Texas is what is known as a “one party consent” state. What that means is that if you are a party to a conversation in Texas (and all parties to the conversation are in Texas), you have the legal right to record that conversation. So, is recording conversations at work in Texas legal? Like a lot of legal issues, it is not always an easy answer. Show
Employees who are subjected to discrimination or retaliation oftentimes want to surreptitiously record conversations with their boss or human resources. The obvious motive being that the employee is looking to obtain evidence in support of his or her potential claim. It is very common for the discriminatory or retaliatory treatment to be oral only (i.e. not by email, memoranda, etc.), and unless there are witnesses to the incident, it will oftentimes result in a “he said/she said” scenario. Not surprisingly, having a recording of these conversations can be extremely helpful evidence when pursuing a discrimination or retaliation claim. The Most Common ProblemThe most common problem that arises when an employee is recording conversations in the workplace is when the employer has a stated policy prohibiting such conduct. The employer may choose to fire an employee for violating this policy, and a court may ultimately determine that it was perfectly legal for the employer to do so. While the employee has done nothing criminal by recording a conversation at work, there is no law that prohibits the employer from firing that employee for violating policy. Remember, when at work, never record a conversation that you are not a party to. Additionally, if your employer has a policy that prohibits recording at work, it is best to not record any conversations and risk getting fired. When in doubt, contact an employment attorney in your area to discuss your rights.
Texas recording law stipulates that it is a
one-party consent state. In Texas, it is a criminal offense to use any device to record or share communications, whether they are wire, oral or electronic, without the consent of at least one person taking part in the communication. This means that in Texas, you are legally allowed to record a
conversation if you are a contributor or with prior consent from one of the involved parties, barring any criminal intentions. It is also lawful to record electronic communications that are easily available to the public. Tex. Penal Code Ann. § 16.02 (Vernon 2011). Our recommended Digital Voice Recorder. You may not
record or share conversations that you are not a part of without the consent of at least one party. However, state and federal laws make an exception in cases where the person or people communicating are doing so in an environment where they should not be under the expectation of privacy. If you are a third-party and require consent from the parties taking part in the conversation, the Federal Communications Commission (FCC) states that you may gain consent to make a recording by:
When is it a Crime to Record a Conversation in Texas?Tex. Penal Code Ann. § 16.02 refers to intent, privacy, and consent when deciding if a recording is illegal. Intent: Texas law aims to prevent private conversations from being secretly recorded by third parties. 16.02 has 2 clauses that deal with intent and state quote:
Privacy:It must be a confidential conversation with a reasonable expectation of privacy. This allows for some wiggle room in the law as there is a large difference between an intimate restaurant and a public bench in terms of illegal recordings. Note – You must follow the rules if you are on private property. Consent:Texas is a one party consent state, so if you take part in the conversation or gain the consent of one of the parties you may legally record the conversation. Affirmative Defenses for Recording in TexasTexas law has multiple affirmative defenses for secretly making recordings of private conversations:
Examples of Illegal Recording in TexasHere are some common situations that would be considered eavesdropping and would be illegal for Texas residents.
Texas Video Recording LawsIt is against the law, with the intention of invading another person’s privacy and without that person’s consent, to:
Tex. Penal Code Ann. § 21.15(b) It is also an offense to disclose visual material depicting another person’s intimate parts or sexual conduct without the depicted person’s consent and with the intention of harming that person. Also illegal is if, during the disclosure, the person responsible for the disclosure knows or has reason to believe that the visual material was obtained or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private. Tex. Penal Code Ann. § 21.16(b)
Penalties:Tex. Penal Code Ann. § 16.02: Recording a conversation in violation of Texas law is considered a felony. Tex. Penal Code Ann. § 21.15(c); 21.16(g): Violating Texas video recording laws is a state jail felony punishable by imprisonment in state jail for 180 days to 2 years and a fine not exceeding $10,000. Can I Record a Phone Call in Texas?
Yes! Since Texas is a one-party consent state, wiretapping laws allow you to record conversations that you are a part of. One thing to note is that if you are recording a conversation with someone from an all-party consent state that the laws will typically apply in the state where the recording is being made. However, it is best practice to follow the strictest laws that would apply for recording (especially for businesses). Is Texas a two-party consent state?No, Texas is a one-party consent state. Can I Record a Police Officer in Texas?Yes! You can record police officers in the line of duty in all states as long as you are not trespassing or breaking any laws yourself. Is Texas a One Party Consent State?Yes, Texas is a one party consent state. One-Party Consent States Simplified Table
One-Party Consent States (Continued) – Indiana – Mississippi
One-Party Consent States (Continued) – Missouri – Oklahoma
One-Party Consent States Continued – Rhode Island – Wyoming
If you’re interested in privacy, check out our blog post on using VPNs, one of the best ways to protect your privacy online. More Texas Laws
Can your workplace record audio?Employers cannot record audio without consent
California Penal Code Section 632 makes it a crime to record audio of confidential conversations without the consent of all parties. Many employers who install surveillance cameras that also make audio recordings are not aware of this.
Can I sue someone for recording me without my permission in Texas?Code § 18.20. Therefore, you may be able to record in-person conversations occurring in a public place, such as a street or a restaurant, without consent. In addition to subjecting you to criminal prosecution, violating the wiretapping law can expose you to a civil lawsuit for damages by an injured party. Texas Civ.
Is it illegal to video record someone at work without their knowledge Texas?Under Texas Law, it is a crime intercept or record any wire, oral or electronic communication without the consent of at least one party. The good news is that you count as one party and if you're recording then you have probably given yourself consent to record the conversation.
Is it legal to have cameras with audio in the workplace?Is audio surveillance allowed in the workplace? Many surveillance cameras are capable of recording not only pictures, but also sound. Recording private communications without the consent of those speaking or without legal authority, such as a warrant issued to police by a judge, is a criminal offence.
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