Possession, Promotion, or Production of Certain Visual Material Appearing to Depict Child: Texas Penal Code §43.235

The Texas Possession, Promotion, or Production of Certain Visual Material Appearing to Depict Child law gives police the right to arrest you if they believe you possessed, accessed with intent to view, promoted, or produced obscene visual material that appears to depict a child engaged in sexual conduct or a lewd exhibition, including AI-generated or animated images, even if no real child was involved.

This offense is codified in Chapter 43 of the Texas Penal Code alongside the other public-indecency crimes. It targets “deepfake” or computer-generated child sexual imagery, as well as cartoons or animations, even when no real child was used to create the visual material.

The law takes effect September 1, 2025. Prosecutors can charge conduct that happens only on or after that date.

The statute also criminalizes AI training that uses an image of an actual child to train an AI model to produce visual material that would qualify as child pornography under the the Texas Child Pornography law.

The Penal Code classifies the Texas Possession, Promotion, or Production of Visual Material Depicting 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 Possession, Promotion, or Production of Certain Visual Material Appearing to Depict Child below.

What is the current Texas law about Possession, Promotion, or Production of Certain Visual Material Appearing to Depict Child?

AV Preeminent Texas lawyer Paul Saputo provides the current law defining Possession, Promotion, or Production of Certain Visual Material Appearing to Depict Child in Penal Code Section §43.235, as follows:^[1]

(b) A person commits an offense if the person:

(1) knowingly possesses, accesses with intent to view, or promotes obscene visual material containing a depiction that appears to be of a child younger than 18 years of age engaging in activities described by Section 43.21(a)(1)(B), regardless of whether the depiction is an image of an actual child, a cartoon or animation, or an image created using an artificial intelligence application or other computer software; or

(2) uses an image of an actual child younger than 18 years of age at the time the image was made with the intent to train an artificial intelligence model to produce visual material constituting child pornography under Section 43.26.

This statute reaches two broad categories of conduct. First, it covers anyone who knowingly possesses, accesses with intent to view, or promotes obscene (as defined in Chapter 43) visual material that contains a depiction that appears to be of a child under 18 engaging in sexual conduct or a lewd exhibition, whether the depiction is an image of an actual child, a cartoon or animation, or an image created with artificial intelligence or other software.^[2]

Second, it criminalizes using an image of an actual child to train an artificial intelligence model to produce visual material that would constitute child pornography. This “production” prong applies even if the resulting visual material is generated and no real child appears in the output.^[3]

The statute imports key terms from elsewhere in Chapter 43. “Promote” has the meaning used in the sexual-performance statute, and “visual material” has the meaning used in the child-pornography statute.^[4]

This law takes effect September 1, 2025, and applies to conduct on or after that date.^[5]

What is the penalty for a Texas Possession, Promotion, or Production of Visual Material Depicting Children offense?

This offense is classified as a state jail felony, unless one of the enhancements applies.^[6] If the state proves a single prior conviction under this section or under certain related obscenity and child-pornography provisions, the offense becomes a third-degree felony. With two or more qualifying priors, it becomes a second-degree felony.^[7]

Texas law also allows prosecutors to proceed under this statute, under another applicable statute, or under both, if the same conduct violates multiple provisions.^[8]

The punishment ranges associated with these classifications are set out in Chapter 12 of the Penal Code. A state jail felony is punishable by 180 days to two years in a state jail facility and a fine up to $10,000. A third-degree felony is punishable by two to ten years in prison and a fine up to $10,000. A second-degree felony is punishable by two to twenty years in prison and a fine up to $10,000.^[9]

What kinds of images “appear to depict” a child under this law?

The statute covers obscene (as defined in Chapter 43) visual material that contains a depiction that appears to be of a child younger than 18 engaging in the activities listed in the obscenity definition, such as ultimate sexual acts (actual or simulated), masturbation, excretory functions, or the lewd exhibition of the genitals or pubic area. The State does not have to prove that the depicted person is a real child for this element to be satisfied.^[10]

Does it matter if the image was generated by AI or is an animation?

No. The law expressly includes depictions created as cartoons or animations and images created using an artificial intelligence application or other computer software.^[11]

What does it mean to access with intent to view visual material?

This phrase reaches conduct like opening, streaming, or otherwise retrieving visual material with the purpose of looking at it, even if you do not download or permanently store a copy. It mirrors the same concept used elsewhere in Chapter 43 for visual material offenses.^[12]

How does the law define “promote” and “visual material”?

The statute cross-references existing definitions. “Promote” has the meaning used in the Sexual Performance statute, which includes actions like producing, directing, manufacturing, issuing, publishing, selling, exhibiting, or advertising. “Visual material” has the meaning used in the Child Pornography statute and includes films, photographs, videos, or other images recorded or transmitted electronically, as well as data that can be converted into an image.^[13]

What is covered by the “production” offense tied to AI training data?

Under subsection (b)(2), you can commit this offense by using an image of an actual child who was younger than 18 when the image was made with the intent to train an artificial intelligence model to produce visual material that would constitute child pornography under the Child Pornography statute. This targets the upstream use of real-child images in training datasets, even before any output is distributed.^[14]

How can I be charged with a Possession, Promotion, or Production of Visual Material Depicting Children offense in Texas?

You can be charged with Possession, Promotion, or Production of Visual Material Depicting Children in Texas if the state’s attorneys believe that each of the elements of §43.235(b), as described in the section above, have been met.

What is the statute of limitations for Possession, Promotion, or Production of Visual Material Depicting Children in Texas?

Possession, Promotion, or Production of Visual Material Depicting Children offenses have a three-year limitations period.^[15]

Can you get probation for Possession, Promotion, or Production of Visual Material Depicting Children in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Possession, Promotion, or Production of Visual Material Depicting Children, and judges are also allowed to accept deferred adjudication plea deals.^[16]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[17] 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.^[18]

Do I have to register as a sex offender in Texas if guilty of Possession, Promotion, or Production of Visual Material Depicting Children?

The Possession, Promotion, or Production of Visual Material Depicting Children offense does not appear on the list of offenses requiring registration under Chapter 62 of the Texas Code of Criminal Procedure.^[19]

However, the legislature can add this offense to the list at any time. If that happens, people convicted of Possession, Promotion, or Production of Visual Material Depicting 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 found guilty.

What level of crime is Possession, Promotion, or Production of Visual Material Depicting Children in Texas?

The Penal Code classifies the punishment for Possession, Promotion, or Production of Certain Visual Material Appearing to Depict Child as a state jail felony, enhanced to a third-degree felony with one prior qualifying conviction and to a second-degree felony with two or more.

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

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Legal References:

^1. Texas Penal Code §43.235. This law is current as of 2025.^2. Texas Penal Code §43.235(b)(1); Texas Penal Code §43.21(a)(1)(B)^3. Texas Penal Code §43.235(b)(2), (d)^4. Texas Penal Code §43.235(a); Texas Penal Code §43.25(a); Texas Penal Code §43.26(a)^5. SB 20, 89th Legislature (RS), Section 1^6. Texas Penal Code §43.235(c)^7. Texas Penal Code §43.235(c)(1)–(2)^8. Texas Penal Code §43.235(d)^9. Texas Penal Code §12.35; Texas Penal Code §12.34; Texas Penal Code §12.33^10. Texas Penal Code §43.235(b)(1); Texas Penal Code §43.21(a)(1)(B)^11. Texas Penal Code §43.235(b)(1), as enacted by SB 20, 89th Texas Legislature (RS), Section 1^12. Texas Penal Code §43.235(b)(1); Texas Penal Code §43.262(b)^13. Texas Penal Code §43.235(a)(1)–(2); Texas Penal Code §43.25; Texas Penal Code §43.26^14. Texas Penal Code §43.235(b)(2), as enacted by SB 20, 89th Texas Legislature (RS), Section 1, and cross-referencing Texas Penal Code §43.26^15. See Code of Criminal Procedure §12.01(11)^16. See Chapter 42A, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102^17. Art. 42A.053(c), Texas Code of Criminal Procedure^18. Art. 42A.054(b), Texas Code of Criminal Procedure^19. Code of Criminal Procedure, Article 62.001