by Frank Svetlik
The Texas Penal Code Section 43.26 provides the definition of the crime of Public Indecency - Possession or Promotion of Child Pornography.
Possession of child pornography is a third-degree felony. Possession of any volume of child pornography— six images or more— creates a presumption that the child pornography is possessed for purposes of promoting the material and is a second-degree felony. The range of punishment in the state of Texas for a second-degree felony is two years to twenty years in prison. The range of punishment in the state of Texas for third-degree felony is two years to ten years in prison. The penalties under the Texas state statutes, although significant, are much less than the penalties under the federal statutes for the same conduct where a minimum sentence of five to thirty years, may be required by statute.
The law provides a safe harbor for school administrators and law enforcement personnel who have seized materials involving child pornography. The spouse of the child depicted in the images is afforded an affirmative defense to prosecution under the statute, as is a person within two years of the age of the child. Although the law requires that the accused person know that the material in his possession, contain images or depictions which are prohibited by the statute a claim of ignorance of the contents of the material might be relied upon, and found credible in only the most extreme circumstances.
The provisions of article 43.25 of the Texas Penal Code are broad enough to criminalize the possession and promotion of child pornography. Texas Penal Code article 43.26, is explicit in making illegal, the possession of or promotion of child pornography. Possession of the above referenced six or more identical images of a child younger than eighteen years of age engaged in sexual conduct gives rise to a presumption of promoting the child pornography. The images need not be printed or on film, but can be electronic, either on computer or video screen telephone or any other electronic method.
If you have reason to be concerned about the issues addressed in this writing call Attorney Frank Svetlik 713.724.8538, an attorney familiar with matters of interest to those accused of possession or promotion or distribution of Child Pornography.
The operative provisions of the laws are set forth below with editing for ease of understanding.
Possession or Promotion of Child Pornography
[i] A person commits an offense if:
[A] the person knowingly or intentionally possesses visual material that visually depicts a child younger than eighteen years of age at the time the image of the child was made who is engaging in sexual conduct; and
[B] the person knows that the material depicts the child as described by Subdivision [A].
[ii] In this section:
[A] "Promote" has the meaning assigned by article 43.25.
[B] "Sexual conduct" has the meaning assigned by article 43.25.
[C] "Visual material" means:
[I] any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or
[II] any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.
[iii] The affirmative defenses provided by article 43.25[f] also apply to a prosecution under this article.
[iv] An offense under [i] above is a felony of the third degree.
[v] A person commits an offense if:
[A] the person knowingly or intentionally promotes or possesses with intent to promote material described by [i][A] above; and
[B] the person knows that the material depicts the child as described by [i][A] above.
[vi] A person who possesses visual material that contains six or more identical visual depictions of a child as described by [i][A] above is presumed to possess the material with the intent to promote the material.
[vii] An offense under [v] above is a felony of the second degree.
[viii] It is a defense to prosecution under [i] or [v] above that the actor is a law enforcement officer or a school administrator who:
[A] possessed the visual material in good faith solely as a result of an allegation of a violation of article 43.261;
[B] allowed other law enforcement or school administrative personnel to access the material only as appropriate based on the allegation described by Subdivision [A]; and
[C] took reasonable steps to destroy the material within an appropriate period following the allegation described by Subdivision [A].