A library material vendor must use contextual analysis to decide whether material is sexually explicit and patently offensive.
Sec. 35.0021. RATING GUIDELINES. (a) For purposes of determining whether a library material is sexually explicit as required by Section 35.002, a library material vendor must perform a contextual analysis of the material to determine whether the material describes, depicts, or portrays sexual conduct in a way that is patently offensive. (b) In performing the contextual analysis of a library material, a library material vendor must consider the following three principal factors with respect to the material: (1) the explicitness or graphic nature of a description or depiction of sexual conduct contained in the material; (2) whether the material consists predominantly of or contains multiple repetitions of depictions of sexual or excretory organs or activities; and (3) whether a reasonable person would find that the material intentionally panders to, titillates, or shocks the reader. (c) In examining the three factors listed under Subsection (b), a vendor must weigh and balance each factor and conclude whether the library material is patently offensive, recognizing that because each instance of a description, depiction, or portrayal of sexual conduct contained in a material may present a unique mix of factors. (d) To determine whether a description, depiction, or portrayal of sexual conduct contained in a material is patently offensive, a library material vendor must consider the full context in which the description, depiction, or portrayal of sexual conduct appears, to the extent possible, recognizing that contextual determinations are necessarily highly fact-specific and require the consideration of contextual characteristics that may exacerbate or mitigate the offensiveness of the material. Added by Acts 2023, 88th Leg., R.S., Ch. 808 (H.B. 900), Sec. 3, eff. September 1, 2023.