Michael is the owner of Phelps Sports & Outdoors, which carries a full range of sporting goods and apparel. Michael is anticipating a surge in interest in swimming after the widely televised and viewed Democracy Games, and wants to have the latest and most sought after swimming merchandise available. The Speezo LZB Speedster swimsuit is the latest in swimming technology, and Michael feels there will be a major demand for it after its wide use in the Games. Michael decides to call Mark, owner of Spitz Swimming Wholesalers, Inc., in hopes of procuring these swimsuits and getting a jump on competitors. After intense negotiations, Michael and Mark agree on a price of $7.00 per suit.

However, a week later when Michael calls Spitz Swimming Wholesalers, Inc., to check on his order, a sales rep for the company informs Michael that, due to increased demand, the price is now $8.00 per suit. Enraged by this sudden spike in price, Michael decides to call Mark and record their conversation as evidence that they had agreed to the lower price. Is Michael violating the law?

Under Texas law, at least one party to the telephone conversation must know that it is being recorded. So, if you are a party to the conversation, you can record it without announcing that it is being taped. Or, to use the language of the statute, a person commits an offense if he “intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication, unless the person is a party to the communication, or one of the parties to the communication has given prior consent.”

Further, Federal and Texas laws allow for what is commonly known as the “business telephone” exception. This exception generally allows employers to monitor calls made on company telephones used in the ordinary course of business, without employees consent. BE ADVISED, however, wiretapping laws do differ in many other states such as California and Florida, often requiring all parties participating in the telephone conversation to consent to any recording. So, if one or more participants in the conversation are then out of the State of Texas, that state’s laws must be considered before taping any conversation. Further, the law regarding the taping of spousal conversations and conversations involving minor children is an unsettled area in Texas.

For more information, please see Tex. Pen. Code Ann. § 16.02(b)(1); (c)(4)(A)-(B) (Vernon Supp. 2007). And, for a more scholarly explanation prepared by Michael Lillibridge in our Houston office, please go to the Looper Reed and McGraw web at http://www.lrmlaw.com/pdf/Tape_Recording_Conversations.pdf.