When You Think “Drone”, Don’t Think Lazy Bee

Drones are in the news a lot lately. They have great commercial potential. They have great annoyance potential. They have entertainment potential.

Drones are sometimes called an Unmanned Aral Vehicle (UAV). Why anyone would want to use six (6) syllables instead of one (1) syllable is beyond me. Even UAV is three syllables. In a minimalist world, “drone” is the word of choice.

Texas has passed several new rules and regulations regarding drones. The regulations are contained in the Texas Government Code, §423.

OFFENSE: ILLEGAL USE OF UNMANNED AIRCRAFT TO CAPTURE IMAGE. (a) A person commits an offense if the person uses an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image. (b) It is a Class C misdemeanor, but, it is a defense to prosecution under this section that the person destroyed the image as soon as they realize they have the image AND without disclosing, displaying, or distributing the image to a third party.

OFFENSE: POSSESSION, DISCLOSURE, DISPLAY, DISTRIBUTION, OR USE OF IMAGE. A person commits an offense if the person, captures an image in violation of Section 423.003; and possesses, discloses, displays, distributes, or otherwise uses that image. Possession of an image is a Class C misdemeanor. An offense under this section for the disclosure, display, distribution, or other use of an image is a Class B misdemeanor. Each image a person possesses, discloses displays, distributes, or otherwise uses is a separate offense. But you have defense against prosecution if you destroy the image as soon as you realize it was captured in violation of Section 423.003.

OFFENSE: OPERATION OF UNMANNED AIRCRAFT OVER CRITICAL INFRASTRUCTURE FACILITY. “Critical infrastructure facility” means: any facility, if completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders, or if clearly marked with a sign or signs that are posted on the property, are reasonably likely to come to the attention of intruders, and indicate that entry is forbidden and then goes on to list a whole series of facilities that are definitely forbidden to photograph or video. It is too long to list here.

Parents, here is the part you want to be sure to take notice of since it involves money damages ($$$$);

Sec. 423.006. CIVIL ACTION. An owner or tenant of privately owned real property located in this state may bring a suit against a person who, in violation of Section 423.003, captured an image of the property or the owner or tenant while on the property an action to:

(1) enjoin (injunction) a violation or imminent violation of Section 423.003 or 423.004; (2) recover a civil penalty ($$$$) of: (A) $5,000 for all images captured in a single episode in violation of Section 423.003; or (B) $10,000 for disclosure, display, distribution, or other use of any images captured in a single episode in violation of Section 423.004; or (3) recover actual damages if the person who captured the image in violation of Section 423.003 discloses, displays, or distributes the image with malice. So, no “getting back” at someone by posting embarrassing photos or videos of your best worst enemy. No bullying by posting drone photos, etc.

man operating of flying drone quadrocopter at sunset

Now let’s say who is/are not impacted by the rules: 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, including a person who: is a professor, employee, or student of the institution; or is under contract with or acting under the direction or on behalf of the institution; 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; as part of an operation, by any branch of the United States military; if the image is captured by a satellite for the purposes of mapping; if the image is captured by or for an electric or natural gas utility: for operations and maintenance of utility facilities; for inspecting utility facilities during and after construction of such facilities; for assessing vegetation growth for the purpose of maintaining clearances on utility easements; and for utility facility routing and siting for the purpose of providing utility service; with the consent of the individual who owns or lawfully occupies the real property captured in the image; pursuant to a valid search or arrest warrant; in immediate pursuit of a person law enforcement officers have reasonable suspicion or probable cause to suspect has committed an offense; for the purpose of documenting a crime scene where an offense, not including misdemeanors or offenses punishable by a fine only, has been committed; for the purpose of investigating the scene of: a human fatality; a motor vehicle accident causing death or serious bodily injury to a person; or any motor vehicle accident on a state highway or federal interstate or highway; in connection with the search for a missing person; for the purpose of conducting a high-risk tactical operation that poses a threat to human life; or if the image is captured by a registered professional land surveyor in connection with the practice of professional surveying, provided that no individual is identifiable in the image; or if the image is captured by a professional engineer licensed, in connection with the practice of engineering, again, provided that no individual is identifiable in the image.

Believe me when I say, this is not an exhaustive listing of those exempted from the penalties listed in Sec. 423, but is representative enough that you can get the picture there are a lot of exemptions, but not for individuals unless you are operating the drone on your own property.

So, again, parents, drone photos can get you and your children in a heap of trouble if the pictures are taken by a drone and a bigger heap if they are posted, distributed, or shown. It ceases to be funny when the police get involved and maybe even less funny when a civil suit is filed asking for you to open your pocket book for what you thought was cute, funny, or a simple prank. I wrote on bullying many months ago and I see drones as the next frontier for bullying and the next “lawyer full employment” opportunity.

And…I believe that it will not be long before we see pictures taken with hand held image capture devices, (think cell phone), will be under same or similar restriction of possession and distribution.

Think, before you photo or video and be very, very careful before you post, distribute, or even show images which may be in violation of the news drone laws in Texas.

Oh, by the way, the Federal Aviation Administration has its own set of rules on which I have not even touched.

THIS ARTICLE IS FOR INFORMATION ONLY AND SHOULD NOT BE RELIED UPON AS LEGAL ADVICE. This does not constitute the establishment of an attorney client relationship between you and this lawyer. Most information is of a very general nature and cannot attempt to cover all fact situations. Nothing contained in this web site should be construed to constitute a recommendation of any product, service, or web site.

Weston Cotten is admitted to practice in all Texas Courts, the Southern District, Eastern District, Northern District, Western District Federal Courts, and the U. S. Tax Court, though not certified as to any legal specialization. He is a member of the College of the State Bar of Texas. He has been licensed to practice for 31 years. His areas of practice include Probate and Estate preservation, business formation and operations, real estate, Social Security Disability and Bankruptcy law. He is a local, solo practice attorney with his office located at 5223 Garth Road, Baytown, TX 77521. If he is unable to assist you, he will try to give you a referral to an attorney with experience in your area of legal need. (Federally Required Notice) The Law Office of Weston Cotten, P.C. is a “debt-relief agency” as defined by federal bankruptcy law, and we proudly assist our clients in filing for debt relief under the Bankruptcy Code.

Please visit my website at www.westoncotten.com, or call at 281-421-5774.