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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.

Where people go to prison for this
  • 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

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.

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Frequently Asked Questions


Is it legal to record a conversation in Texas?
Texas is a one-party consent state. If you are a party to the conversation, you may record it — that is an express exception in Section 16.02(c)(4). What is illegal is intercepting a communication you are not part of, such as putting spyware on someone else's phone or recording two other people talking privately.
What is the punishment for illegal interception in Texas?
A violation of Section 16.02 is a second-degree felony — 2 to 20 years in prison and a fine of up to $10,000. Manufacturing, possessing, or advertising an interception device, and tipping someone off about a wiretap, are state jail felonies.
Can I record my spouse's phone calls during a divorce?
No. This is the single most common way ordinary people commit this felony. Installing a recording or spyware app on a spouse's phone, or recording their calls with third parties, is interception — and being married does not create an exception. It can also expose you to federal charges and civil liability.
Can I record my own child's phone?
Texas courts have recognized a limited vicarious-consent doctrine for a parent acting in good faith to protect a minor child, but it is narrow, fact-specific, and not a blanket rule. Talk to a lawyer before doing it, not after.
Is a recording made illegally admissible in court?
Generally no. Illegally intercepted communications are inadmissible, and offering one can expose the person who made it to prosecution. People routinely hand prosecutors the evidence of their own felony by trying to use a recording.

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