89R5261 JRR-F
By: Huffman, et al. S.B. No. 1621
A BILL TO BE ENTITLED
AN ACT
relating to prosecution and punishment of certain criminal offenses
prohibiting sexually explicit visual material involving depictions
of children, computer-generated children, or other persons;
creating criminal offenses; increasing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 43.26, Penal Code, is amended by
amending Subsections (a), (e), (g), and (h) and adding Subsections
(a-1), (a-2), (c-1), (c-2), (c-3), (c-4), (e-1), (f), (g-1), (h-1),
and (h-2) to read as follows:
(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 [or
intentionally] possesses, or [knowingly or] intentionally or
knowingly accesses with intent to view, visual material that
contains a visual depiction of [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, including a depiction of a child
engaging [who engages] 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 [material depicts the child as] 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.
(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 contains:
(i) 50 or more visual depictions of a child
engaging in sexual conduct as described by Subsection (a-1)(1); or
(ii) a videotape or film that 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 confinement 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.
(e) A person commits an offense if:
(1) the person intentionally or knowingly [or
intentionally] promotes or possesses with intent to promote visual
material described by Subsection (a-1)(1) [(a)(1)]; and
(2) the person knows or should have known that the
depiction [material depicts the child as] 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 [(a)(1)].
(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).
(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) [person] 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 contains:
(A) 50 or more visual depictions of a child
engaging in sexual conduct as described by Subsection (a-1)(1); or
(B) a videotape or film that visually depicts
conduct constituting an offense under Section 22.011(a)(2) with
respect to a depiction of a child [that subsection].
(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
[Subsection (a) or (e)] 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 the conduct was for a bona fide educational, medical,
psychological, psychiatric, judicial, law enforcement, or
legislative purpose.
(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.
SECTION 2. Article 38.45(a), Code of Criminal Procedure, is
amended to read as follows:
(a) During the course of a criminal hearing or proceeding,
the court may not make available or allow to be made available for
copying or dissemination to the public property or material:
(1) that constitutes child pornography, as described
by Section 43.26(a-1)(1) or (a-2)(2) [43.26(a)(1)], Penal Code;
(2) the promotion or possession of which is prohibited
under Section 43.261, Penal Code; or
(3) that is described by Section 2 or 5, Article
38.071, of this code.
SECTION 3. Article 39.15(a), Code of Criminal Procedure, is
amended to read as follows:
(a) In the manner provided by this article, a court shall
allow discovery under Article 39.14 of property or material:
(1) that constitutes child pornography, as described
by Section 43.26(a-1)(1) or (a-2)(2) [43.26(a)(1)], Penal Code;
(2) the promotion or possession of which is prohibited
under Section 43.261, Penal Code; or
(3) that is described by Section 2 or 5, Article
38.071, of this code.
SECTION 4. 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 5. 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 6. 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 7. The following provisions of the Penal Code are
repealed:
(1) Sections 43.26(b), (c), (d), (d-2), and (i);
(2) Section 43.26(d-1), as added by Chapter 93 (S.B.
1527), Acts of the 88th Legislature, Regular Session, 2023; and
(3) Section 43.26(d-1), Penal Code, as added by
Chapter 1041 (S.B. 129), Acts of the 88th Legislature, Regular
Session, 2023.
SECTION 8. 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 9. This Act takes effect September 1, 2025.