Tracking technology is now inexpensive, discreet, and widely available. AirTags, GPS units, location-sharing applications, and similar devices can be used for legitimate purposes, but they can also become tools for monitoring a spouse, former partner, or co-parent without that person’s knowledge. It is not unusual that a person in a custody case discovers a tracking device in a child’s backpack, personal belongings, or vehicle. The question then becomes, “Is this legal?” Under Texas law, the analysis depends on where the device was placed, who owns or possesses the tracked property, whether there was consent, the actor’s intent, and whether the incident is part of a larger pattern of conduct.
The First Question: What Does the Existing Court Order Say
In a pending divorce or child-custody case, the first source to examine is the temporary restraining order, temporary injunction, or temporary orders governing the parties. If the orders specifically disallow a party to use a tracking device in this way, then this was a violation, and may be enforceable by contempt.
Many family-court orders do not expressly mention GPS devices, AirTags, or electronic surveillance, but do include verbiage prohibiting “tracking,” “harassing,” or “intimidating.” If so, then this may still be enforceable by contempt, but it would depend on the party’s intent, where the tracker was placed, and whether the party tracking has a history of such prior behavior, or, harassment or intimidation.
Trackers Under Texas Law
If the orders are simply silent on this issue, then one falls back in Texas statutory law. The most directly relevant Texas provision is the Texas Penal Code §42.07(a)(9), which part of the harassment statute. It can apply when a person, with the required intent, tracks or monitors another person’s personal property or motor vehicle without that person’s effective consent. The statute expressly includes the use of a tracking application or tracking device, as well as physically following someone or causing another person to follow them.
The placement of a tracker does not automatically establish the offense. The State must still prove the required intent, that is, an intent to harass, annoy, alarm, abuse, torment, or embarrass another person. That requirement often becomes the central factual dispute. It depends on where the device was, whether the party that placed the device has a history of harassment, stalking, or intimidation, etc.
A Separate Texas Offense Applies to Devices Installed on Vehicles
Texas Penal Code §16.06 makes it a Class A misdemeanor to knowingly install an electronic or mechanical tracking device on a motor vehicle owned or leased by another person in most cases. As such, if the tracker was placed on a vehicle, law enforcement is more likely to act on this.
Consequences of Placing a Tracking Device
If a party’s actions possibly broke Texas criminal law, then a police report may be filed. But even then, law enforcement or the prosecutor may or may not act. Investigators may conclude that the available evidence does not establish who installed the device, the required criminal intent, lack of consent, or the relevant ownership or possession element. They may also perceive the incident primarily as part of an ongoing family-law dispute. Filing a report documents the event, but it does not guarantee an investigation, arrest, or prosecution. However, repeated or threatening conduct or past such actions may spur law enforcement to act.
If the party that placed the tracking device violated orders in the custody case, the consequences in the family case may be more broad and immediate, because if said party is found in contempt, that can have far-reaching consequences in the case.
Bottom Line
Discovering a tracker does not produce a universal answer. The legality depends on the device’s placement, ownership and possession of the tracked item, consent, intent, repetition, resulting harm, and the language of any existing court orders.
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