A drone is an unmanned aerial vehicle or “UAV.” They are commonly operated remotely and often carry audio and video recording equipment. Drones are becoming increasingly popular for recreational and non-recreational purposes. This article focuses on drone laws in Texas and the criminal and civil liabilities a recreational operator might run into in Texas.
According to Federal Aviation Act (49 USC 40103), the federal government alone has control over “navigable airspace.” Navigable airspace is the airspace above the minimum altitudes of flight including airspace needed for takeoff and landing. That is generally 500 feet or 1000 feet. States retain the ability to control airspace below navigable airspace.
There are three separate sources of applicable laws for drone activity that must be considered:
The FAA has the authority to issue a Certificate of Authorization or COA for a public agency who seeks to operate a drone. A public agency has been defined as any agency that receives funding from the federal government. Currently, approximately 690 government agencies throughout the U.S. have applied for such permission. In Texas, the Arlington Police Department, Houston Police Department, Texas Department of Public Safety, Hays County Sheriff’s Department and Montgomery County Sheriff’s Department have authorization for drone usage.
The FAA does not issue COA’s to private citizens or civilian businesses.
The FAA Modernization and Reform Act of 2012 requires that the FAA establish rules for drone operation by September 30, 2015.
Effective December 21, 2015, if you own a drone that will be used outdoors, and it weighs between .55 and 55 lbs, you must register it with the Federal Aviation Administration’s Unmanned Aircraft System (UAS) registry. If you fail to register, you will be subject to civil and criminal penalties.
Update: A federal court has ruled the FAA does not have the authority to require registration of consumer drones.
You can fly a drone in areas unless otherwise restricted. The FAA regulates airspace over 400 feet. The FAA has developed an app for iPhone and Android users that helps recreational drone operators determine safe areas to fly their drones.The app is now available in both the App Store and Google Play Store.
Texas has restrictions on making recordings on privately owned property. The Texas Privacy Act (Government Code Chapter 423) also sets out areas where drones may used to make recordings. Specifically, Texas Government Code Section 423.002(a) provides it is lawful to capture recordings:
Government Code Section 423.003 makes it an offense to use a UAV to record a person or privately owned property with the intent to conduct surveillance. If you capture an image with intent to conduct surveillance and your activity is not exempted under the law, you could face a Class C Misdemeanor offense. The two possible Class C offenses are:
Both offenses are punishable by a fine of $0-500.
There is a defense to this charge if you destroy the image as soon as you have knowledge it was captured without sharing it with anyone else.
If however you are accused of capturing an image with intent to conduct surveillance, and it is believed that you disclosed, displayed, distributed or used the images in any way, you could face a Class B Misdemeanor. The punishment range is 0-180 days in county jail and a fine of $0-2,000.
In either the Class B or Class C offense, each image captured, possessed, or displayed is a separate offense.
Civil remedies are also available for individuals who have been the victim of images captured without consent and in violation of the law. Civil penalties of up to $10,000 are provided for under Government Code Section 423.006.
The FAA has made some suggestions for local governments who wish to regulate drone activity, however these recommendations have not been finalized or adopted. Some examples of possible regulation later would include:
The following chart lays out the possible criminal charges arising from improper drone use in Texas and the criminal penalties that apply to each offense. These offenses revolve around the recordings made by drones, not the flight or operation of the drones.
| Offense | Offense Level | Punishment Range |
|---|---|---|
| Illegal Use of Unmanned Aircraft to Capture Image with Intent to Conduct Surveillance | Class C Misdemeanor | $0 - $500 |
| Possession of Image from Illegal Use of Unmanned Aircraft | Class C Misdemeanor | $0 - $500 |
| Disclosure or Distribution of Image from Illegal Use of Unmanned Aircraft | Class B Misdemeanor | Up to 180 days in Jail and up to $2,000 |
Owners and tenants of private property can file lawsuits to recover civil penalties and attorney’s fees from individuals who illegally use drones to make recordings. They can also file an action to stop an existing violation or prevent an imminent violation. Civil penalties of $5,000 for all materials from a single recording episode, and $10,000 for disclosure, display, distribution or other of all materials from a single recording episode apply. Additionally, if it is shown that the recording were disclosed, displayed or distributed with malice, the owner or tenant may recover actual damages.
Drones present unique challenges to the legislature as it seeks to keep up with advancements in technology and the explosion in the number of consumer-level drones that are being sold each year.
The Texas Legislature has implemented laws that restrict the use of drones for taking pictures or making records of private property. A homeowner who sees a drone flying in his backyard has no way of knowing if the drone is making a recording or just hovering over his property. Texas has not made any changes to the criminal trespass laws to account for drones. There are also no appellate cases in Texas that discuss whether flying a drone over a person’s property is criminal trespass.
As far back as 1946, the Supreme Court has held that a property owner’s rights do not extend to the heavens. At some heights, airspace becomes a public highway. Having said that, the Supreme Court does recognize that landowners control the space over their land to the extent that they occupy it, including buildings, fences, landscaping and other improvements. However, neither the Supreme Court, federal legislators, or state legislators have given a specific height at which the airspace is part of a property owner’s land.
Most consumer-level drones today are equipped with cameras. As a result, police are more likely to press charges for capturing or distributing images from the illegal use of drones than they are to file charges for criminal trespass. “Illegal use of an unmanned aircraft to capture an image” is Class C misdemeanor, punishable by up to a $500 fine. “Possession, Disclosure, Distribution or Use of an Image” from illegal use of an unmanned aircraft is a Class B misdemeanor, punishable by up to six months in jail and a $2,000 fine.
Texas defines criminal trespass as entering or remaining in or on the property of another without their consent. I have yet to see, or hear of, a case where a person in Texas was charged with criminal trespass based on their operation of a drone above someone else’s property.
To the many Texans who say, “If I see a drone in my backyard, I’m going to shoot it down,” I offer a word of caution: you could be charged with criminal mischief and, depending on where you live, recklessly discharging a firearm in a city with a population of 100,000 or more.
A property owner who believes a drone is being used to capture still or video recordings of their private property should call the police. Property owners and tenants also have the right to sue for illegal use of drones to capture images. This is separate from any invasion of privacy claims they may have.
Drone operators should check the FAA resource: http://knowbeforeyoufly.org/air-space-map/ to first check to see if the FAA has imposed any flight restrictions in the area. Drone operators should also avoid making recordings or taking pictures of private property without permission unless one of the exceptions laid out in the Texas Privacy Act applies.
If you have been charged with Illegal Use of an Unmanned Vehicle or Criminal Mischief for shooting down a drone, contact Varghese Summersett PLLC at (817) 203-2220. We only represent individuals charged with criminal offenses. We do not provide specific advice to individuals who are seeking permission to fly in a particular area or represent businesses who are interested in acquiring rights to operate drones commercially.
