Penal Code § 43.26

Sec. 43.26. POSSESSION OR PROMOTION OF CHILD PORNOGRAPHY. (a) In this section: (1) "Depiction of a child" means, with respect to an image of a child contained in visual material: (A) a depiction of a child who was younger than 18 years of age at the time the image of the child was made; or (B) a depiction of a child: (i) who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and (ii) whose image as a child younger than 18 years of age was used in creating, adapting, or modifying the visual material, including computer-generated visual material that was created, adapted, or modified using an artificial intelligence application or other computer software. (2) "Depiction of a computer-generated child" means, with respect to an image of a child contained in visual material, a depiction: (A) appearing to be a child younger than 18 years of age; (B) created using an artificial intelligence application or other computer software; and (C) that to a reasonable person is virtually indistinguishable from an actual child younger than 18 years of age. (3) "Promote" and "sexual conduct" have the meanings assigned by Section 43.25. (4) "School library" means a library of a public or private primary or secondary school. (5) "Visual material" means: (A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or (B) any disk, diskette, or other physical medium, or a file in any digital format, that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method. (a-1) A person commits an offense if: (1) the person intentionally or knowingly possesses, or intentionally or knowingly accesses with intent to view, visual material that contains a visual depiction of a child engaging in sexual conduct, including a depiction of a child engaging in sexual conduct as a victim of an offense under Section 20A.02(a)(5), (6), (7), or (8); and (2) the person knows or should have known that the depiction described by Subdivision (1) is of a child younger than 18 years of age at the time the image of the child was made. (a-2) A person commits an offense if the person: (1) intentionally or knowingly possesses, or intentionally or knowingly accesses with intent to view, visual material that contains a visual depiction of a computer-generated child engaging in sexual conduct; and (2) either: (A) knows or should have known that the depiction described by Subdivision (1) appears to be of a child younger than 18 years of age; or (B) believes that the depiction is of an actual child younger than 18 years of age at the time the image of the child was made. (b) Repealed by Acts 2025, 89th Leg., R.S., Ch. 847 (S.B. 1621), Sec. 7(1), eff. September 1, 2025. (c) Repealed by Acts 2025, 89th Leg., R.S., Ch. 847 (S.B. 1621), Sec. 7(1), eff. September 1, 2025. (c-1) An offense under Subsection (a-1) is a felony of the third degree, except that the offense is: (1) a felony of the second degree if it is shown on the trial of the offense that the actor: (A) has been previously convicted one time of an offense: (i) under this chapter; or (ii) described by Article 62.001(5), Code of Criminal Procedure; or (B) possesses visual material that contains 10 or more visual depictions of a child engaging in sexual conduct as described by Subsection (a-1)(1) but fewer than 50 such depictions; (2) a felony of the first degree if it is shown on the trial of the offense that the actor: (A) has been previously convicted two or more times of an offense, or any combination of offenses: (i) under this chapter; or (ii) described by Article 62.001(5), Code of Criminal Procedure; or (B) possesses visual material that: (i) contains 50 or more visual depictions of a child engaging in sexual conduct as described by Subsection (a-1)(1); or (ii) visually depicts conduct constituting an offense under Section 22.011(a)(2); or (3) a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 25 years if it is shown on the trial of the offense that: (A) at the time of the offense, the actor was: (i) an employee at a child-care facility or a residential child-care facility, as those terms are defined by Section 42.002, Human Resources Code; (ii) an employee at a residential treatment facility established under Section 221.056, Human Resources Code; (iii) an employee at a shelter or facility that serves youth and that receives state funds; or (iv) receiving state funds for the care of a child depicted by the visual material; or (B) the actor displayed the visual material or caused the visual material to be displayed in a school library. (c-2) If it is shown on the trial of an offense under Subsection (a-1) that the visual material contained a depiction of a child younger than 10 years of age at the time the image of the child was made engaging in sexual conduct as described by Section (a-1)(1): (1) an offense punishable under Subsection (c-1) as a felony of the second or third degree is increased to the next higher category of offense; or (2) the minimum term of imprisonment for an offense described for purposes of punishment by Subsection (c-1)(2) is increased to 15 years. (c-3) An offense under Subsection (a-2) is a state jail felony, except that the offense is: (1) a felony of the third degree if it is shown on the trial of the offense that the actor: (A) has been previously convicted one time of an offense: (i) under this chapter; or (ii) described by Article 62.001(5), Code of Criminal Procedure; or (B) possesses visual material that contains 10 or more visual depictions of a computer-generated child engaging in sexual conduct as described by Subsection (a-2)(1) but fewer than 50 such depictions; (2) a felony of the second degree if it is shown on the trial of the offense that the actor: (A) has been previously convicted two or more times of an offense, or any combination of offenses: (i) under this chapter; or (ii) described by Article 62.001(5), Code of Criminal Procedure; or (B) possesses visual material that contains 50 or more visual depictions of a computer-generated child engaging in sexual conduct as described by Subsection (a-2)(1); or (3) a felony of the second degree with a minimum term of imprisonment of 10 years if it is shown on the trial of the offense that: (A) at the time of the offense, the actor was an employee described by Subsection (c-1)(3)(A)(i), (ii), or (iii); or (B) the actor displayed the visual material or caused the visual material to be displayed in a school library. (c-4) If it is shown on the trial of an offense under Subsection (a-2) that the visual material contained a depiction of a computer-generated child who appears to be younger than 10 years of age and is engaging in sexual conduct as described by Subsection (a-2)(1), the punishment for the offense is increased to the punishment for the next higher category of offense, provided that the minimum term of imprisonment for an offense described for purposes of punishment by Subsection (c-3)(3) is 10 years. Without reference to the amendment of this subsection, this subsection was repealed by Acts 2025, 89th Leg., R.S., Ch. 847 (S.B. 1621), Sec. 7(1), eff. September 1, 2025. (d) An offense under Subsection (a) is: (1) a felony of the third degree if the person possesses visual material that contains fewer than 10 visual depictions of a child as described by Subsection (a)(1); (2) a felony of the second degree if the person possesses visual material that contains 10 or more visual depictions of a child as described by Subsection (a)(1) but fewer than 50 such depictions; (3) a felony of the first degree if the person: (A) possesses visual material that contains 50 or more visual depictions of a child as described by Subsection (a)(1); or (B) possesses visual material of conduct constituting an offense under Section 22.011(a)(2); or (4) a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 25 years if it is shown on the trial of the offense that, at the time of the offense, the person was: (A) an employee at a child-care facility or a residential child-care facility, as those terms are defined by Section 42.002, Human Resources Code; (B) an employee at a residential treatment facility established under Section 221.056, Human Resources Code; (C) an employee at a shelter or facility that serves youth and that receives state funds; or (D) receiving state funds for the care of a child depicted by the visual material. (d-1) Repealed by Acts 2025, 89th Leg., R.S., Ch. 250 (H.B. 1778), Sec. 3.03, and Ch. 847 (S.B. 1621), Sec. 7, eff. September 1, 2025. (d-2) Repealed by Acts 2025, 89th Leg., R.S., Ch. 250 (H.B. 1778), Sec. 3.03(2), and Ch. 847 (S.B. 1621), Sec. 7(1), eff. September 1, 2025. (e) A person commits an offense if: (1) the person intentionally or knowingly promotes or possesses with intent to promote visual material described by Subsection (a-1)(1); and (2) the person knows or should have known that the depiction described by Subsection (a-1)(1) is of a child younger than 18 years of age at the time the image of the child was made. (e-1) A person commits an offense if the person: (1) intentionally or knowingly promotes or possesses with intent to promote visual material described by Subsection (a-2)(1); and (2) either: (A) knows or should have known that the depiction described by Subsection (a-2)(1) appears to be of a child younger than 18 years of age; or (B) believes that the depiction is of an actual child younger than 18 years of age at the time the image of the child was made. (f) In the prosecution of an offense under Subsection (a-1) or (e): (1) the state is not required to prove the identity of the child in the depiction described by Subsection (a-1)(1); and (2) there is a rebuttable presumption that the depiction is of an actual child, as described by Subsection (a)(1)(A) or (B), and not of a computer-generated child, as described by Subsection (a)(2). Text of subsection as amended by Acts 2025, 89th Leg., R.S., Ch. 250 (H.B. 1778), Sec. 3.02 (g) An offense under Subsection (e) is a felony of the first degree, except that the offense is a felony of the first degree with a minimum term of confinement of 15 years if: (1) the person promotes or possesses with intent to promote: (A) visual material that contains 50 or more visual depictions of a child as described by Subsection (a)(1); or (B) visual material of conduct constituting an offense under Section 22.011(a)(2); and (2) it is shown on the trial of the offense that the person has been previously convicted of an offense under this section. Text of subsection as amended by Acts 2025, 89th Leg., R.S., Ch. 847 (S.B. 1621), Sec. 1 (g) An offense under Subsection (e) is a felony of the second degree, except that the offense is: (1) a felony of the first degree if it is shown on the trial of the offense that the actor: (A) has been previously convicted one or more times of an offense: (i) under this chapter; or (ii) described by Article 62.001(5), Code of Criminal Procedure; (B) promotes or possesses with intent to promote visual material that contains 10 or more visual depictions of a child engaging in sexual conduct as described by Subsection (a-1)(1) but fewer than 50 such depictions; or (C) promotes or possesses with intent to promote visual material that contains one or more visual depictions of a child who appears to be younger than 10 years of age and is engaging in sexual conduct as described by Subsection (a-1)(1); or (2) a felony of the first degree with a minimum term of imprisonment of 15 years if it is shown on the trial of the offense that the actor promotes or possesses with intent to promote visual material that: (A) contains 50 or more visual depictions of a child engaging in sexual conduct as described by Subsection (a-1)(1); or (B) visually depicts conduct constituting an offense under Section 22.011(a)(2) with respect to a depiction of a child. (g-1) An offense under Subsection (e-1) is a felony of the third degree, except that the offense is: (1) a felony of the second degree if it is shown on the trial of the offense that the person: (A) has been previously convicted one or more times of an offense: (i) under this chapter; or (ii) described by Article 62.001(5), Code of Criminal Procedure; (B) promotes or possesses with intent to promote visual material that contains 10 or more visual depictions of a computer-generated child engaging in sexual conduct as described by Subsection (a-2)(1); or (C) promotes or possesses with intent to promote visual material that contains one or more visual depictions of a computer-generated child who appears to be younger than 10 years of age and is engaging in sexual conduct as described by Subsection (a-2)(1); or (2) a felony of the second degree with a minimum term of imprisonment of 10 years if it is shown on the trial of the offense that the person promotes or possesses with intent to promote visual material that contains 50 or more visual depictions of a computer-generated child engaging in sexual conduct as described by Subsection (a-2)(1). (h) It is a defense to prosecution under this section that the actor is a law enforcement officer or a school administrator who: (1) possessed or accessed the visual material in good faith solely as a result of an allegation of a violation of Section 43.261; (2) allowed other law enforcement or school administrative personnel to possess or access the material only as appropriate based on the allegation described by Subdivision (1); and (3) took reasonable steps to destroy the material within an appropriate period following the allegation described by Subdivision (1). (h-1) It is an affirmative defense to prosecution under this section that at the time of the offense the actor was a judicial or law enforcement officer discharging the officer's official duties. (h-2) It is an affirmative defense to prosecution under Subsection (a-2) or (e-1) that the actor is not more than two years older than the depicted child. (i) Repealed by Acts 2025, 89th Leg., R.S., Ch. 847 (S.B. 1621), Sec. 7(1), eff. September 1, 2025. Added by Acts 1985, 69th Leg., ch. 530, Sec. 2, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 361, Sec. 1, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 968, Sec. 1, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 76, Sec. 14.51, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 933, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1415, Sec. 22(c), eff. Sept. 1, 1999. Amended by: Acts 2011, 82nd Leg., R.S., Ch. 1322 (S.B. 407), Sec. 2, eff. September 1, 2011. Acts 2013, 83rd Leg., R.S., Ch. 1252 (H.B. 8), Sec. 20, eff. September 1, 2013. Acts 2015, 84th Leg., R.S., Ch. 933 (H.B. 2291), Sec. 2, eff. September 1, 2015. Acts 2023, 88th Leg., R.S., Ch. 93 (S.B. 1527), Sec. 6.02, eff. September 1, 2023. Acts 2023, 88th Leg., R.S., Ch. 93 (S.B. 1527), Sec. 6.03, eff. September 1, 2023. Acts 2023, 88th Leg., R.S., Ch. 730 (H.B. 2700), Sec. 1, eff. September 1, 2023. Acts 2023, 88th Leg., R.S., Ch. 1041 (S.B. 129), Sec. 2, eff. September 1, 2023. Acts 2025, 89th Leg., R.S., Ch. 250 (H.B. 1778), Sec. 3.01, eff. September 1, 2025. Acts 2025, 89th Leg., R.S., Ch. 250 (H.B. 1778), Sec. 3.02, eff. September 1, 2025. Acts 2025, 89th Leg., R.S., Ch. 250 (H.B. 1778), Sec. 3.03(1), eff. September 1, 2025. Acts 2025, 89th Leg., R.S., Ch. 250 (H.B. 1778), Sec. 3.03(2), eff. September 1, 2025. Acts 2025, 89th Leg., R.S., Ch. 847 (S.B. 1621), Sec. 1, eff. September 1, 2025. Acts 2025, 89th Leg., R.S., Ch. 847 (S.B. 1621), Sec. 7(1), eff. September 1, 2025. Acts 2025, 89th Leg., R.S., Ch. 847 (S.B. 1621), Sec. 7(2), eff. September 1, 2025. Acts 2025, 89th Leg., R.S., Ch. 847 (S.B. 1621), Sec. 7(3), eff. September 1, 2025.