H.B. 236 78(R)    BILL ANALYSIS


H.B. 236
By: West, George "Buddy"
Criminal Jurisprudence
Committee Report (Unamended)


BACKGROUND AND PURPOSE 

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. Under current Texas law, there is no
enhancement for promotion or wholesale promotion of obscene material
depicting a child.   

House Bill 236 is aimed at strengthening Texas' obscenity law in regard to
material that depicts images of children. This legislation is needed due
to the United States Supreme Court's decision in Ashcroft v. Free Speech
Coalition in the spring of 2002, which stated that the U.S. Child
Pornography Prevention Act of 1996's banning of "virtual child porn"
violates free speech and is unconstitutional. "Virtual" images cannot be
deemed illegal as child pornography, the Court said, because an actual
child was not exploited in the process. However, so-called "virtual"
images can indeed be deemed obscene if they offend contemporary community
standards and other definitions put forth in statute. H.B. 236 provides
enhancements to Texas' obscenity statutes which will provide clear
alternatives to prosecution of "virtual" child pornography. 

Further, Texas law does not currently address the issue of "morphing,"
that is cutting and pasting or otherwise altering, via traditional or
computer methods, an innocent picture of a child to make it appear that
the child is engaged in sexual activity.  (One example is pasting a
child's head onto an adult's body or vice versa.)  Morphing is prohibited
in the U.S. Child Pornography Prevention Act, and because it implicates
the interests of real children, it was not challenged by the Free Speech
Coalition and the Supreme Court did not consider it.  Because of these
facts, H.B. 236 also enhances penalties for wholesale promotion or
promotion of an obscene image created, adapted, or modified to be the
image of an identifiable child. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency, or
institution. 

ANALYSIS

House Bill 236 enhances the penalties one degree for promotion or
wholesale promotion of obscene material that depicts a real child under
the age of 18 or is an image that to a reasonable person would be
virtually indistinguishable from the image of a child younger than 18
years of age. H.B. 236 also enhances penalties for wholesale promotion or
promotion of an obscene image created, adapted, or modified to be the
image of an identifiable child ("morphed" from an image of a real child). 

Wholesale promotion of this material is a third degree felony, while
simple promotion is a state jail felony. H.B. 236 also makes these
offenses applicable under the habitual offender enhancements in Section
12.42 of the Penal Code, and under the list of sex offenses that require
sex offender registration for life.  

EFFECTIVE DATE

September 1, 2003.