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Think Before You Spy

In the field of family law, emotions often cause rash decision-making. Spouses often suspect their partner of cheating and feel the need to investigate. The Texas Family Code provides injured clients courses of action against their cheating spouse. Though adultery itself does not carry the same legal “sting” it once did, the Texas Family Code allows adultery as a ground for divorce and justification for a disproportionate share of the community estate. The wisest path to some form of revenge against their adulterous spouse is through obtaining a disproportionate share of the community estate or successfully arguing a waste claim based on their spouse’s showering of gifts and trips for their mistress or mister. However, this article is to warn against clients taking matters into their own hands and stumbling into illegal actions that could jeopardize their divorce, their attorney-client relationship, and their freedom from criminal prosecution.

Some clients lose sleep wondering why their partner’s work schedule or life routine has suddenly changed. Could there be an innocent explanation or something more nefarious? A crossroads emerges: to spy or not to spy? Spouses on the receiving end of adultery often clamor for any and all information on their spouse and the unknown mister or mistress. Spouses may be left in the dark on where their cheating spouse goes, who they are with, and, for the purposes of a successful waste claim, what type of gifts and expenditures their cheating spouse makes for the benefit of this unknown paramour. It is natural to want as much information as possible on the spouse’s cheating ways. However, before making that decision, important considerations should be made to avoid criminal or civil liability for you as the client as well as anyone else involved in unauthorized tracking. These considerations and more should be discussed with your attorney before any actions are taken.

The method of spying addressed in this article is known as use of a tracking device without the consent of the owner or lessee of a motor vehicle. Under Section 16.06(b) of the Texas Penal Code, a person may be found guilty of a Class A misdemeanor if they knowingly install an “electronic or mechanical tracking device” on a motor vehicle owned or leased by another person.

Three definitions are important to keep in mind. First, an “electronic or mechanical tracking device” means a device capable of sharing, by electronic means or otherwise, a signal used by a person to “identify, monitor, or record the location of another person or object.” Second, for purposes of the tracking device statute, “motor vehicle” carries a broad definition ranging from any motor driven or propelled vehicle registered by the State of Texas to various trailers, off-road vehicles, and motorcycles not requiring registration. Lastly, the Texas Penal Code defines “owner” as a person who has title to the motor vehicle, greater possession of the motor vehicle, or holds a negotiable instrument, such as the named person on a lease or rental agreement for a motor vehicle.

How Does Section 16.06(B) Of The Texas Penal Code Play Out In Divorce Cases?

Addressing the tracking device itself, tracking devices applicable to this section come in all shapes and sizes. The first question likely is whether the object being installed in or on the motor vehicle can track the vehicle’s location. The most recognizable device, and one receiving recent press, is an Apple AirTag. Approximately 1.25 inches in width and length, this small coin-shaped object may be placed inside the interior of a car, dropped in a truck bed, or connected to the undercarriage of any type of motor vehicle by magnetic or physical means. Other devices of greater size, cost, and sophistication which track the location of a motor vehicle would also fall under this definition. Next, due to the broad definition of “motor vehicle” applied to the tracking device statute, almost any type of vehicle falls under the code’s definition. Examples of motor vehicles likely falling under the code include cars and trucks like coupes, sedans, SUVs, minivans, pickup trucks, and limousines; campers, trailers, and RVs for camping trips; private planes, speed boats, and yachts; and motorcycles, dirt bikes, ATVs, and golf carts. Almost any type of vehicle may be considered a “motor vehicle” for purposes of the tracking device statute.

The greatest consideration before tracking a motor vehicle using a tracking device is who owns or leases the vehicle. As Texas is a community property state, clients may confuse the fact that a car, truck, or motorcycle was purchased during the marriage and is community property with the idea that they are the “owner” of the motor vehicle. However, Texas appellate courts suggest that “ownership” under the Texas Penal Code does not incorporate the Texas Family Code’s understanding of community property as ownership. Instead, ownership is specially defined by the Texas Penal Code and is derived by the name on the certificate of title or the named lessee or renter on a lease or rental agreement. Before installing any tracking device on any motor vehicle, a client should ensure the name of the owner of the motor vehicle. Owned by a person outside the marriage or a company? No tracking is allowed without the consent of the person outside the marriage or company. Just the opposing spouse’s name on the vehicle’s title documents? Also not allowed without that opposing spouse’s permission. The party installing the tracking device must be listed as the owner or lessee of the vehicle without otherwise obtaining consent.

It is unclear what the Texas Legislature considered when it included the person who has “a greater right to possession of the property than the actor” when defining ownership. However, for safety from criminal liability and a less contentious divorce suit, clients are discouraged from becoming the test case for when one’s right to possess property is greater than another’s. Names listed on the certificate of title are the clearest form of ownership. Instead, clients should be encouraged to act with caution and refrain from installing tracking devices without first speaking to their attorneys.

If a spouse chooses to track their partner, extreme caution must be taken to avoid criminal liability or irreparable harm to their family law matter. The Texas Supreme Court recently decided a case involving a similar incident involving sharing of electronic communications obtained without consent. This decision involved a modification case and centered on an attorney who received text messages, emails, and other electronic communication from her parent-client, who took electronic communications from an iPad belonging to the opposing parent-client by signing into it without the owner’s permission. Although the attorney was successful in protecting herself from civil liability, the Texas Supreme Court stated that the attorney received no protection from potential sanctions, professional discipline, or criminal penalties. The gathering of information without consent, and subsequent sharing of that information and other fruits of the wiretap, not only placed the client’s case in jeopardy but also the client’s attorney under the scope of criminal and ethical scrutiny. Involving your attorney, intentionally or unintentionally, could lead to a destruction of the attorney-client relationship, frustration of your family law case, and potential criminal or civil liability. A similar situation could occur if a tracking device is installed on a spouse’s or another person’s vehicle without consent.

Emotions flare in every divorce. Naturally, the division of two loved ones breeds distrust and speculation. While confirming adultery may provide closure and a definitive reason for divorce, the penalties of tracking a spouse, paramour, or other person may outweigh any positives to be gained. Before ruining future independence from a former spouse and independence as a free citizen, contact a divorce attorney and think before you spy.

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