UPDATE!!! On March 28, 2022 the Texas Drone Law was ruled unconstitutional in the Western District of Texas in Austin, TX.

“U.S. District Judge Robert Pitman struck down a Texas drone law (one of the most restrictive in the U.S.), for violating the First Amendment’s protections of freedom of speech and the press.”

Texas drone legislation was introduced in 2013. Prior to that no state legislation existed in Texas. The 2013 Texas Drone Privacy Act makes it illegal to capture images of private property. The act was introduced and passed not long after it was discovered that the Columbia Packing Plant in Oak Cliff, Texas was dumping pig blood into the Trinity River.

City records showed that the packing plant was dumping “925,300 gallons of fluid a month into the creek.” They were temporarily shut down and the owners received several indictments which were later dismissed by the Dallas district attorney.

Slaughterhouse wastewater lagoon — Slaughterhouse lagoon (photo not in Texas)

Texas Government Code CHAPTER 423. USE OF UNMANNED AIRCRAFT

If this Texas drone law had been in effect in 2011, without one of the exceptions, it may have been a crime for the drone operator to capture the pollution images. His recreational drone footage could have been a class B misdemeanor and he might have been liable for a $10,000 civil penalty to the packing plant for distributing the imagery.

A possible exception that may apply to this pig blood scenario is exception number Government Code Chapter 423.002 (10)– filming at the scene of a spill, or a suspected spill, of hazardous materials.

Drone Footage of Private Property Cannot be Used as Evidence

Under the current law, not only can you be arrested, but also the images cannot be used as evidence against a private land owner/renter lawbreaker unless certain exceptions apply. A person in imminent danger qualifies as an exception. But any animal cruelty does not qualify as an exception and can result in the drone operator’s arrest and up to 6 months in jail with a $2,000 fine.

Drone Footage Now Illegal to Use Except to Prosecute Drone Operator

Chapter 423.005 makes it clear that drone footage captured in violation of this statute cannot be used against anyone except the drone operator to prove a violation of this statute.

Sec. 423.005.  ILLEGALLY OR INCIDENTALLY CAPTURED IMAGES NOT SUBJECT TO DISCLOSURE.  (a)  Except as otherwise provided by Subsection (b), an image captured in violation of Section 423.003, or an image captured by an unmanned aircraft that was incidental to the lawful capturing of an image:
(1)  may not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative proceeding;
(2)  is not subject to disclosure, inspection, or copying under Chapter 552; and
(3)  is not subject to discovery, subpoena, or other means of legal compulsion for its release.(b)  An image described by Subsection (a) may be disclosed and used as evidence to prove a violation of this chapter and is subject to discovery, subpoena, or other means of legal compulsion for that purpose.

Images of Animal Cruelty Cannot be Used to Prove Animal Cruelty

The images taken of private property can only be used to prosecute the drone operator. They would not be allowed to be used as evidence of someone who was for instance, committing any cruel acts against animals. There are 21 listed exceptions that make private drone image capturing lawful and nothing covers anything having to do with animals.

Why would a person’s privacy rights supercede identifying and stopping animal cruelty? It is an interesting dilemma and nobody seemed to talk about it during the voting for this bill.

There was no effort to make a narrow exception where a person provides the evidence only to law enforcement. But on the other hand a problem with this might be where to draw the line. What happens if a drone operator spots a marijuana or other drug operation? Do amature detective drone operators become a wave of the future? Apparently proponents of HB 912 were worried about that.

What Constitutes an Illegal Search and Seizure?

Private property rights are an important issue for Americans. The constitution specifically discusses this in the 4th amendment. The 4th amendment is based on government intrusion and unreasonable searches and seizures. Intrusion by private citizens is not mentioned.

Police, or someone instructed by the police, cannot enter property without the owner’s permission. This can result in inadmissible evidence based on fruit of the poisonous tree. Illegal searches and seizures can be about a vehicle stop for an invalid reason to walking into someone’s house without permission or a warrant to be there.

Searches by Private Citizens

A private citizen gathering evidence is not subject to the 4th amendment. There are trespass laws that a private citizen can be charged with, but evidence of a crime gathered by the citizen is still admissible in court. For instance, a person could walk onto another’s property and photograph animal cruelty and it can be used by the police. This is as long as the police did not instruct the person to do this.

The 2013 drone law does not allow conducting a similar act, but instead filming with a drone camera. The only close exception that might apply to this would be Ch 423.002 (14) where a drone is on public property and at a height of no more that 8 feet filming without an amplified “image beyond normal human perception.”

Do I Have to Pay a Fine for a Civil Action?

On top of being arrested and possibly fined up to $2,000 that is not all. A person can also have to also pay a civil penalty of $10,000, court costs and reasonable attorney’s fees. If proven that the images have been disclosed, displayed or distributed with malice, then an actual higher amount of damages may be accessed based on the actual damages.

Attorney’s fees go to the prevailing party. So if the charges are not proven the accused drone operator may receive reasonable attorney’s fees from the accuser.

“Malice” is a specific intent by the defendant to cause substantial injury or harm to the claimant.

Also under Sec. 423.004 there is a $10,000 civil penalty for disclosure, display, distribution, or other use of an image instead of destroying the images. It can be costly because if “malice” is proven, the penalty can be more than $10,000. Theoretically, it could be 6 or 7 digits. Not to mention the judge “shall” award costs and reasonable attorney’s fee to the prevailing party. So for example, if someone captured animal cruelty taking place on private property and that footage caused a public outcry to boycott the claimant’s business, the drone operator would be liable to the loss of business. The damages could be astronomical.

Is it Illegal to Fly a Drone Over an Animal Feedlot?

In Texas it is now illegal to fly a drone over a “concentrated animal feeding operation” by less than 400 feet high. It should be noted that FAA regulations limit a drone flying altitude to a maximum of 400 feet. So flying drone over an animal feedlot will be break a law either way.

Can I Fly Over a Sports Stadium or Game?

The FAA Unmanned Aircraft Systems website is somewhat conflicting. It says that it is not permitted to fly a drone after one hour before or until one hour after the following-

-Major League Baseball
-National Football League
-NCAA Division One Football
-NASCAR Sprint Cup, Indy Car, and Champ Series races

But later on the site mentions that a drone should not be flown within 3 nautical miles of a stadium or venue.

Another regulation, CFR 107.39, states that a drone cannot be flown over a human being unless they are in a covered building or vehicle. This is to protect them from the drone from falling on them.

Can I Shoot a Drone Flying Over My Property?

No you cannot. It is not illegal to fly a drone over someone’s property. Filming is a different issue. If the drone is low flying, possibly creating a safety risk than that may be a different situation. Shooting a drone can open a person up to a civil lawsuit and getting arrested for a federal offense.

A California small claims case took place in 2014 where a neighbor shot a homemade drone with a shotgun over the drone operators property. The judge ruled in the drone operators favor and awarded monetary damages for the cost of the drone.

It is also a federal crime, AIRCRAFT SABOTAGE (18 U.S.C. 32), to shoot down a drone.

Can I Fly a Drone Near a Cell Phone Tower?

A drone cannot be flown less than 400 feet over a critical infrastructure facility. In 2017 the drone statute expanded the definition of “critical infrastructure facility” to include a cell phone tower. The drone also cannot make contact with the cell tower or interfere with the operations. Keep in mind that FAA regulations limit a drone to a maximum of 400 feet.

Can the Police Use a Drone to Search My Property?

If the police can fit into certain exceptions, they can capture images by drone over private property. They must have a valid search or arrest warrant. They also can also video record in the immediate pursuit of someone with probable cause or reasonable suspicion that a person committed a felony. They can also document a felony crime scene.

The following is a further list including what the police can choose to record without the owners permission:

A human fatality
A motor vehicle with death or serious bodily injury or accident on state highway or federal highway
Searching for a missing person
For a high risk tactical operation posing a threat to human life
Border security within 25 miles of the U.S. border
Surveying to determine a state of emergency declaration
Public safety, protecting property, surveying damage during a state of emergency
Air quality sampling and monitoring by local or state law
At scene of a spill or suspected spill of hazardous materials
Fire suppression or rescuing a life in imminent danger

Do I have to Have a License to Fly My Drone?

Not by Texas state law, but you do under the FAA regulations. A pilot must be 16 years old and speak, read and write english. There is an exam that each pilot needs to pass in order to get their drone pilots license. Every 2 years a pilot needs to pass a recurrent test to maintain licensing.

Is This an Ag-Gag Law?

The timing of this law and the fact that it has an exception for humans in imminent danger, but does not mention animal cruelty, looks a lot like ag-gag.

Animal feedlots and packing houses stand to lose a lot of revenue if they are shut down for any period of time due to violations. Drones coming along and filming violations can be a real problem for business.

Privacy Rights

The bill was advertised to help the privacy of private property owners and renters. By emphasizing that side of the issue, the proponents avoided questions about who really stands to benefit from this bill. Big business is a big winner. Maybe marijuana plant growers are helped as well.

Animals in Imminent Danger Exception to Drone Filming

Perhaps there should have been an exception for filming with animals in imminent danger. There could be animal torture taking place and a drone would have been the only way to identify that it is taking place. Or a beloved pet may have run off and a drone would be a good way to search a large rural area.

These exceptions are not included and there is a good chance that they will not be until animals gain more status in our society.

Possible FAA 107 Rule Changes in 2019

There will be some possible changes coming to the FAA rules. One will be allowing drones to be flown over people under certain circumstances. Also there have been several requests for waivers to fly at night. A new proposed change would allow drones to fly as night.

Drones Finding Poachers in Africa

Drones are now being used to catch poachers in Africa. Most of the poaching happens at night, so the drones are using infrared camera equipment. Some estimate that the illegal poaching brings in $10 billion dollars. Some of this money goes to other illegal activity such as terrorism. This makes drone use in capturing poachers such a valuable tool. To stop criminals and for the African animals future survival as well.

Texas Government Code Exceptions to Filming with Drone

Sec. 423.002. NONAPPLICABILITY. (a) It is lawful to capture an image using an unmanned aircraft in this state:

(1) for the purpose of professional or scholarly research and development or for another academic purpose by a person acting on behalf of an institution of higher education or a private or independent institution of higher education, as those terms are defined by Section 61.003, Education Code, including a person who:

(A) is a professor, employee, or student of the institution; or

(B) is under contract with or otherwise acting under the direction or on behalf of the institution;

(2) in airspace designated as a test site or range authorized by the Federal Aviation Administration for the purpose of integrating unmanned aircraft systems into the national airspace;

(3) as part of an operation, exercise, or mission of any branch of the United States military;

(4) if the image is captured by a satellite for the purposes of mapping;

(5) if the image is captured by or for an electric or natural gas utility or a telecommunications provider:

(A) for operations and maintenance of utility or telecommunications facilities for the purpose of maintaining utility or telecommunications system reliability and integrity;

(B) for inspecting utility or telecommunications facilities to determine repair, maintenance, or replacement needs during and after construction of such facilities;

(C) for assessing vegetation growth for the purpose of maintaining clearances on utility or telecommunications easements; and

(D) for utility or telecommunications facility routing and siting for the purpose of providing utility or telecommunications service;

(6) with the consent of the individual who owns or lawfully occupies the real property captured in the image;

(7) pursuant to a valid search or arrest warrant;

(8) if the image is captured by a law enforcement authority or a person who is under contract with or otherwise acting under the direction or on behalf of a law enforcement authority:

(A) in immediate pursuit of a person law enforcement officers have reasonable suspicion or probable cause to suspect has committed an offense, not including misdemeanors or offenses punishable by a fine only;

(B) for the purpose of documenting a crime scene where an offense, not including misdemeanors or offenses punishable by a fine only, has been committed;

(i) a human fatality;

(ii) a motor vehicle accident causing death or serious bodily injury to a person; or

(iii) any motor vehicle accident on a state highway or federal interstate or highway;

(D) in connection with the search for a missing person;

(E) for the purpose of conducting a high-risk tactical operation that poses a threat to human life;

(F) of private property that is generally open to the public where the property owner consents to law enforcement public safety responsibilities; or

(G) of real property or a person on real property that is within 25 miles of the United States border for the sole purpose of ensuring border security;

(9) if the image is captured by state or local law enforcement authorities, or a person who is under contract with or otherwise acting under the direction or on behalf of state authorities, for the purpose of:

(A) surveying the scene of a catastrophe or other damage to determine whether a state of emergency should be declared;

(B) preserving public safety, protecting property, or surveying damage or contamination during a lawfully declared state of emergency; or

(10) at the scene of a spill, or a suspected spill, of hazardous materials;

(11) for the purpose of fire suppression;

(12) for the purpose of rescuing a person whose life or well-being is in imminent danger;

(13) 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;

(14) from a height no more than eight feet above ground level in a public place, if the image was captured without using any electronic, mechanical, or other means to amplify the image beyond normal human perception;

(15) of public real property or a person on that property;

(16) if the image is captured by the owner or operator of an oil, gas, water, or other pipeline for the purpose of inspecting, maintaining, or repairing pipelines or other related facilities, and is captured without the intent to conduct surveillance on an individual or real property located in this state;

(17) in connection with oil pipeline safety and rig protection;

(18) in connection with port authority surveillance and security;

(19) if the image is captured by a registered professional land surveyor in connection with the practice of professional surveying, as those terms are defined by Section 1071.002, Occupations Code, provided that no individual is identifiable in the image;

(20) if the image is captured by a professional engineer licensed under Subchapter G, Chapter 1001, Occupations Code, in connection with the practice of engineering, as defined by Section 1001.003, Occupations Code, provided that no individual is identifiable in the image; or

(21) if:

(A) the image is captured by an employee of an insurance company or of an affiliate of the company in connection with the underwriting of an insurance policy, or the rating or adjusting of an insurance claim, regarding real property or a structure on real property; and

(B) the operator of the unmanned aircraft is authorized by the Federal Aviation Administration to conduct operations within the airspace from which the image is captured.

(b) This chapter does not apply to the manufacture, assembly, distribution, or sale of an unmanned aircraft.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1390 (H.B. 912), Sec. 2, eff. September 1, 2013.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 360 (H.B. 2167), Sec. 1, eff. September 1, 2015.

Acts 2017, 85th Leg., R.S., Ch. 583 (S.B. 840), Sec. 1, eff. September 1, 2017.

Conclusion

The Drone Law is unconstitutional. We shall see if lawmakers try to tailor it another way in the future…

It is not hard to draw a line from bills introduced in congress to the preservation of big business. The question is: How much should our natural resources suffer to profit the bottom line?

Contact myself, Eric Torberson, for any questions about legal services.