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Texas Sexting Laws

Texas has a few laws directly related to sexting – Penal code section 43.261 – A minor “Intentionally or knowingly” sending another minor an explicit photo or video can be a class B or C misdemeanor. Additionally, in 2019 Texas introduced Penal Code 21.19, which is a revenge porn statute protecting against the transmission of an explicit photo without the permission of the person depicted.

Quick take:

  • Texas sexting laws do not prevent prosecutors from pursuing other charges including child pornography.
  • An individual may face trial under Texas sexting laws and all other laws that apply to the facts presented.
  • Adjudicated teens and repeat offender may have to register as sex offenders.
  • Revenge porn is a State Jail Felony in Texas.
  • Taking reasonable steps to report or delete the images is an affirmative defense under the state’s sexting laws.
  • Sexting is a class B or class A misdemeanor if both actors are below 18.
  • The states sexting law (Penal code section 43.261) only apply to teens.

Texas Sexting Law Summary

A “minor” in Texas under section 71.0021 family code refers to anyone younger than 18. Texas sexting laws state that it is unlawful for minors to intentionally or knowingly -possess, share, display, or disseminate any visual depiction of a minor engaged in sexual conduct. Sexual conduct under Penal Code 43.25 refers to acts including masturbation, sodomy, lewd exhibition of the breasts/buttocks/genitals, and all acts intended to arouse or gratify sexual desire.

Consequently, nude selfies taken by a teen are a violation of the statute.

Any violation of the statute is a class C misdemeanor and is punishable by a fine of up to $500 and no jail or prison. That is for a first offense; however, section C of the statute states that if the teen who shared or disseminated the images acted with intent to alarm, abuse, annoy, embarrass, or offend. Then, the crime escalates into a class B misdemeanor. As mentioned, a class B misdemeanor is punishable by a $2000 fine and up to 180 days at the county jail.

Depending on the facts presented, prosecutors may pursue class B misdemeanor charges for a first offense.

For a second or subsequent offense, sexting in Texas escalates into a class A misdemeanor.

One thing to keep in mind is that the specific laws put in place for sexting minors are that although they may seem harsh, they serve to protect youths from the much harsher child pornography laws that exist (although they can still be charged with both depending on the severity of the case).

Affirmative Defenses

Section E of the statute provides three affirmative defenses.

(1) The person depicted in the image was the actor or a minor not more than two years younger or older than the actor with whom the accused had a relationship.

(2) The receiver or actor did not display or share the depiction with anyone outside the relationship.

(3) The accused destroyed or deleted the visual depiction within a reasonable time.

These defenses only work if the accused did not solicit, blackmail, or purchase the images.

Warning: according to section G of the statute, quote “if the conduct constitutes an offense under this section also constitutes an offense under another law, the defendant may be prosecuted under this section, the other or both.”

What that means is Texas sexting laws do not prevent prosecutors from pursuing other charges, including child pornography, dissemination of harmful content to children, and the charges listed below, most of which are felonies.

What to remember:

  • With parental consent, the age of marriage in Texas is between sixteen to eighteen.
  • If the sender and receiver are married or dating. That relationship is an affirmative defense that only works if the accused did not disseminate the image to anyone outside the relationship and is within 2 years of their partner.
  • For a first offense, sexting in Texas is a class C misdemeanor.
  • An adult sexting with a child may lead to child pornography charges.
  • Texas sexting laws do not prevent prosecutors from pursuing other charges. 

When does sexting turn into child pornography in Texas?

Under Texas Penal Code 43.26, an individual violates the Texas child pornography statute if the person intentionally possesses, accesses, promotes, disseminates, or aids in the creation of child porn.

 State law defines child pornography as any material, digital or physical, that depicts a child engaged in sexual conduct.

The statute provides the following affirmative defenses.

  • The accused was the spouse of the depicted minor.
  • The accused is not more than two years older than the child

Taking reasonable steps to destroy or report the image to the appropriate authorities- that is- school, law enforcement, or the sender’s caregiver are affirmative defenses that only work if the actor did not solicit the conduct.

Child pornography possession, dissemination, and creation are third-degree felony offenses. If the accused has priors, the crime escalates into a second-degree felony. Any further violations of the statute will result in first-degree felony charges.

What to remember:

  • The law assumes that anyone found in possession of six or more visual depictions of a child engaged in sexual conduct had the intent to promote the material.
  • Actors with prior convictions qualify for enhanced punishment (second-degree and third-degree felony charges).

Texas sexting laws and sexual performance by a child

Penal Code 43.25, “sexual performance by a child, “says that it is unlawful to authorize, induce, employ or in any way cause a child to engage in sexual performance. Note, that includes live performance by a child. Consequently, parents or caregivers who permit or consent to a child under their care to perform a sexual act violate the statute.

Permitting, employing, or inducing a child to perform sexual acts is a second-degree felony if the child is above 14. If the child is below fourteen, the crime escalates into a first-degree felony.

Teen or adult court?

For a first non-felony offense, teens accused of sexting will likely face trial in the juvenile system. If adjudicated delinquent in the juvenile system or the teen has prior records, the teen may have to register as a sex offender for possession or dissemination of child porn.

Texas juvenile system and family court aim to rehabilitate. Consequently, the punishment options include probation, supervision, house arrest, community service, and other rehabilitative measures.

What if the teen commits a federal crime or a felony?

Through a judicial waiver, the court may transfer a teen from the juvenile system into adult court. In adult court, the teen will face adult punishment.

Child pornography-related charges, depending on the facts presented, is a second or first-degree felony. A second-degree felony in Texas is punishable by up to twenty years in prison and a fine of $10000. In contrast, a first-degree felony is punishable by a minimum sentence of five years and a maximum of 99 years.

Upon conviction for child pornography possession, creation, or dissemination, the teen must register as a sex offender.

What to remember:

  • The juvenile delinquent act recommends that whenever possible teens should face trial in the state’s justice system.
  • Adjudicated teens must register as sex offenders for a second or subsequent offense.

Texas sexting laws and sale, distribution, or display of harmful material to a minor

Under Penal Code 43.24, the term “harmful material” refers to media whose dominant theme taken as a whole -appeals to the prurient interest in nudity, sex, and excretion. The statute states that it is unlawful to sell, exhibit, distribute, or in any way make such kind of material available to minors.

Consequently, an adult sending nudes or sexually explicit material to a teen or child constitutes dissemination of material harmful to minors.

 It is also unlawful to hire, encourage, or use a child to create harmful material. Dissemination of harmful material to a minor is a class A misdemeanor. However, if the accused employed, used, or encouraged a minor to create harmful material, the crime escalates into a third-degree felony.

Texas sexting laws and online solicitation of a minor

Under Penal Code 33.021, “online solicitation of a minor,” an individual is guilty of soliciting sexual conduct from a minor if the person (above 17) intentionally disseminates sexually explicit material to a minor, or communicates with a minor in a sexually explicit manner.

The statute provides two affirmative defenses.

(1) the accused was married to the victim.

(2) the minor consented to the activity, and the actor was not more than three years older than the minor.

Note that the meeting not occurring is not a defense. Furthermore, conspiring to solicit, attempting to, or soliciting sexual conduct from a minor via electronic device. Are violations of both state and federal law.

Under state law, electronic solicitation of a minor via an electronic device is a third-degree felony if the victim is- or was at least fourteen at the time of the crime.

Texas sexting laws and revenge porn

Section 21.16, “unlawful disclosure or promotion of intimate visual material,” is Texas’s revenge porn law that outlaws the dissemination of sexually explicit images or videos without the consent of the depicted individual. The law works under the assumption that the accused knew or should have known that the person depicted had a reasonable expectation of privacy.

Under the statute, it is not a defense that the person depicted consented to the creation of the media, nor is -voluntary transmission. What you need to remember is that revenge porn is a State Jail Felony. A State Jail Felony is punishable by not more than two years in jail and a fine not exceeding $10000

References

Other Texas Laws

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