Face to Face Conversations:
In Texas it is legal to record a conversation with another person as long as one party to the conversation is aware that the conversation is being recorded. This means that you can hit “record” on your smartphone audio app and record a conversation with you and another person (even three, four, five, etc. persons). The scheme is outlined in Tex. Penal Code Sect. 16.02. This is the Texas Wiretapping Law and details what is prohibited in electronically recording audio information. Under this law, you can also give your recording device to someone else in the room, get that persons consent that you are making a recording, and have that person make a recording for you.
Recording Telephone Calls:
In Texas it is legal to record a telephone conversation you are having with another party even though that person does not know you are recording them. Federal law permits this too. What is prohibited is recording another person’s telephone conversation with a third party. Note, that this rule only applies in Texas and other states that are so-called “one party” states. If you are recording someone who is located in a “two-party” state, you must get their permission to record the conversation. Currently there are 11 “two-party” states: California, Connecticut, Florida, Hawaii, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington. If you are recording someone located in one of these states, you must get everyone’s express permission to make the recording.
What is Prohibited:
What is expressly prohibited in Texas is the recording of a conversation (either face-to-face) or over the telephone among participants where none of them have given express consent to the recording. This generally means you cannot place your electronic recording device in a room and walk out, or tap someone’s phone line.
Recording law enforcement or other government officials require some special considerations. Generally, in Texas, it is legal to make an audio or video recording of a police officer’s activities while they are carrying out their duties in a public place. Note, however, you do not have the right to interfere with the performance of an officer’s duties or violate other laws.
Recording federal court proceeding in Texas is prohibited and most state courts have rules which prohibit these recordings as well.
Video recording in Texas is governed by other law and this post is not to be construed as an interpretation of video recording in Texas. A future blog post will be forthcoming on this issue.
The information provided above does not create an attorney-client relationship. The information provided here is informational and educational only and does not constitute legal advice. This answer is the opinion of the individual attorney, and nothing in this answer should be relied upon or construed as advice or the opinion of the State of Texas or the United States Government.