Texas Wiretapping & Unlawful Tracking Devices — Penal Code § 16.02 & § 16.06

Secretly recording or intercepting other people's calls, texts, or conversations is a second-degree felony under Penal Code § 16.02 — two to 20 years in prison. Installing a GPS tracker on a vehicle owned or leased by someone else is a Class A misdemeanor under § 16.06. Below: both statutes, the one-party consent rule, punishment ranges, defense strategies, and what to do if you have been charged in Collin, Dallas, Denton, or Tarrant County.

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The controlling statutes

Texas puts its electronic-surveillance crimes in Chapter 16 of the Penal Code, and two sections do almost all of the work in real cases. Section 16.02 covers the secret recording, interception, disclosure, and use of communications — and it is one of the most heavily graded privacy crimes in the state, a second-degree felony carrying the same 2-to-20-year range Texas assigns to many violent offenses. Section 16.06 covers GPS and similar location trackers placed on someone else's vehicle, a Class A misdemeanor. Because the same jealous-spouse or business-dispute fact pattern often involves both a recording and a tracker, the two charges frequently travel together.

Under § 16.02(b), a person commits an offense if the person “intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication.” The statute reaches further than the act of recording. Subsection (b)(2) separately criminalizes intentionally disclosing the contents of a communication the person knows or has reason to know was unlawfully intercepted; subsection (b)(3) criminalizes intentionally using those contents; subsection (b)(4) reaches covert entry for the purpose of intercepting; and subsection (b)(5) reaches using an interception device against oral communications through wire or radio transmission. Each theory stands on its own — a person who never touched the recorder can still commit a felony by playing the recording for someone else.

The technical vocabulary comes from Article 18A.001 of the Code of Criminal Procedure. “Intercept” means “the aural or other acquisition of the contents of a wire, oral, or electronic communication through the use of an interception device.” A wire communication is essentially a phone call; an electronic communication covers texts, emails, direct messages, and other data in transit; an oral communication is a spoken conversation where the speaker justifiably expects privacy. Those three categories, together, cover nearly everything people say or type to each other.

Section 16.06 is shorter and blunter. A person commits an offense if the person “knowingly installs an electronic or mechanical tracking device on a motor vehicle owned or leased by another person.” The statute defines a tracking device as one “capable of emitting an electronic frequency or other signal that may be used by a person to identify, monitor, or record the location of another person or object.” The offense is complete at installation — the State does not have to prove anyone was actually followed.

Chapter 16 has three quieter neighbors worth knowing about: § 16.03 (pen registers and trap-and-trace devices), § 16.04 (unlawful access to stored communications), and § 16.05 (illegal divulgence of public communications). Charge selection matters enormously here. Reading a partner's saved text messages out of their phone is a § 16.04 stored-communications problem; capturing those messages in transit with an app is § 16.02 — the second-degree felony. Prosecutors do not always draw that line carefully, and the difference is measured in years.

Is Texas a one-party consent state?

Yes. Section 16.02(c)(4) makes it an affirmative defense that a person not acting under color of law intercepted a communication where “the person is a party to the communication” or “one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing an unlawful act.” In plain English: you may record your own phone calls and your own conversations without telling the other side, and you may record a conversation when any one participant has agreed to it in advance.

What one-party consent does not cover is other people's conversations. A recorder hidden in a bedroom to catch a spouse, a tap on the home phone line to capture the spouse's calls with a third person, an app that forwards someone else's calls or texts — in each of those, the person doing the intercepting is not a party and no participant has consented. That is the exact conduct § 16.02 was written to punish.

Two traps deserve emphasis. First, the defense evaporates when the recording is made “for the purpose of committing an unlawful act” — recording your own call as part of a blackmail or extortion scheme gets no protection. Second, § 16.02(c) creates affirmative defenses, not exemptions from prosecution. Under Penal Code § 2.04, the defendant carries the burden of proving an affirmative defense by a preponderance of the evidence at trial. Practically, that means a person can be arrested, booked, and formally charged first, and only later vindicate the defense — which is why even clearly defensible recording situations need counsel early.

Parents sometimes ask about monitoring a child's phone. Courts have recognized limited room for a parent or guardian to consent on behalf of a young child in specific circumstances, but the doctrine is narrow and fact-driven — it is not a license to monitor a teenager's private life wholesale, and it never extends to monitoring the other parent or a spouse.

Classification & punishment range

Section 16.02(f) sets the grade in one sentence: “An offense under this section is a felony of the second degree, unless the offense is committed under Subsection (d) or (g), in which event the offense is a state jail felony.” Section 16.06(c) makes the tracking-device offense a Class A misdemeanor. The full grid:

Two range notes. First, counts stack: every intercepted call and every act of disclosure can be indicted as a separate count, so a months-long spyware installation can produce an indictment with dozens of felony counts even though it began with a single download. Second, first-time defendants are frequently eligible for community supervision or deferred adjudication on both § 16.02 and § 16.06 charges — the statutory range describes the exposure, not the inevitable outcome, and outcomes turn on the facts and the defense.

Elements the State must prove

Every element must be proved beyond a reasonable doubt. For a § 16.02(b)(1) interception count, the State must establish that:

1. the defendant;
2. acted intentionally — the highest culpable mental state in Penal Code § 6.03, requiring a conscious objective to intercept, not an accident or incidental capture;
3. intercepted, endeavored to intercept, or procured another person to intercept — meaning the contents were acquired through an interception device while the communication was occurring; and
4. the thing intercepted was a wire, oral, or electronic communication as defined by Article 18A.001 — for an oral communication, that includes proof the speaker had a justified expectation the conversation was not subject to interception.

A disclosure count under § 16.02(b)(2) adds a knowledge element: the State must prove the defendant knew or had reason to know the contents came from an unlawful interception. A use count under (b)(3) requires knowledge or recklessness on the same point. For the § 16.06 tracking-device offense, the State must prove the defendant:

1. acted knowingly;
2. installed the device — placement on the vehicle, not mere possession of a tracker;
3. the device was an electronic or mechanical tracking device under § 16.06(a)(1);
4. the object was a motor vehicle as defined by Transportation Code § 501.002; and
5. the vehicle was owned or leased by another person.

Element four and five are where tracking cases are most often won: a device found in a purse or toolbox is not on a motor vehicle, and a vehicle titled or leased to the defendant is not owned by “another person.”

Where people cross the line: divorce, custody, and breakups

The typical § 16.02 defendant in Collin, Dallas, Denton, or Tarrant County is not a hacker or a private detective. It is a spouse in a failing marriage, a parent in a custody fight, or an ex who could not let go — someone who believed they were gathering proof and discovers, usually through the other side's divorce lawyer, that they were committing a felony. Three fact patterns account for most of these cases:

• Recording the spouse's calls. A voice-activated recorder in the car or bedroom, a tap or recording app on the home line, or call-forwarding software captures the spouse's conversations with third parties. The installer is not a party to those calls and nobody on them consented — a textbook § 16.02(b)(1) interception, count after count.
• “Monitoring” apps and spyware. Consumer spyware marketed for catching cheating partners captures texts, calls, and app messages in transit — § 16.02 — while installing it on a phone the person does not own without effective consent is a separate breach of computer security charge under § 33.02, and pulling saved messages out of storage implicates § 16.04. One download can generate three different charging theories.
• The GPS tracker on the ex's car. A magnetic tracker under the bumper or an item-finder tag tucked in the trunk of a vehicle titled to the other person is the § 16.06 Class A misdemeanor — and when the tracking is part of a pattern of following, showing up, and monitoring, prosecutors look hard at a stalking charge under § 42.072, which is a felony.

These cases surface in a predictable way. The recordings or location data get produced — or bragged about — in the family case; the other side's lawyer recognizes the exposure; and the material flows to law enforcement as a criminal referral. The painful irony is that the evidence rarely helps the person who gathered it: unlawfully intercepted communications are generally inadmissible, and the act of gathering them hands the other side both leverage in the custody case and a criminal complaint.

Neighboring statutes matter for charge strategy. Repeated unwanted electronic messages to the other person are analyzed as harassment under § 42.07 — a different crime from intercepting messages between other people. Secret cameras in bathrooms, bedrooms, or changing areas are charged as invasive visual recording under § 21.15, which targets images rather than communications. Getting the right statute in front of the right court is often the first defense win.

What counts as a tracking device under § 16.06?

The definition is technology-neutral and broad: any device “capable of emitting an electronic frequency or other signal that may be used by a person to identify, monitor, or record the location of another person or object.” That comfortably reaches purpose-built GPS units, hardwired trackers spliced into a vehicle's power, and consumer item-finder tags when they are placed on a vehicle to follow it. The statute does not require live tracking — a device that merely logs location for later download still qualifies.

The scope limits are just as important. The offense covers installation on a motor vehicle — a term borrowed from Transportation Code § 501.002 — that is owned or leased by another person. Slipping a tracker into a purse, briefcase, or jacket is not a § 16.06 offense (though it can become powerful evidence in a stalking prosecution). And because the element is ownership, a tracker on a vehicle titled or leased to you — including, in many marriages, a jointly titled community-property vehicle — presents a genuine proof problem for the State. Joint-title cases are legally messy rather than automatically safe: title records, lease paperwork, and who actually possesses the car all matter, and the smarter course is legal advice before installation, not after arrest.

Section 16.06(d) supplies three affirmative defenses: the installer obtained the effective consent of the owner or lessee before installation; the installer assisted someone they reasonably believed to be a peace officer acting in a criminal investigation or under court order; or the installer was a private investigator licensed under Occupations Code Chapter 1702 acting with the required written consent or court authorization. Subsection (e) removes peace officers acting in criminal investigations from the statute entirely. Note what is missing from that list: suspicion of infidelity, fear the other person is lying, and “it's for the kids” are not defenses.

Does the federal Wiretap Act also apply?

Yes. The federal Wiretap Act — Title III of the Omnibus Crime Control and Safe Streets Act, now part of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510–2523 — prohibits the same core conduct: intentional interception, disclosure, and use of wire, oral, and electronic communications. Federal law follows a one-party consent rule that closely parallels Texas's, including a carve-out that defeats the defense when the interception is for a criminal or tortious purpose. The intercepted party also holds a federal civil cause of action under 18 U.S.C. § 2520, separate from any state claim.

The two regimes operate independently, and conduct must be lawful under both. Most single-household recording and tracking cases are prosecuted in Texas state court, but federal exposure becomes realistic when the conduct crosses state lines, involves commercial spyware vendors, or touches a broader federal investigation.

One practical wrinkle deserves attention: interstate calls. Texas permits one-party recording, but several states — California and Florida among them — require every party's consent, and those states apply their own law to calls their residents participate in. A Texan who records calls with out-of-state parties can be compliant at home and still exposed elsewhere. Anyone routinely recording business calls should treat all-party consent as the safer operating rule.

Defense strategies

Interception and tracking cases are more defensible than the felony label suggests, because the statutes are element-heavy and the affirmative defenses are broad. Defense theories L and L Law Group develops in § 16.02 and § 16.06 cases include:

• Party or consent (§ 16.02(c)(4)). The accused was a participant in the conversation, or one participant had given prior consent. Text threads, call logs, and witness testimony establishing party status can unwind the felony entirely.
• No “interception” — storage, not transit. “Intercept” requires acquiring contents through an interception device from a live communication. Reading saved texts, opening old emails, or listening to preserved voicemails is stored-communications conduct — a § 16.04 issue with dramatically lower grading — not a § 16.02 felony. Forcing the State to prove in-transit acquisition is often the pivotal fight.
• No protected “oral communication.” A conversation qualifies only if the speaker justifiably expected it was not subject to interception. Arguments in front of witnesses, speakerphone conversations in shared spaces, and shouting audible without any device are vulnerable on this element.
• No “interception device.” The Article 18A.001 definition excludes ordinary telephone equipment and hearing aids. What was overheard with the naked ear, or picked up incidentally by equipment used in the ordinary course, is not device-based interception.
• Lack of intent. Section 16.02 requires intentional conduct. Always-on dashcams, home security cameras with audio, and pocket-dial recordings capture communications incidentally — without the conscious objective the statute demands.
• Attribution. Spyware and tracker cases depend on proving who installed the software or device. Shared devices, shared passwords, shared garages, and thin digital forensics leave reasonable doubt about the installer's identity.
• Ownership and consent (§ 16.06). The vehicle was titled or leased to the accused, the complainant consented before installation, or the installation fell within the licensed-investigator or peace-officer provisions.
• Suppression and procedure. The State's own evidence — a seized phone, a warrantless download of an app account, a search of the accused's vehicle — must survive Fourth Amendment scrutiny and Texas's exclusionary statute, Code of Criminal Procedure article 38.23. A suppressed extraction can take the heart out of the case.

Where the evidence is strong, the defense objective often shifts to grading: negotiating a § 16.02 felony down to a § 16.04 or § 16.06 misdemeanor theory, or structuring a deferred-adjudication outcome that preserves eligibility for an order of nondisclosure later.

Enhancements & collateral consequences

The base grades are only the starting point. Prior felony convictions can enhance a § 16.02 count under the habitual-offender rules of Penal Code § 12.42, and because each interception and each disclosure is a separate offense, the count-stacking problem alone can transform plea posture. Companion charges are common: stalking (§ 42.072), harassment (§ 42.07), breach of computer security (§ 33.02), and invasive visual recording (§ 21.15) frequently appear in the same indictment when the surveillance was part of a broader course of conduct.

A second-degree felony conviction carries the full weight of Texas felony collateral law: loss of firearm rights under Penal Code § 46.04 and the federal lifetime bar of 18 U.S.C. § 922(g)(1); disqualification or discipline for professional licenses — nursing, teaching, security, real estate, finance; immigration consequences for non-citizens; and the durable employment and housing screening damage any felony record creates. Even the Class A tracking-device misdemeanor is the kind of conviction — dishonesty-adjacent, surveillance-flavored — that licensing boards and employers read badly.

The civil exposure is unusual and worth taking seriously. Civil Practice and Remedies Code Chapter 123 gives a person whose communication was unlawfully intercepted a private lawsuit for statutory damages of $10,000 for each occurrence, actual damages above that amount, punitive damages, and attorney's fees — and the federal Wiretap Act adds its own civil action under 18 U.S.C. § 2520. A months-long recording habit can generate civil exposure that dwarfs the criminal fine.

Finally, the family-court fallout runs on its own track. Unlawfully intercepted material is generally excluded from evidence under article 38.23, surreptitious surveillance reliably damages the surveilling party's standing in custody disputes, and the conduct can support a protective-order application. One caution cuts across everything: do not delete recordings, apps, or location data once an investigation is foreseeable — destruction can add a tampering-with-evidence charge under § 37.09 to the indictment. Preserve, stop, and get counsel.