Texas Penal Code §16.02 - Wiretapping

Client brings into the office tapes of conversations between his or her spouse and their third-party girlfriend/boyfriend.

Opposing party figured out how to break into clients gmail.com account and downloaded e-mails from/to spouse and paramour.

Wire, Oral, or Electronic Communication

• In Texas, can you record a conversation that you are a party to? Yes. Citizens of other states - beware. Attorneys beware - ethics opinions.

• Can you record a conversation that you are not a party to? Not at all.

Texas Penal Code Section 16.02 provides that a person commits a criminal offense if he or she intentionally:

1. intercepts an electronic communication

2. endeavors to intercept an electronic communication

3. procures another to either intercept or endeavor to intercept an electronic communication - neighbor and friend beware.

4. discloses or endeavors to disclose the contents of a wire, oral or electronic communication if he or she knows or has reason to believe that the information was obtained by an interception

5. uses or endeavors to use the contents of a wire, oral or electronic communication if he or she was reckless about whether the communication was obtained by an interception in violation of this statute - attorney beware.

6. knowingly or intentionally effects a covert entry for the purpose of interception. In other words, don't think about going into what is termed "your home" that your spouse has exclusive use of by Temporary Order to plant video cameras and radio transmission devices. Zealot beware.

7. uses, endeavors to use or procure another to use any electronic, mechanical or other device to intercept any oral communication when the device is affixed to or transmits a signal through a wire or transmits or interferes with the transmission by radio.

8. CONVICTION: A conviction under §16.02 of the Texas Penal Code subjects the offender to confinement in the Institutional Division of the Texas Department of Criminal Justice for not less than 2 years nor more than 20 years and a fine of up to $10,000.00, or both.

In reality, you may avoid prison but a felony conviction will remain on your record for life. In the end, a criminal charge and conviction of violating §16.02 means: you don't care about custody anymore and you don't care about elections - you don't vote.

Note, §16.02 does not concern itself with the actual interception of a communication. It includes an attempt to make the interception. This is one provision of the Texas Penal Code that that incorporates an attempt into the offense. Usually, an attempt is a lesser included offense with regards to other Penal Code provisions.

Wiretapping: Spouses Occupy the Same House

In Simpson v. Simpson, 490 F.2d 803, the 5th circuit (our federal court of appeals in New Orleans) carved out an exception to the federal version of the Texas Wiretapping statute for spouses occupying the same residence. Several circuit courts have declined to follow Simpson, Texas courts have criticized Simpson - Collins v. Collins, 904 S.W.2d 792 and Turner v. PV Int'l Corp., 765 S.W.2d 455. Since the marital domicile exception does not seem to exist in Texas either by statute or by case law, the safe practice is - Don't do it.