When idiots try to be their own lawyer...
Posted: Fri Oct 10, 2008 9:50 am
We've had ongoing issues with neighbors playing music all weekend long. It's not really up loud enough to be a noise ordinance violation, but it's deep throbbing bass that bounces through the entire building. I've talked to the leasing office several times and even had the cops over to talk to the neighbor a few times to try and resolve the issue. Nobody is taking it seriously, well until now.
I sent a registered letter over to my leasing office detailing that their lack of action constitutes a violation of my tenants right to peacefully enjoy my lawfully rented property pursuant to Texas Property Code. I also detailed what action I have taken thus far to informally resolve the problem.
The letter was sent a few days ago, so I called the leasing office on the phone to find out what their response is going to be. Our lease is up this month so I really want to know if they're going to handle up on the problem or if we need to look at moving (we need to move anyway, but it's a bit of a financial challenge at the moment). In any case it gives me more leverage to deal with this problem.
During the course of the conversation the following was said. Note she was on speakerphone at the time which is probably what prompted the question:
At that point I went to the net and looked up the relevant law on recording phone conversations. It is as follows:
I sent a registered letter over to my leasing office detailing that their lack of action constitutes a violation of my tenants right to peacefully enjoy my lawfully rented property pursuant to Texas Property Code. I also detailed what action I have taken thus far to informally resolve the problem.
The letter was sent a few days ago, so I called the leasing office on the phone to find out what their response is going to be. Our lease is up this month so I really want to know if they're going to handle up on the problem or if we need to look at moving (we need to move anyway, but it's a bit of a financial challenge at the moment). In any case it gives me more leverage to deal with this problem.
During the course of the conversation the following was said. Note she was on speakerphone at the time which is probably what prompted the question:
The conversation continued from there and she basically said she had sent my letter to her supervisor and they were waiting on a response.Manager: Are you recording this conversation?
Me: Ummmm, no I'm not. I'm working at my computer so you're on speaker phone. Why?
Manager: Well, I just wanted you to know that if you are recording this conversation it would be illegal.
Me: Really? why is that? I could be mistaken but I believe it's legal to record a conversation in Texas so long as at least one party in the conversation is aware it's being recorded. Since I would be the one recording the conversation I would be aware of it and thus it would not be illegal.
Manager: No sir, I've already dealt with this issue in the past. It's illegal to record a conversation over the telephone.
Me: Well, I'm not going to argue with you about it. I'm not even recording the conversation so it doesn't matter if it's illegal or not. I called to find out what you're going to do to resolve the problem with the music on the weekends.
At that point I went to the net and looked up the relevant law on recording phone conversations. It is as follows:
So... I printed off the text above while bolding the text as it is above and faxed it over to the leasing office. I then called the office to talk to the property manager about the issue she had raised. She had shut down the office by then so I left a message on their machine:Texas Penal Code:
Sec. 16.02. UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS. (a) In this section, "covert entry," "communication common carrier," "contents," "electronic, mechanical, or other device," "intercept," "investigative or law enforcement officer," "oral communication," "electronic communication," "readily accessible to the general public," and "wire communication" have the meanings given those terms in Article 18.20, Code of Criminal Procedure.
(b) A person commits an offense if he:
(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;
(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if he knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(3) intentionally uses or endeavors to use the contents of a wire, oral, or electronic communication if he knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(4) knowingly or intentionally effects a covert entry for the purpose of intercepting wire, oral, or electronic communications without court order or authorization; or
(5) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when the device:
(A) is affixed to, or otherwise transmits a signal through a wire, cable, or other connection used in wire communications; or
(B) transmits communications by radio or interferes with the transmission of communications by radio.
(c) It is an affirmative defense to prosecution under Subsection (b) that:
(1) an operator of a switchboard or an officer, employee, or agent of a communication common carrier whose facilities are used in the transmission of a wire or electronic communication intercepts a communication or discloses or uses an intercepted communication in the normal course of employment while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the rights or property of the carrier of the communication, unless the interception results from the communication common carrier's use of service observing or random monitoring for purposes other than mechanical or service quality control checks;
(2) an officer, employee, or agent of a communication common carrier provides information, facilities, or technical assistance to an investigative or law enforcement officer who is authorized as provided by this article to intercept a wire, oral, or electronic communication;
(3) a person acting under color of law intercepts a wire, oral, or electronic communication if the person is a party to the communication or if one of the parties to the communication has given prior consent to the interception;
(4) a person not acting under color of law intercepts a wire, oral, or electronic communication if the person is a party to the communication or if one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of this state or for the purpose of committing any other injurious act;
Now I suppose you could make the argument that recording the conversation for the purposes of documenting the verbal agreement with the leasing office is technically illegal but it could never stick because I would have a positive defense against prosecution. Well, that's if I was recording the conversation at all... which I wasn't. I doubt the manager would appreciate the subtle difference in law though. LOLThis is James in apt XYZ. I just wanted to follow up on the previous conversation with the manager and let you know that I faxed over the relevant chapter of Texas Penal Code. I highlighted the points showing that it's not illegal to record a phone conversation as she described. I was concerned about your office giving out any bad legal advice. If you have any questions feel free to call me and I'll be happy to try and translate into laymen's terms. IANAL Thanks!
