Marquez, TX asked in Criminal Law and Civil Rights for Texas

Q: one party consent I recorded a conversation while waiting for someone to reply is this illegal?

The manger picked the phone up and put it down so I would stop calling i did call a lot I couldn’t leave a voicemail it was full I had a medical referral question she than processed to have a full conversation with a coworker while I was left on the line in my irrational I recorded the conversation to present to the higher up mangers she never said hello just picked up the phone placed it down and talked with her coworker I said hello no answer than I waited till I couldn’t so I yelled finally she answered did I break a law by recording a conversation I wasn’t apart of?

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1 Lawyer Answer
Kiele Linroth Pace
Kiele Linroth Pace
  • Criminal Law Lawyer
  • Austin, TX
  • Licensed in Texas

A: Yes, or it is close enough for "probable cause" to justify criminal charges. That said, your intent is an element of the offense AND you can also raise an affirmative defense based on the fact that a party to the communication consented to the recording by intentionally leaving the line open. I would take it a step farther and alleged that the employee who left the line open (the victim) actually is the one who committed the offense by allowing you to record the COWORKER to be recorded without consent.

An affirmative defense does not require that you conceded EVERY element of an offense, just some of them. Also, by raising an affirmative defense, you shift the burden from the state having to prove you committed the offense to the state having to DISPROVE your defense beyond a reasonable doubt.

This defense approach is likely to be successful, but it is not necessarily a fast way to resolve a case like this... because it requires the prosecutor to THINK about how it will likely go for them at trial. Early in a case, most prosecutors only think about the charge and the evidence to support the charge rather than the evidence against it. Cases that drag on are more likely to be dismissed but they are expensive to defend. Choose your defense attorney carefully and be aware that a cheap or court-appointed attorney is more likely to attempt to negotiate a reduction of charges than take to the mat seeking a dismissal or Not Guilty at trial.

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