“Obscenity” is a Texas offense described in Section 43.23 of the Penal Code. There are two separate kinds of Obscenity offense described. The first kind of Obscenity is committed when someone “wholesale promotes” or possesses with intent to wholesale promote any “obscene material” or “obscene device.” However, the promotion or intent to promote must be with the person’s knowledge of the “content and character” of the obscene material or obscene device.

The second kind of Obscenity offense does not require the “wholesale” element. In addition, you can be convicted of the second kind of Obscenity offense if the state’s attorneys show that you produced, presented, or directed an obscene performance or participated in a portion thereof that is obscene or that contributes to its obscenity.

If the state has charged you with a violation of the Obscenity offense, you should be aware that this is a serious criminal offense. Accordingly, you should hire a criminal defense attorney to defend you against the charge. The definitions of “obscene,” “obscene material” and “obscene device” are critical in defending you against this charge because these terms are parts of the offense that determine whether a crime has been committed or whether you were exercising your rights to free speech. The state cannot violate the First Amendment right to freedom of speech guaranteed by the United States Constitution.

What is the current Texas law about Criminal Obscenity?

The current Texas law defines the offense of Obscenity in Penal Code Section §43.23 as follows:^[1]

(a) A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device.

(c) A person commits an offense if, knowing its content and character, he:

(1) promotes or possesses with intent to promote any obscene material or obscene device; or

(2) produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity.

An Obscenity conviction is a Class A Misdemeanor if the offense was simple promotion or production under subsection (c).^[2] An Obscenity conviction is a state jail felony if the offense was wholesale promotion under subsection (a).^[3] The penalty for a conviction under either subsection (a) or (c) can be enhanced to a second degree felony if the subject of the material was:

(1) a child younger than 18 years of age at the time the image of the child was made;

(2) an image that to a reasonable person would be virtually indistinguishable from the image of a child younger than 18 years of age; or

(3) an image created, adapted, or modified to be the image of an identifiable child.

There is an affirmative defense available if the possession was pursuant to a ” bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.”^[4]

What does “Obscene” mean and how is “Obscene” defined?

“Obscene” is defined in the Texas Penal Code Section 43.21:

(1) “Obscene” means material or a performance that:

(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;

(B) depicts or describes:

(i) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or

(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and

(C) taken as a whole, lacks serious literary, artistic, political, and scientific value.

Each section of that definition is important, because in order to obtain a conviction for “Obscenity,” the state’s attorney must prove that the material is in fact “obscene.” Without proof that the material is obscene, then the offense of “Obscenity” has not been committed. In addition, there are important legal limitations on what can be considered obscene. The definition is narrow by law because of the constitutional dangers inherent in the state’s attempts to limit speech.

What is the definition of “Obscene Material” and what does “Obscene Material” mean?

The definition “obscene material” is rooted in the definitions found in Section 43.21 of the Texas Penal Code, along with the definition of “obscene.”

Material is defined in Section 43.21 as “anything tangible that is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound, or in any other manner, but does not include an actual three dimensional obscene device.” Therefore, “material” under this definition would include things like books, videos, photographs and the like. But it would not include “obscene devices” like sex toys.

What is the definition of “Obscene Device” and what does “Obscene Device” mean?

An “Obscene Device” is defined in Section 43.21 of the Texas Penal Code along with the definition of “obscene” and other terms related to the Obscenity offense. The statute defined an Obscene Device as follows:

(7) “Obscene device” means a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.

Obscene Devices are basically sex toys.

What does it mean to “Promote” or “Wholesale Promote“?

For the purposes of the Obscenity offense, “Promote” and “Wholesale Promote” are defined in the same statute as the Obscenity offense itself along with the definition of “Obscene” and other related terms.

(5) “Promote” means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same.

(6) “Wholesale promote” means to manufacture, issue, sell, provide, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, or to offer or agree to do the same for purpose of resale.

Therefore, promoting is basically done at the retail level (shop owners) whereas wholesale promoting is done at the wholesale level (manufacturers and others who market goods to retail store owners).

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Legal References:

^1. Texas Penal Code §43.23^2. Texas Penal Code §43.23(b)^3. Texas Penal Code §43.23(d)^4. Texas Penal Code §43.23(g)