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Are Recordings Allowed in Texas Without Consent?

There are several reasons why spouses end up making the difficult decision to get divorced. Some of these reasons include stressful and traumatic experiences. These can result in emotional reactions that can be difficult to deal with.

When the other spouse is manifesting disturbing behavior, it can be enticing to record secretly to show harassment, lack of fitness for custody, infidelity, or any other reason. 

Texas Recording Law

The wiretapping law of Texas is a “one-party consent” legislation. It is a crime to record or intercept any type of wire, oral, or electronic communication. Save for the situation where one party to the conversation gives consent to such recording or interception. The law, however, does not include in their coverage oral communications when the speakers do expect that such communication is not subject to the recording or interception under situations justifying such expectations. Therefore, it may be allowed to record conversations that are in-person taking place in a public place without the need to obtain any consent. Any violation of the Texas wiretapping law can subject a person to criminal prosecution and a civil lawsuit.

Admissibility of the Recordings as Evidence in Court

Federal Level

The interception of specific electronic communication is prohibited under the Federal Electronic Communications Privacy Act and Stored Wire, and Electronic Communications Act. The law also enables the victim to file an action, both criminal and civil, against the invader. Both of these laws regulate access to communication electronically transmitted such as emails, voice mails, faxes, and text messages. The courts are still trying to navigate the law’s language in this electronic age we are in, and every legal ruling seems to set a new standard for how divorce lawyers will deal with evidence that technology can provide.

State Level

In Texas, it’s penal code provides for a criminal wiretap law. A civil action for interception of communications under its civil practices and remedies code. With the changeability of the law, Texas lawyers refute any electronic evidence considered detrimental to their clients’ cases. They will cast doubt on the authenticity of the sender. They may also assert their client’s right under the Fourth Amendment; which is their right to privacy protected in both federal and state laws, among others.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at

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