Senate Research Center   H.B. 236
By: West, George "Buddy" (Shapiro)
Criminal Justice


Section 43.21 of the Penal Code defines obscenity as material that the
average person, applying contemporary community standards, would find that
taken as a whole appeals to the prurient interest in sex, depicts or
describes patently offense representations of ultimate sex acts or other
lewd exhibitions, and taken as a whole, lacks serious literary, artistic,
political, and scientific value.  However,  there is no enhancement for
promotion or wholesale promotion of obscene material depicting a child.
H.B. 236 is aimed at strengthening Texas' obscenity law in regard to
material that depicts images of children. 


This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency. 


SECTION 1.  Amends Section 43.23, Penal Code, by amending Subsections (b)
and (d) and adding Subsections (h), (i), and (j), as follows: 

(b)  Establishes that an offense under Subsection (a) is a state jail
felony, except as provided by Subsection (h).  Makes a nonsubstantive
(d)  Establishes that an offense under Subsection (c) is a Class A
misdemeanor, except as provided by Subsection (h).  Makes a nonsubstantive

(h)  Specifies that 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: a
child younger than 18 years of age at the time the image of the child was
made; an image that to a reasonable person would be virtually
indistinguishable from the image of a child younger than 18 years of age;
or an image created, adapted, or modified to be the image of an
identifiable child. 

 (i)  Defines "identifiable child."

(j)  Provides that 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. 

SECTION 2.  Amends Section 12.42(c)(2), Penal Code, to require the
defendant to be punished by imprisonment in the institutional division for
life if  the defendant has been previously convicted of an offense under
Section 43.25, 43.26, Penal Code, or an offense under Section 43.23, Penal
Code, punishable under Subsection (h) of that section. 

SECTION 3.  Amends Section 25.08(c), Penal Code, to provide that an
offense under this section is a felony of the third degree, except that
the offense is a felony of the second degree if the actor  commits the
offense with intent to commit an offense under Section 43.25. 

SECTION 4.  Amends Sections 43.25(a)(2) and (7), Penal Code, to redefine
"sexual conduct" and "deviate sexual intercourse." 

SECTION 5.  Amends Section 43.25(f), Penal Code, to delete text providing
that it is an affirmative defense to a prosecution if the defendant, in
good faith, reasonably believed that the child who engaged in the sexual
conduct was 18 years of age or older. 

SECTION 6.  Amends Subchapter B, Chapter 43, Penal Code, by adding Section
43.27, as follows:  

 Sec.  43.27.  DUTY TO REPORT.  (a)  Defines "visual material."

(b) Requires  a business that develops or processes visual material and
determines that the material may be evidence of a criminal offense under
this subchapter to report the existence of the visual material to a local
law enforcement agency. 

SECTION 7.  Amends Article 59.01 (2), Code of Criminal Procedure, to
redefine "contraband." 

SECTION 8.  Amends Article 62.01(5) and (6), Code of Criminal Procedure,
to redefine "reportable conviction or adjudication" and "sexually violent

SECTION 9.  Amends Article 62.0101(a), Code of Criminal Procedure, to
provide that the department is responsible for determining for the
purposes of this chapter whether an offense under the laws of another
state, federal law, the laws of a foreign country, or the Uniform Code of
Military Justice contains elements that are substantially similar to the
elements of an offense under the laws of this state. 

SECTION 10.  Amends  Articles 62.021(a) and (c), Code of Criminal
Procedure, to make conforming changes. 

SECTION 11.  Reenacts and amends Article 62.12(a), Code of Criminal
Procedure, as amended by Chapters 211 and 1297, Acts of the 77th
Legislature, Regular Session, 2001, to provide that the duty to register
for a person ends when the person dies if the person has a reportable
conviction or adjudication, other than an adjudication of delinquent
conduct for an offense under Section 25.02, 43.05(a)(2), or 43.26, Penal
Code, or an offense punishable under Section 43.23(h), Penal Code.
Deletes text referencing Chapter 1193, Acts of the 76th Legislature,
Regular Session, 1999. 

SECTION 12.  Makes application of this Act prospective.
SECTION 13.  Provides that the change in law made by this Act in amending
Articles 62.01, 62.0101, and 62.021, Code of Criminal Procedure, applies
to a person subject to registration under Chapter 62, Code of Criminal
Procedure, for an offense or conduct committed before, on, or after the
effective date of this Act.  

SECTION 14.  Effective date: September 1, 2003.