The Texas offense of Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility allows law enforcement to prosecute people who the police believe have used drones to circumvent security procedures at jails and prisons in Texas.

By “unmanned aircraft,” the legislature means “drones.” This a brand new law for 2023, and it is targeting the growing security concerns related to the increased ubiquity of cheap and effective drones.

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. Learn more about the Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility offense below.

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

The current Texas law 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.

Subsection (c) of the statute makes it clear 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 Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility?

You can be charged with Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility 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 punishment for Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility?

Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility is punished as a Class B misdemeanor, Class A misdemeanor, or state jail felony, depending on the circumstances.^[5] For instance, the offense is punsihed as a state jail felony if the person used the drone to deliver contraband to the jail or prison.

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Legal References:

^1. Texas Penal Code §38.115^2. 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. Texas Penal Code §38.115(d)