The 85th Texas Legislature created a new law in 2017 called Possession or Promotion of Lewd Visual Material Depicting Child, which outlaws images (whether photographs, drawings, paintings or electronic graphics) of clothed (or unclothed) children (whether they’re yours or not) that “appeal to the prurient interest in sex.”
POSSESSION OR PROMOTION OF LEWD VISUAL MATERIAL DEPICTING CHILD ATTORNEY FAQs
This is a truly bizarre law. It presumes that there is “an interest in sex” that is not prurient. We are not sure what kind of interest that is. We are also left guessing at who gets to determine whether an image has sex appeal. If you take an photo of your child wearing a swimsuit in a bathtub (or a pool) and someone thinks it is sexual, then you can be arrested for this offense. Yes, this is utterly ridiculous, but this is now law.
This law was created by Section 1 of House Bill 18101 and has been codified at Section 43.262 in the Texas Penal Code. The law has serious Constitutional problems, as the amount of images that this covers is almost unimaginably large. The state might have to imprison every sixteen year old that uses Snapchat, Instagram or Facebook.
The Possession or Promotion of Lewd Visual Material Depicting Child law took effect September 1, 2017.2
This new law resembles the federal law of Obscene visual representations of the sexual abuse of children (18 U.S. Code § 1466A).
Have you been charged with Possession or Promotion of Lewd Visual Material Depicting Child in Texas? Call criminal defense lawyer Paul Saputo at (888) 239-9305.
Section 43.262 of the Texas Penal Code describes the Possession or Promotion of Lewd Visual Material Depicting Child law at subsection (b) as follows:3
(b) A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that:
(1) depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created;
(2) appeals to the prurient interest in sex; and
(3) has no serious literary, artistic, political, or scientific value.
What the “prurient interest in sex” means is anyone’s guess. It would also be interesting to learn who the legislature believes should determine whether an image’s artistic value is “serious.”
What is the penalty for a Possession or Promotion of Lewd Visual Material Depicting Child conviction?
The law is penalized by default as a state jail felony, but it can be enhanced to a third degree felony after a first conviction and a second degree felony after two convictions3.
This offense is not currently listed as a “Reportable conviction or adjudication” in Texas Code of Criminal Procedure §62.001(5), so it does not currently require registration as a sex offender.
2House Bill 1810, 85th Legislature, at Section 2
3Penal Code Section Sec. 43.262(c), as created by House Bill 1810, 85th Legislature, Section 1, effective September 1, 2017