Texas Drone Laws in 2026: A Practitioner's Guide to Chapter 423 After McCraw

Texas has the most-tested state drone statute in the United States. In 2019, the National Press Photographers Association, the Texas Press Association, and a freelance journalist sued to enjoin Chapter 423 of the Texas Government Code on First Amendment and federal preemption grounds. In 2022, a federal district court agreed and enjoined the statute. In October 2023, the Fifth Circuit reversed. In 2024, the Supreme Court declined to review the case. The statute is now fully enforceable, more comprehensively litigated than any comparable state drone law, and the operational baseline for every commercial pilot, public-safety agency, and visual journalist working in the state.

This guide is the practitioner's walkthrough of Chapter 423 as it stands in 2026, anchored in the Fifth Circuit's decision and updated for the two amendments the 89th Texas Legislature made in 2025. It is built around the decisions an operator actually has to make: does my flight fit a lawful-use carve-out, am I clear of the no-fly buckets, what do I owe the FAA in parallel, and what changed in the last session that I might have missed.

What McCraw held

The controlling decision is National Press Photographers Association v. McCraw, 90 F.4th 770 (5th Cir. 2024). It is the substituted opinion replacing the panel's earlier text at 84 F.4th 632. The Fifth Circuit reversed the district court's 2022 injunction and held that the plaintiffs' facial First Amendment challenge failed. It rejected the plaintiffs' cross-appeal claiming federal field preemption. The Supreme Court denied certiorari, leaving the Fifth Circuit's decision in place.

The preemption holding is worth quoting because it travels beyond Texas. The Fifth Circuit said federal law expressly contemplates concurrent non-federal regulation of drones, especially where privacy and critical infrastructure are concerned. That language is binding in Texas, Louisiana, and Mississippi. It is persuasive everywhere else. A drone operator who assumes federal aviation authority preempts state privacy and infrastructure statutes is reading the wrong rulebook.

Five Chapter 423 provisions were restored by the decision: the surveillance-image prohibition, the critical-infrastructure no-fly rule, the sports-venue no-fly rule, the correctional and detention-facility rule as it existed at the time, and the weaponization prohibition. The Fifth Circuit was explicit that the facial challenge failed but as-applied challenges remain available in future prosecutions. A future defendant retains the right to argue that the statute is unconstitutional as applied to that defendant's specific conduct. No one in 2026 wants to be the test case.

The Chapter 423 framework

Chapter 423 of the Texas Government Code was enacted in 2013 as House Bill 912 and has been amended in multiple sessions since. The statute is structured around one organizing question: when is it lawful to capture an image of an individual or privately owned real property using an unmanned aircraft. Section 423.002 lists the lawful uses. Section 423.003 is the prohibition. Everything else is procedure, penalty, and additional no-fly coverage.

The trap most operators walk into is treating a commercial purpose as if it were a defense. It is not. The Texas statute does not exempt commercial activity in general. It exempts specific commercial categories enumerated in section 423.002: pipeline inspection, electric and natural-gas utility operations, real estate marketing with property-owner consent, insurance underwriting, surveying and mapping, environmental assessment, and approximately fifteen others. A commercial drone operator who captures an image of private property in Texas without fitting one of the section 423.002 carve-outs is exposed to criminal and civil liability, regardless of how legitimate the business reason was.

The lawful-use list at section 423.002 is therefore the operational document for every Texas drone pilot. Operators should pull the current statute, identify the categories that match their work, and document the match in a pre-flight record. If a flight does not fit a category, the flight does not happen, or it happens with the written consent of the property owner under the consent carve-out at section 423.002(a)(6).

The surveillance-image prohibition at section 423.003

Section 423.003 is the most-litigated provision in the statute and the one the Fifth Circuit specifically upheld. It makes it an offense to use an unmanned aircraft to capture an image of an individual or privately owned real property with the intent to conduct surveillance on the individual or property. The offense is a Class C misdemeanor with a fine up to $500. Each image is a separate offense.

The intent-to-conduct-surveillance element is the heart of the statute and the heart of the First Amendment defense the Fifth Circuit rejected. Plaintiffs argued that the term was unconstitutionally vague. The court held that it was not, because the surrounding statutory text and the list of lawful uses in section 423.002 give the term meaningful content. The court also held that the statute is content-neutral because it targets the act of surveilling rather than the message conveyed by any resulting image.

The companion provision at section 423.004 makes it an additional offense to possess, disclose, display, distribute, or use an image captured in violation of section 423.003. Possession is Class C. Disclosure or use is Class B, with up to 180 days in county jail and a fine up to $2,000. A single unlawful flight that captures one image and is then published can generate two separate prosecutions.

Civil exposure is heavier. Section 423.006 allows a property owner or tenant to sue for $5,000 per image captured and $10,000 per image disclosed, plus actual damages, plus attorney's fees, plus injunctive relief. A flight that captures twenty images of a private property can generate $100,000 in statutory capture penalties before any disclosure analysis. The civil cause of action exists alongside, not instead of, the criminal penalties.

The no-fly buckets

Chapter 423 now contains separate no-fly restrictions for critical infrastructure facilities, sports venues, and primary or secondary school instructional facilities. Each rule has its own exceptions, so operators should check the specific section rather than treating the categories as identical.

Section 423.0045 prohibits operation of an unmanned aircraft not higher than 400 feet above ground level over a covered critical infrastructure facility, subject to the exceptions in that section.

Section 423.0046 prohibits operation of an unmanned aircraft not higher than 400 feet above ground level over a covered sports venue. This state rule operates independently of any federal event restriction and applies according to its own statutory triggers.

Section 423.0047, added in 2025, covers primary and secondary school instructional facilities. It includes exceptions for government and law-enforcement operations, contractors, FAA-compliant commercial operations with required FAA authorizations, prior written consent from specified school officials or assigned officers, and persons younger than 14.

Correctional and detention facilities should be addressed separately under Texas Penal Code section 38.115, rather than as part of section 423.0047.

Section 423.0075 separately prohibits weaponizing an unmanned aircraft. This rule applies regardless of operator type or facility location.

What changed in 2025

The 89th Texas Legislature made two specific amendments to Chapter 423 in its 2025 session. Both took effect September 1, 2025.

House Bill 3662 added primary and secondary school instructional facilities to section 423.0047. An instructional facility is defined as real property, improvements to real property, or fixtures predominantly used to provide instruction to primary or secondary school students. Operating a drone over a covered school facility is a Class C misdemeanor; repeat offenses are Class B. Exemptions cover federal, state, and local government entities, law enforcement, and contractors acting on behalf of such entities. The statute also exempts FAA-compliant commercial operations with required FAA authorizations and prior written consent from specified school officials or assigned officers. Persons younger than 14 are exempt by statute. School officials and law enforcement officers can temporarily seize a drone observed in violation. A judge may dismiss charges against individuals younger than 17 who did not act intentionally, provided the individual receives a warning and a referral to an educational program on drone safety.

Senate Bill 2569 modernized the law enforcement reporting requirement at section 423.008. State and qualifying county and municipal agencies that used an unmanned aircraft during the preceding 24 months are now required to post a report on the agency's public-facing website between January 1 and January 15 of each odd-numbered year, covering the preceding 24 months. The cadence is biennial, not annual. Agencies without a public website must otherwise make the report available to the public. The change responded to a practical problem: the previously required physical reports had grown from 35 entries in 2017 to nearly 50,000 per year by 2024, and the legislature's document-handling capacity could not absorb the volume. Public safety agencies running drone programs in Texas should update their reporting workflow to the new posting requirement.

What the 89th Legislature did not do is significant. It did not amend section 423.002, section 423.003, section 423.0045, or section 423.0046. It did not add a journalism exemption to the lawful-use list. It did not narrow the intent-to-conduct-surveillance element. A legislature that watched its drone statute be enjoined for nearly two years and then restored by the Fifth Circuit had every opportunity to recalibrate the statute and chose not to. The legislative posture is that the Fifth Circuit got it right.

The federal overlay and the conduct-versus-airspace line

Federal regulation under 14 Code of Federal Regulations Part 107 supplies the operational baseline for commercial drone operations in Texas. Operators must hold a current remote pilot certificate, register their aircraft, comply with Standard Remote Identification, maintain visual line of sight unless waived, observe the 400-foot above-ground-level rule, and obtain airspace authorization through Low Altitude Authorization and Notification Capability where required. These are federal obligations and Chapter 423 does not displace them.

The Fifth Circuit's preemption framing in McCraw tracks the well-established federal distinction between aircraft operation and conduct. The Federal Aviation Administration regulates aircraft operation and airspace. The state regulates conduct: what the drone is doing, where its imagery is directed, and which kinds of facilities it cannot operate over. A Texas commercial operator who is Part 107-compliant has cleared the federal half. The state half is Chapter 423, and Chapter 423 is enforceable as written. Federal preemption is not a defense to a state surveillance-image prosecution or a section 423.006 civil suit.

State parks and local rules

Two additional regulatory layers operate alongside Chapter 423. Texas state parks are governed by 31 Texas Administrative Code section 59.134, which requires written authorization from the superintendent of the specific park unit. Big Bend Ranch State Park, Palo Duro Canyon, Enchanted Rock, and most other units default to no. A commercial operator with a Part 107 certificate and a section 423.002 lawful-use match still needs the superintendent's permission to launch from or fly over a state park.

Local ordinances are a smaller problem in Texas than in many states. Section 423.009 prohibits cities, counties, and other political subdivisions from regulating UAS except in three narrow circumstances: during a special event, when the political subdivision itself operates the UAS, or for use near a facility or infrastructure owned by the political subdivision if the subdivision applies for FAA authorization and holds a public hearing. A Texas city cannot pass a general drone ordinance prohibiting operations over private property; the city can only restrict drones during a permitted special event, or in the city's own operational use. Commercial operators encountering local rules in Texas should test those rules against section 423.009. State-level preemption of local drone ordinances is one of the few places in this guide where federal aviation framing and state framing pull in the same direction.

The pre-flight compliance checklist

The work below is sequenced in the order it generally should happen. Federal items come first because Part 107 is the gating authority. State items follow because Chapter 423 sits on top of an already-compliant federal flight. Local and parks layers come last.

1. Confirm the remote pilot holds a current Part 107 certificate, or that the operation qualifies for a recreational exception under section 44809.
2. Confirm the aircraft is registered with the Federal Aviation Administration and has a current Standard Remote Identification broadcast or qualifies for a registered exception.
3. If operating in controlled airspace, obtain a Low Altitude Authorization and Notification Capability authorization for the specific area and altitude, or apply for the appropriate Certificate of Waiver or Authorization.
4. Identify the section 423.002 lawful-use carve-out that applies to the flight. If no carve-out applies, obtain written consent from the property owner before the flight.
5. Document the lawful-use match in a pre-flight record. The record should name the specific subsection of section 423.002 the flight falls under, the date, the operator, the aircraft registration, the operating area, and the operational purpose.
6. Confirm the flight does not cross under 400 feet above ground level over any critical-infrastructure facility covered by section 423.0045 unless a specific lawful-use exemption applies.
7. Confirm the flight does not cross under 400 feet above ground level over any sports venue with seating capacity of 30,000 or more under section 423.0046.
8. Confirm the flight does not operate over a primary or secondary school instructional facility under section 423.0047, effective September 1, 2025. If the flight requires school coverage, confirm coverage of an FAA-compliant commercial-operations exception or obtain prior written consent from specified school officials. For correctional and detention facilities, check Texas Penal Code section 38.115 separately.
9. If the launch site is within or adjacent to a Texas state park, obtain written authorization from the park superintendent under 31 Texas Administrative Code section 59.134.
10. Confirm no local special-event restriction applies under the narrow grant of authority left to political subdivisions by section 423.009.
11. If the flight is by a state or qualifying county or municipal law enforcement agency, confirm the agency's biennial odd-year reporting under section 423.008 is current and posted on the agency's public website between January 1 and January 15.
12. Maintain operational records, including image capture logs and disposition, to support a defense in any future prosecution or civil claim under section 423.006.

Conclusion

Texas drone law in 2026 is among the most extensively litigated in the United States. The Fifth Circuit upheld the statute. The Supreme Court declined to review. The legislature watched the litigation and left the substantive provisions alone. Operators who treated Chapter 423 as a live constitutional question between 2022 and 2024 should reset to the post-McCraw posture. The statute is enforceable in the Fifth Circuit unless and until a successful as-applied challenge changes the result, and the enforcement record continues to develop.

The discipline for operators is straightforward in concept and demanding in practice. Identify the section 423.002 lawful-use carve-out before the flight. Stay clear of the no-fly buckets. Maintain a pre-flight record that can be produced if a flight is challenged. Treat federal Part 107 compliance as the floor, not the ceiling, of what the state expects.

The energy and infrastructure operators who do the bulk of Texas commercial drone work already understand this. The journalists and freelancers who lost in McCraw understand it too, even if they wish the result had gone the other way. For everyone else moving into the Texas market in 2026, the operational rule is the one the Fifth Circuit wrote into binding circuit law: federal authority sets the rules of the airspace, and state law sets the rules of conduct in that airspace. Both apply at the same time.