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A BILL TO BE ENTITLED
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AN ACT
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relating to affirmative defenses to possession of child |
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pornography. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter A, Section 43, Chapter 26, is amended |
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to read as follows: |
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Sec. 43.26. POSSESSION OR PROMOTION OF CHILD PORNOGRAPHY. |
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(a) A person commits an offense if: |
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(1) the person knowingly or intentionally possesses, |
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or knowingly or intentionally accesses with intent to view, visual |
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material that visually depicts a child younger than 18 years of age |
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at the time the image of the child was made who is engaging in sexual |
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conduct, including a child who engages in sexual conduct as a victim |
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of an offense under Section 20A.02(a)(5), (6), (7), or (8); and |
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(2) the person knows that the material depicts the |
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child as described by Subdivision (1). |
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(b) In this section: |
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(1) "Promote" has the meaning assigned by Section |
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43.25. |
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(2) "Sexual conduct" has the meaning assigned by |
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Section 43.25. |
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(3) "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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that allows an image to be displayed on a computer or other video |
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screen and any image transmitted to a computer or other video screen |
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by telephone line, cable, satellite transmission, or other method. |
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(c) The affirmative defenses provided by Section 43.25(f) |
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22.011(d) also apply to a prosecution under this section. |
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(d) An offense under Subsection (a) is a felony of the third |
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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 has been previously convicted |
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one time of an offense under that subsection; and |
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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 person has been previously convicted |
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two or more times of an offense under that subsection. |
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(e) A person commits an offense if: |
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(1) the person knowingly or intentionally promotes or |
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possesses with intent to promote material described by Subsection |
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(a)(1); and |
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(2) the person knows that the material depicts the |
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child as described by Subsection (a)(1). |
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(f) A person who possesses visual material that contains six |
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or more identical visual depictions of a child as described by |
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Subsection (a)(1) is presumed to possess the material with the |
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intent to promote the material. |
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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 a felony of the first |
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degree if it is shown on the trial of the offense that the person has |
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been previously convicted of an offense under that subsection. |
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(h) It is a defense to prosecution under Subsection (a) or |
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(e) that the actor is a law enforcement officer or a school |
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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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SECTION 2. This Act takes effect September 1, 2021. |