Texas Law says it is illegal to intentionally intercept spoken or electronic
communication. There are some exceptions to this law. However, a person
contemplating should be very careful not to fall out of that exception
and would be advised to consult with their
divorce attorney prior to taking any action.
In one case not to law a husband suspected his wife was cheating on him
so he installed a spyware program on her computer. When police discovered
the software he ended up being charged with the Unlawful Interception
of Electronic Communication which is a second degree felony and can carry
a 20-year sentence.
Is it legal to record your spouse on a phone call without their knowledge?
Under the Texas penal code, it is a crime to intercept or record any “wire,
oral, or electronic communication.” Tex. Penal Code § 16.02,
and Tex. Civ. Prac. & Rem. Code, Ch. 123 create both criminal and
civil causes of action for wiretapping phone conversation.
This means you may not place a recording device in a phone to record your
spouse’s conversations unless you want to be criminally prosecuted
and sued by your wife.
Texas wiretapping law is known as a “one-party consent” law.
This means if one party consents to your recording them then it is ok
to record the conversation.
Furthermore, this on party can be you. If you are a party to the conversation
and the one doing the recording, then one party has consented.
If you are not a party to the conversation, then one of the people being
recorded must give permission in advance.
- If the conversation being recorded is taking place across state lines,
those other states’ laws may require consent from all parties
- If you set up a recording to take place and you are not a party to the
conversation such as leaving a recording device in the room and leaving,
you may be in violation of the federal wiretapping statute because one
party has not consented.
- If you record your spouse illegally not only will you face potential criminal
charges your illegally gather evidence will likely not be admissible in court.
Can I record my child’s conversations with the other parent?
Yes, this falls under the principal that a child is not old enough to consent
to being recorded and parent can consent for them. If a parent consents
to the recording of the conversation between the child and the other parent,
one party to the conversation being recorded has consented.
One Texas case has held that “Although vicarious-consent is not listed
as an exception to the Texas wiretap law, the court of appeals held that,
in order to protect a child, a parent may record her child's telephone
conversations if the recording meets the standards in Pollock. Alameda”,
181 S.W.3d at 778.Alameda v. State, 235 S.W.3d 218, 220 (Tex. Crim. App. 2007)
In Pollock v. Pollock The Court held that “held that a parent may
give vicarious-consent to record a child's telephone conversations
if the parent has a good-faith basis for believing that recording is in
the best interest of the child.
However, this should only be done after careful consideration. In one
divorce case I handled the mother recorded the conversations between her child and
the father. In that case both the Judge and Amicus attorney (attorney
representing the child) were upset by this fact. The case did not go well
for the mother and the father ended up being awarded primary conservator
of the child.
Can I open my spouses’ mail?
No, do not do it. Opening your spouse’s mail is a federal crime.
An exception to this rule is “consent.”
Can I read my spouse’s email?
Intercepting your spouse’s email for use as evidence for a hearing
may be illegal. It is a federal crime to intercept electronic mail while
on route or after receipt.
An exception to this rule is “consent.” If you share email
account passwords with our spouse arguably you have given consent to the
other spouse to intercept your emails. In this situation the intercepted
passwords may be admissible in court.
However, if you have obtained your spouse’s password improperly it
would be illegal to access your spouses email.
Can I video record my spouse?
Yes, if your spouse is in a public place. A spouse can be photographed
or video recorded without consent when they are in a public place.
No, when your spouse believes they are in a state of complete privacy.
An example might be when your spouse is home alone in their pajamas.
Are my spouses text messages to me admissible in Court?
Yes, text messages are admissible in court if legally obtained. Text messages
that your wife sends you are admissible as a party admission.
In order to get text messages admitted in Courts in Harris and Montgomery
county your attorney will first have to lay the proper predicate. A predicate
is used to set the ground for admitting evidence into court.
A predicate for admitting text messages might resemble the following:
- Q – What is your wife’s number
- A – XXX-XXX-XXXX
- Q - Does that number appear on the following exhibit?
- A. Yes
- Q. How do you know this is your wife’s phone number?
- A. She called me from that number?
- Q. Did you receive the text messages from that phone number?
- A. Yes
- Q. How do you know your wife was the one who sent the messages?
- A. Because she was the one texting me back and forth. She even called me
in between the conversations.
Legally obtaining your spouse’s text messages
One way to legally obtain your spouse’s Text message during a divorce
is through what is called the discovery process.
In order to conduct discovery, you must first have a pending legal cause
of action such adivorce filed in Texas. Once there is a pending a cause of action a party may secure the production
of documents through the discovery process under rule 196 of the Texas
Rules of Civil Procedure.
Can I install a GPS locator on my spouse’s car?
This is not a good idea there does not appear to be a lot of wiggle room
under the law in this area.
Installing a GPS tracking devices in a spouse’s vehicle can be a
confusing area in the law. Community property law does NOT apply to this
issue. Marriage does NOT provide you with a legal basis for placing a
GPS tracking device on your spouse’s vehicle.
If the vehicle is owned or leased by the tracked spouse, then this conduct
would be prohibited by Texas Penal Code section 16.06 unless the device
is placed on the vehicle with the other person’s consent.
If both spouses co-own the vehicle, the issue is more complicated. If the
spouse being tracked is the one who regularly drives the vehicle, the
other spouse may be in violation of Texas Stalking Laws.
If you want to know more about what you can do,
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- Legalities of spying on a child’s cell phone in Texas
- How Social Media Can Hurt You in Divorce
- Why do divorces cost so much in Texas?
- How Can I Get My Spouse to Pay My Attorney's Fees in a Texas Divorce?
- How Much Will My Texas Divorce Cost?
- Can I sue my spouse's mistress in Texas?
- Roadmap of Basic Divorce Procedure in Texas
Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
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divorce, it's important to speak with one of our
Spring, TX Divorce Lawyers right away to protect your rights.
divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and
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