In 2013, the Texas Legislature passed the Use of Unmanned Aircraft statute, which sought to address various issues related to the use of drones. The statute lists numerous lawful uses of drones and states that certain uses of drones are illegal. One lawful use specifically listed in the statute is “if the image is captured by a Texas licensed real estate broker in connection with the marketing, sale, or financing of real property, provided that no individual is identifiable in the image.”

Prohibited Drone Use Under Texas Law

Texas law prohibits a drone from capturing an image of an individual or privately owned real property in Texas with “the intent to conduct surveillance” on the individual or property captured in the image. Possessing, disclosing, displaying, distributing, or otherwise using an image captured in this way is also an offense. Both offenses are misdemeanors. Monetary damages may also be sought through civil court.

The statute also prohibits drone operations over a correctional facility, detention facility, or critical infrastructure facility. A “critical infrastructure facility” is defined as including several different facilities, such as

  • Petroleum refineries
  • Electrical power generating facilities (including substations, switching stations,
    or electrical control centers)
  • Water intake, treatment, wastewater treatment facilities, or pump stations
  • Natural gas compressor stations
  • Structures used to provide wireless or telecommunications services
  • Various transportation facilities
  • Certain dams
  • Concentrated animal feeding operations.

Additionally, oil and gas drilling sites, tank batteries, production facilities, wellhead, and any facility with an active flare is included if such facilities are fenced or have another type of physical barrier.

Specifically, a person commits an offense if he or she intentionally or knowingly:

  • Operates a drone over one of these facilities at a height below 400 feet above ground
  • Allows a drone to make contact with a facility including a person or object on the facility
  • Or allows the drone to come within a distance close enough to interfere with the operations or cause a disturbance to the facility.

Lastly, the statute prohibits operating unmanned aircraft over a “sports venue,” which is defined as an arena, automobile racetrack, coliseum, stadium, or other type of area or facility that has seating capacity over 30,000 and is primarily used for one or more professional or amateur sports or athletic events. A person commits an offense if they knowingly or intentionally operate the drone lower than 400 feet above ground over a sports venue.

However, there are certain exceptions that do allow flying under the following circumstances:

  • The drone is operated by the government or person under contract with the government
  • The drone is operated by a law enforcement agency or person under contract with a law enforcement agency
  • The operator is being used for a commercial purpose and is conducting the flight in
    compliance with Federal Aviation Administration regulations and authorizations
  • The drone is operated by the owner of the venue, acting on the owner’s behalf, or acting with the owner’s written permission.
Federal law prohibits all drones from flying above 400 feet from the ground. Practically speaking, this means federal law also prohibits flying a drone over the same types of facilities prohibited under Texas law. Violations of federal law can be either a Class A or B misdemeanor.

Facts of the Texas Drone Law Lawsuit

The National Press Photographers Association, Texas Press Association, and Joseph Pappalardo filed suit in federal court challenging the constitutionality of the Texas drone law. The plaintiffs claim that the provisions “chill and criminalize speech and news gathering activity protected by the First and Fourteenth Amendments.”

The lawsuit claims statutory provisions related to surveillance on private property violates the First Amendment because it regulates speech based on content without a compelling governmental need that the statute is narrowly tailored to address. Additionally, they allege a violation based on prohibition of speech based on the identity of a speaker without a compelling governmental need that the statute is narrowly tailored to address. By allowing certain drone uses such as police and academia, for example, yet prohibiting surveillance over private property, the statute is content based, argues the complaint.

The complaint also claims that the surveillance provisions are overly broad, thus violating the First Amendment in that way as well. They claim that by prohibiting “surveillance” but not defining that term, it may prohibit protected activities such as newsgathering. Along these same lines, the complaint alleges the statute is unconstitutionally vague due to the lack of definition, because an ordinary person could not know what activity was permitted versus prohibited as “surveillance.”

With regard to the provisions related to critical infrastructure and sport venues, the plaintiffs argue this violates the First Amendment by singling out journalists and prohibiting news gathering, while allowing commercial and governmental use of drones. This “discriminatory treatment of the press burdens news gathering activities protected by the First Amendment” and the State has not articulated a compelling reason for doing so, argue the plaintiffs. They also claim the use of the term “commercial purpose” for which flying is allowed is overly broad and unconstitutionally vague, as it could be interpreted in arbitrary and discriminatory ways absent a statutory definition.

Additionally, plaintiffs allege a Supremacy Clause violation—the argument being that the federal government should have exclusive authority over regulating the national airspace and the state should not be allowed to regulate related to safety (although they admit the state does have the ability to regulate related to privacy, trespass, and voyeurism).

The complaint requests the court to declare these portions of the statute unconstitutional, enjoin Texas from enforcing the statute, and award attorney’s fees and costs. Read the full complaint here.