Criminal Law in the Divorce - Child Custody Context.
By Earl N Jackson
Board Certified
Texas Board of Legal Specialization

• It is a real bad idea to wire-tap a phone to record a conversation that you are not a party to.
• It is a real bad idea to break into someone else's e-mail account.
• It is a real bad idea to use your spouse's password to break into her profile on the joint pc.
• It is a real bad idea to place tacking devices on your ex's auto.

Just some thoughts . . . for all the risk . . . is there really a whole lot to gain.

Criminal Law, Wire Tapping, Tape Recording, Computer Security, Tampering of Evidence are criminal issues that do arise on occasion in the family law context.  It occurs because a litigate in a divorce or custody action in an effort to improve their position or to find the "smoking gun" overreaches into violations of Texas and Federal penal statutes. This issue has come up on several occasions in our practice. This article was written to help the people of Dallas and the State of Texas become aware of and to avoid criminal penalties arising out of the family law context. Frankly, if you are charged with violation of a penal statute the concepts of custody, paramours, and division of property in the divorce context may be your last worry. Recognize that the defense of a felony indictment may require anywhere from a $5,000.00 to $15,000.00 retainer for criminal defense counsel.

Texas Penal Code §16.02 - Wiretapping

Client brings into the office tapes of conversations between his or her spouse and their third-party girlfriend/boyfriend.

Opposing party figured out how to break into clients AOL account and downloaded e-mails from/to spouse and paramour.

Wire, Oral, or Electronic Communication

• In Texas, can you record a conversation that you are a party to? Yes.  Citizens of other states - beware. Attorneys beware - ethics opinions.

• Can you record a conversation that you are not a party to? Not at all.

Texas Penal Code Section 16.02 provides that a person commits a criminal offense if he or she intentionally:

1. intercepts an electronic communication

2. endeavors to intercept an electronic communication

3. procures another to either intercept or endeavor to intercept an electronic communication - neighbor and friend beware.  Neighbor, don't aid and abet your buddy and wiretap his spouse.

4. discloses or endeavors to disclose the contents of a wire, oral or electronic communication if he or she knows or has reason to believe that the information was obtained by an interception

5. uses or endeavors to use the contents of a wire, oral or electronic communication if he or she was reckless about whether the communication was obtained by an interception in violation of this statute - attorney beware.

6. knowingly or intentionally effects a covert entry for the purpose of interception. In other words, don't think about going into what is termed "your home" that your spouse has exclusive use of by Temporary Order to plant video cameras and radio transmission devices. Zealot beware.

7. uses, endeavors to use or procure another to use any electronic, mechanical or other device to intercept any oral communication when the device is affixed to or transmits a signal through a wire or transmits or interferes with the transmission by radio.

8. CONVICTION: A conviction under §16.02 of the Texas Penal Code subjects the offender to confinement in the Institutional Division of the Texas Department of Criminal Justice for not less than 2 years nor more than 20 years and a fine of up to $10,000.00, or both.  ("Darlie, I'm a good girl" or how about "Guido, I have a new issue of playboy and some cigarettes." 

In reality, you may avoid prison but a felony conviction will remain on your record for life. In the end, a criminal charge and conviction of violating §16.02 means: you don't care about custody anymore and you don't care about elections - you don't vote.

Note, §16.02 does not concern itself with the actual interception of a communication. It includes an attempt to make the interception. This is one provision of the Texas Penal Code that that incorporates an attempt into the offense. Usually, an attempt is a lesser included offense with regards to other Penal Code provisions.

Wiretapping: Spouses Occupy the Same House

In Simpson v. Simpson, 490 F.2d 803, the 5th circuit (our federal court of appeals in New Orleans) carved out an exception to the federal version of the Texas Wiretapping statute for spouses occupying the same residence. Several circuit courts have declined to follow Simpson, Texas courts have criticized Simpson - Collins v. Collins, 904 S.W.2d 792 and Turner v. PV Int'l Corp., 765 S.W.2d 455. Since the marital domicile exception does not seem to exist in Texas either by statute or by case law, the safe practice is - Don't do it.

Texas Penal Code §33.09
Breach of Computer Security

Breach of Computer Security is about preventing the destruction of electronically stored data, and protecting the privacy of computer information both at home and the workplace. Penal Code section 33.09 provides: "A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.

The owner is not necessarily the person in whose name the computer is titled to. Section 33.01(15) defines "Owner" as a person who "has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.

A computer system is any combination of a computer or computer software, or physical facilities supporting the computer or computer network. This broad definition would seem to encompass almost any PC or network configuration - AOL, MSN, Google, Yahoo are all computer network systems. Your laptop is part of the network if it has one of the access providers on it, or is configured to your office network system.

Examples:

• Spouse is ordered out of the house through temporary orders. Spouse's personal PC remains on the premises. Spouse returns the child after visitation one evening while other spouse is not at home. Spouse enters home while the cat's away and opens up downloaded e-mail. Spouse has breached computer security. Why? Because even though spouse is the title holder to the property, other spouse has a superior right of possession and is thus the owner pursuant to Section 33.01(15).

• Spouse "figures out" American Express account password. She opens opens hubby's Amex account through her work PC. She is in violation of Penal Code Section 33.02.

Breach of Computer Security is a Class B misdemeanor which provides for confinement in jail for up to 180 days and a fine of $2,000 or both unless damage or deletion of data, harm, fraud or a benefit to another occurs, in which case the punishment is increased according to the dollar value of the amount involved. Punishment could be a 1st degree felony which carries a 5-99 years or life in prison and a $10,000.00 fine.

JACKSON : THORTON
Dallas Divorce Lawyers
214-369-7100

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