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Can I tape in Texas?

Texas Penal Code � 16.02: So long as a wire, oral or electronic communication � including the radio portion of any cordless telephone call � is not recorded for a criminal or tortious purpose, anyone who is a party to the communication, or who has the consent of a party, can lawfully record the communication and disclose its contents.

Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of "oral communication," Texas Code Crim. Pro. Art. 18.20.

Unlawful recording of a conversation, or disclosure of its contents with reason to know of the illegal interception, is a felony punishable by two to 20 years in prison and a fine not to exceed $10,000. Texas Penal Code � 12.33. A civil cause of action is expressly authorized for unlawful interception or disclosure. Texas Civ. Prac. & Rem. Code � 123.002. The plaintiff may be entitled to $10,000 for each occurrence, actual damages in excess of $10,000, punitive damages and attorney fees and costs. Texas Civ. Prac. & Rem. Code � 123.004.

The U.S. Court of Appeals in New Orleans (5th Cir.) held in 2000 that a television station and reporter who had been given illegally obtained tapes of telephone conversations, but who had not participated in the illegal recording, could nonetheless be held civilly liable under the federal and Texas wiretapping statutes. Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000). The case was appealed to the U.S. Supreme Court along with two other cases raising similar issues. The Supreme Court refused to hear the Texas case but decided in one of the other cases, Bartnicki v. Vopper, that media defendants could not be held liable for publishing information of public concern that was obtained unlawfully by a source where the media were blameless in the illegal interception. Following the Bartnicki decision, the parties in the Peavy case settled out of court.

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