Reporter's Recording Guide
Last updated June 2020Compare
An individual who is a party to an in-person, telephone or electronic conversation, or who has the consent of one of the parties to the conversation, can lawfully record it, unless the person is doing so for the purpose of committing a criminal or tortious act. Tex. Penal Code Ann. § 16.02.Compare
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. Thus, consent is not required to record conversations in public where there is no reasonable expectation of privacy.Compare
Telephone and electronic communications
The consent of at least one party to any telephone conversation is required to record it. Tex. Penal Code Ann. § 16.02. And because the provision of the law dealing with wireless communications applies to the “transfer of any signs, signals, writing, images, sounds, data, or intelligence,” consent likewise is required to disclose the contents of text messages sent between wireless devices. Tex. Code Crim. Proc. Ann. art. 18A.001.
Although Texas courts have not explicitly stated that the law applies to cellphone calls as well as to landline calls, at least one court has implied as much. A Texas appellate court concluded that a cellphone call was lawfully recorded under Tex. Penal Code Ann. § 16.02 because one of the parties to the call had provided consent to the recording. See Wesley v. State, No. 08-14-00121-CR, 2016 WL 1730356 (Tex. App. Apr. 29, 2016).Compare
It is a felony to photograph or record, without consent and with the intent to invade the privacy of a person, the intimate area of that person if there is a reasonable expectation that the intimate area is not subject to public view. It is also a felony to photograph or record a person in a bathroom or changing room without consent and with the intent to invade the person’s privacy. Tex. Penal Code Ann. § 21.15. The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (e.g., filming conversations on public streets or in a hotel lobby).Compare
Illegally recording an in-person, telephone or electronic conversation is a felony offense. Tex. Penal Code Ann. § 16.02.Compare
Anyone whose in-person, telephone or electronic conversation has been recorded or disclosed in violation of the law can bring a civil suit and may be entitled to recover a sum of $10,000 for each violation, actual damages in excess of $10,000, punitive damages, and attorney’s fees and court costs. Tex. Civ. Prac. & Rem. Code Ann. § 123.004. An aggrieved person may also seek an injunction prohibiting further unlawful recording or disclosure. Id.Compare
Disclosing the contents of an in-person, telephone or electronic conversation obtained through illegal recording is a felony. Tex. Penal Code Ann. § 16.02.
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.Compare
Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the Fifth Circuit, which includes Texas, has 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. See Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017).Compare