Under current law, the act of sending a sexually explicit text message
may be prosecuted under adult pornography laws. This can lead to felony
convictions and possible life long registration under the
sex offender registration program. As a result, some prosecutors can either charge juveniles that
engage in this behavior with crimes that carry overly harsh penalties
or enter no charges at all.
S.B. 407 creates a new offense in Section 43.261 of the Penal Code for
what is commonly known as “sexting.”
Under this new
sex crimes law, it is an offense for a minor to intentionally or knowingly:
(1) promote by electronic means to another minor visual material depicting
a minor, including the actor, engaging in sexual conduct, if the actor
produced the visual material or knew that another minor produced it, or
(2) possess in electronic format visual material depicting another minor
engaging in sexual conduct, if the actor produced the visual material
or knew that another minor produced it.
Sexual conduct means sexual contact, actual or simulated sexual intercourse,
deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic
abuse, or lewd exhibition of the genitals, the anus, or any portion of
the female breast below the top of the areola. The new law also has an
afﬁrmative defense for sexting between minor spouses or between minors
within two years of age who were dating at the time of the offense. This
mirrors an existing defense under the pornography statute, which is necessary
because without the defense, two minors could legally have sex but could
not “sext.” The law also provides a defense to prosecution
to protect an innocent recipient of an unsolicited sext if the minor recipient
destroyed the sext within a reasonable time of receiving it.
The promotion and possession offense is a Class C misdemeanor (maximum
penalty of of $500 fine), but the penalties are enhanced for repeat offenses
(and capped at a Class A misdemeanor). A promotion offense is a Class
B misdemeanor if the minor promoted the material with the intent to harass,
annoy, alarm, abuse, torment, embarrass, or offend another, and a Class
A misdemeanor for repeat offenses.
If you have been charged with sexting in Texas,
call for a free consultation from our Houston criminal defense firm.