The statute for possession of child pornography is found in the Texas Penal Code, Chapter 43 Public Indecency, § 43.26 Possession or Promotion of Child Pornography.
If you’ve come to this page because law enforcement wants to speak with you, you’re already under arrest, or are otherwise facing allegations of possessing child pornography, here is some important information you need to know.
Invoke your right to remain silent. While it may seem logical and even beneficial to speak with law enforcement to clear your name, nothing could be further from the truth. Your statements, no matter how innocuous, can be used as evidence against you. It’s in your best interest not to speak with police without your attorney present.
Protect your legal right to privacy. It’s also not in your best interest to willingly hande over your computer or allow law enforcement to search your home. Unless the police have a valid search warrant, give them a polite yet firm “No.”
Contact an experienced child pornography defense attorney today. Don’t stand idle while the prosecution builds a case against you. Protect your legal rights by consulting an attorney right away. Mr. Kent Starr is an experienced and skilled sex crimes defense attorney. His goal is the same as yours — the best possible outcome for your case, so that you can move on with your life.
How Does Texas Law Define “Child Pornography”?
“Pornography” can be a somewhat subjective term. Remember, someone’s personal opinion and what the law says can be two different things.
The Texas Penal Code defines “child pornography” as “visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct.”
“Sexual conduct” is further defined as “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.”
Consequences of a Child Pornography Conviction
Possession of Child Pornography in Texas is a felony. Penalties include prison time, monetary fines, and having to register as a sex offender. Whether it is a first, second, or third degree felony depends on specific details.
For example, possessing “visual material that contains fewer than 100 visual depictions of a child” is a third degree felony. However, an individual may face enhanced charges if they have certain prior convictions.
Texas law is especially tough on employees in certain occupations who are convicted of child pornography possession. Note that it is automatically a first degree felony if you are:
“(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.”
Possession of Child Pornography Defenses
There are several possible defenses to possession of child pornography in Texas.
Someone else accessed child pornography on an electronic device you own, without your knowledge. Note that the law states a crime occurs when a “person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view” child pornography.
There is a lack of evidence. The burden is on the prosecution to prove, beyond a reasonable doubt, that the accused possessed child pornography.
There is illegally obtained evidence. Law enforcement must abide by certain laws when collecting evidence. The court may “throw out” evidence that was gathered illegally.
The visual images do not meet the legal criteria for “child pornography.” Note that nudity in and of itself may not be a crime. The Texas Penal Code defines “child pornography” as a child engaging in “sexual conduct.”
Possession of Child Pornography in Texas: FAQs
Below are frequently asked questions about possession of child pornography in Texas. This information is an overview of the law and is not meant to replace consulting an attorney about your specific case.
What is the statute for possession of child pornography?
The statute that discusses possession of child pornography is § 43.26 of the Texas Penal Code.
Related offenses include § 43.261 Electronic Transmission of Certain Visual Material Depicting Minor and § 43.262 Possession or Promotion of Lewd Visual Material Depicting Child.
Note that § 43.261 is only applicable to offenders who are minors under 18 years of age.
Is possession of child pornography in Texas a felony?
Yes, it is a felony to possess child pornography in Texas. Depending on the specifics of the case, it could be a first, second, or third degree felony.
Can a minor be arrested for possessing child pornography in Texas?
Possibly, but typically under a different law than adults. Minors under the age of 18 can be charged under a different section of the Texas Penal Code, § 43.261 Electronic Transmission of Certain Visual Material Depicting Minor. This is a misdemeanor charge.
There are possible defenses for Electronic Transmission of Certain Visual Material Depicting Minor charges. For example, it is legal for minors who are in a dating relationship and within two years of age of one another to exchange sexual images of themselves.
Does possession of child pornography require sex offender registration?
One of the penalties for a possession of child pornography conviction in Texas is having to register as a sex offender. There is an inherent lack of privacy that comes with being on this registry. Offenders’ full names, addresses, and vehicle information are listed.
Being on the sex offender registry limits one’s job opportunities and where they can live. There are also intangible consequences, such as emotional distress and a loss of reputation.
Contact a Child Pornography Defense Attorney in Plano, TX
Not all criminal defense lawyers are cut from the same cloth. Many advertise that they take on child pornography cases, but few will do more than encourage you to take a plea bargain. Contrary to popular belief, a plea bargain may not result in the best possible outcome.
Attorney Kent Starr is not intimidated by the prosecution or the thought of going to court. Take a look at his client reviews. You’ll see that he has represented clients for one, two, or more years, as he pursues justice on their behalf.
While each case is different, Attorney Starr regularly achieves reduced charges, dropped charges, and “not guilty” verdicts for his clients. He has a long history of representing clients charged with child pornography possession and other felony sex crimes. He is more than happy to discuss these case outcomes with you.
Furthermore, Attorney Starr is also a bail bonds attorney. If you are in jail, one call to him can secure your release and start your legal representation. Call Starr Law, P.C., today at 214-982-1408.
Related Articles
Arrested in Plano, TX? 5 Questions to Ask Your Criminal Defense Lawyer
Child Pornography Search Warrant: What to Do When the Police Come to Your House
Sources
Section. 43.26. Possession Or Promotion Of Child Pornography
Section 43.261. Electronic Transmission Of Certain Visual Material Depicting Minor
