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As smart phones become ubiquitous and everyone is on social media, texts messages and status updates have found their way into court and are often damning for the sender or poster. But though it may be tempting for some distrustful spouses to sneak a peek into a spouse’s email to catch him or her cheating, it’s likely to land the snooping spouse into more trouble than the snooped upon spouse. In fact, it can be criminal. Under Texas law, it is an offence to intercept, try to intercept, or ask another person to intercept an electronic communication intended for another person. Tex. Penal Code§ 16.02.
Such was the case in Duffy v. State, 33 S.W.3d 17 (Tex. App.—El Paso 2000). There, during divorce proceedings, the wife became concerned that her husband was listening to voice mail messages intended for her and found a device installed to record phone conversations. Id. The husband was convicted under the wiretapping statute, and the court noted that the statute “does not contain any exception for interspousal wiretaps.” Id. Further, the constitutional right of privacy “is not limited to unmarried individuals.” Id. Thus § 16.02 may be applied to punish a snooping spouse. Id.
It is also an offence in Texas to access a computer without the consent of the owner, including your spouse’s machine. Tex. Penal Code§ 33.02. In Miller v. Talley Dunn Gallery, LLC, No. 05-15-00444-CV (Tex. App.—Dallas March 3, 2016), the court determined that a cell phone is a computer for the purposes of the criminal statute. There, the husband took his wife’s cell phone while she slept and took photographs of messages she exchanged with another man. Id. When this and his other surveillance activities were discovered by the wife, she filed for divorce. Id. The court found that in looking at the text messages, the husband retrieved data from the phone and met the definition of “access” in violation of the statute. Id.
Further, it was no defense that, because the cell phone was community property, the husband had effective consent to access the phone. Id. Though it may have been purchased during the marriage and technically community property, “[n]othing in chapter 33 of the penal code incorporates community property law for the purpose of establishing ownership of the computer.” Id. For the purposes of the statute, the owner of the computer is the person who has “a greater right to possession of the property than the actor” or “the right to restrict access to the property.”Tex. Penal Code§ 33.01(15). It was notable that the wife placed a password on her phone in establishing that she had the great right to possession and the right to restrict access. Miller, No. 05-15-00444-CV.
So next time you’re suspicious and want to spy on your spouse, don’t do it.
Stacey Holley Valdez Attorney Stacey Holley Valdez is among the one percent of attorneys in Texas to have achieved Board Certification in the practice area of family law. This certification is awarded to only those attorneys who demonstrate significant experience in family law, the highest ethical principles, and a comm… Read More 
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