Unlawful Production Or Distribution Of Certain Sexually Explicit Videos (The Deep Fake Porn Law)

The Texas Unlawful Production or Distribution of Certain Sexually Explicit Videos law, also known as the Texas Deepfake Porn Law, makes it a crime to produce deepfake videos that depict someone engaging in sexual acts (or even just naked) without the depicted-person’s permission.

Utilizing artificial intelligence to create “deep fake” pornography has become already almost ubiquitous. Deep fakes are videos and images that are digitally created and altered to look like a real person. This has understandably caused some consternation among people who don’t want to appear in porn videos.

With the rapid expansion of artificial intelligence, the pornography industry has proven once again to be an early adapter. The Texas legislature decided to take action by creating this new law in 2023. The law was codified at Texas Penal Code Section 21.165 and went into effect on September 1, 2023.

This law is one of only two deepfake video laws regulating the use of artificial intelligence in Texas as of 2023. The other offense dealing with deep fake videos is True Source of Communication.

The Penal Code classifies the Texas Unlawful Deepfake Porn Production & Distribution law under Title 5 “Offenses Against the Person,” Chapter 21 “Sexual Offenses.” Learn more about the Texas offense of Unlawful Production Or Distribution Of Certain Sexually Explicit Videos below.

What is the current Texas law about Unlawful Production Or Distribution Of Certain Sexually Explicit Videos?

Texas law currently defines the offense of Unlawful Production Or Distribution Of Certain Sexually Explicit Videos in Penal Code Section §21.165 as follows:^[1]

(b) A person commits an offense if, without the effective consent of the person appearing to be depicted, the person knowingly produces or distributes by electronic means a deep fake video that appears to depict the person with the person’s intimate parts exposed or engaged in sexual conduct.

Deep fake videos are defined in the statute as “a video, created with the intent to deceive, that appears to depict a real person performing an action that did not occur in reality.”^[2]

This offense was created by the 88th Legislature in 2023,^[3] effective September 1, 2023.^[4]

What are deepfakes?

The term “deepfake” is a portmanteau combining “deep learning” and “fake.” In usage today, it commonly refers to videos generated using machine-learning techniques or artificial intelligence that combine existing images and videos in a way that produces very realistic-looking videos of events that were never actually recorded. This meanns that deepfakes can depict people “saying” things they have not said or doing things they did not do.

Is it illegal to make a deepfake in Texas?

There are two laws governing deepfake videos in Texas as of 2023. One is the topic of this page, the other is called True Source of Communication, and that one prohibits deepfakes from use in the political arena. The True Source of Communications law was passed in 2019.

How can you spot a Deepfake?

It is getting increasingly difficult to spot a deepfake video, but some red flags include: strange blinking patterns (or no blinking), uneven skin tones, lip movements that don’t match words, and inconsistency in details such as hair, clothes or jewelry.

Do you need a deepfake law attorney?

If you have been charged with producing deepfakes either under this law or another law, then you should definitely hire an attorney to help protect you. If you have been contacted by the police, please give us a call before speaking with them.

How can I be charged with an Unlawful Deepfake Porn Production & Distribution offense in Texas?

You can be charged with Unlawful Production Or Distribution Of Certain Sexually Explicit Videos in Texas if the state’s attorneys believe that each of the elements of 21.165 as described in the section above have been met.

What is the statute of limitation for Unlawful Deepfake Porn Production & Distribution in Texas?

As a misdemeanor, Unlawful Deepfake Porn Production & Distribution charges have a two-year limitations period.^[5]

What is the penalty for a Texas Unlawful Deepfake Porn Production & Distribution offense?

Unlawful Production Or Distribution Of Certain Sexually Explicit Videos in Texas is punished as a Class A misdemeanor ^[6]

Can you get probation for Unlawful Deepfake Porn Production & Distribution in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Unlawful Deepfake Porn Production & Distribution, and judges are also allowed to accept deferred adjudication plea deals.^[7]

Note, however, that 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.^[8]

Do I have to register as a sex offender in Texas if guilty of Unlawful Deepfake Porn Production & Distribution?

The Unlawful Deepfake Porn Production & Distribution offense does not appear on the list of offenses requiring registration under Chapter 62 of the Texas Code of Criminal Procedure.^[9]

However, the legislature can add this offense to the list at any time. If that happens, people convicted of Unlawful Deepfake Porn Production & Distribution 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 Unlawful Deepfake Porn Production & Distribution in Texas?

The Penal Code classifies the punishment for Unlawful Deepfake Porn Production & Distribution as a Class A misdemeanor.

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

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Legal References:

^1. Texas Penal Code §21.165. This law is current as of 2024.^2. Texas Penal Code §21.165(a)(1)^3. SB 1263, 88th Texas Legislature (RS), Section 1^4. SB 1263, 88th Texas Legislature (RS), Section 2^5. See Code of Criminal Procedure 12.02(a)^6. Texas Penal Code §21.165(c)^7. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^8. Art. 42A.054(b), Texas Code of Criminal Procedure^9. Code of Criminal Procedure, Article 62.001