85th Texas Legislature – Drone Law Update: Steer Clear of Prisons, Stadiums, and Concentrated Animal Feeding Operations

85th Texas Legislature – Drone Law Update

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The 85th Legislature made some important changes to laws governing “unmanned aircraft” in the skies above Texas. Changes this session came by way of amendments and enactments within Texas Government Code chapter 423 – Use of Unmanned Aircraft. The amendments potentially affect both commercial and recreational drone operators, so be sure to know the changed laws before taking flight after September 1!

(For a recent history of Texas drone law, see our coverage of the 83rd Legislature and the 84th Legislature.)

H.B. 840 – An act relating to certain images captured by an unmanned aircraft.

H.B. 840[1] amends Texas Government Code §423.002(a), the “nonapplicability” section that exempts certain image-capturing by drones that could otherwise be illegal. Section 423.002(a)(5), which previously applied to certain images captured by or for electric or natural gas utilities, was expanded to include telecommunication providers. See Tex. Gov’t Code §423.002(a)(5). Section 423.002(a) was also tweaked to permit only law enforcement (or someone working with law enforcement) to capture images “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.” Id. §423.002(a)(8)(G). Previously there had been a general and untailored exemption permitting anyone to capture images of “real property or a person on real property that is within 25 miles of the United States border.” Id. §423.002(14) (2015). Exemptions were also added for insurance companies and affiliates and operators of unmanned aircraft authorized by the FAA to conduct operations. See id. §423.002(21).

H.B. 1424 – An act relating to the operation of an unmanned aircraft over certain facilities or sports venues; creating a criminal offense.

H.B. 1424[2] amends the 2015 legislation that made it an offense to operate a drone over certain critical infrastructure such as refineries, ports, and dams. This session, correctional facilities and detention facilities were added to the list. See Tex. Gov’t Code 423.0045(1).[3] “Correctional facilities” include Texas Department of Criminal Justice confinement facilities, municipal or county jails, Federal Bureau of Prisons confinement facilities, and juvenile-justice correctional and detention centers. See Tex. Gov’t Code §423.0045(1); see also Tex. Fam. Code §51.02(13), (14) (defining “secure correctional facility” and “secure detention facility”). A “detention facility” is defined as a United States Immigration and Customs Enforcement facility operated for “the purpose of detaining aliens and placing them in removal proceedings.” Tex. Gov’t Code §423.0045(a)(3). Language was also added to clarify that an operator does not commit an offense if the drone is being used for a commercial purpose and is in full compliance with FAA regulations and authorizations. Id. §423.0045(c)(1)(E).

This bill enacted Government Code §423.0046, titled “Offense: Operation of Unmanned Aircraft Over Sports Venue.” The provision applies to any arena, automobile racetrack, coliseum, stadium or other area or facility with a seating capacity of 30,000 or more that is primarily used for professional or amateur sporting events. See id. §423.0046(a). A person commits an offense if the person intentionally or knowingly operates a drone over the venue lower than 400 feet above ground level. Id. §423.0046(b); see also id. §423.0046(c) (list of exemptions). A violation is a class B misdemeanor for a first offense and a class A misdemeanor if the person has previously been convicted under this section or §423.0045. Id. §423.0046(d); see also id. §423.0045 (“Offense: Operation of Unmanned Aircraft Over Correctional Facility, Detention Facility, or Critical Infrastructure Facility”).

H.B. 1643 – An act relating to the regulation of the operation of an unmanned aircraft and the prosecution of a related criminal offense.

H.B. 1643[4] refines the definition of “critical infrastructure facility” under Government Code §423.0045—broadening protections of telecommunications infrastructure, adding “concentrated animal feeding operation,”[5] and restructuring protections of specific oil and gas facilities enclosed by a fence or other barrier. See Tex. Gov’t Code §423.0045(a)(1)(A)(vii) (telecommunications infrastructure), §423.0045(a)(1)(A)(xiii) (concentrated animal feeding operation), §423.0045(a)(1)(B) (enclosed oil and gas infrastructure and facilities).

This bill also enacted Government Code §423.009 – Regulation of Unmanned Aircraft by Political Subdivision. This section limits the role political subdivisions such as counties or municipalities can play in drone regulation.[6] Under §423.009(b), unless permitted under §423.009(c), a political subdivision “may not adopt or enforce any ordinance, order, or other similar measure regarding the operation of unmanned aircraft.” Section 423.009(c) limits the local regulation of drones to their use during special events, their use by the locality itself, and their use near a facility or infrastructure owned by the locality (if granted FAA authority and complying with certain public-notice requirements). See id. §423.009(c); see also id. §423.009(a)(2) (defining “special event”).

To keep up with all the statutory changes enacted by the 85th Texas Legislature in your area of practice, make O’Connor’s your first source for the law – visit our online store.

[1] S.B. 840, 85th Leg., R.S., eff. Sept. 1, 2017.

[2] H.B. 1424, 85th Leg., R.S., eff. Sept. 1, 2017.

[3] Reports of drones compromising security at correctional facilities have recently become widespread. Eric Levenson & Sheena Jones, South Carolina Inmate Used Drone, Makeshift Dummy to Escape Prison, CNN, July 7, 2017; Kathryn Rattigan, DOJ Reports on Drones Flying Contraband to Prisons, Data Privacy and Security Insider, June 22, 2017; Samantha House, Drone, Drugs, 10-Inmate Fight Lock Down Auburn Correctional Facility, Syracuse.com, May 26, 2017.

[4] H.B. 1643, 85th Leg., R.S., eff. Sept. 1, 2017.

[5] The definition of “concentrated animal feeding operation” under Texas Water Code §26.048 applies. Tex. Gov’t Code §423.0045(a)(1)(A)(xiii). The Water Code defines the term as “a concentrated, confined livestock or poultry facility that is operated for meat, milk, or egg production or for growing, stabling, or housing livestock or poultry in pens or houses, in which livestock or poultry are fed at the place of confinement and crop or forage growth or feed is not produced in the confinement area.” Tex. Water Code §26.048(e)(1).

[6] Advocates for local control sought a veto to defeat this legislation, but Governor Abbott signed the bill on June 15, 2017. See Andy Duehren, School Boards, Cities Sought to Stop Gov. Abbot from Signing Drone Bill, Texas Tribune, June 30, 2017.