89R1695 CJD-D
By: Johnson H.B. No. 418
A BILL TO BE ENTITLED
AN ACT
relating to prosecution and punishment of certain criminal offenses
prohibiting sexually explicit visual material involving children
or other persons; increasing a criminal penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 21.16(a)(5), Penal Code, is amended to
read as follows:
(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.
SECTION 2. Section 43.26(b)(3), Penal Code, is amended to
read as follows:
(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; 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.
SECTION 3. Section 43.26(d), Penal Code, as amended by
Chapters 93 (S.B. 1527) and 1041 (S.B. 129), Acts of the 88th
Legislature, Regular Session, 2023, is reenacted and amended to
read as follows:
(d) An offense under Subsection (a) is[:
[(1)] a felony of the third degree [if the person
possesses visual material that contains fewer than 100 visual
depictions of a child as described by Subsection (a)(1);
[(2)], except that the offense is:
(1) a felony of the second degree if:
(A) it is shown on the trial of the offense that
the person [possesses visual material that contains 100 or more
visual depictions of a child as described by Subsection (a)(1) but
fewer than 500 such depictions] has been previously convicted one
time of an offense under that subsection; or
(B) 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;
(2) [(3)] a felony of the first degree if:
(A) it is shown on the trial of the offense that
the person [possesses visual material that contains 500 or more
visual depictions of a child as described by Subsection (a)(1)] has
been previously convicted two or more times of an offense under that
subsection; or
(B) the person possesses visual material that
contains:
(i) 50 or more visual depictions of a child
as described by Subsection (a)(1); or
(ii) a videotape or film that visually
depicts conduct constituting an offense under Section
22.011(a)(2); or
(3) [(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.
SECTION 4. Section 43.26(d-1), Penal Code, as added by
Chapter 1041 (S.B. 129), Acts of the 88th Legislature, Regular
Session, 2023, is amended to read as follows:
(d-1) If it is shown on the trial of an offense under
Subsection (a) that the visual material depicted a child younger
than 10 years of age at the time the image of the child was made [or
that the defendant has been previously convicted of an offense
under that subsection]:
(1) an offense described for purposes of punishment by
Subsection (d) as a felony of the second or third degree [(d)(1) or
(2)] is increased to the next higher category of offense; or
(2) the minimum term of confinement for an offense
described for purposes of punishment by Subsection (d)(2) [(d)(3)]
is increased to 15 years.
SECTION 5. Sections 43.26(g) and (i), Penal Code, are
amended to read as follows:
(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 the person promotes
or possesses with intent to promote visual material that contains
10 or more visual depictions of a child as described by Subsection
(a)(1) but fewer than 50 such depictions; or
(2) a felony of the first degree with a minimum term of
confinement of 15 years if:
(A) it is shown on the trial of the offense that
the person has been previously convicted of an offense under
Subsection (e); or
(B) the person promotes or possesses with intent
to promote visual material that contains:
(i) 50 or more visual depictions of a child
as described by Subsection (a)(1); or
(ii) a videotape or film that visually
depicts conduct constituting an offense under Section 22.011(a)(2)
[that subsection].
(i) For purposes of conduct prohibited under this section,
visual material to which that conduct applies includes:
(1) a depiction of a child:
(A) [(1)] 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
(B) [(2)] 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; or
(2) a depiction of a child, created using an
artificial intelligence application or other computer software,
that to a reasonable person is virtually indistinguishable from an
actual child younger than 18 years of age.
SECTION 6. Section 43.261(b-1), Penal Code, is amended to
read as follows:
(b-1) For purposes of conduct prohibited under Subsection
(b), visual material to which that conduct applies includes:
(1) a depiction of a minor:
(A) [(1)] 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
(B) [(2)] whose image as a minor 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; or
(2) a depiction of a minor, created using an
artificial intelligence application or other computer software,
that to a reasonable person is virtually indistinguishable from an
actual minor.
SECTION 7. Section 43.262(b-1), Penal Code, is amended to
read as follows:
(b-1) For purposes of conduct prohibited under Subsection
(b), visual material to which that conduct applies includes:
(1) a depiction of a child:
(A) [(1)] 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
(B) [(2)] 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; or
(2) a depiction of a child, created using an
artificial intelligence application or other computer software,
that to a reasonable person is virtually indistinguishable from an
actual child younger than 18 years of age.
SECTION 8. The following provisions of the Penal Code are
repealed:
(1) Section 43.26(d-1), as added by Chapter 93 (S.B.
1527), Acts of the 88th Legislature, Regular Session, 2023; and
(2) Section 43.26(d-2).
SECTION 9. The changes in law made by this Act apply only to
an offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act is governed
by the law in effect on the date the offense was committed, and the
former law is continued in effect for that purpose. For purposes
of this section, an offense was committed before the effective date
of this Act if any element of the offense was committed before that
date.
SECTION 10. This Act takes effect September 1, 2025.