Texas Possession or Promotion of Child Pornography – Penal Code 43.26

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 Is There a Law in Texas Prohibiting the Promotion or Possession of Child Pornography?

Yes, in Texas, there is a statute against promoting or owning child pornography. If an individual knowingly or willfully accesses photographs of a minor participating in sexual activity, they are breaking the law.

The individual must have had the intention to view or watch the content. An individual may have questions regarding child pornography laws. If so, they should consult with a local Texas attorney.

What Is Child Pornography?

Any content that shows a juvenile having sexual relations or engaging in sexual behavior is considered to be child pornography. This is considered to be obscene content.

Breaking federal child pornography laws may be punished by a fine and a sentence of up to 40 years in jail. Each state has its own charges and sanctions for breaking state laws governing child pornography.

It is important to note that sexual intercourse is not required for behavior to be considered sexually explicit. Any sexually related conduct that would be unacceptable to depict a minor engaging in would qualify.

There are both federal and state regulations that govern child pornography. It may be considered child pornography even if a photograph or video was edited to make it appear that a child was performing the act or engaging in the conduct.

There are few exceptions to this law, for example, artistic renderings or representations with significant literary, aesthetic, or scientific value. For example, a textbook on anatomy that includes illustrations of a child’s anatomy may not be considered child pornography.

Some individuals have unsuccessfully attempted to argue that the First Amendment should protect child pornography as free speech or expression. Courts have rejected this reasoning because child pornography suggests that other crimes or violations occurred during the creation of the photos.

What Are Child Pornography’s Illegal Uses?

The fundamental rule an individual should keep in mind when they are determining whether child pornography is permitted is that it likely is not if it even makes mention of children. In terms of the laws that govern child pornography, every state has its own.

Child pornography may also be charged as a federal offense. Federal offenses that involve the use of child pornography may include:

  • Mailing child pornography across state lines, including via email;
  • Receiving child pornography with knowledge;
  • Selling or dispersing child pornography with knowledge; and
  • Promoting child pornography through the mail across state lines, including through email.

What Exactly Is “Visual Material”?

Visual material includes any type of:

  • Videotape;
  • Film;
  • Photography;
  • Slide;
  • Photographic reproduction;
  • Negative;
  • Disks or other physical media that enables the display of images on a video or computer screen; and
  • Any picture sent by satellite, phone line, cable, or any other channel to a computer or video screen.

What if Child Pornography Was Not Actually in My Possession?

If an individual advocates child pornography, they may be accused of being involved in its possession. In Texas,
encouraging child pornography may include:

  • Manufacturing;
  • Selling, issuing, giving, or lending;
  • Providing, mailing, delivering, transferring, publishing; and
  • Transmitting, disseminating, displaying, circulating, offering, presenting, or agreeing to assist in distribution.

Is It Illegal to Promote or Possess Child Pornography?

Yes, it is illegal to promote or possess child pornography. The classification of the offense as a felony relies on the particulars of the case.

When an individual is initially accused of this offense, they will be charged with a third-degree felony that may carry the following penalties:

  • State prison sentence of two to ten years;
  • A $10,000 fine;
  • Both a fine and a term in state prison.

The following punishments may apply to second-degree felonies:

  • Two to twenty years in jail;
  • A $10,000 fine;
  • A combination of both.

It is a first-degree felony if the perpetrator knows the child portrayed in the pornographic material. Punishment for this offense may include:

  • A state prison sentence of five to 99 years;
  • A $10,000 fine; or
  • A combination of both.

An individual could be found guilty of violating child pornography laws. In that case, they may also be required to participate in a supervised sex offender release program for a longer time or sign up for a sex offender database, referred to as a sex offender registry. An individual who is found guilty of one or more sexual offenses that violate local, state, or federal law is referred to as a sex offender.

If a defendant does not register or update their registry, they may face additional criminal charges. The records maintained by states of individuals who are convicted of specific sexual offenses are referred to as sexual offender registries.

Federal laws require that these registries be kept up to date by the states. Although the requirements for registration may vary by state, they typically include individuals who have been found guilty of felony statutory rape, criminal child sexual abuse, or both.

These types of registries usually include:

  • The name of the offender;
  • The offender’s residence address;
  • In certain states, the offenses of which they were convicted.

Although parole boards usually demand a residency listing, even if it is something such as “the bridge beyond the Safeway store,” offenders who cannot provide an address will not be penalized. With the approval of a court, these registration lists have to be made available to law enforcement, individuals, organizations, or victims.

In some states, these lists are publicly accessible. The listings are also accessible in other states because all state documents are open to the public.

Many states also keep a list online.

Can Child Pornography Victims File a Civil Lawsuit?

Yes, a victim of child pornography victim may file a civil lawsuit. A distributor may be sued by a minor who was depicted in the material in order to prevent sales or distribution.

Although civil cases do not have the same consequences as criminal convictions, they, nevertheless, enable the victim to receive some type of compensation for their losses. Punitive damages, as well as the cost of the legal action, may be included in the damages award.

What Legal Defenses Do I Have if I’ve Been Charged With Possession or Distribution of Child Pornography?

There may be some child pornography defenses that apply if an individual is accused of possessing or promoting child pornography. It is always best for a defendant to seek the advice and aid of an attorney in order to present any defenses and resolve their case in the most favorable way possible.

For example, if it can be demonstrated that none of the individuals in the material are really children, it may serve as a defense. In this type of case, a defense may be offered that involves the dissemination of child pornography.

There may also be more defenses available when the charges include possession of child pornography. The best course of action in any situation in which child pornography unintentionally ends up in an individual’s possession is to destroy the material and report it to law enforcement.

Even if an individual has the best of intentions, they should not show the material to anyone else. Doing so may cause them additional legal or criminal issues.

An individual might not be aware that the content they were accessing, downloading, or otherwise using was child pornography; that is one of the best methods to fight child pornography allegations. Because it is not lawful to own adult pornography, it is possible that an individual unintentionally browsed child pornography materials or unintentionally downloaded the content from a file-sharing website under the impression that it was a movie or a TV show.

A defendant may also argue that, although the individual’s computer has the material, they did not download it. If a computer is shared, located in a shared area, or has multiple users, such as in a work environment, this defense may be available.

Should I Get in Touch With a Lawyer?

If you are facing possession or promotion of child pornography charges in the State of Texas, it is essential to consult with a Texas criminal attorney. Charges that involve child pornography are very severe and may lead to significant legal consequences.

These consequences may affect your criminal record and ability to own firearms, vote, and obtain certain jobs. Your attorney will determine if any defenses are available in your case and negotiate with the prosecution for the best possible outcome.

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