Is it illegal to record a conversation in Texas? | One Party Consent

Is it illegal to record a conversation in Texas?

Is it illegal to record a conversation in Texas?

No, not if you are one of the parties on the phone call. Texas is a one-party consent state, which means you can record a conversation that you are a part of without telling the other person in the conversation that you are recording them.

A More Detailed Answer: State and Federal Law

Texas Penal Code Section 16.02(c)(4) creates an affirmative defense to wire-tapping if one of the parties intercepts or gives consent to intercept the communication. This makes Texas a “one-party consent” state.

18 USC 2511 uses almost identical language, with an exception for if one party consents. A violation – where no one in the conversation consented to the recording – could result in a fine, imprisonment up to five years, or both.

Under both state and federal law, Texas residents can record a conversation they are in without notifying the other person(s) in the conversation.

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If you are a party to a conversation, you can record it. You generally do not have to get consent from anyone else in the conversation to record. However, you should be aware of phone calls being placed to states that are “two-party consent” states. At least 10 states have laws that require the consent of every party to a phone call or conversation. These “two-party-consent” states include California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington.

Is it legal to record a conversation in Texas that you are not a party to?

Recording someone else’s phone call, in most cases, is going to fall within the state and federal prohibitions against wiretapping. You should not record a conversation you are not a part of without first consulting with an attorney about the legality of what you are planning to do.

Can you record someone else’s conversation that is taking place in public?

Under federal law, 18 USC 2511, it is illegal to record conversations other people are having where they have a reasonable expectation of privacy. You can record conversations that you are a part of. Once again, Texas law generally mirrors federal law in regards to making recordings of other people: Texas Penal Code 16.02 allows a person who is a party to a conversation to record it, but generally prohibits others from recording conversations.

Can you record the police?

There is no prohibition to recording police activity that is taking place in public view. You are not, however, allowed to interfere with public duties by your presence or actions.

Can you record a conversation that you are not a party to?

Under Texas and federal law you can record conversations between other people as long as one of the people in the conversation gave you permission to make the recording. Other exceptions also apply, such as law enforcement officials acting pursuant to a proper wire-tapping or trap and trace order. Pursuant to Code of Criminal Procedure 18.20, you may record in-person conversations that are occurring in a public place, without the consent of the people in the conversation.

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Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese
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