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A BILL TO BE ENTITLED
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AN ACT
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relating to prosecution and punishment of certain criminal offenses |
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prohibiting sexually explicit visual material involving depictions |
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of children, computer-generated children, or other persons; |
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creating criminal offenses; increasing criminal penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 43.26, Penal Code, is amended by |
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amending Subsections (a), (e), (g), and (h) and adding Subsections |
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(a-1), (a-2), (c-1), (c-2), (c-3), (c-4), (e-1), (f), (g-1), (h-1), |
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and (h-2) to read as follows: |
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(a) In this section: |
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(1) "Depiction of a child" means, with respect to an |
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image of a child contained in visual material: |
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(A) a depiction of a child who was younger than 18 |
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years of age at the time the image of the child was made; or |
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(B) a depiction of a child: |
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(i) who is recognizable as an actual person |
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by the person's face, likeness, or other distinguishing |
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characteristic, such as a unique birthmark or other recognizable |
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feature; and |
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(ii) whose image as a child younger than 18 |
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years of age was used in creating, adapting, or modifying the visual |
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material, including computer-generated visual material that was |
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created, adapted, or modified using an artificial intelligence |
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application or other computer software. |
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(2) "Depiction of a computer-generated child" means, |
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with respect to an image of a child contained in visual material, a |
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depiction: |
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(A) appearing to be a child younger than 18 years |
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of age; |
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(B) created using an artificial intelligence |
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application or other computer software; and |
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(C) that to a reasonable person is virtually |
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indistinguishable from an actual child younger than 18 years of |
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age. |
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(3) "Promote" and "sexual conduct" have the meanings |
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assigned by Section 43.25. |
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(4) "School library" means a library of a public or |
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private primary or secondary school. |
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(5) "Visual material" means: |
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(A) any film, photograph, videotape, negative, |
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or slide or any photographic reproduction that contains or |
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incorporates in any manner any film, photograph, videotape, |
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negative, or slide; or |
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(B) any disk, diskette, or other physical medium, |
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or a file in any digital format, that allows an image to be |
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displayed on a computer or other video screen and any image |
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transmitted to a computer or other video screen by telephone line, |
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cable, satellite transmission, or other method. |
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(a-1) A person commits an offense if: |
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(1) the person intentionally or knowingly [or |
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intentionally] possesses, or [knowingly or] intentionally or |
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knowingly accesses with intent to view, visual material that |
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contains a visual depiction of [visually depicts] a child [younger |
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than 18 years of age at the time the image of the child was made who |
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is] engaging in sexual conduct, including a depiction of a child |
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engaging [who engages] in sexual conduct as a victim of an offense |
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under Section 20A.02(a)(5), (6), (7), or (8); and |
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(2) the person knows or should have known that the |
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depiction [material depicts the child as] described by Subdivision |
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(1) is of a child younger than 18 years of age at the time the image |
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of the child was made. |
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(a-2) A person commits an offense if the person: |
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(1) intentionally or knowingly possesses, or |
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intentionally or knowingly accesses with intent to view, visual |
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material that contains a visual depiction of a computer-generated |
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child engaging in sexual conduct; and |
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(2) either: |
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(A) knows or should have known that the depiction |
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described by Subdivision (1) appears to be of a child younger than |
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18 years of age; or |
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(B) believes that the depiction is of an actual |
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child younger than 18 years of age at the time the image of the child |
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was made. |
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(c-1) An offense under Subsection (a-1) is a felony of the |
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third degree, except that the offense is: |
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(1) a felony of the second degree if it is shown on the |
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trial of the offense that the actor: |
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(A) has been previously convicted one time of an |
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offense: |
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(i) under this chapter; or |
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(ii) described by Article 62.001(5), Code |
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of Criminal Procedure; or |
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(B) possesses visual material that contains 10 or |
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more visual depictions of a child engaging in sexual conduct as |
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described by Subsection (a-1)(1) but fewer than 50 such depictions; |
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(2) a felony of the first degree if it is shown on the |
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trial of the offense that the actor: |
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(A) has been previously convicted two or more |
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times of an offense, or any combination of offenses: |
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(i) under this chapter; or |
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(ii) described by Article 62.001(5), Code |
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of Criminal Procedure; or |
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(B) possesses visual material that contains: |
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(i) 50 or more visual depictions of a child |
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engaging in sexual conduct as described by Subsection (a-1)(1); or |
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(ii) a videotape or film that visually |
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depicts conduct constituting an offense under Section |
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22.011(a)(2); or |
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(3) a felony of the first degree punishable by |
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imprisonment in the Texas Department of Criminal Justice for life |
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or for any term of not more than 99 years or less than 25 years if it |
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is shown on the trial of the offense that: |
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(A) at the time of the offense, the actor was: |
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(i) an employee at a child-care facility or |
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a residential child-care facility, as those terms are defined by |
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Section 42.002, Human Resources Code; |
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(ii) an employee at a residential treatment |
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facility established under Section 221.056, Human Resources Code; |
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(iii) an employee at a shelter or facility |
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that serves youth and that receives state funds; or |
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(iv) receiving state funds for the care of a |
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child depicted by the visual material; or |
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(B) the actor displayed the visual material or |
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caused the visual material to be displayed in a school library. |
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(c-2) If it is shown on the trial of an offense under |
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Subsection (a-1) that the visual material contained a depiction of |
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a child younger than 10 years of age at the time the image of the |
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child was made engaging in sexual conduct as described by Section |
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(a-1)(1): |
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(1) an offense punishable under Subsection (c-1) as a |
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felony of the second or third degree is increased to the next higher |
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category of offense; or |
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(2) the minimum term of confinement for an offense |
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described for purposes of punishment by Subsection (c-1)(2) is |
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increased to 15 years. |
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(c-3) An offense under Subsection (a-2) is a state jail |
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felony, except that the offense is: |
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(1) a felony of the third degree if it is shown on the |
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trial of the offense that the actor: |
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(A) has been previously convicted one time of an |
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offense: |
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(i) under this chapter; or |
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(ii) described by Article 62.001(5), Code |
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of Criminal Procedure; or |
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(B) possesses visual material that contains 10 or |
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more visual depictions of a computer-generated child engaging in |
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sexual conduct as described by Subsection (a-2)(1) but fewer than |
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50 such depictions; |
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(2) a felony of the second degree if it is shown on the |
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trial of the offense that the actor: |
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(A) has been previously convicted two or more |
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times of an offense, or any combination of offenses: |
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(i) under this chapter; or |
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(ii) described by Article 62.001(5), Code |
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of Criminal Procedure; or |
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(B) possesses visual material that contains 50 or |
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more visual depictions of a computer-generated child engaging in |
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sexual conduct as described by Subsection (a-2)(1); or |
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(3) a felony of the second degree with a minimum term |
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of imprisonment of 10 years if it is shown on the trial of the |
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offense that: |
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(A) at the time of the offense, the actor was an |
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employee described by Subsection (c-1)(3)(A)(i), (ii), or (iii); or |
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(B) the actor displayed the visual material or |
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caused the visual material to be displayed in a school library. |
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(c-4) If it is shown on the trial of an offense under |
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Subsection (a-2) that the visual material contained a depiction of |
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a computer-generated child who appears to be younger than 10 years |
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of age and is engaging in sexual conduct as described by Subsection |
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(a-2)(1), the punishment for the offense is increased to the |
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punishment for the next higher category of offense, provided that |
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the minimum term of imprisonment for an offense described for |
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purposes of punishment by Subsection (c-3)(3) is 10 years. |
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(e) A person commits an offense if: |
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(1) the person intentionally or knowingly [or |
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intentionally] promotes or possesses with intent to promote visual |
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material described by Subsection (a-1)(1) [(a)(1)]; and |
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(2) the person knows or should have known that the |
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depiction [material depicts the child as] described by Subsection |
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(a-1)(1) is of a child younger than 18 years of age at the time the |
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image of the child was made [(a)(1)]. |
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(e-1) A person commits an offense if the person: |
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(1) intentionally or knowingly promotes or possesses |
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with intent to promote visual material described by Subsection |
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(a-2)(1); and |
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(2) either: |
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(A) knows or should have known that the depiction |
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described by Subsection (a-2)(1) appears to be of a child younger |
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than 18 years of age; or |
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(B) believes that the depiction is of an actual |
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child younger than 18 years of age at the time the image of the child |
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was made. |
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(f) In the prosecution of an offense under Subsection (a-1) |
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or (e): |
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(1) the state is not required to prove the identity of |
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the child in the depiction described by Subsection (a-1)(1); and |
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(2) there is a rebuttable presumption that the |
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depiction is of an actual child, as described by Subsection |
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(a)(1)(A) or (B), and not of a computer-generated child, as |
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described by Subsection (a)(2). |
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(g) An offense under Subsection (e) is a felony of the |
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second degree, except that the offense is: |
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(1) a felony of the first degree if it is shown on the |
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trial of the offense that the actor: |
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(A) [person] has been previously convicted one or |
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more times of an offense: |
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(i) under this chapter; or |
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(ii) described by Article 62.001(5), Code |
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of Criminal Procedure; |
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(B) promotes or possesses with intent to promote |
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visual material that contains 10 or more visual depictions of a |
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child engaging in sexual conduct as described by Subsection |
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(a-1)(1) but fewer than 50 such depictions; or |
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(C) promotes or possesses with intent to promote |
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visual material that contains one or more visual depictions of a |
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child who appears to be younger than 10 years of age and is engaging |
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in sexual conduct as described by Subsection (a-1)(1); or |
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(2) a felony of the first degree with a minimum term of |
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imprisonment of 15 years if it is shown on the trial of the offense |
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that the actor promotes or possesses with intent to promote visual |
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material that contains: |
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(A) 50 or more visual depictions of a child |
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engaging in sexual conduct as described by Subsection (a-1)(1); or |
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(B) a videotape or film that visually depicts |
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conduct constituting an offense under Section 22.011(a)(2) with |
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respect to a depiction of a child [that subsection]. |
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(g-1) An offense under Subsection (e-1) is a felony of the |
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third degree, except that the offense is: |
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(1) a felony of the second degree if it is shown on the |
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trial of the offense that the person: |
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(A) has been previously convicted one or more |
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times of an offense: |
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(i) under this chapter; or |
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(ii) described by Article 62.001(5), Code |
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of Criminal Procedure; |
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(B) promotes or possesses with intent to promote |
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visual material that contains 10 or more visual depictions of a |
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computer-generated child engaging in sexual conduct as described by |
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Subsection (a-2)(1); or |
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(C) promotes or possesses with intent to promote |
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visual material that contains one or more visual depictions of a |
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computer-generated child who appears to be younger than 10 years of |
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age and is engaging in sexual conduct as described by Subsection |
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(a-2)(1); or |
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(2) a felony of the second degree with a minimum term |
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of imprisonment of 10 years if it is shown on the trial of the |
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offense that the person promotes or possesses with intent to |
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promote visual material that contains 50 or more visual depictions |
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of a computer-generated child engaging in sexual conduct as |
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described by Subsection (a-2)(1). |
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(h) It is a defense to prosecution under this section |
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[Subsection (a) or (e)] that the actor is a law enforcement officer |
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or a school administrator who: |
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(1) possessed or accessed the visual material in good |
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faith solely as a result of an allegation of a violation of Section |
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43.261; |
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(2) allowed other law enforcement or school |
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administrative personnel to possess or access the material only as |
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appropriate based on the allegation described by Subdivision (1); |
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and |
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(3) took reasonable steps to destroy the material |
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within an appropriate period following the allegation described by |
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Subdivision (1). |
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(h-1) It is an affirmative defense to prosecution under this |
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section that the conduct was for a bona fide educational, medical, |
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psychological, psychiatric, judicial, law enforcement, or |
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legislative purpose. |
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(h-2) It is an affirmative defense to prosecution under |
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Subsection (a-2) or (e-1) that the actor is not more than two years |
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older than the depicted child. |
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SECTION 2. Article 38.45(a), Code of Criminal Procedure, is |
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amended to read as follows: |
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(a) During the course of a criminal hearing or proceeding, |
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the court may not make available or allow to be made available for |
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copying or dissemination to the public property or material: |
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(1) that constitutes child pornography, as described |
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by Section 43.26(a-1)(1) or (a-2)(2) [43.26(a)(1)], Penal Code; |
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(2) the promotion or possession of which is prohibited |
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under Section 43.261, Penal Code; or |
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(3) that is described by Section 2 or 5, Article |
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38.071, of this code. |
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SECTION 3. Article 39.15(a), Code of Criminal Procedure, is |
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amended to read as follows: |
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(a) In the manner provided by this article, a court shall |
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allow discovery under Article 39.14 of property or material: |
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(1) that constitutes child pornography, as described |
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by Section 43.26(a-1)(1) or (a-2)(2) [43.26(a)(1)], Penal Code; |
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(2) the promotion or possession of which is prohibited |
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under Section 43.261, Penal Code; or |
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(3) that is described by Section 2 or 5, Article |
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38.071, of this code. |
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SECTION 4. Section 21.16(a)(5), Penal Code, is amended to |
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read as follows: |
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(5) "Visual material" means: |
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(A) any film, photograph, videotape, negative, |
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or slide or any photographic reproduction that contains or |
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incorporates in any manner any film, photograph, videotape, |
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negative, or slide; or |
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(B) any disk, diskette, or other physical medium, |
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or a file in any digital format, that allows an image to be |
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displayed on a computer or other video screen and any image |
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transmitted to a computer or other video screen by telephone line, |
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cable, satellite transmission, or other method. |
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SECTION 5. Section 43.261(b-1), Penal Code, is amended to |
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read as follows: |
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(b-1) For purposes of conduct prohibited under Subsection |
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(b), visual material to which that conduct applies includes: |
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(1) a depiction of a minor: |
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(A) [(1)] who is recognizable as an actual person |
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by the person's face, likeness, or other distinguishing |
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characteristic, such as a unique birthmark or other recognizable |
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feature; and |
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(B) [(2)] whose image as a minor was used in |
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creating, adapting, or modifying the visual material, including |
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computer-generated visual material that was created, adapted, or |
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modified using an artificial intelligence application or other |
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computer software; or |
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(2) a depiction of a minor, created using an |
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artificial intelligence application or other computer software, |
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that to a reasonable person is virtually indistinguishable from an |
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actual minor. |
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SECTION 6. Section 43.262(b-1), Penal Code, is amended to |
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read as follows: |
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(b-1) For purposes of conduct prohibited under Subsection |
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(b), visual material to which that conduct applies includes: |
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(1) a depiction of a child: |
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(A) [(1)] who is recognizable as an actual person |
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by the person's face, likeness, or other distinguishing |
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characteristic, such as a unique birthmark or other recognizable |
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feature; and |
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(B) [(2)] whose image as a child younger than 18 |
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years of age was used in creating, adapting, or modifying the visual |
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material, including computer-generated visual material that was |
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created, adapted, or modified using an artificial intelligence |
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application or other computer software; or |
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(2) a depiction of a child, created using an |
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artificial intelligence application or other computer software, |
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that to a reasonable person is virtually indistinguishable from an |
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actual child younger than 18 years of age. |
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SECTION 7. The following provisions of the Penal Code are |
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repealed: |
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(1) Sections 43.26(b), (c), (d), (d-2), and (i); |
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(2) Section 43.26(d-1), as added by Chapter 93 (S.B. |
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1527), Acts of the 88th Legislature, Regular Session, 2023; and |
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(3) Section 43.26(d-1), Penal Code, as added by |
|
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Chapter 1041 (S.B. 129), Acts of the 88th Legislature, Regular |
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Session, 2023. |
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SECTION 8. The changes in law made by this Act apply only to |
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an offense committed on or after the effective date of this Act. An |
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offense committed before the effective date of this Act is governed |
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by the law in effect on the date the offense was committed, and the |
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former law is continued in effect for that purpose. For purposes |
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of this section, an offense was committed before the effective date |
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of this Act if any element of the offense was committed before that |
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date. |
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SECTION 9. This Act takes effect September 1, 2025. |