The Texas offenses of Possession of Child Pornography and Promotion of Child Pornography involve images and video (both electronic and physical) of anyone under 18 years old engaging in “sexual conduct” (as that term is defined in the law, as described below). The new criminal offense of Possession or Promotion of Lewd Visual Material Depicting Child is a related offense, although that law does not require sexual conduct at all.

Child Porn offenses are prosecuted in both state and federal courts. The Texas state offense is defined in Section 43.26 of the Penal Code (described in detail below). In order to be convicted of Possession or Promotion of Child Pornography, the state’s attorney must show that a person: 1) knowingly or intentionally 2) possesses OR accesses with intent to view 3) visual material that the person knows visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct.

Federal laws related to child porn are numerous and complex. Cases can involve complicated issues like: Who “possesses” the computer files containing child porn if the computer is shared among many people? Do you really “knowingly and intentionally possess” a computer file that was automatically downloaded by an internet browser? How do you prove the age of an individual when you don’t know who the individual is and can’t contact them?

You can be prosecuted under federal child pornography laws in addition to, or instead of, state law. Federal child pornography laws carry extremely severe penalties. For example, a first time conviction for producing child pornography under 18 U.S.C. § 2251 (Sexual Exploitation of Children) involves fines and a statutory minimum of 15 years to 30 years in prison.  Harsher penalties are available if the government can show prior convictions or if the child pornography offense occurred in certain aggravated situations, in which case a convicted person may face up to life imprisonment.

Defending against child porn charges is a complicated task owing to the serious social stigma attached to child pornography cases (people are frequently pre-judged as guilty), complex technology used in the investigations and the confluence of difficult legal concepts in criminal law such as “possession” and the other ones described in the above paragraph.

What is the current Texas law about child pornography?

The Texas law against child pornography is separated into two different categories. The first category is called Possession of Child Pornography and is described in subsection (a), while the second category is called Promotion of Child Pornography and is described in subsection (e):^[1]

(a) A person commits an offense if:

(1) the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct, including a child who engages in sexual conduct as a victim of an offense under Section 20A.02(a)(5), (6), (7), or (8); and

(2) the person knows that the material depicts the child as described by Subdivision (1).

(e) A person commits an offense if:

(1) the person knowingly or intentionally promotes or possesses with intent to promote material described by Subsection (a)(1); and

(2) the person knows that the material depicts the child as described by Subsection (a)(1).

Section 43.26(b)(1) specifies that “promote” has the meaning assigned by Section 43.25.^[2] The statute also provides a definition for “visual material.”^[3]

What is “sexual conduct” under Texas Law

“Sexual Conduct” is defined as “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.”^[4] Note that the definition is not comprehensive because it uses the word “includes” without saying or implying that the list is complete.

“Deviate sexual intercourse” is defined as “any contact between the genitals of one person and the mouth or anus of another person.”^[5] “Sexual contact” is defined as “any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.”^[6] Sexual intercourse” is defined as “any penetration of the female sex organ by the male sex organ.”^[7]

How can I defend against a child porn charge?

There are affirmative defenses available, in addition to a defense for school administrators and law enforcement.^[8] But the most important aspect of defending yourself against a child porn charge is your lawyer. Do not attempt to represent yourself. Please schedule a consultation with us to discuss the best options for your defense.

Our defense strategies usually include attacking the state’s burden to prove that you “knowingly or intentionally possessed” the visual material. It is not necessarily true that files that you had access to means that you knowingly or intentionally possessed those files or knowingly or intentionally accessed with intent to view those files. Another common defense is that the person depicted was in fact over 18 years old. Remember that it is the state attorney’s obligation to prove that the child is actually under 18. Finally, the state’s attorney has to prove that you knew material depicts a child under 18 years old. Whether or not you knew the material was depicting someone under 18 is a common element that a good criminal defense lawyer can attack.

Did you possess the child pornography material?

What it means to “possess” something is a complicated area of law, and it is made even more complicated in the area of computer forensics and digital evidence. Determining whether you possessed a file is a difficult analysis to make, and there are many ways that such a conclusion could be attacked. You should contact us immediately to discuss the specifics of your case. Similarly, whether you “accessed with intent to view” is a difficult and complex notion for the state’s attorneys to prove and is open to attack on many fronts.

What are the affirmative defenses to possession of child pornography?

The child porn statute says that the “affirmative defenses provided by Section 43.25(f) also apply” as a defense to possession or promotion of child porn under Texas law.^[9] Those defenses are as follows:

• (1) the defendant was the spouse of the child at the time of the offense;
• (2) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or
• (3) the defendant is not more than two years older than the child.

What is the punishment for a Child Porn Possession conviction?

Possession of Child Pornography, as charged under Subsection (a), is punished as a felony of the third degree, unless you have a prior conviction under subsection (a).^[10] If you have one prior conviction under subsection (a), and you are convicted of the same offense again, the subsequent conviction is punished as a felony of the second degree.^[11] If you have two prior convictions under subsection (a), and you are convicted of the same offense again, the third conviction is punished as a felony of the first degree.^[12]

Promotion of Child Pornography, as charged under under Subsection (e), is punished as a felony of the second degree, except that it is punished as a first degree felony if you have a prior subsection (e) conviction.^[13] Learn more about the differences between the degrees of felonies

Note, however, that the enhancements related to prior convictions do no apply to offenses occurring before September 1, 2015.^[14]

How long will I have to register as a sex offender if I am convicted of Possession of Child Pornography?

If you plead guilty to Possession of Child Pornography, whether you are convicted or placed on deferred adjudication probation, Texas law generally requires you to register as a sex offender for life.¹⁵ However, the registration period is lower for juvenile offenders,^[15] and it is possible that you might be able to terminate the requirement early under the Texas deregistration process. Learn more about the early termination of sex offender registration requirements here

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Legal References:

^1. Texas Penal Code §43.26^2. Texas Penal Code §43.25(5) – “(5) “Promote” means to procure, 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 any of the above.”^3. Texas Penal Code §43.26(b)(3) –

(3) “Visual material” means:

(A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or

(B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.

^4. Texas Penal Code §43.25(a)(2), the crossreference from Texas Penal Code Section 43.26(b)(2) – “Sexual conduct” has the meaning assigned by Section 43.25.^5. Texas Penal Code Section 43.01(1-a), which defines “Deviate sexual intercourse” for the purposes of the entire Chapter 43^6. Texas Penal Code §43.01(3), cross-referenced from Texas Penal Code §43.25(a)(7)^7. Texas Penal Code §43.01(5)^8. Texas Penal Code §43.26(h)

(h) It is a defense to prosecution under Subsection (a) or (e) that the actor is a law enforcement officer or a school administrator who:

(1) possessed or accessed the visual material in good faith solely as a result of an allegation of a violation of Section 43.261;

(2) allowed other law enforcement or school administrative personnel to possess or access the material only as appropriate based on the allegation described by Subdivision (1); and

(3) took reasonable steps to destroy the material within an appropriate period following the allegation described by Subdivision (1).

^9. Texas Penal Code §43.26(c)^10. Texas Penal Code §43.26(d)^11. Texas Penal Code §43.26(d)(1)^12 Texas Penal Code §43.26(d)(2)^13. Texas Penal Code §43.26(g)^14. See House Bill 2291, 84th Legislature, Regular Session, Sections 2 & 4^15. Texas Code of Criminal Procedure §62.101(b)