                        November 6, 1961

Honorable Jack Hardee      Opinion'No. WW-1186
District Attorney
3rd Judicial District      Re:   Whether Article 1334 of
Athens, Texas                    the Penal Code applies
                                 to third party,wire
                                 tapping on telephone
                                 lines where a third
                                 party taps a telephone
                                 and intercepts a conver-
                                 sation between two other
                                 parties and related
Dear Mr. Hardee:                 questions.
      You have requested an opinion as follows:
      "Please give me an opinion as to whether or
      not wire tapping, that is where a third;party
      taps a telephone line and intercepts and re-
      cords a conversation between two other parties,
      comes under the above article."
       Article 1334 o.fVernon's Penal Code is as follows:
      "If any person shall intentionally break, cut,
      pull or tear down, misplace or in any other
      manner injure any telegraph or telephone wire,
      post, machinery, or other necessary appurte-
      nances to any such line, or in any way wil-
      fully obstruct or interfere with the trans-
      mission of messages along such telegraph or
      telephone line, he shall be confined in the
      penitentiary not less than two nor more than
      five years or be fined not less than one
      hundred nor more than two thousand dollars."
       The court in Southwestern Telegraph & Telephone Co.
v. Priest, 72 S.W. 241 (Civ. App. 1903), held:
      "To constitute an offense under this article
         334 V.P.CJ, there must have been a break-
      P ng, cutting, etc., of some wire, post,
      machinery, or other necessary appurtenance,
Honorable Jack Hardee         Page 2           Opinion No. W-1186



         in such manner as to interfere with the
         transmission of messages along the line."
       It is the opinion of this office that "wire tapping."
as you defined it will not constitute a violation of the
above Article of the Penal Code in the absence of a willful
obst?uztion or interference with the transmission of messages
alor.::
      such telephone lines. The interception and the record-
ing of a conversation between two other parties would not of
itself be an obstruction or interference with that conversation.
                        SUMMARY
         The "tappinzand recording of a telephone
         conversation does not constitute a willful
         obstruction or interference with the
         transmission of messages as to violate
         Article 1334 of Vernon's Penal Code.
                              Yours very truly,
                              WILL WILSON
                              Attorney General of Texas



                               BY
                                    4 AdA
                                     n
                                    J. T. Walker
                                    Assistant Attorney General
JTW:sh
APPROVED:
OPINION COMMITTEE
::.V. Geppert, Chairman
Joseph Trimble
Elmer McVey
Riley Fletcher
RRVIEWED FOR THE ATTOPNEY GENERAL
5y : Houghton Brownlee, Jr.
