Possession or Promotion of Lewd Visual Material Depicting Child: Texas Penal Code §43.262

The Texas Possession or Promotion of Lewd Visual Material Depicting Child law outlaws the possession or promotion of 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.” so long as a jury deems the images to be “lewd.”

We have serious concerns about the constitutionality of this law. 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 statute is worded poorly, it’s incredibly overbroad, vague, and targets a significant amount of protected speech.

Since we wrote about the problems with this law, at least one court has deemed the law unconsitutional and unenforceable.

In October 2020, Netflix was indicted for a violation of this offense by a grand jury in Tyler County based on an allegation that the “Cuties” is criminally lewd under this law. An appeals court eventually forced the state to drop the case. In December 2023, the Fifth Circuit Court of Appeals upheld the injunction against the Tyler County District Attorney’s Office, led by former actor Lucas Babin, for this misguided prosecution.

It’s somewhat ironic that Lucas sought to prosecute Netflix under this law, when he himself was part of the cast of MTV’s “Undressed” which examined the diverse sexual relationships involving sexual orientations and fetishes of college students and high schoolers.

The Texas legislature codified this criminal offense in Texas Penal Code Section 43.262. The law was updated in 2023 by expanding the definition of the visual materials (which seems to be targeted at deepfake child porn) to which the law applies.

The Penal Code classifies the Texas Possession of Lewd Visual Material Depicting Child 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 Possession or Promotion of Lewd Visual Material Depicting Child below.

What is the current Texas law about Possession or Promotion of Lewd Visual Material Depicting Child?

Texas law currently defines the offense of Possession or Promotion of Lewd Visual Material Depicting Child in Penal Code Section §43.262 as follows:^[1]

(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.

This law was created by Section 1 of House Bill 1810^[2] and has been codified at Section 43.262 in the Texas Penal Code. The Possession or Promotion of Lewd Visual Material Depicting Child law took effect September 1, 2017.^[3] This new law resembles the federal law of Obscene visual representations of the sexual abuse of children.^[4]

Overbroad, Vague, Unconstitutional: Concerns about this Law

There are numerous problems with this law. For starters, it is poorly worded, overbroad, and vauge.

The law presumes that there is “an interest in sex” that is not prurient. Apparently juries are supposed to decide what interest in sex is prurient and what interest in sex is not prurient. The idea that juries are supposed to look at some sexual fantasy or photograph or video and determine whether it is a “prurient” interest in sex or a (what’s the opposite of prurient? Regular?) “regular” interest in sex is preposterous. The only regular sexual interest is regular sexual interest.

We are also left guessing at how a jury is supposed to determine lewdness (sex appeal). If you take a 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, even if you don’t find it sexual in nature. There is no “objective” standard contained in the law and there is no limitation on who might find an interest sexual or not.

Since we initially wrote about this law predicting that courts would find this law unconstitutional due to overbreadth and vagueness concerns, and possibly Frist Amendment concerns, at least one court has found the law to be unconstitutional.^[5] In addition, the Fifth Circuit held that defendants could file a First Amendment claim in federal court to receive an injunction against the application of this law even if the DA’s office agreed not to pursue charges.

Does a guilty plea require registration as a sex offender?

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.

What changed in 2023?

In 2023, the legislature added a subsection (b-1), which specified that visual material covered under this law includes:^[6]

a depiction of a child: (1) who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and (2) whose image as a child younger than 18 years of age was used in creating, adapting, or modifying the visual material, including computer-generated visual material that was created, adapted, or modified using an artificial intelligence application or other computer software.

The legislature made similar clarifications to multiple other laws, including Electronic Transmission of Certain Visual Material Depicting Minor and Possession or Promotion of Child Pornography.

What visual material is covered under this law?

In 2023, the Texas legislature added a subsection (b-1) to this law that specifies that visual material includes depictions of a child “(1) who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and (2) whose image as a child younger than 18 years of age was used in creating, adapting, or modifying the visual material, including computer-generated visual material that was created, adapted, or modified using an artificial intelligence application or other computer software.”^[7]

What is the statute of limitation for Possession of Lewd Visual Material Depicting Child in Texas?

Possession of Lewd Visual Material Depicting Child offenses have a three-year limitations period.^[8]

What is the penalty for a Texas Possession of Lewd Visual Material Depicting Child offense?

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 convictions.^[9]

Can you get probation for Possession of Lewd Visual Material Depicting Child in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Possession of Lewd Visual Material Depicting Child, and judges are also allowed to accept deferred adjudication plea deals.^[10]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[11] 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.^[12]

Do I have to register as a sex offender in Texas if guilty of Possession of Lewd Visual Material Depicting Child?

The Possession of Lewd Visual Material Depicting Child offense does not appear on the list of offenses requiring registration under Chapter 62 of the Texas Code of Criminal Procedure.^[13]

However, the legislature can add this offense to the list at any time. If that happens, people convicted of Possession of Lewd Visual Material Depicting Child 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 Possession of Lewd Visual Material Depicting Child in Texas?

The Penal Code classifies Possession of Lewd Visual Material Depicting Child as a state jail felony, a third degree felony, or a 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 §43.262. This law is current as of 2024.^2. H.B. 1810, 85th Legislature, at Section 2^3. H.B. 1810, 85th Legislature, at Section 2^4. 18 U.S. Code § 1466A^5. Ex parte Lowry, 639 S.W.3d 151 (Tex. App. 2021)^6. Penal Code Section Sec. 43.262(b-1), as enacted by House Bill 2700, 88th Legislature, Section 3^7. Texas Penal Code §43.262(b-1), as enacted by HB 2700, 88th Legislature, Section 3^8. See Code of Criminal Procedure 12.01(9)^9. Penal Code Section Sec. 43.262(c), as enacted by House Bill 1810, 85th Legislature, Section 1, effective September 1, 2017^10. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102^11. Art. 42A.053(c), Texas Code of Criminal Procedure^12 Art. 42A.054(b), Texas Code of Criminal Procedure^13. Code of Criminal Procedure, Article 62.001