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 allows police to arrest you if they believe that 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. The law was not amended in 2025.

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 Penal Code §38.115 currently defines Operation Of Unmanned Aircraft Over Correctional Facility Or Detention Facility 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]

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.^[5] 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.

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 has been met.

What is the statute of limitations 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.^[6] Felony level offenses follow the default felony limitations period rule, which specifies a three-year limitations period.^[7]

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

Yes. Probation is generally available 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 community supervision, commonly called probation, for Operation Of Unmanned Aircraft Over Correctional Or Detention Facility, and judges may also grant deferred adjudication community supervision.^[8]

However, important restrictions apply. Neither a judge nor a jury may grant community supervision if the imposed term of imprisonment exceeds 10 years.^[9] Additionally, a judge 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.

Legal References compiled by attorney Paul Saputo: