In Texas, it is not illegal to record a conversation if you are one of the parties on the call. Texas is a one-party consent state, which means you can record a conversation you are a part of without telling the other person in the conversation that you are recording them.
A More Detailed Answer: State & Federal Law
Under both state and federal law, Texas residents can record a conversation they are in without notifying the other person(s) in the conversation.
If you are a party to a conversation, you can record it. You generally do not have to get consent from anyone else in the conversation to record. However, you should be aware of phone calls being placed to states that are “two-party consent” states. At least 10 states have laws that require the consent of every party to a phone call or conversation. These “two-party-consent” states include California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington.
Texas Penal Code Section 16.02(c)(4) creates an affirmative defense to wire-tapping if one of the parties intercepts or gives consent to intercept the communication. This makes Texas a “one-party consent” state.
18 USC 2511 uses almost identical language, with an exception for if one party consents. A violation – where no one in the conversation consented to the recording – could result in a fine, imprisonment up to five years, or both.
Can You Record Someone Else’s Conversation Taking Place in Public?
Under federal law, 18 USC 2511, it is illegal to record conversations other people are having where they have a reasonable expectation of privacy. You can record conversations that you are a part of. Once again, Texas law generally mirrors federal law in regards to making recordings of other people: Texas Penal Code 16.02 allows a person who is a party to a conversation to record it, but generally prohibits others from recording conversations.
Can You Record the Police?
There is no prohibition to recording police activity that is taking place in public view. You are not, however, allowed to interfere with public duties by your presence or actions.
Can You Record a Conversation if You are Not a Party?
Recording someone else’s phone call, in most cases, is going to fall within the state and federal prohibitions against wiretapping. You should not record a conversation you are not a part of without first consulting with an attorney about the legality of what you are planning to do. Under Texas and federal law, you can record conversations between other people as long as one of the people in the conversation gave you permission to make the recording. Other exceptions also apply, such as law enforcement officials acting pursuant to a proper wire-tapping or trap-and-trace order. Pursuant to Code of Criminal Procedure 18.20, you may record in-person conversations that are occurring in a public place, without the consent of the people in the conversation.
Recording Conversations – A 50-State Survey
In the context of recording conversations, states in the U.S. are divided into “one-party consent” and “two-party (or all-party) consent” jurisdictions. Here’s a breakdown:
One-Party Consent States
In these states, only one party involved in the conversation needs to consent to the recording.
- Hawaii (Note: Hawaii is generally a one-party state, but it becomes a two-party state if the recording device is installed in a private place)
- Michigan (Note: Some legal interpretations consider Michigan to be an all-party consent state)
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
Two-Party (or All-Party) Consent States
In these states, all parties involved in the conversation must consent to the recording.
- New Hampshire