79R4057 KCR-D

By:  Deuell                                                       S.B. No. 1294



A BILL TO BE ENTITLED

AN ACT

relating to the punishment for the offense of obscenity.                      
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:                        
	SECTION 1.  Sections 43.23(h) and (j), Penal Code, are 
amended to read as follows:
	(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) 
that:
		(1)  are engaged in by:                                                
			(A) [(1)]  a child younger than 18 years of age at 
the time the image of the child was made;
			(B) [(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
			(C) [(3)]  an image created, adapted, or modified 
to be the image of an identifiable child; or
		(2)  include conduct constituting murder, capital 
murder, sexual assault, or aggravated sexual assault.
	(j)  An attorney representing the state who seeks an increase 
in punishment under Subsection (h)(1)(C) [(h)(3)] is not required 
to prove the actual identity of an identifiable child.
	SECTION 2.  The change in law made by this Act applies only 
to an offense committed on or after the effective date of this Act.  
An offense committed before the effective date of this Act is 
covered by the law in effect at the time the offense was committed, 
and the former law is continued in effect for that purpose.  For 
purposes of this section, an offense was committed before the 
effective date of this Act if any element of the offense was 
committed before that date.
	SECTION 3.  This Act takes effect September 1, 2005.