Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility: Texas Penal Code §38.115

The Texas Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility law gives police the right to arrest you if they believe you operated an “unmanned aircraft” over a jail or prison at less than 400 feet above ground level, allowed an unmanned aircraft to make contact with a jail or prison or person inside, or allowed an unmanned aircraft to come so close to a jail or prison that it interfered with the operations of or caused a disturbance at the facility.

By “unmanned aircraft,” the legislature means drones. The legislature passed this law in 2023 as a result of the growing security concerns related to the increased ubiquity of cheap and effective drones. The law was codified at Section 38.115 in the Texas Penal Code and went into effect on September 1, 2023.

In 2022, the National Press Photographers Association and Texas Press Association filed a lawsuit alleging that criminal penalties imposed by the legislature in 2017 (and codified in the Texas Government Code) infringed on journalists’ First Amendment right to newsgathering and speech and unconstitutionally restricted journalists from using drones for legal newsgathering activities. In March 2022, the U.S. District Court for the Western District of Texas ruled much of the Government Code statute unconstitutional. This new law attempts to address security concerns by restricting the unauthorized operation of unmanned aircraft over sensitive facilities.

This is a companion law to Operation Of Unmanned Aircraft Over Airport Or Military Installation.

The Penal Code classifies the Texas Operation Of Unmanned Aircraft Over Correctional Or Detention Facility law under Title 8 “Offenses Against Public Administration,” Chapter 38 “Obstructing Governmental Operation.” Learn more about the Texas offense of Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility below.

What is the current Texas law about Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility?

Texas law currently defines the offense of Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility in Penal Code Section §38.115 as follows:^[1]

(b) A person commits an offense if the person intentionally or knowingly:

(1) operates an unmanned aircraft over a correctional facility or detention facility and the unmanned aircraft is not higher than 400 feet above ground level;

(2) allows an unmanned aircraft to make contact with a correctional facility or detention facility, including any person or object on the premises of or within the facility; or

(3) allows an unmanned aircraft to come within a distance of a correctional facility or detention facility that is close enough to interfere with the operations of or cause a disturbance to the facility.

Another subsection of the statute, subsection (c), specifies that the offense doesn’t apply if the operator of the drone had permission to fly the drone, was a law enforcement agency, or was operating under one of the few other logical exceptions to the law.^[2]

This offense was created by the 88th Texas Legislature in 2023,^[3] effective September 1, 2023.^[4]

How can I be charged with an Operation Of Unmanned Aircraft Over Correctional Or Detention Facility offense in Texas?

You can be charged with Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility in Texas if the state’s attorneys believe that each of the elements of 38.115 as described in the section above have been met.

What is the statute of limitation for Operation Of Unmanned Aircraft Over Correctional Or Detention Facility in Texas?

Misdemeanor level Operation Of Unmanned Aircraft Over Correctional Or Detention Facility charges have a two-year limitations period.^[5] Felony level offenses have a three-year limitations period.^[6]

What is the penalty for a Texas Operation Of Unmanned Aircraft Over Correctional Or Detention Facility offense?

Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility in Texas is punished as a Class B misdemeanor, Class A misdemeanor, or state jail felony, depending on the circumstances.^[7] For instance, the offense is punished as a state jail felony if the person used the drone to deliver contraband to the jail or prison.

Can you get probation for Operation Of Unmanned Aircraft Over Correctional Or Detention Facility in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Operation Of Unmanned Aircraft Over Correctional Or Detention Facility, and judges are also allowed to accept deferred adjudication plea deals.^[8]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[9] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[10]

What level of crime is Operation Of Unmanned Aircraft Over Correctional Or Detention Facility in Texas?

The Penal Code classifies Operation Of Unmanned Aircraft Over Correctional Or Detention Facility as a Class A misdemeanor, Class B misdemeanor, or state jail felony, depending on the circumstances.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §38.115. This law is current as of 2024.^2. Texas Penal Code §38.115(c)^3. HB 3075, 88th Texas Legislature (RS), Section 1^4. HB 3075, 88th Texas Legislature (RS), Section 6^5. Code of Criminal Procedure 12.02(a)^6. See Code of Criminal Procedure 12.01(9)^7. Texas Penal Code §38.115(d)^8. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102^9. Art. 42A.053(c), Texas Code of Criminal Procedure^10. Art. 42A.054(b), Texas Code of Criminal Procedure