A Texas state appeals court has reversed a trial court and found that a school board member did not violate that state’s wiretap statute when she had her daughter record the half-time and post-game speeches of the school’s high school basketball coach.
The court reasoned that the coach did not have “a reasonable expectation of privacy under the circumstances” and that the recordings were not “oral communications” covered by the statute.
Lelon “Skip” Townsend was hired in 2011 to coach the Argyle High School girls’ basketball team. Townsend was, in his own words, an intense coach, who preached discipline and accountability. Not surprisingly, reports of Townsend berating and belittling players in practice began surfacing the following school year. Wendee Long, a member of the Argyle School Board, was concerned about the reports, and she grew increasingly concerned when parents began contacting her to complain of Townsend’s treatment of their children. Long’s daughter had also been a member of the basketball team before quitting after the first regular season game.
On February 7, 2012, the Argyle High School girls’ basketball team traveled to Sanger, Texas to play the Sanger High School girls’ basketball team for the district title. Long’s daughter attended the game as a spectator and, with the assistance of a Sanger student, obtained access to the visiting locker room before halftime for the purpose of surreptitiously videotaping Townsend. Long’s daughter taped an iPhone to the inside of a locker and set it to record. The iPhone captured an audio and video recording of Townsend’s half-time speech and an audio recording of Townsend’s post-game speech.
In March 2012, Long showed the recordings, which were on her computer at work, to her assistant principal. Later that month, Long mailed the recordings to the other members of Argyle School Board, and the recordings were distributed to the board on the night of the meeting to consider Townsend’s probationary contract. A few days later, the Superintendent of the Argyle Independent School District turned over the recordings to the police. A detective with the Sanger Police Department eventually traced the recordings to Long and her daughter.
Long was charged in a two-count indictment with, inter alia, violating Tex. Penal Code Ann. § 16.02(b). The State alleged Long violated Section 16.02(b)(1) by procuring her daughter to record Townsend’s speeches and Section 16.02(b)(2) by showing the recording to her assistant principal. The jury agreed, finding Long guilty. In accordance with the parties’ plea-bargain agreement, the trial court sentenced Long to five years’ confinement, probated for three years, and assessed a $1,000 fine.
Long appealed, raising four issues.
“In her second issue, she challenges the sufficiency of the evidence to sustain her conviction,” noted the appeals court. “In her first, third, and fourth issues, respectively, she asserts that the trial court erred in overruling her motions for directed verdict, for judgment of acquittal, and for a new trial. Although Long enumerates four issues, all rest on the premise that she committed no crime because, as a matter of law, Townsend ‘had no justifiable expectation that only his students would acquire the contents of his communication.’”
In its analysis, the appeals court noted that the Texas criminal wiretap statute, Section 16.02, is substantially similar to the federal one on which it is modeled. Thus, the court noted that “the legislative history of the Wiretap Act reveals that Congress’s intent was to protect persons engaged in oral communications under circumstances justifying an expectation of privacy. United States v. McIntyre, 582 F.2d 1221, 1223 (9th Cir. 1978). Thus, to determine whether a person had a reasonable expectation of privacy in his speech, we employ a two-prong test: (1) did the person exhibit a subjective expectation of privacy; and (2), if so, is that subjective expectation one society is willing to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). That determination is made on a case-by-case basis and is highly fact determinative. Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis. O’Connor v. Ortega, 480 U.S. 709, 718, 107 S. Ct. 1492, 1498, 94 L. Ed. 2d 714 (1987).”
The appeals court continued: “It is widely accepted that a public school teacher has no reasonable expectation of privacy in a classroom setting. See Roberts v. Houston Indep. Sch. Dist., 788 S.W.2d 107 (Tex.App.–Houston [1st Dist.] 1990, writ denied); Plock v. Bd. of Educ. of Freeport Sch. Dist. No. 145, 545 F. Supp. 2d 755 (N.D. Ill. 2007); Evens v. Super. Ct. of L.A. County, 77 Cal.App.4th 320, 91 Cal.Rptr.2d 497 (1999).
“Although the duties of a coach are not comparable to that of the typical classroom teacher, no one could reasonably deny that some of the duties of a coach involve a type of teaching. Theiler v. Ventura Cnty. Cmty. Coll. Dist., 198 Cal.App.4th 852, 859, 130 Cal.Rptr.3d 273, 277 (2011), as modified (Aug. 24, 2011). A public high school coach educates students-athletes in a myriad of ways. Principally, a coach provides instruction to help his players reach a certain performance standard in a chosen activity. See Lowery, 497 F.3d at 589 (recognizing that ‘the immediate goal of an athletic team is to win the game, and the coach determines how best to obtain that goal’); Ex parte Nall, 879 So.2d 541, 546 (Ala. 2003) (holding that student injured during baseball practice could not recover in negligence suit against public school coaches because they were state agents entitled to immunity for the exercise of judgment in educating students). Secondarily, a coach teaches his players to develop self-discipline, an admirable trait and one necessary for success in most endeavors in life, including academics. See Lowery, 497 F.3d at 589 (recognizing that students participating in sports develop discipline, and that ‘[a]thletic programs may also produce long-term benefits by distilling positive character traits in the players’); Ex parte Yancey, 8 So.3d 299, 305-06 (Ala. 2008) (holding that student injured while cleaning field house following weight-lifting class taught by high school public coach could not recover in negligence suit against the coach because he was a state agent entitled to immunity for the exercise of judgment in teaching students discipline in his weight-lifting class by requiring then to clean field-house facilities).
“From the preceding authority, we can extrapolate that society is not willing to recognize that a public school educator—whether a teacher or a coach—has a reasonable expectation of privacy in his or her instructional communications and activities, regardless of where they occur, because they are always subject to public dissemination and generally exposed to the public view. Here, there is no doubt that Townsend was an educator helping his pupils maximize performance and develop discipline.”
The court wrote that “society is not willing to recognize as reasonable any expectation of privacy in half-time and post-game instructional communications uttered by a public high school basketball coach to his team in the visiting locker room of a public high school.
“The State takes umbrage with the proposition ‘that a coach addressing his team during and after a sports contest is ‘equivalent’ to a teacher addressing a class.’ The State asserts a “coach is different from a teacher” in two important respects. The first is that ‘[a] coach’s objective is not pedagogical in nature, but rather to achieve success in the sports arena.’ The second is that ‘the nature of a coach’s behavior with his team on game day’ in a closed locker room is private rather than public. In essence, the State is contending that the curtailed expectation of privacy society is willing to recognize for teachers ‘should not automatically be applied to coaches addressing their teams at halftime or at the end of a sports contest’ because a coach fulfills a different role in a different physical space. While we are not insensitive to the State’s argument, we are not persuaded by it.
“The trial court’s judgment is reversed, and we render judgment acquitting Long of the charged offense.”
Wendee Long v. The State of Texas; Ct. App. Tex., 8th Dist., El Paso; No. 08-13-00334-CR, 2015 Tex. App. LEXIS 6714; 6/30/15
