Electronic Transmission of Certain Visual Material Depicting a Minor

This statute specifically covers electronic images of minors engaging in sexual conduct.  Sexual conduct, under the statute, includes both actual and simulated sexual intercourse.  It also includes sexual bestiality, masturbation, acts of sado-masochism, the exhibition of genitals or a female breast below the top of the areola, and/or the anus. Where a minor possesses visual material depicting another minor engaging in any of the above sexual conduct, and the actor either created or assisted in the creation of the material, they are guilty of the offense. Additionally, if the minor possessing the material did not produce the material themselves, but knows that another minor produced the material, they have met the elements of the statute.

The final way a minor may commit the offense involves “promotion” of visual material by one minor to another minor. “Promotion” has a specific definition under Texas law.  For purposes of this statute, promotion includes the following behavior:

  • Procuring;
  • Manufacturing;
  • Issuing;
  • Selling;
  • Giving;
  • Providing;
  • Lending;
  • Mailing;
  • Delivering;
  • Transferring;
  • Transmitting;
  • Publishing;
  • Distributing;
  • Circulating;
  • Disseminating;
  • Presenting;
  • Exhibiting; or
  • Advertising such materials.

Additionally, offering or agreeing to do any of the above is covered under “promotion.”

When a minor engages in any of the above conduct, in regards to material showing a minor, including the minor who is the actor, and the minor either made the material themselves or knows that another minor made the materials, they are also guilty of the offense.

The possession or promotion must be intentional or knowing.

Generally, this is a Class C misdemeanor, punishable by a $500 fine. However, in certain cases, the offense can be charged as a Class B misdemeanor, or a Class A misdemeanor. Class B misdemeanors are punishable by fines up to $2,000 and up to 180 days in jail. Class A misdemeanors can include fines up to $4,000 and up to one year in jail.

This offense includes several affirmative defenses. These defenses are fact specific and should be discussed with an experienced criminal defense attorney.

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Penal Code Section 43.261

ELECTRONIC TRANSMISSION OF CERTAIN VISUAL MATERIAL DEPICTING MINOR

(a)  In this section:

(1)  “Dating relationship” has the meaning assigned by Section 71.0021, Family Code.

(2)  “Minor” means a person younger than 18 years of age.

(3)  “Produce” with respect to visual material includes any conduct that directly contributes to the creation or manufacture of the material.

(4)  “Promote” has the meaning assigned by Section 43.25.

(5)  “Sexual conduct” has the meaning assigned by Section 43.25.

(6)  “Visual material” has the meaning assigned by Section 43.26.

(b)  A person who is a minor commits an offense if the person intentionally or knowingly:

(1)  by electronic means promotes to another minor visual material depicting a minor, including the actor, engaging in sexual conduct, if the actor produced the visual material or knows that another minor produced the visual material; or

(2)  possesses in an electronic format visual material depicting another minor engaging in sexual conduct, if the actor produced the visual material or knows that another minor produced the visual material.

(c)  An offense under Subsection (b)(1) is a Class C misdemeanor, except that the offense is:

(1)  a Class B misdemeanor if it is shown on the trial of the offense that the actor:

(A)  promoted the visual material with intent to harass, annoy, alarm, abuse, torment, embarrass, or offend another; or

(B)  except as provided by Subdivision (2)(A), has previously been convicted one time of any offense under this section; or

(2)  a Class A misdemeanor if it is shown on the trial of the offense that the actor has previously been:

(A)  convicted one or more times of an offense punishable under Subdivision (1)(A); or

(B)  convicted two or more times of any offense under this section.

(d)  An offense under Subsection (b)(2) is a Class C misdemeanor, except that the offense is:

(1)  a Class B misdemeanor if it is shown on the trial of the offense that the actor has previously been convicted one time of any offense under this section; or

(2)  a Class A misdemeanor if it is shown on the trial of the offense that the actor has previously been convicted two or more times of any offense under this section.

(e)  It is an affirmative defense to prosecution under this section that the visual material:

(1)  depicted only the actor or another minor:

(A)  who is not more than two years older or younger than the actor and with whom the actor had a dating relationship at the time of the offense; or

(B)  who was the spouse of the actor at the time of the offense; and

(2)  was promoted or received only to or from the actor and the other minor.

(f)  It is a defense to prosecution under Subsection (b)(2) that the actor:

(1)  did not produce or solicit the visual material;

(2)  possessed the visual material only after receiving the material from another minor; and

(3)  destroyed the visual material within a reasonable amount of time after receiving the material from another minor.

(g)  If conduct that constitutes an offense under this section also constitutes an offense under another law, the defendant may be prosecuted under this section, the other law, or both.

(h)  Notwithstanding Section 51.13, Family Code, a finding that a person has engaged in conduct in violation of this section is considered a conviction for the purposes of Subsections (c) and (d).