronic communication. Also, if a party to the phone call or conversation authorized you to record, you cannot be prosecuted.
Finally, law enforcement is allowed to record such transmissions, when authorized by court order, or in certain emergency situations. Depending upon the facts, unlawful interception, use, or disclosure of wire, oral, or electronic communication can be charged as either a state jail felony or a felony of the second degree. State jail felonies are punishable by 180 days to 2 years in the state jail, and a fine of up to $10,000. Second-degree felonies are punishable by 2 to 20 years in state prison and a fine of up to $10,000.
Texas Penal Code Section 16.02.
UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS.(a) In this section, “computer trespasser,” “covert entry,” “communication common carrier,” “contents,” “electronic communication,” “electronic, mechanical, or other device,” “immediate life-threatening situation,” “intercept,” “investigative or law enforcement officer,” “member of a law enforcement unit specially trained to respond to and deal with life-threatening situations,” “oral communication,” “protected computer,” “readily accessible to the general public,” and “wire communication” have the meanings given those terms in Article 18.20, Code of Criminal Procedure.
(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 electronic, mechanical, or other 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.
(c) It is an affirmative defense to prosecution under Subsection (b) that:
(1) an operator of a switchboard or an officer, employee, or agent of a communication common carrier whose facilities are used in the transmission of a wire or electronic communication intercepts a communication or discloses or uses an intercepted communication in the normal course of employment while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the rights or property of the carrier of the communication unless the interception results from the communication common carrier’s use of service observing or random monitoring for purposes other than mechanical or service quality control checks;
(2) an officer, employee, or agent of a communication common carrier provides information, facilities, or technical assistance to an investigative or law enforcement officer who is authorized as provided by this section to intercept a wire, oral, or electronic communication;
(3) a person acting under color of law intercepts:
(A) a wire, oral, or electronic communication, if the person is a party to the communication or if one of the parties to the communication has given prior consent to the interception;
(B) a wire, oral, or electronic communication, if the person is acting under the authority of Article 18.20, Code of Criminal Procedure; or
(C) a wire or electronic communication made by a computer trespasser and transmitted to, through, or from a protected computer, if: (i) the interception did not acquire a communication other than one transmitted to or from the computer trespasser; (ii) the owner of the protected computer consented to the interception of the computer trespasser’s communications on the protected computer; and (iii) actor was lawfully engaged in an ongoing criminal investigation and the actor had reasonable suspicion to believe that the contents of the computer trespasser’s communications likely to be obtained would be material to the investigation;
(4) a person not acting under color of law intercepts a wire, oral, or electronic communication, if: (A) the person is a party to the communication; or (B) one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing an unlawful act;
(5) a person acting under color of law intercepts a wire, oral, or electronic communication if:
(A) oral or written consent for the interception is given by a magistrate before the interception;
(B) an immediate life-threatening situation exists;
(C) the person is a member of a law enforcement unit specially trained to: (i) respond to and deal with life-threatening situations; or (ii) install electronic, mechanical, or other devices; and (D) the interception ceases immediately on termination of the life-threatening situation;
(6) an officer, employee, or agent of the Federal Communications Commission intercepts a communication transmitted by radio or discloses or uses an intercepted communication in the normal course of employment and in the discharge of the monitoring responsibilities exercised by the Federal Communications Commission in the enforcement of Chapter 5, Title 47, United States Code;
(7) a person intercepts or obtains access to electronic communication that was made through an electronic communication system that is configured to permit the communication to be readily accessible to the general public;
(8) a person intercepts radio communication, other than a cordless telephone communication that is transmitted between a cordless telephone handset and a base unit, that is transmitted: (A) by a station for the use of the general public; (B) to ships, aircraft, vehicles, or persons in distress; (C) by a governmental, law enforcement, civil defense, private land mobile, or public safety communications system that is readily accessible to the general public, unless the radio communication is transmitted by a law enforcement representative to or from a mobile data terminal; (D) by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or (E) by a marine or aeronautical communications system;
(9) a person intercepts a wire or electronic communication the transmission of which causes harmful interference to a lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of the interference;
(10) a user of the same frequency intercepts a radio communication made through a system that uses frequencies monitored by individuals engaged in the provision or the use of the system if the communication is not scrambled or encrypted; or
(11) a provider of electronic communications service records the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service towards the completion of the communication, or a user of that service from fraudulent, unlawful, or abusive use of the service.
(d) A person commits an offense if the person:
(1) intentionally manufactures, assembles, possesses, or sells an electronic, mechanical, or other 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 any unlawful purpose; or
(2) places in a newspaper, magazine, handbill, or other publication an advertisement of an electronic, mechanical, or other devices: (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. (e) It is an affirmative defense to prosecution under Subsection (d) that the manufacture, assembly, possession, or sale of an electronic, mechanical, or other devices that is designed primarily for the purpose of nonconsensual interception of wire, electronic, or oral communication is by:
(1) a communication common carrier or a provider of wire or electronic communications service or an officer, agent, or employee of or a person under contract with a communication common carrier or provider acting in the normal course of the provider’s or communication carrier’s business;
(2) an officer, agent, or employee of a person under contract with, bidding on contracts with, or doing business with the United States or this state acting in the normal course of the activities of the United States or this state;
(3) a member of the Department of Public Safety who is specifically trained to install wire, oral, or electronic communications intercept equipment; or
(4) a member of a local law enforcement agency that has an established unit specifically designated to respond to and deal with life-threatening situations. (e-1) It is a defense to prosecution under Subsection (d)(1) that the electronic, mechanical, or other device is possessed by a person authorized to possess the device under Section 500.008, Government Code, or Section 242.103, Human Resources Code.
(f) An offense under this section is 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.
(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.
(h) Repealed by Acts 2005, 79th Leg., Ch. 889, Sec. 1, eff. June 17, 2005. Added by Acts 1981, 67th Leg., p. 738, ch. 275, Sec. 2, eff. Aug. 31, 1981. Amended by Acts 1983, 68th Leg., p. 4878, ch. 864, Sec. 1 to 3, eff. June 19, 1983; Acts 1989, 71st Leg., ch. 1166, Sec. 16, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 790, Sec. 16, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 1051, Sec. 9, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1270, Sec. 11, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 678, Sec. 1, eff. Sept. 1, 2003. Amended by: Acts 2005, 79th Leg., Ch. 889, Sec. 1, eff. June 17, 2005. Acts 2009, 81st Leg., R.S., Ch. 1169, Sec. 9, eff. September 1, 2009. Acts 2011, 82nd Leg., R.S., Ch. 85, Sec. 3.023, eff. September 1, 2011.
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