Section 16.02 is the Texas wiretapping statute, and it catches far more ordinary people than most realize — usually in the middle of a divorce, a custody fight, or a suspected affair. It is a second-degree felony, punishable by 2 to 20 years in prison.
What the Statute Prohibits
A person commits an offense if the person intentionally intercepts, endeavors to intercept, or procures another person to intercept a wire, oral, or electronic communication. It is also an offense to intentionally disclose or use the contents of a communication knowing it was obtained by illegal interception, or to effect a covert entry for the purpose of intercepting communications.
Separately, under Subsection (d), it is a state jail felony to manufacture, assemble, possess, or sell an interception device knowing it is designed primarily for nonconsensual interception, or to advertise one. Tipping someone off that a wiretap has been authorized is also a state jail felony under Subsection (g).
The One-Party Consent Rule — and Its Limit
Texas is a one-party consent state. Section 16.02(c)(4) makes it an affirmative defense that a person not acting under color of law intercepted a communication when the person is a party to the communication, or when one of the parties gave prior consent — unless the communication was intercepted for the purpose of committing an unlawful act.
In plain terms: you can record a conversation you are part of. You cannot record a conversation you are not part of.
- Installing a spyware or "phone monitoring" app on a spouse's or partner's phone
- Putting a recorder in a room to capture someone else's conversations
- Logging into a partner's account to read or forward messages in real time
- Asking a friend or private investigator to do any of the above — procuring an interception is the same offense
Being married to the person, paying the phone bill, or owning the device does not create an exception.
Interception vs. Stored Communications
Section 16.02 covers interception — capturing a communication in transit. Accessing messages already in storage (an email inbox, saved texts, a voicemail box) is a different offense under Section 16.04, which is a Class A misdemeanor, or a state jail felony if done to obtain a benefit or harm another. Prosecutors sometimes charge the wrong one, and the distinction can move a case from a felony to a misdemeanor.
Defenses
You were a party to the communication. The most complete defense, and often provable from the recording itself.
Consent of a party. Prior consent from any one participant is enough, so long as the purpose was not to commit a crime or tort.
No interception occurred. Reading a text left open on a counter, or hearing a speakerphone conversation in a shared room, is not interception.
Lack of intent. The statute requires intentional conduct. Automatic cloud backups, shared-account syncing, and family-plan features frequently create the appearance of interception without any intentional act.
Statutory exceptions. Providers, common carriers, and officers acting under Chapter 18A of the Code of Criminal Procedure are covered by express exceptions.
Related
- Section 16.06 — Unlawful Installation of a Tracking Device (GPS trackers and AirTags on another person's vehicle — Class A misdemeanor)
- Protective orders and Penal Code 25.07 — tracking or monitoring a protected person is also an order violation
- Houston federal criminal defense — interception is also a federal crime under 18 U.S.C. 2511
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.