As a starting point, the crime of obscenity involves materials that are obscene or devices that are obscene. The state of Texas defines “obscene” as follows:
- Something that does not have serious literary, artistic, political or scientific value;
- Something that, using contemporary community standards, appeals to the prurient interest in sex; and
- Depicts or describes either patently offensive representations or descriptions of sexual acts (either real or simulated); or masturbation, sadism, masochism, lewd exhibition of genitals, genitals in the state of arousal or stimulation, including an erect penis, even if covered, or a device designed for the sexual stimulation of genitals.
There are two different levels of obscenity offenses in the state of Texas. It is a state jail felony for one to wholesale promote or possess with the intent to wholesale promote obscene materials or devices. It is a Class A misdemeanor for one to either promote or possess with the intent to promote any obscene material or device, or to produce, present, direct, or participate in a performance that is obscene.
The difference between promoting and wholesale promoting obscenity is found in the result – does the person stand to make a profit? Wholesale promotion involves the manufacturing, issuing, selling, providing, mailing, delivering, transferring, transmitting, publishing, distributing, circulating, disseminating, or an offer or agreement to do one of these for the purpose of resale. Promoting, on the other hand, includes these same actions, (manufacturing, issuing, selling, etc.) along with giving, lending, presenting, exhibiting, and advertising, as well as the offer or agreement to do one of these things, without the purpose of resale.
In both instances, the state must prove the person knows the content and character of the material. Class A misdemeanors are punishable by up to a year in jail and a fine of up to $4,000. State jail felonies are punishable by a term of no more than two years or less than 180 days, as well as a fine of up to $10,000. Additionally, in both instances, if the person depicted is a minor, or if the depiction is designed to appear to involve a minor, the punishment is greater.
(a) A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device.
(b) Except as provided by Subsection (h), an offense under Subsection (a) is a state jail felony.
(c) A person commits an offense if, knowing its content and character, he:
(1) promotes or possesses with intent to promote any obscene material or obscene device; or
(2) produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity.
(d) Except as provided by Subsection (h), an offense under Subsection (c) is a Class A misdemeanor.
(e) A person who promotes or wholesale promotes obscene material or an obscene device or possesses the same with intent to promote or wholesale promote it in the course of his business is presumed to do so with knowledge of its content and character.
(f) A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same.
(g) It is an affirmative defense to prosecution under this section that the person who possesses or promotes material or a device proscribed by this section does so for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.
(h) The punishment for an offense under Subsection (a) is increased to the punishment for a felony of the third degree and the punishment for an offense under Subsection (c) is increased to the punishment for a state jail felony if it is shown on the trial of the offense that obscene material that is the subject of the offense visually depicts activities described by Section 43.21(a)(1)(B) engaged in by:
(1) a child younger than 18 years of age at the time the image of the child was made;
(2) an image that to a reasonable person would be virtually indistinguishable from the image of a child younger than 18 years of age; or
(3) an image created, adapted, or modified to be the image of an identifiable child.
(i) In this section, “identifiable child” means a person, recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature:
(1) who was younger than 18 years of age at the time the visual depiction was created, adapted, or modified; or
(2) whose image as a person younger than 18 years of age was used in creating, adapting, or modifying the visual depiction.
(j) An attorney representing the state who seeks an increase in punishment under Subsection (h)(3) is not required to prove the actual identity of an identifiable child.