Facing a charge of possessing or promoting child pornography in Texas is not only legally complex but also personally devastating. The stakes in these cases are extraordinarily high: felony convictions carry years in prison, mandatory sex offender registration, and permanent damage to reputation and future opportunities. The law governing these offenses is technical, often involving nuanced definitions, digital forensics, and strict procedural rules. Prosecutors frequently rely on broad interpretations of statutes such as Texas Penal Code § 43.26, and even small evidentiary errors can dramatically change the outcome.
Anyone accused of such an offense must take immediate action to preserve their legal rights and begin building a defense before law enforcement and the prosecution solidify their case. Delays can limit strategic options and weaken the ability to challenge questionable evidence. Below, The Law Office of Kevin Bennett explains what individuals need to know about child pornography laws, including clarification of key state and federal charges, penalties for violating the law, defenses to charges, important steps in a child pornography case, and the role of the Austin child pornography lawyer in defending clients
Lawyer for Child Pornography in Austin, Texas
Child pornography accusations could potentially disrupt your life, but a conviction has the potential to devastate your professional and personal goals. If convicted, you could be sentenced to years in prison as well as be obligated to pay expensive out-of-pocket fines. Having strong reputable legal counsel to guide you isn’t just important, but necessary if you want to successfully defend yourself in court.
If you or someone you know has been accused of possessing, transmitting or creating child pornography, then contact The Law Office of Kevin Bennett. Attorney Kevin Bennett has defended people of all types of sex crimes involving children including child pornography. He can assess the evidence and create a strong and effective defense for your case. Call The Law Office of Kevin Bennett now at (512) 476-4626 to set up your first consultation free of charge today.
The Law Office of Kevin Bennett accepts clients throughout the greater Travis County area including Austin, West Lake Hills, Bee Cave, and Del Valle.
Overview of Child Pornography Charges in Texas
- Texas Child Pornography Laws and Penalties
- Key Elements a Jury Considers in Texas Child Pornography Cases
- Federal Law on Child Pornography
- Who Investigates Child Pornography in Texas?
- Defenses to Child Pornography Charges in Texas
- Frequently Asked Questions About Texas Child Pornography Laws
- Supporting References
Texas Child Pornography Laws and Penalties
Possession or Promotion of Child Pornography in Texas — Texas Penal Code § 43.26 makes it a crime for a person to intentionally or knowingly have, access with the intent to view, or promote visual material that shows a child under the age of 18 engaging in sexual conduct. Sexual conduct includes sexual contact, sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola. A conviction for possession is generally a third-degree felony, carrying a punishment of two to ten years in prison and a possible fine of up to $10,000. If the person has a prior conviction under § 43.26, possession can be charged as a second-degree felony, which is punishable by two to twenty years in prison. Promotion of child pornography, which means distributing, selling, giving, or otherwise making such material available, is normally a second-degree felony. With a prior conviction, promotion becomes a first-degree felony, carrying a penalty of five to 99 years or life in prison.
Sexual Performance by a Child in Texas — Under Texas Penal Code § 43.25, it is illegal to employ, authorize, or induce a child younger than 18 to engage in sexual conduct or to be part of a sexual performance. A parent, guardian, or custodian of a child can also be prosecuted for consenting to the child’s participation in such a performance. “Performance” includes plays, motion pictures, photographs, dances, or other visual representations shown to one or more people. Producing, directing, or promoting such a performance is also criminalized. If the child is under 18 but at least 14, the offense is a second-degree felony. If the child is younger than 14, it is a first-degree felony, regardless of whether the accused knew the age of the child.
Employment Harmful to Children in Texas — Texas Penal Code § 43.251 makes it a crime to employ, authorize, or induce a person under 18 years of age to work in sexually oriented commercial activities or in any setting that requires or permits the child to work nude or topless. “Sexually oriented commercial activity” can include nude studios, modeling studios, love parlors, and other businesses that primarily offer sexual stimulation or gratification. When the child is under 18 but at least 14, the charge is a second-degree felony. If the child is younger than 14, it becomes a first-degree felony. This law applies whether or not the accused knew the child’s age at the time.
Computer Technicians Who Find Child Pornography — According to Texas Business and Commerce Code § 110.002, a computer technician who, during the course of servicing a computer for a fee, sees an image that is or appears to be child pornography must immediately report it to local or state law enforcement or to the National Center for Missing and Exploited Children’s Cyber Tipline. Failure to report as required is a Class B misdemeanor, which is punishable by up to 180 days in jail and a fine of up to $2,000.
Online Promotion of Prostitution Involving Minors — While the primary statutes on child pornography are in Penal Code Chapter 43, some related offenses can overlap, such as online promotion of prostitution under Penal Code § 43.031 and aggravated online promotion of prostitution under § 43.041. If the conduct involves a person under 18 years of age engaging in prostitution, the penalties can reach the level of a second-degree or first-degree felony, regardless of whether the accused knew the person’s age.
Sex Offender Registration Requirement for Child Pornography Crimes — Under Texas Code of Criminal Procedure Chapter 62, people convicted of possession or promotion of child pornography under § 43.26, sexual performance by a child under § 43.25, and certain related offenses must register as sex offenders. Registration involves providing personal and identifying information to local law enforcement and keeping it current for a period of years or for life, depending on the offense and the person’s criminal history. Failing to comply with registration requirements is a separate felony offense.
Key Elements a Jury Considers in Texas Child Pornography Cases
Knowingly or Intentionally in a Child Pornography Case — Prosecutors must prove that the accused acted with awareness of their actions.
Visual Depiction Under Texas Law — The statutes broadly define visual material to include photographs, videos, films, negatives, slides, or any computer-generated or electronically stored images. Images that have been created, adapted, or modified to look like an identifiable child are also covered.
How Texas Law Defines a Child — For offenses under Penal Code §§ 43.25 and 43.26, a child is defined as a person younger than 18 years of age. The law makes clear that the state does not have to prove the accused knew the person’s exact age.
Federal Law on Child Pornography
Using, Persuading, or Coercing a Minor to Produce Images — Under 18 USC § 2251(a), it is a federal crime for any person to use, induce, employ, persuade, coerce, or entice a minor to take part in sexually explicit conduct for the purpose of creating a visual depiction of that conduct. The penalties are severe: a first conviction carries a mandatory minimum sentence of 15 years and a maximum of 30 years in federal prison. For those with prior convictions for sexual exploitation of children or related offenses, the sentence increases to a mandatory minimum of 25 years and can reach up to 50 years.
Attempting or Conspiring to Produce Child Pornography — 18 USC § 2251(e) makes it a crime to attempt or conspire to commit any offense under § 2251. The penalties for attempt or conspiracy are the same as for the completed offense. Prosecutors often rely on digital communications, undercover operations, and forensic examination of devices to prove these cases.
Special Provisions for Repeat Offenders and Aggravating Factors — Certain aggravating factors, such as prior convictions for sexual exploitation, abuse, or pornography-related crimes, significantly increase penalties under § 2251. If a defendant has two or more prior qualifying convictions, the mandatory minimum rises to 35 years, with a maximum of life imprisonment. Sentences may also be enhanced if the offense involved particularly young victims, acts of violence, or distribution of the material.
Knowingly Receiving Child Pornography — Under 18 USC § 2252(a)(2) and 18 USC § 2252A(a)(2), it is a federal crime to knowingly receive a depiction of a minor that is engaged in explicit conduct of a sexual nature when the depiction has been transported using any means or facility of interstate or foreign commerce, including the internet. A first-time conviction carries a mandatory minimum of 5 years in federal prison and a max of 20 years. If the defendant has prior convictions for sexual exploitation of children or certain other offenses, the range increases to 15 to 40 years.
Distributing Child Pornography — Distribution offenses under these statutes involve sending, transferring, posting, trading, or sharing illegal material with others. This can include peer-to-peer file sharing networks, cloud storage links, messaging platforms, or physical media. The penalties mirror those for receipt: 5 to 20 years for a first offense, and 15 to 40 years with qualifying prior convictions.
Who Investigates Child Pornography in Texas?
Federal Investigators — On the federal level, child pornography cases in Austin are often handled by the Federal Bureau of Investigation (FBI), the Department of Homeland Security’s Homeland Security Investigations (HSI), and the United States Postal Inspection Service (USPIS). These agencies typically investigate offenses involving interstate or international transmission of illegal material, large-scale distribution networks, or cases tied to organized criminal activity. Federal investigators may work closely with prosecutors from the United States Attorney’s Office for the Western District of Texas.
State and Local Investigators — At the state level, the Texas Department of Public Safety (DPS) and the Texas Attorney General’s Office, particularly the Child Exploitation Unit, investigate violations of Texas child pornography laws. In Austin, the Austin Police Department (APD) often leads local investigations, sometimes in partnership with DPS or federal agents. Joint task forces allow state and federal authorities to share resources and coordinate complex cases.
Defenses to Child Pornography Charges in Texas
Lack of Knowledge — Both Texas and federal statutes require proof that the accused acted knowingly, meaning they were aware of the nature of the material and that it depicted a minor. Files that were automatically cached, unknowingly downloaded, or placed on a device by malware can undermine the state’s ability to prove knowing possession or receipt.
No Control or Possession — Possession requires actual care, custody, control, or management of the material. When files are located on shared devices, public networks, or cloud accounts without exclusive access, the prosecution may not be able to prove the accused exercised control over them.
Depicted Person Was Not a Minor — Both state and federal law define a minor as a person under 18 years old. If credible evidence, such as official records or sworn testimony, shows the person depicted was at least 18 at the time, this can defeat the charge.
Constitutional Challenges — Under the Fourth Amendment, evidence obtained through an unlawful search or seizure may be suppressed. In federal cases, warrants that are overly broad or that authorize excessive digital data collection are especially vulnerable to challenge.
Entrapment in Sting Operations — Federal investigations often involve undercover agents posing online. Entrapment can be a defense when the government induces the crime and the accused lacked a predisposition to commit it.
Chain of Custody and Forensic Integrity — Both Texas and federal courts require the prosecution to maintain an unbroken chain of custody for digital evidence. Any gap, alteration, or possibility of tampering can cast doubt on the reliability of the files. This can be critical when challenging forensic imaging methods used in federal investigations.
Bona Fide Law Enforcement, Educational, or Medical Purpose — Texas Penal Code § 43.26 provides a defense when the material was possessed or accessed strictly for legitimate law enforcement, judicial, legislative, medical, psychiatric, or educational purposes.
Mistaken Identity — In cases involving shared devices, public Wi-Fi, or hacked accounts, it may be possible to demonstrate that another person, not the accused, accessed or possessed the material.
Lack of Sexual Conduct in the Depiction — If the material does not depict sexual conduct as defined in § 43.25 or “sexually explicit conduct” under 18 USC § 2256, the prosecution may fail to meet an essential element of the offense.
Frequently Asked Questions About Texas Child Pornography Laws
What is the age definition of a child in Texas and federal child pornography cases?
Texas law defines a child as any person younger than 18 years old for offenses such as Penal Code § 43.26 and § 43.25. Federal law under 18 USC § 2256 uses the same definition. In both systems, the prosecution does not need to prove the accused knew the person’s actual age.
Can sexting with someone under 18 lead to charges under these laws?
Yes. In Texas, sexting that includes visual depictions of a person under 18 engaged in sexual conduct can be prosecuted under Penal Code § 43.26, even if both participants are minors. In federal court, transmitting such images can also trigger charges under statutes like 18 USC § 2252 or § 2252A, and the penalties in federal court are often more severe.
Can someone be charged if they did not know the material was on their device?
Yes, but both Texas and federal law require proof of knowing possession or intent to view. If the files were automatically downloaded, cached, or placed there without the accused’s knowledge, a defense lawyer may argue there is insufficient evidence for conviction.
Will a conviction require sex offender registration?
Yes. In Texas, a conviction for possession, promotion, or sexual performance by a child under Penal Code § 43.26 or § 43.25 typically requires registration under Chapter 62 of the Texas Code of Criminal Procedure, often for life. Federal convictions for child pornography offenses also require registration under the federal Sex Offender Registration and Notification Act (SORNA).
Can someone face charges for computer-generated / AI images?
Yes. Texas law covers images virtually indistinguishable from a real child under 18 engaged in sexual conduct, including computer-generated depictions. Federal law under 18 USC § 2256 similarly includes certain computer-generated or morphed images if they appear to depict actual minors or otherwise meet statutory definitions.
Can parents be prosecuted under sexual performance by a child laws?
Yes. Under Texas Penal Code § 43.25, parents, guardians, or custodians who consent to a child’s participation in a sexual performance can be charged. Federal law also criminalizes inducing or coercing a minor to engage in sexually explicit conduct for the purpose of creating a visual depiction, regardless of parental status.
What happens if the person in the image lied about their age?
In most cases, it is not a defense under either Texas or federal law that the minor misrepresented their age. The statutes generally do not require proof that the accused knew the person’s true age.
Supporting References
City of Austin — Search the Registered Sex Offenders Database — This City of Austin webpage links to the Texas Department of Public Safety’s public sex offender registry. It allows users to search for registered sex offenders by name or geographic area to view publicly available registration information.
Texas Penal Code on Public Indecency — This section of the Texas Penal Code explains the laws on public indecency, including prostitution, obscenity, sexual performance by a child, and possession or promotion of child pornography. It provides definitions, elements of each offense, and the penalties for violating these laws.
Child Pornography — United States Department of Justice — This page outlines the federal definition of child pornography and explains how such offenses are investigated and prosecuted.
Citizen’s Guide to U.S. Federal Law on Child Pornography — United States Department of Justice — This guide explains U.S. federal laws regarding child pornography, including definitions, prohibited activities, jurisdictional considerations, and potential penalties. It outlines relevant sections of Title 18 of the U.S. Code and clarifies how federal law applies when interstate or foreign commerce is involved.
Attorney General Defends Texas Online Pornography Law — This press release describes the Texas Attorney General’s arguments before the U.S. Supreme Court in defense of House Bill 1181, which requires pornography websites to use age verification to prevent minors from accessing harmful sexual content online.
Child Pornography Defense Attorney in Travis County, Texas
Have you been accused of possessing, transmitting or producing child pornography? The damage the accusations can do to your reputation is tremendous, but the statutory penalties could potentially put you behind bars for years. With this in mind, we highly encourage you to gain legal representation with extensive experience in child sex crimes.
Attorney Kevin Bennet at The Law Office of Kevin Bennett has been practicing criminal defense for years and has represented numerous people accused of various sex crimes. His skills, resources and years of practice can be utilized to create a sturdy defense for your case. Call The Law Office of Kevin Bennett now at (512) 476-4626 to set up your first consultation in the Austin, Texas area. The Law Office of Kevin Bennett accepts clients throughout the greater Travis County area including Rollingwood, Pflugerville, Lago Vista and Lakeway.
