Employment Harmful to Children: Texas Penal Code §43.251

The Texas Employment Harmful to Children law gives police the right to arrest you if they believe you employed, authorized, or induced a person under 21 to work in a sexually oriented commercial activity or in any place of business permitting, requesting, or requiring someone to work nude or topless.

The state’s attorneys usually prosecute Employment Harmful to Children when someone reports that a young person is working in a strip club, sex club or pornography-related business. If you are convicted of Employment Harmful to Children in Texas, the severity of the punishment, including potential prison time, varies upon the age of the worker.

The Texas legislature codified this criminal offense in Texas Penal Code Section 43.251. The legislature did not update this law in 2023. The law was last amended in 2021, when the legislature changed the age of a child under this law from 18 to 21.

The Penal Code classifies the Texas Employment Harmful to Children law under Title 9 “Offenses Against Public Order and Decency,” Chapter 43 “Public Indecency.” These “public indecency” crimes are sex crimes, but they are not of a violent or assaultive nature. Learn more about the Texas offense of Employment Harmful to Children below.

What is the current Texas law about Employment Harmful to Children?

Texas law currently defines the offense of Employment Harmful to Children in Penal Code Section §43.251 as follows:^[1]

(b) A person commits an offense if the person employs, authorizes, or induces a child to work:

(1) in a sexually oriented commercial activity; or

(2) in any place of business permitting, requesting, or requiring a child to work nude or topless.

This statute references a few defined terms. Importantly, the term “child” is currently defined under this law to include more than just minors. Until 2021 (and for offenses alleged to have occured prior to 2021) “child” was defined for purposes of this law as a person under 18; however, as of September 1, 2021, “child” is now defined as a person under 21.^[2]

The statute also defines “sexually oriented commercial activity” and “nude” as discussed in more detail below.

I didn’t know that the worker was under 21, can I still be charged?

The law doesn’t require that a person know the age of the child. The law requires only that the person actually be a “child.”

What is a “sexually oriented commercial activity“?

The statute defines a “sexually oriented commercial activity” to be “a massage establishment, nude studio, modeling studio, love parlor, or other similar commercial enterprise the primary business of which is the offering of a service that is intended to provide sexual stimulation or sexual gratification to the customer.”^[3]

The list includes multiple types of business, but there may be even more types of businesses that fall under this definition if the primary business is to provide a service that provides sexual stimulation or gratification. For example, a photographer who works exclusively with adult film actors and actresses might be considered to be providing a service that gives its customers (the people who end up buying the photos) sexual gratification, and could therefore fall under the definition of a “sexually oriented commercial activity.” A photographer who does art gallery shows and one particular show happens to show nudity or sexual themes might not fall under the definition because the primary business is not to provide a sexually stimulating service, but rather artistic photos.

I didn’t force the child to work nude or topless. Can I still be charged?

Texas law doesn’t require the state attorneys to prove “force” in order to obtain a conviction for Employment Harmful to Children. The child only has to have actually participated in the activities. If a child was ‘requested’ to work nude or topless, or ‘induced’ (which is undefined in the statute, but generally means “to try to convince”) to work in a sexually oriented commercial activity, then the state attorneys can obtain a conviction. The child does not have to have actually engaged in the sexually-oriented activity, nor does the child ever have to have actually workd nude or topless at any time. The action that makes this situation a crime is the adult’s hiring or attempt to hire the child.

I only own the business, I didn’t personally ask the child to participate. Does that change the offense?

Texas law does not require that you personally tried to get the child to work in the inappropriate work conditions. The law allows for a conviction for Employment Harmful to Children even if you only authorized a child to work in either a sexually oriented commercial activity or in a place where the child is authorized, asked, or made to be nude or topless. And the law regarding what it means to “authorize” is not specifically defined, so the state’s attorneys can attempt to convict you by claiming that you authorized the child to work in the business by some indirect means or that you were reckless in the operation of the business.

As an owner, manager, or supervisor in a sexually oriented business or a place where employees are nude or topless, you may be presumed to have been reckless to the risk of an underage child working there. For example, if an owner of a topless bar did not have a written policy stating that all managers and supervisors were required to check the ID of any potential employee, a state’s attorney could more easily obtain a conviction.

I am not affiliated with the place of business, can I still be charged with the offense?

Similar to the situation where an owner didn’t personally engage in an attempt to hire a child, a person who is not affiliated with the business could be convicted of Employment Harmful to Children if the person “induced” the child. The law requires that a person ‘induce’ a child to be employed in the business and does not require that the person who induced the behavior actually worked for the business. For example, an adult who encourages a child relative to work at an inappropriate place could be charged with the offense.

What does “nude” mean?

Under the Employment Harmful to Children statute, “nude” means:^[4]

a child who is: (A) entirely unclothed; or (B) clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts, if the child is female, or any portion of the genitals or buttocks.

What is the statute of limitation for Employment Harmful to Children in Texas?

Employment Harmful to Children offenses have a three-year limitations period.^[5]

What is the penalty for a Texas Employment Harmful to Children offense?

The Texas Employment Harmful to Children offense can carry one of two different penalties, as determined by the age of the person involved. If the person is over the age of 14, then the offense carries a penalty of a second degree felony.^[6] If the child is under the age of 14, then the penalty is enhanced to a first degree felony, which can result in life imprisonment.^[7]

Learn more about the range of punishments for Texas felony offenses

Amendments effective in 2017

The punishment scheme was updated in 2017, but only by clarifying that you didn’t need to be aware of the age of the victim to qualify for the first degree felony enhancement for victims under 14 years old.^[8]

Can you get probation for Employment Harmful to Children in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Employment Harmful to Children, and judges are also allowed to accept deferred adjudication plea deals.^[9]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[10] Also, judges 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.^[11]

Do I have to register as a sex offender in Texas if guilty of Employment Harmful to Children?

The Employment Harmful to Children offense does not appear on the list of offenses requiring registration under Chapter 62 of the Texas Code of Criminal Procedure.^[12]

However, the legislature can add this offense to the list at any time. If that happens, people convicted of Employment Harmful to Children would have to register, even if the offense did not appear on the list at the time they accepted a deferred adjudication plea (even if later dismissed), pled guilty or were founty guilty.

What level of crime is Employment Harmful to Children in Texas?

The Penal Code classifies Employment Harmful to Children as either a first degree or second degree felony, depending on the circumstances.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §43.251. This law is current as of 2024.^2. Texas Penal Code §43.251(a)(1), as amended by SB 766, 87th Legislature, Section 8, and SB 315, 87th Legislature, Section 8 – “‘Child’ means a person younger than 21 years of age.”^3. Texas Penal Code §43.251(a)(5)^4. Texas Penal Code §43.251(a)(4)^5. See Code of Criminal Procedure 12.01(9)^6. Texas Penal Code §43.251(c)^7. Texas Penal Code §43.251(c)^8. HB 1808, 85th Legislature, Section 13, effective September 1, 2017.^9. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^10. Art. 42A.053(c), Texas Code of Criminal Procedure^11. Art. 42A.054(b), Texas Code of Criminal Procedure^12 Code of Criminal Procedure, Article 62.001