Indecency - Possession or Promotion of Child
by Frank Svetlik
The Texas Penal Code Section 43.26 provides the definition of the crime of Public Indecency -
Possession or Promotion of Child Pornography.
Possession of child pornography is a third-degree felony. Possession of any volume of child pornography— six
images or more— creates a presumption that the child pornography is possessed for purposes of promoting the
material and is a second-degree felony. The range of punishment in the state of Texas for a second-degree felony is
two years to 20 years in prison. The range of punishment in the state of Texas for third-degree felony is two years
to 10 years in prison. The penalties under the Texas state statutes, although significant, are much less than the
penalties under the federal statutes for the same conduct were a minimum sentences of 5 to 30 years, may be
required by statute.
The law provides a safe harbor for school administrators and law enforcement personnel who have seized materials
involving child pornography. The spouse of the child depicted in the images is afforded an affirmative defense to
prosecution under the statute, as is a person within two years of the age of the child. Although the law requires
that the accused person know that the material in his possession, contain images or depictions which are prohibited
by the statute. A claim of ignorance of the contents of the material might be relied upon, and found credible in
only the most extreme circumstances.
The provisions of article 42.25 of the Texas Penal Code are broad enough to
criminalize the possession and promotion of child pornography. This statute, article 43.26, is explicit in
making illegal, the possession of or promotion of child pornography. Possession of six or more identical images
of a child younger than 18 years of age engaged in sexual conduct gives rise to a presumption of promoting the
child pornography. The images need not be printed or on film, but can be electronic, either on computer or video
screen telephone or any other electronic method.
TITLE 9. OFFENSES AGAINST PUBLIC ORDER AND DECENCY
CHAPTER 43. PUBLIC INDECENCY
Sec. 43.26. POSSESSION OR PROMOTION OF CHILD PORNOGRAPHY.
(a) A person commits an offense if:
(1) the person knowingly or intentionally possesses 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; and
(2) the person knows that the material depicts the child as described by Subdivision
(b) In this section:
(1) "Promote" has the meaning assigned by Section 43.25.
(2) "Sexual conduct" has the meaning assigned by Section 43.25.
(3) "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;
(B) any disk, diskette, or other physical medium 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.
(c) The affirmative defenses provided by Section 43.25(f) also apply to a prosecution
under this section.
(d) An offense under Subsection (a) is a felony of the third degree.
(e) A person commits an offense if:
(1) the person knowingly or intentionally promotes or possesses with intent to promote
material described by Subsection (a)(1); and
(2) the person knows that the material depicts the child as described by Subsection
(f) A person who possesses visual material that contains six or more identical visual
depictions of a child as described by Subsection (a)(1) is presumed to possess the material with the intent to
promote the material.
(g) An offense under Subsection (e) is a felony of the second degree.
(h) It is a defense to prosecution under Subsection (a) or (e) that the actor is a law
enforcement officer or a school administrator who:
(1) possessed 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 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).
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.
Acts 2011, 82nd Leg., R.S., Ch. 1322, Sec. 2, eff. September 1, 2011.
Law Office of Attorney Frank