Generally, yes. Lawfully obtained relevant evidence is generally admissible. In Texas, it is legal to record a conversation if at least one party to the conversation knows about and consents to the recording.
In other words, if a person secretly records a conversation with another person, that recording is lawful. If a person secretly records a conversation two unaware people are having, that recording is unlawful.
Texas Recording Laws
Texas’s penal code makes it illegal to record an in-person or telephone conversation without the consent of at least one party or to record a communication with criminal or tortious intent. Tex. Penal Code Ann. § 16.02. The law also applies to text messages and emails sent between computers or wireless devices. The law defines wireless communications as any “transfer of any signs, signals, writing, images, sounds, data, or intelligence.” Tex. Code Crim. Proc. Ann. art. 18A.001. Texas courts have at least implied that the law applies to cellphone calls as well as landline calls. In Wesley v. State (Tex. App. Apr. 29, 2016), a Texas appellate court held that a cellphone call was lawfully recorded under Tex. Penal Code Ann. § 16.02 because one of the parties consented to the recording.
It also matters where the conversation takes place. Texas law states that the consent of at least one party to a conversation is required to record any oral communication “uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.” Tex. Penal Code Ann. § 16.02; Tex. Code Crim. Proc. Ann. art. 18A.001.
Consent is not required to record conversations in public where there is no reasonable expectation of privacy. If the two people talking have a reasonable expectation of privacy, a third party cannot lawfully record the conversation. But, for example, if the two people are yelling loudly in public, it could be lawful for a third party to record them. The same would be true for two people conversing in a setting such as a public seminar. It would also be lawful to record two people to converse in an on-line public forum or a group chat.
Illegally recording a conversation is a felony offense in Texas. Tex. Penal Code Ann. § 16.02. Disclosing an unlawfully recorded conversation is also a felony.
A victim can also pursue civil damages against a person who breaks this law. Anyone whose confidential oral, wire, or electronic communications are unlawfully intercepted, disclosed, or used may recover damages in a civil suit of a $10,000 penalty for each violation, actual damages exceeding $10,000, punitive damages, and attorney’s fees. Injunctive relief for a court order to stop the disclosure is also available. Tex. Civ. Prac. & Rem. Code Ann. § 123.004.
Federal Laws and Interstate Recordings
The federal Wiretap Act makes it illegal to secretly record an oral, telephonic, or electronic communication that the conversing parties reasonably expect to be private. 18 U.S.C. § 2511.
However, a recording otherwise in violation of the Wiretap Act is legal if one person to the conversation consents to the recording, or the person making the secret recording is authorized by law. There is also an exception allowing employers to record phone calls on employer-owned phones provided to employees.
People also often want to know if they can record the police or government officials in public. The U.S. Court of Appeals for the Fifth Circuit, which includes Texas, held that there is a First Amendment right to record, including the right to film and audio record the police, subject to reasonable time, place, and manner restrictions. Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017).
Admissibility of Recorded Conversations in Texas
Recorded conversations can be used as evidence so long as they were not illegally obtained.
How an Attorney Can Help You
If you have a question about whether you can record a conversation or whether someone else’s recording can be used against you, Davis Business Law would love to help you. Our Texas business attorneys frequently handle situations like these, such as recordings made in business disputes with partners or customers. Call us today at (469) 780-0761 or contact us online for a free consultation.