By: Hinojosa of Hidalgo S.B. No. 442
(In the Senate - Filed November 21, 2024; February 3, 2025,
read first time and referred to Committee on Criminal Justice;
March 6, 2025, reported favorably by the following vote: Yeas 7,
Nays 0; March 6, 2025, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
AN ACT
relating to the prosecution and punishment of the offense of
unlawful production or distribution of certain sexually explicit
media; increasing a criminal penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Section 21.165, Penal Code, is
amended to read as follows:
Sec. 21.165. UNLAWFUL PRODUCTION OR DISTRIBUTION OF CERTAIN
SEXUALLY EXPLICIT MEDIA [VIDEOS].
SECTION 2. Section 21.165(a), Penal Code, is amended by
amending Subdivision (1) and adding Subdivision (3) to read as
follows:
(1) "Deep fake media [video]" means a visual depiction
[a video,] created or altered through [with] the use of software,
machine learning, artificial intelligence, or any other
computer-generated or technological means, including by adapting,
modifying, manipulating, or altering an authentic visual depiction
manually or through an automated process [intent to deceive], that
appears to a reasonable person to depict a real person,
indistinguishable from an authentic visual depiction of the real
person, performing an action that did not occur in reality.
(3) "Visual depiction" means a photograph, motion
picture film, videotape, digital image or video, or other visual
recording.
SECTION 3. Section 21.165, Penal Code, is amended by
amending Subsections (b) and (c) and adding Subsections (b-1),
(c-1), and (c-2) to read as follows:
(b) A person commits an offense if, without the effective
consent of the person appearing to be depicted, the person
knowingly produces or distributes by electronic means [a] deep fake
media [video] that appears to depict the person:
(1) with visible computer-generated intimate parts or
with the visible intimate parts of another human being as the
intimate parts of the person; or
(2) engaging in sexual conduct in which the person did
not engage [with the person's intimate parts exposed or engaged in
sexual conduct].
(b-1) Consent required by Subsection (b) is valid only if
the person appearing to be depicted knowingly and voluntarily
signed a written agreement that was drafted in plain language. The
agreement must include:
(1) a general description of the deep fake media; and
(2) if applicable, the audiovisual work into which the
deep fake media will be incorporated.
(c) An offense under this section is a Class A misdemeanor,
except that the offense is a felony of the third degree if it is
shown on the trial of the offense that the defendant has been
previously convicted of an offense under this section.
(c-1) It is not a defense to prosecution under this section
that the deep fake media:
(1) contains a disclaimer stating that the media was
unauthorized or that the person appearing to be depicted did not
participate in the creation or development of the deep fake media;
or
(2) indicates, through a label or otherwise, that the
depiction is not authentic.
(c-2) It is an affirmative defense to prosecution under this
section that the production or distribution of the deep fake media
occurs in the course of:
(1) lawful and common practices of law enforcement or
medical treatment;
(2) reporting unlawful activity; or
(3) a legal proceeding, if the production or
distribution is permitted or required by law.
SECTION 4. 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 occurred before that date.
SECTION 5. This Act takes effect September 1, 2025.
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