New Sexting Law In Texas

Under current law, the act of sending a sexually explicit text message may be prosecuted under adult
pornography laws. This can lead to felony convictions and possible life long registration under the sex offender registration program. As a result, some prosecutors can either charge juveniles that engage in this behavior with crimes that carry overly harsh penalties or enter no charges at all.
S.B. 407 creates a new offense in Section 43.261 of the Penal Code for what is commonly known as “sexting.” Under this new law, it is an offense for a minor to intentionally or knowingly: (1) promote by electronic means to another minor visual material depicting a minor, including the actor, engaging in sexual
conduct, if the actor produced the visual material or knew that another minor produced it, or (2) possess in electronic format visual material depicting another minor engaging in sexual conduct, if the actor produced
the visual material or knew that another minor produced it. Sexual conduct means sexual contact, actual
or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola. The new law also has an affirmative defense for sexting between minor spouses or between minors within two years of age who were dating at the time of the offense. This mirrors an existing defense under the pornography statute, which is necessary because without the defense, two minors could legally have sex but could not “sext.” The law also provides a defense to prosecution to protect an innocent recipient of an unsolicited sext if the minor recipient destroyed the sext within a reasonable time of receiving it.

The promotion and possession offense is a Class C misdemeanor (maximum penalty of of $500 fine), but the penalties are enhanced for repeat offenses (and capped at a Class A misdemeanor). A promotion offense is a Class B misdemeanor if the minor promoted the material with the intent to harass, annoy, alarm, abuse, torment, embarrass, or offend another, and a Class A misdemeanor for repeat offenses.