Is it legal to record a conversation in Texas?

What the law says

Texas is a one-party consent state for recording. Section 16.02(b) of the Texas Penal Code makes it an offense to intentionally intercept a wire, oral or electronic communication. Section 16.02(c)(4) then gives a defense to a person not acting for the government. The defense applies when:

“the person is a party to the communication; or”

The same defense in section 16.02(c)(4) of the Texas Penal Code also covers recording by someone outside the conversation when:

“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;”

What “intercept” means. Under article 18A.001 of the Texas Code of Criminal Procedure, which section 16.02 relies on for its definitions, to intercept is to acquire the contents of a communication through an interception device. That is what a recording device does.

Which conversations are covered. In-person talk counts when the speaker expects privacy. Article 18A.001 of the Texas Code of Criminal Procedure says:

““Oral communication” means a communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.”

Calls and messages count too. Article 18A.001 of the Texas Code of Criminal Procedure defines wire communications, which include phone calls carried by a provider. It also defines electronic communications: signals, writing, images, sounds and data sent by wire or radio.

The penalty is serious. Under section 16.02(f) of the Texas Penal Code, an offense under the section is a felony of the second degree, apart from a few device and obstruction offenses that are state jail felonies.

What changes the answer

Being in the conversation. Being a party is the simplest defense in section 16.02(c)(4) of the Texas Penal Code. To record a conversation you are not in, you need the prior consent of one of the people in it.

Why you record. The consent of another party does not protect a recording made to commit an unlawful act, under section 16.02(c)(4)(B) of the Texas Penal Code.

Whether privacy was expected. A conversation is an oral communication only where the speaker expects not to be intercepted and the circumstances justify that expectation, under article 18A.001 of the Texas Code of Criminal Procedure.

A lawsuit, not only a prosecution. Under section 123.002 of the Texas Civil Practice and Remedies Code, a party to a communication may sue anyone who intercepts it. The same goes for anyone who uses or shares what they know, or should know, was intercepted. Under section 123.004, a person who wins gets an injunction and $10,000 for each occurrence. They can also get actual damages above $10,000, punitive damages, and reasonable attorney’s fees and costs.

Consent in the civil chapter. Section 123.001 of the Texas Civil Practice and Remedies Code defines interception as acquiring a communication’s contents through a device without the consent of a party to it. A recording made with a party’s consent falls outside that definition.

Recording at work. The same tests in section 16.02(c)(4) of the Texas Penal Code apply at work as anywhere: are you a party, did a party consent beforehand, and did the speaker have a justified expectation of privacy under article 18A.001 of the Texas Code of Criminal Procedure. A workplace’s own rules on recording were not read here and can carry their own consequences.

Sharing a recording. Making a recording is not the only offense. Under section 16.02(b)(2) of the Texas Penal Code, it is an offense to intentionally disclose the contents of a communication when you know, or have reason to know, it was intercepted unlawfully. Under section 16.02(b)(3), it is also an offense to use those contents if you know, or are reckless about whether, they were obtained that way.

What this page covers. It covers section 16.02 of the Texas Penal Code, chapter 123 of the Civil Practice and Remedies Code and article 18A.001 of the Code of Criminal Procedure. It does not cover federal law or video recording without sound.