There’s a “Stat” for That

By: Charles S. Wuest, Attorney at Law

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

In our technology driven culture, technological advances have resulted in devices that are useful, helpful, or even considered “essential” to everyday modern life, but with those advances, people use them in a manner that is annoying, invasive or even harmful to others. It might surprise you there are statutes (“stat”) prohibiting improper use of modern technology, three of which are discussed below.

Someone keeps flying a drone over my house taking pictures and really annoying me. What can I do?

There’s a Stat for that! Texas statute, Tex. Gov’t. Code § 423.003(a), is titled “Illegal Use Of Unmanned Aircraft To Capture Image”. The statute states:

“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.”

It’s a Class C misdemeanor and punishable by a fine not to exceed $500.

A second criminal statute which can apply is the Texas Anti-Stalking statute. A person commits this offense if the person, in a scheme or course of conduct directed at another person, repeatedly engages in conduct he or she knows or should know will be regarded as threatening injury to the other or the other person’s property; and causes that person to fear of physical injury or injury to his/her property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.

Stalking is a third-degree felony punishable by imprisonment of not less than 2 years nor over 10 years, a fine of not more than $10,000, or both. It’s a more serious felony if the actor has prior stalking convictions.

A civil lawsuit could also be filed against the offender making claims including invasion of privacy (intrusion on seclusion or misappropriation of likeness), nuisance, trespass (airspace invasion) and stalking, and seek damages and protective injunction.

Texas has enacted the civil claim of stalking with elements similar to the criminal statute, but the person being stalked must have made at least one demand on the culprit to stop the harassing behavior and have reported it to the police. The civil statute requires part of the proof to be evidence other than the claimant’s own perceptions and beliefs. If the claimant prevails she or he may be awarded actual and exemplary (or punitive) damages, but not attorney’s fees.

My past significant other has been calling me repeatedly and being alarming, annoying and tormenting me. What can I do?

There’s a Stat for that! The Texas Penal Code § 42.07 is our Anti-Harassment statute. A person commits that crime if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the actor initiates an obscene communication; threatens the other with physical injury or to commit a felony against that person or its family or household; conveys a false report that someone has died or been injured; calls or electronically messages the other person repeatedly in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another (or lets someone use the actor’s phone to do so).

Harassment is a Class B Misdemeanor, punishable by confinement for up to 180 days, a fine of up to $2000 or both. Again, a civil lawsuit could also be filed against the offender seeking damages under causes of action including invasion of privacy (intrusion on seclusion), nuisance, and stalking.

What can I do if a person has intercepted my phone calls or placed an electronic “bug” or listening device to record my conversations when they were not present?

There’s a Stat for that! Texas Penal Code §16.02, Unlawful Interception, Use or Disclosure of Wire, Oral or Electronic Communications. This crime is a felony of the second degree punishable by confinement for 2 years up to 10 years, a $10,000 fine or both, or under certain circumstances a state jail felony.

Texas has enacted the civil Wire Tap Act with elements similar to the criminal statute, but also provides for statutory damages of $10,000 for each occurrence; all the claimant’s actual damages over $10,000, and reasonable attorney’s fees and costs. The entitlement to attorney’s fees and costs is a significant difference to all the other causes of action mentioned earlier categorized as “torts” – a term of Anglo-French origin that means a wrongful or illegal act. In Texas, attorney’s fees are not recoverable for torts or any other claim unless specifically authorized by statute.

Finally, What do you do? Call the police (or sheriff or constable) and let them know this has been going on. If you know who is doing it, tell the police and tell them whether you have asked the person to quit. If you don’t know who it is, tell the authorities that and ask them to investigate and tell them what your concerns are. Then decide whether you want to pursue it with your own attorney as well.

Charles S. Wuest is admitted to practice before all Texas and Arkansas courts and the Federal Courts for the Southern, Northern, and Western Districts of Texas, the Fifth and Eighth Circuits Courts of Appeals, the United States Court of Federal Claims and the United States Tax Court.  He has been practicing law for over 37 years and concentrates his practice in business and estate litigation.  Mr. Wuest is a Member of the law firm, Currin, Wuest, Mielke, Paul & Knapp, PLLC (“CWMPK”) at 800 Rockmead Drive, Suite 220, Kingwood, Texas.   Besides the areas in which Mr. Wuest practices, other attorneys at CWMPK concentrate their practice in areas of estate planning, probate, family law (including divorce and custody issues), business operations and formation, commercial collections, employment law, bankruptcy, construction and real estate.  For more information, please call 281.359.0100 or see the CWMPK website at www.cwmpk.com. We are a debt relief agency. We help people file for relief under the Bankruptcy Code.