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

WHAT IS POSSESSION OR PROMOTION OF LEWD VISUAL MATERIAL DEPICTING CHILD IN TEXAS?

The Texas law against possession or promotion of lewd visual material depicting a child prohibits possessing, accessing, or distributing any visual material showing the “lewd exhibition of the genitals or pubic area” of a child under 18 years old. The visual material proscribed by this statute is commonly referred to as child erotica.

WHAT IS THE POSSESSION OR PROMOTION OF LEWD VISUAL MATERIAL DEPICTING CHILD LAW IN TEXAS?

Tex. Penal Code § 43.262. POSSESSION OR PROMOTION OF LEWD VISUAL MATERIAL DEPICTING CHILD.

(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.

(c) An offense under this section is a state jail felony, except that the offense is:

(1) a felony of the third degree if it is shown on the trial of the offense that the person has been previously convicted one time of an offense under this section or Section 43.26; and

(2) a felony of the second degree if it is shown on the trial of the offense that the person has been previously convicted two or more times of an offense under this section or Section 43.26.

(d) It is not a defense to prosecution under this section that the depicted child consented to the creation of the visual material.

WHAT IS THE PENALTY CLASS FOR POSSESSION OR PROMOTION OF LEWD VISUAL MATERIAL DEPICTING CHILD IN TEXAS?

Possessing or promoting lewd visual material depicting a child is enhanceable, meaning the penalty category increases if the person charged has previous lewd visual material or child pornography convictions. The first offense is a state jail felony, punishable by 180 days to two years in a state jail facility. It is enhanced to a:

• Third degree felony, punishable by two to ten years in prison, if the person has:
  • one prior conviction for possession or promotion of lewd visual material depicting a child, or possession or promotion of child pornography;
• Second degree felony, punishable by two to 20 years in prison, if the person has:
  • two prior convictions for possession or promotion of lewd visual material depicting a child, or possession or promotion of child pornography;

WHAT IS THE PUNISHMENT RANGE FOR POSSESSION OR PROMOTION OF LEWD VISUAL MATERIAL DEPICTING CHILD IN TEXAS?

The punishment range for possession or promotion of lewd visual material depicting a child charged as a state jail felony is 180 days to two years in a state jail facility, and a maximum fine of $10,000. A third degree felony carries two to ten years in prison, and up to a $10,000 fine, while a second degree felony charge exposes a person to two to 20 years in prison and a fine of up to $10,000.

WHAT ARE THE PENALTIES FOR POSSESSION OR PROMOTION OF LEWD VISUAL MATERIAL DEPICTING CHILD IN TEXAS?

A person charged with possession or promotion of lewd visual material depicting a child may be eligible for probation after a conviction, or deferred adjudication without a conviction. The maximum period of community supervision for a state jail felony is five years, with the possibility of extending it up to ten years. The community supervision period for a third degree or second degree felony may not exceed ten years.

WHAT ARE THE DEFENSES TO POSSESSION OR PROMOTION OF LEWD VISUAL MATERIAL DEPICTING CHILD IN TEXAS?

There are no defenses listed in the statute, but this law has drawn recent criticism as an unreasonable restriction on free speech and expression.

• What speech and expression is protected by the First Amendment? The government generally has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Expression includes both the creation and dissemination of visual images. A few narrowly-defined categories are not protected by the First Amendment: child pornography, obscenity, defamation, fighting words, incitement, true threats of violence, fraud, and speech integral to criminal conduct. If a law proscribes speech or expression that does not fit within an unprotected category, the law is unconstitutional.In Ex parte Lowry, the First Court of Appeals held the law against possession or promotion of lewd visual material depicting a child is unconstitutional, because it punished expression that was neither obscene nor child pornography. Rather, it prohibits possessing visual material depicting the lewd exhibition of a clothed child’s pubic area. Without a direct causal link between possessing child erotica and sexual abuse or exploitation of children, the law does not survive strict scrutiny. The Texas Court of Criminal Appeals will conduct an independent analysis.

WHAT IS THE STATUTE OF LIMITATIONS FOR POSSESSION OR PROMOTION OF LEWD VISUAL MATERIAL DEPICTING CHILD IN TEXAS?

The limitation period for possession or promotion of lewd visual material depicting a child is three years.

POSSESSION OR PROMOTION OF LEWD VISUAL MATERIAL DEPICTING CHILD IN TEXAS

Possessing or promoting lewd visual material depicting a child prohibits possessing and accessing images of children, clothed or unclothed, in a sexually explicit manner. Images portraying children in a sexually suggestive or explicit manner, known as “child erotica,” do not fall within the definition of child pornography, so the Legislature enacted this law in 2017 to punish possession of such images in an effort to further prevent sexual exploitation and child abuse.

TEXAS POSSESSION OR PROMOTION OF LEWD VISUAL MATERIAL DEPICTING CHILD COURT CASES

The case law regarding possession or promotion of lewd visual material depicting a child in Texas has called the statute’s validity under the First Amendment into question.

• In Netflix, Inc., v. Babin, the Tyler County District Attorney indicted Netflix for streaming Cuties (“Mignonnes” in its native French), a film showing how children’s access to social media influences their behavior. The story follows an eleven-year-old girl mimicking our highly sexualized culture through provocative dance routines, often performed in public while wearing cut-off tops and tight, short shorts.

A federal district judge granted Netflix’s petition to enjoin enforcing Section 43.262, ruling it is unconstitutional. The court found the statute prohibits exhibition of artistic expression, rather than nude children, and violated the First Amendment.