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Texas Drone Law Fight in Federal Court Continues

Texas Drone Law Fight in Federal Court Continues

This week amidst news regarding the horrible toll Covid-19 is taking on our country, the continuing political saga regarding the presidential election, and post-Thanksgiving weight gain (on top of the Covid weight gain) a federal judge in Austin, Texas signed an order denying the State’s request to dismiss the suit regarding the constitutionality of Texas drone laws, or “unmanned aerial devices”.  The suit was filed in the United States District Court in the Fall of 2019 by the National Press Photographers Association (NPPA), Texas Press Association, and Joseph Pappalardo (a reporter) against Texas state officials that enforce Texas drone laws; challenging the constitutionality of the law that imposes criminal penalties on journalists for using drones in news gathering.  In 2019 I wrote a blog about this legal challenge, here.  The suit followed new (2017) Texas drone laws I wrote about here.

The State filed a Motion to Dismiss the suit and it was Denied but for one narrow argument. The judge’s order states Pappalardo plausibly alleged that his reasonable fear of having the Texas Government Code, Chapter 423 provisions enforced against him has caused him to cease using his UAV (drone) for newsgathering.  The court acknowledged the NPPA claims of injury because it has diverted resources to counter the effects of the Texas law on its members.

The court wrote that Plaintiffs have plausibly raised questions as to how these government interests could be threatened by newsgathering but not by commercial activities, and inconsistent prohibition of UAVs indicates that the No-Fly Provisions are restricting more speech than necessary to achieve the government’s alleged interests.  The court agreed Plaintiffs have plausibly pled the No-Fly Provisions violate the First Amendment, and that these regulations are related to the State’s police powers.

The judge wrote the No-Fly Provisions neither regulate a field that is entirely preempted by federal regulation nor conflict with federal regulation.—-this is the only part of the Motion to Dismiss filed by the State granted in the State’s favor.  The court went on to write:  “However, whether these regulations are constitutional or valid exercises of these police powers is another matter.”

For now, the First Amendment challenges to the Texas drone laws remain pending as the Texas legislature prepares to reconvene in January 2021.  In light of this case, it is plausible that lawmakers will revisit the drone laws but to date the only new bill filed regarding Chapter 423 is Senate Bill 149 which adds federal military installations operated by the federal government, state or other governmental entity to the definition list of “Critical Infrastructure Facility” where drones may not fly.

In other Texas drone developments, Walmart in El Paso, Texas is delivering coronavirus tests by drone.  The Walmart drone delivers to single-family homes within 1 ½ miles of the store.  In the last year, the FAA has given approval to UPS and Amazon to operate drone airlines for package delivery; yet to be implemented in Texas. Cities in Texas need to prepare as drone delivery is on the way forcing decision making regarding the logistics of drones flying above us.  The North Central Texas Council of Governments is actively working with regional partners to ensure this process is developed with solutions in mind, and has created a Task Force to promote safe integration of drone technology in the DFW regional airspace. More are sure to follow.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.

Since joining the Randle Law Office in April 2017, Ms. El Masri has provided legal advice to the City of Fulshear, Texas, the City of Brazos Country, Texas, the City of Mont Belvieu, Texas, and the City of Meadows Place, Texas. In that regard, El Masri has worked closely with City Council, Planning and Zoning Commission, Parks Board, and all department and divisions including Parks, Police, Public Works, Fire, Human Resources, Finance, Planning, Code Enforcement, Communications, City Secretary, and City Manager’s office...

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