Criminal Consequences for AI-Generated Pornography in Texas

Criminal Consequences of AI-Generated Pornography in Texas

Texas has enacted some of the nation’s most comprehensive laws addressing AI-generated pornography, particularly content involving minors. As of September 1, 2025, both federal and Texas state law explicitly criminalize the creation, distribution, and possession of AI-generated sexually explicit material under specific circumstances. Understanding these laws is critical for anyone who might encounter, create, or distribute such content.

If you have been accused of a crime stemming from AI-Generated Pornography, your liberty is on the line. These cases are complex, high-stakes, and rapidly evolving — requiring a defense team with deep legal knowledge, technological understanding, and a proven track record in handling cutting-edge criminal matters in Texas and federal courts.

At Varghese Summersett, our experienced criminal defense attorneys are at the forefront of emerging digital crimes and are prepared to aggressively protect your rights and future. In this comprehensive article about AI-Generated Pornography, we examine the legal landscape in Texas, explain the potential criminal charges you could face, and outline the most effective defense strategies to protect your rights.

Our team breaks down how prosecutors approach these cases, what evidence they may rely on (including digital forensics and AI model analysis), and how experienced defense counsel can challenge allegations under both state and federal law.

Federal AI-Porn Laws Applicable in Texas

The TAKE IT DOWN Act

Passed in May 2025, the TAKE IT DOWN Act makes it a federal crime to knowingly publish sexually explicit images — whether real or AI-generated — without the depicted person’s consent. This includes deepfake nudes and revenge pornography. The law requires websites and platforms to remove such content within 48 hours of receiving notice from a victim.

Federal Child Sexual Abuse Material (CSAM) Provisions

Federal law criminalizes all forms of non-consensual pornographic deepfakes and applies to the publication, distribution, and threatening of publication of explicit content, including computer-generated or manipulated images. Congressional bills are expanding child pornography statutes to include fully AI-generated or computer-edited child images, regardless of whether real minors were involved.

Overview of Texas’s Three-Statute Framework

Texas addresses AI-generated pornography through three primary criminal statutes, each targeting different types of conduct and carrying different penalties:

• Texas Penal Code § 21.165: Unlawful Production or Distribution of Certain Sexually Explicit Media (targets non-consensual deepfakes of identifiable adults and minors)
• Texas Penal Code § 43.26: Possession or Promotion of Child Pornography (addresses traditional and AI-manipulated Child Sexual Abuse Material involving identifiable real minors, plus computer-generated CSAM that is virtually indistinguishable from real children)
• Texas Penal Code § 43.235: Possession, Promotion, or Production of Certain Visual Material Appearing to Depict Child (criminalizes obscene visual material appearing to depict minors, including cartoons, animations, and AI-generated content, plus prohibits using real children’s images to train AI models)

Understanding the distinctions between these statutes is essential for comprehending the full scope of criminal liability in Texas. Our experienced criminal defense attorneys thoroughly explain each one in the sections below.

Texas Penal Code § 21.165: Unlawful Production or Distribution of Certain Sexually Explicit Media

Texas Penal Code 21.165 was enacted in 2023 specifically to address deepfake pornography. The statute represents Texas’s recognition that existing revenge porn laws did not adequately cover AI-generated or manipulated content that never existed as an original intimate image.

Key Legal Definitions

• “Deep fake media” means a visual depiction created or altered through 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, 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.
• “Visual depiction” means a photograph, motion picture film, videotape, digital image or video, or other visual recording.
• “Intimate parts” and “sexual conduct” have the meanings assigned by Section 21.16 (the revenge porn statute).

What Conduct Is Prohibited?

Production or Distribution (Subsection b):

A person commits an offense if, without the effective consent of the person appearing to be depicted, they knowingly produce or distribute by electronic means deep fake media that appears to depict the person:

• With visible computer-generated intimate parts or with the visible intimate parts of another human being as the intimate parts of the person; OR
• Engaging in sexual conduct in which the person did not engage

Threats (Subsection b-1):

A person commits an offense if they intentionally threaten to produce or distribute deep fake media with the intent to coerce, extort, harass, or intimidate another person.

Strict Consent Requirements

Consent under this statute is valid only if the person appearing to be depicted knowingly and voluntarily signed a written agreement drafted in plain language. The agreement must include:

• A general description of the deep fake media; AND
• If applicable, the audiovisual work into which the deep fake media will be incorporated

Verbal consent, implied consent, or unsigned agreements are not sufficient under the statute.

Critical Requirement: Identifiable Individual

The statute requires the deepfake to depict “a real person, indistinguishable from an authentic visual depiction of the real person.” This means:

• The person must be identifiable and real
• Generic AI-generated faces that don’t resemble any actual person do not fall under this section
• The deepfake must be realistic enough to appear indistinguishable from authentic footage to a reasonable person

Criminal Penalties Under § 21.165

Offense Type	Base Level	Enhanced Level	Enhancement Triggers
Production/Distribution (Subsection b)	Class A Misdemeanor (Up to 1 year jail; fine up to $4,000)	Third-Degree Felony (2-10 years prison; fine up to $10,000)	• Prior conviction under this section • Victim younger than 18
Threats (Subsection b-1)	Class B Misdemeanor (Up to 180 days jail; fine up to $2,000)	Class A Misdemeanor (Up to 1 year jail; fine up to $4,000)	• Prior conviction under this section • Threatened victim younger than 18

What Is NOT a Defense to Unlawful Production or Distribution of Certain Sexually Explicit Media

The statute explicitly states it is NOT a defense that:

• The deep fake media contains a disclaimer stating the media was unauthorized or that the person did not participate in creation; OR
• The media indicates through a label or otherwise that the depiction is not authentic

Labeling content as “fake,” “parody,” or “satire” does not protect creators from prosecution.

Affirmative Defenses to unlawful production or distribution of certain sexually explicit media

1. Legitimate Activities (Subsection c-3):

It is an affirmative defense that production or distribution occurs in the course of:

• Lawful and common practices of law enforcement
• Reporting unlawful activity
• A legal proceeding, if the production or distribution is permitted or required by law

2. Technical Service Providers (Subsection c-4):

It is an affirmative defense if the actor:

• Is an Internet service provider, cloud service provider, cybersecurity service provider, communication service provider, or telecommunications network that transmits data; AND
• Acted solely in a technical, automatic, or intermediate nature

This protects ISPs and hosting providers who merely transmit or store content without active involvement.

3. AI Application Developers (Subsection c-5):

It is an affirmative defense if the actor:

• Is a provider or developer of a publicly accessible AI application or software used in creating the deep fake media;
• Included a prohibition against creating prohibited deep fake media in the actor’s terms and conditions or user policies that users must acknowledge before access; AND
• Took affirmative steps to prevent creation of prohibited deep fake media through technological tools

Required technological tools include:

• Training the AI to identify prohibited deep fake media
• Providing effective reporting tools for prohibited content
• Filtering prohibited deep fake media before showing it to users
• Filtering prohibited content from training datasets

This defense protects AI developers who take proactive measures to prevent misuse of their technology.

Mandatory Restitution

Courts must order defendants convicted under this section to make restitution to victims for:

• Psychological harm
• Financial harm
• Reputational harm

This restitution is mandatory, not discretionary.

Concurrent Prosecution

If conduct constitutes an offense under both this section and another law, the actor may be prosecuted under both. Examples:

• Creating deepfake child pornography: charged under both § 21.165 and § 43.26
• Deepfakes used for stalking: charged under both § 21.165 and stalking statutes
• Commercial distribution: charged under both § 21.165 and fraud statutes

Texas Penal Code § 43.26: Possession or Promotion of Child Pornography

Section 43.26 is Texas’s primary child pornography statute, originally enacted in the 1970s. The 2025 amendments (effective September 1, 2025) fundamentally restructured the statute to create separate subsections for offenses involving actual children versus computer-generated children, reflecting the challenge of AI-generated CSAM.

Critical Definitions

“Depiction of a child” means:

• Type A: A depiction of a child who was younger than 18 years of age at the time the image was made; OR
• Type B: A depiction of a child who is:
  • Recognizable as an actual person by face, likeness, or other distinguishing characteristic (such as a unique birthmark or other recognizable feature); AND
  • Whose image as a child younger than 18 was used in creating, adapting, or modifying the visual material, including computer-generated visual material created using AI or other computer software

This definition explicitly covers AI-generated deepfakes when they use a real, identifiable child’s image.

“Depiction of a computer-generated child” means a depiction:

• Appearing to be a child younger than 18 years of age;
• Created using an artificial intelligence application or other computer software; AND
• That to a reasonable person is virtually indistinguishable from an actual child younger than 18 years of age

This definition addresses purely fictional AI-generated CSAM that doesn’t use any real child’s image but appears realistic.

Two Parallel Offense Structures

The 2025 amendments created two parallel offense structures with significantly different penalties:

Subsection (a-1): Possession of Material Depicting Actual Child

A person commits an offense if:

• The person intentionally or knowingly possesses, or intentionally or knowingly accesses with intent to view, visual material containing a visual depiction of a child engaging in sexual conduct (including as a victim of trafficking); AND
• The person knows or should have known that the depiction is of a child younger than 18 at the time the image was made

This subsection covers traditional child pornography AND AI-generated material using a real child’s image or likeness.

Subsection (a-2): Possession of Computer-Generated Child Material

A person commits an offense if the person:

• Intentionally or knowingly possesses, or intentionally or knowingly accesses with intent to view, visual material containing a visual depiction of a computer-generated child engaging in sexual conduct; AND
• Either:
  • Knows or should have known that the depiction appears to be of a child younger than 18; OR
  • Believes that the depiction is of an actual child younger than 18 at the time the image was made

This subsection covers purely AI-generated CSAM with no identifiable real child, provided it is virtually indistinguishable from real CSAM.

Criminal Penalties: Actual Child Material (Subsection a-1)

Offense Level	Conditions	Punishment Range
Third-Degree Felony	Basic possession offense	2-10 years; fine up to $10,000
Second-Degree Felony	• One prior conviction under this chapter or Article 62.001(5) • OR possesses 10-49 depictions	2-20 years; fine up to $10,000
First-Degree Felony	• Two or more prior convictions • OR possesses 50+ depictions • OR material depicts aggravated sexual assault conduct (§ 22.011(a)(2))	5-99 years or life; fine up to $10,000
First-Degree Felony (Enhanced)	• Actor was employee at child-care facility, residential treatment facility, youth shelter receiving state funds, or receiving state funds for care of depicted child • OR displayed material in school library	25-99 years or life

Age Enhancement for Actual Child Material

If visual material depicts a child younger than 10 years of age at the time the image was made:

• Second or third-degree felony offenses increase to the next higher category of offense
• For first-degree felonies under subsection (c-1)(2), minimum imprisonment increases from 5 years to 15 years

Criminal Penalties: Computer-Generated Child Material (Subsection a-2)

Offense Level	Conditions	Punishment Range
State Jail Felony	Basic possession offense	180 days to 2 years; fine up to $10,000
Third-Degree Felony	• One prior conviction under this chapter or Article 62.001(5) • OR possesses 10-49 depictions	2-10 years; fine up to $10,000
Second-Degree Felony	• Two or more prior convictions • OR possesses 50+ depictions	2-20 years; fine up to $10,000
Second-Degree Felony (Enhanced)	• Actor was employee at child-care facility, residential treatment facility, or youth shelter • OR displayed material in school library	10-20 years (minimum 10 years)

Age Enhancement for Computer-Generated Material

If visual material depicts a computer-generated child appearing to be younger than 10 years of age, punishment increases to the next higher category of offense (with a 10-year minimum remaining for subsection c-3(3) offenses).

Promotion Offenses

Subsection (e): Promotion of Actual Child Material

A person commits an offense if:

• The person intentionally or knowingly promotes or possesses with intent to promote visual material depicting a child engaging in sexual conduct; AND
• The person knows or should have known the depiction is of a child younger than 18 at the time the image was made

Penalties (per 2025 SB 1621 amendment):

Offense Level	Conditions	Punishment Range
Second-Degree Felony	Basic promotion offense	2-20 years; fine up to $10,000
First-Degree Felony	• One or more prior convictions • OR promotes 10-49 depictions • OR promotes material depicting child appearing younger than 10	5-99 years or life; fine up to $10,000
First-Degree Felony (Enhanced)	• Promotes 50+ depictions • OR promotes material depicting aggravated sexual assault conduct (§ 22.011(a)(2))	15-99 years or life (minimum 15 years)

Subsection (e-1): Promotion of Computer-Generated Child Material

A person commits an offense if:

• The person intentionally or knowingly promotes or possesses with intent to promote visual material depicting a computer-generated child engaging in sexual conduct; AND
• Either knows or should have known the depiction appears to be of a child younger than 18, OR believes it’s of an actual child younger than 18

Penalties:

Offense Level	Conditions	Punishment Range
Third-Degree Felony	Basic promotion offense	2-10 years; fine up to $10,000
Second-Degree Felony	• One or more prior convictions • OR promotes 10+ depictions • OR promotes material depicting computer-generated child appearing younger than 10	2-20 years; fine up to $10,000
Second-Degree Felony (Enhanced)	Promotes 50+ depictions	10-20 years (minimum 10 years)

Critical Prosecutorial Presumption

Subsection (f) creates a crucial rebuttable presumption in prosecutions under subsections (a-1) or (e):

• The state is NOT required to prove the identity of the child in the depiction
• There is a rebuttable presumption that the depiction is of an actual child (not computer-generated)

This means defendants charged under the “actual child” provisions bear the burden of proving the material was computer-generated to potentially receive the lesser penalties under subsections (a-2) or (e-1).

Affirmative Defenses

Subsection (h): School Administrator/Law Enforcement Defense

It is a defense if the actor is a law enforcement officer or school administrator who:

• Possessed or accessed the material in good faith solely as a result of an allegation of a § 43.261 violation (electronic transmission by minor);
• Allowed other personnel to access the material only as appropriate based on the allegation; AND
• Took reasonable steps to destroy the material within an appropriate period following the allegation

Subsection (h-1): Official Duties Defense

It is an affirmative defense that at the time of the offense the actor was a judicial or law enforcement officer discharging official duties.

Subsection (h-2): Close-in-Age Defense for Computer-Generated Material

It is an affirmative defense to prosecution under subsections (a-2) or (e-1) that the actor is not more than two years older than the depicted child.

Important limitation: This defense applies ONLY to computer-generated material offenses, not to actual child depictions.

Key Distinctions: Actual vs. Computer-Generated

Element	Actual Child (a-1, e)	Computer-Generated (a-2, e-1)
Baseline possession penalty	Third-degree felony (2-10 years)	State jail felony (180 days – 2 years)
Baseline promotion penalty	Second-degree felony (2-20 years)	Third-degree felony (2-10 years)
Identifiable victim required	No, but rebuttable presumption exists	No
Standard for appearance	Depicts child younger than 18	“Virtually indistinguishable” from actual child
Close-in-age defense	Not available	Available (within 2 years)
Maximum penalty	Life imprisonment	20 years
Enhanced penalties for employees	Yes (25-99 years or life)	Yes (10-year minimum)

Texas Penal Code § 43.235: Possession, Promotion, or Production of Certain Visual Material Appearing to Depict Child

The Obscenity-Based AI Child Pornography Statute

Section 43.235 was added in 2025 (effective September 1, 2025) through SB 20. Unlike § 43.26, this statute requires the material to meet the legal definition of “obscene” and explicitly covers cartoons, animations, and other stylized depictions.

Statutory Elements

A person commits an offense if they:

Subsection (b)(1): Knowingly possess, access with intent to view, or promote obscene visual material containing a depiction that appears to be of a child younger than 18 engaging in activities described by Section 43.21(a)(1)(B), regardless of whether the depiction is:

• An image of an actual child;
• A cartoon or animation; OR
• An image created using AI or other computer software

Subsection (b)(2): Use an image of an actual child younger than 18 at the time the image was made with the intent to train an AI model to produce visual material constituting child pornography under § 43.26.

Critical Requirement: Obscenity

Unlike § 43.26, this statute requires the material to be “obscene” as defined by § 43.21. This adds a constitutional safeguard but also a prosecutorial burden. Material must meet the three-part Miller test for obscenity:

• The average person, applying contemporary community standards, would find the work, taken as a whole, appeals to prurient interest in sex
• The work depicts or describes sexual conduct in a patently offensive way
• The work, taken as a whole, lacks serious literary, artistic, political, or scientific value

What Are “Activities Described by Section 43.21(a)(1)(B)”?

Section 43.21(a)(1)(B) refers to obscene material that includes a visual depiction of sexual conduct. This incorporates the definition of “sexual conduct” from § 43.25, which includes:

• Sexual intercourse (actual or simulated)
• Deviate sexual intercourse
• Sexual contact
• Masturbation
• Bestiality
• Sadistic or masochistic abuse
• Lewd exhibition of genitals, anus, or female breast

Broad Coverage: Cartoons, Animations, and AI

The statute explicitly covers:

• Images of actual children (though these would typically also be charged under § 43.26)
• Cartoons and animations depicting children in sexual conduct
• AI-generated or computer-created images
• Any other visual depiction “appearing to be” a child younger than 18

This is broader than § 43.26’s computer-generated child definition, which requires the depiction to be “virtually indistinguishable” from an actual child. Section 43.235 only requires material to “appear to be” a child and meet the obscenity standard.

Unique AI Training Prohibition

Subsection (b)(2) creates a unique offense not found in § 43.26: using images of actual children to train AI models to produce child pornography. This specifically targets:

• Developers who feed real child images into AI training datasets for the purpose of generating CSAM
• Individuals who fine-tune AI models using real child images to improve CSAM generation
• Anyone who uses a child’s image with the specific intent to enable AI-generated CSAM production

This provision recognizes that the act of training AI models itself can constitute a form of child exploitation.

Criminal Penalties Under § 43.235

Offense Level	Conditions	Punishment Range
State Jail Felony	First offense, no prior convictions	180 days to 2 years; fine up to $10,000
Third-Degree Felony	One prior conviction under § 43.23, 43.26, 43.235, 43.261, or 43.262	2-10 years; fine up to $10,000
Second-Degree Felony	Two or more prior convictions under § 43.23, 43.26, 43.235, 43.261, or 43.262 (any combination)	2-20 years; fine up to $10,000

No Volume-Based Enhancements

Unlike § 43.26, this statute does not provide enhanced penalties based on the number of images possessed. The penalties increase only based on prior convictions, not on volume.

Concurrent Prosecution

Subsection (d) explicitly allows dual prosecution: “If conduct constituting an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.”

This means prosecutors can simultaneously charge under:

• Both § 43.235 and § 43.26
• § 43.235 and § 21.165 (deepfake statute)
• § 43.235 and any other applicable statute

Comparative Analysis: When Each Statute Applies

Scenario	Applicable Statute(s)	Reasoning	Penalty Range
AI creates fully fictional realistic child in sexual situation	§ 43.26(a-2)	Computer-generated, virtually indistinguishable from real child	State jail felony to second-degree felony
Realistic cartoon/anime child pornography	§ 43.235	Obscene material appearing to depict child; may not be “virtually indistinguishable”	State jail felony to second-degree felony
Deepfake uses real minor’s face on explicit content	§ 43.26(a-1), § 21.165	Identifiable real child depicted; non-consensual deepfake	Third-degree felony to life imprisonment
Photograph of real child in sexual abuse	§ 43.26(a-1)	Classic child pornography	Third-degree felony to life imprisonment
AI-generated deepfake of adult without consent	§ 21.165	Non-consensual sexual deepfake of identifiable adult	Class A misdemeanor to third-degree felony
Stylized anime child pornography (clearly not photorealistic)	§ 43.235	Obscene, appears to be child, but not “virtually indistinguishable”	State jail felony to second-degree felony
AI ages down adult to appear as teen sexually	§ 43.26(a-2) or § 43.235	Appears to depict minor; if virtually indistinguishable use 43.26(a-2)	State jail felony to second-degree felony
Using real child’s photos to train AI for CSAM generation	§ 43.235(b)(2)	Specific prohibition on AI training with child images	State jail felony to second-degree felony
Morphing real child’s clothed photo into sexual image	§ 43.26(a-1)	Real identifiable minor depicted	Third-degree felony to life imprisonment
Deepfake of 17-year-old using their school photo	§ 43.26(a-1), § 21.165	Real minor at time original image made; non-consensual	Third-degree felony to life imprisonment

Comparison of the Three Statutes

Element	§ 21.165	§ 43.26(a-1, e)	§ 43.26(a-2, e-1)	§ 43.235
Primary target	Non-consensual adult/minor deepfakes	Real child CSAM + AI using real child’s image	Realistic computer-generated CSAM	Obscene material appearing to depict child (including cartoons)
Consent relevant	Yes (central element)	No	No	No
Identifiable person required	Yes (must depict real person)	No, but rebuttable presumption	No	No
Obscenity required	No	No	No	Yes
Realism standard	“Indistinguishable from authentic”	N/A (actual child)	“Virtually indistinguishable” from actual child	“Appears to be” a child
Covers cartoons/anime	No	No	No	Yes (if obscene)
AI training prohibition	No	No	No	Yes
Baseline possession penalty	Class A misdemeanor	Third-degree felony	State jail felony	State jail felony
Maximum penalty	Third-degree felony (10 years)	Life imprisonment	Second-degree felony (20 years)	Second-degree felony (20 years)
Volume enhancements	No	Yes (10+, 50+)	Yes (10+, 50+)	No
Age enhancements	Yes (victim under 18)	Yes (under 10)	Yes (appears under 10)	No
Close-in-age defense	No	No	Yes (within 2 years)	No
AI developer defense	Yes (with safeguards)	No	No	No

Prosecutorial Strategy and Application

Prosecutors strategically select statutes based on the nature of the material and available evidence:

They use § 43.26(a-1) when:

• There is an identifiable real child in the material
• Prosecutors want the highest possible penalties
• AI was used to manipulate or create sexual content using a real child’s image
• The rebuttable presumption of an actual child favors prosecution

They use § 43.26(a-2) when:

• Material is AI-generated without using any real child’s image
• The AI-generated material is virtually indistinguishable from photographs of real children
• Defendant can prove no actual child was depicted

They use § 43.235 when:

• Material is clearly fictional (cartoons, stylized anime) but still obscene
• Material “appears to be” a child but may not be “virtually indistinguishable” from a real child
• Charging AI training activities specifically
• As an additional charge alongside § 43.26

They use § 21.165 when:

• The victim is an identifiable adult or minor
• Consent is the central issue
• As an additional charge when minors are involved

Collateral Consequences Beyond Prison

Convictions under these statutes carry severe lifelong consequences that extend far beyond incarceration:

Sex Offender Registration

Mandatory requirements for convictions under § 43.26 and § 43.235:

• Lifetime registration on Texas’s sex offender registry
• Tier III classification (highest level) for promotion or production offenses
• Quarterly in-person reporting to law enforcement
• Public disclosure of name, address, photograph, vehicle information, and offense details
• Registration in every jurisdiction where the person lives, works, or attends school
• Online publication on public sex offender databases accessible to anyone
• Community notification when moving to new areas

Residence and Employment Restrictions

• Cannot live within 1,000 feet of schools, daycare centers, parks, playgrounds, youth centers, or swimming pools
• Prohibited from any employment involving children or requiring contact with minors
• Automatic loss of professional licenses (teaching, medicine, law, counseling, childcare, etc.)
• Mandatory restrictions on internet and computer use (may require monitoring software installation)
• Prohibited from operating social media accounts in many cases
• Cannot work in positions with access to children’s personal information
• Severe limitations on available housing (entire neighborhoods may be off-limits)
• Difficulty finding any employment due to public registry

Family and Custody Consequences

• Strong legal presumption against custody rights for own children
• Supervised visitation only, if any contact is permitted with own children
• May be permanently barred from unsupervised contact with own children
• Can lose custody of children not involved in the offense
• Restrictions on contact with other minors (nieces, nephews, grandchildren)
• Divorce proceedings often initiated by spouse upon conviction
• Child Protective Services involvement and ongoing investigations
• Supervised visitation may require paying for professional monitors

Civil Liability

• Victims can file civil lawsuits for damages (no statute of limitations in Texas for CSAM victims)
• Mandatory restitution orders under § 21.165 for psychological, financial, and reputational harm
• Federal restitution available under 18 U.S.C. § 2259 for victim losses
• Civil claims for emotional distress, invasion of privacy, and intentional infliction of emotional distress
• Punitive damages available in many civil cases
• No bankruptcy protection for these debts
• Victims may recover lifetime therapy costs and lost wages

Immigration Consequences

For non-U.S. citizens, convictions are catastrophic:

• Automatic deportable offense (mandatory removal from United States)
• Permanent bar on any future re-entry to the United States
• Prevents naturalization and citizenship applications
• Considered “aggravated felony” under immigration law (most serious category)
• No discretionary relief available (no cancellation of removal, asylum, hardship waivers, etc.)
• May face prosecution in home country upon deportation
• Family members’ immigration status may be jeopardized

Additional Collateral Consequences

• Firearm restrictions: Permanent federal and state ban on firearm possession
• Voting rights: Loss of voting rights during incarceration (restored after completion of sentence)
• Jury service: Permanent disqualification from jury service
• Federal benefits: Ineligibility for many federal programs and benefits
• Student loans: Ineligibility for federal student aid
• Public housing: Lifetime ban from federally subsidized housing
• International travel: Many countries deny entry to registered sex offenders
• Background checks: Offense appears on all background checks permanently
• Social stigma: Severe social isolation, community ostracism, and harassment
• Internet restrictions: Courts may prohibit internet access or social media use
• GPS monitoring: Lifetime GPS ankle monitor in some cases

Law Enforcement and Prosecution Trends

In recent years, the rise of AI-generated child sexual abuse material (CSAM) has triggered an unprecedented response from law enforcement agencies and prosecutors at every level. What was once a niche concern has rapidly evolved into a top priority, drawing national attention and prompting aggressive action. Authorities have ramped up their technological capabilities, reallocated resources, and forged deeper collaborations across jurisdictions to combat this new form of digital exploitation. As a result, investigations are becoming more thorough, prosecutions more strategic, and penalties more severe.

Understanding these emerging enforcement trends is critical—not just for those facing accusations, but for legal professionals, tech companies, and anyone concerned about the evolving landscape of digital criminal law.

Increased Enforcement Activity

Reports of AI-generated CSAM have risen dramatically since 2023, leading to escalating enforcement efforts:

• Formation of dedicated task forces focusing specifically on AI-generated CSAM
• Significantly increased resources for digital forensics labs and AI detection capabilities
• Prosecution prioritization at both federal and state levels
• Enhanced sentencing recommendations reflecting severity of AI-facilitated crimes
• Public awareness campaigns about legal consequences
• Increased cooperation between state and federal prosecutors

Investigation Methods and Technology

Law enforcement uses increasingly sophisticated tools to investigate violations:

• Hash value databases: To identify known CSAM images across platforms (PhotoDNA, NCMEC hash database)
• AI detection tools: Machine learning systems that identify AI-generated content and trace creation methods
• Metadata analysis: Examining creation dates, locations, device information, and software signatures
• Undercover operations: In online communities, dark web forums, and peer-to-peer networks
• Peer-to-peer network monitoring: Tracking file-sharing activity in real-time
• Technology company cooperation: ISPs, cloud providers, and social media platforms proactively report suspicious activity
• Forensic examination: Of seized devices, including deleted files, hidden partitions, and encrypted containers
• Cryptocurrency tracing: Following Bitcoin and other cryptocurrency payments for illegal content
• International cooperation: Through Interpol, Europol, and bilateral law enforcement agreements
• Warrant service coordination: Simultaneous multi-jurisdiction operations

Federal vs. State Prosecution

Child pornography cases can be prosecuted in both state court (under § 43.26 and § 43.235) and federal court (under 18 U.S.C. §§ 2251-2252A). Federal prosecution typically occurs when:

• Interstate or international transmission is involved (internet use typically satisfies this)
• Large-scale operations or organized networks are discovered
• Production cases involving multiple victims or ongoing abuse
• Federal investigators (FBI, ICE, Homeland Security Investigations) conduct the investigation
• The case involves significant aggravating factors warranting longer sentences
• Defendant is already in federal custody on other charges

Federal sentences are significantly more severe than Texas state sentences:

• Mandatory minimum 5-year sentence for receipt/distribution (18 U.S.C. § 2252(a)(2))
• Mandatory minimum 15-year sentence for production (18 U.S.C. § 2251)
• Mandatory minimum 30 years if defendant has prior sex offense conviction
• Sentencing enhancements based on number of images, age of victims, sadistic content, and other factors
• No parole in federal system (defendants serve at least 85% of sentence)
• Supervised release of 5 years to life after prison

Practical Implications and Recommendations

As the legal system evolves to address the complex challenges posed by AI-generated explicit content, it’s crucial for all stakeholders—parents, educators, tech developers, and legal practitioners—to understand their roles and responsibilities. The consequences for missteps in this area can be swift and severe, especially when minors are involved. What may seem like a harmless or anonymous interaction with technology can carry lifelong criminal implications.

This section provides targeted recommendations to help protect children, ensure compliance with emerging legal standards, and guide professionals in navigating this high-stakes digital landscape. Whether you’re a concerned parent, a software developer, or a defense attorney, proactive education, technical safeguards, and strategic legal analysis are more essential than ever.

For Parents and Educators

• Educate children about the serious criminal consequences of AI-generated explicit content
• Monitor children’s online activities, AI tool usage, and app downloads
• Discuss the permanence of digital content and lifelong criminal implications
• Report incidents involving minors immediately to school authorities and law enforcement
• Understand that minors can face prosecution as adults for creating or distributing CSAM
• Be aware that “teen sexting” between minors can result in child pornography charges under § 43.261
• Teach children about consent, digital citizenship, and online safety
• Implement parental controls and monitoring software on children’s devices
• Have ongoing conversations about peer pressure and online risks
• Know the warning signs: secretive device use, clearing history, using encrypted apps

For Technology Companies and AI Developers

• Implement robust content moderation systems before product launch, not after problems emerge
• Develop and deploy AI detection tools for synthetic CSAM
• Establish clear terms of service explicitly prohibiting illegal content generation
• Implement technical safeguards preventing creation of CSAM (training data filtering, output filtering, prompt filtering)
• Train AI models to refuse generating content depicting minors in any sexualized context
• Provide effective user reporting mechanisms that are monitored 24/7
• Train staff on recognition and mandatory reporting requirements
• Respond to takedown notices within required timeframes (48 hours under TAKE IT DOWN Act)
• Maintain detailed logs of reports, actions taken, and timestamps
• Cooperate fully with law enforcement investigations and provide requested data
• Consider implementing age verification systems for AI tools
• Regularly audit systems for potential misuse and emerging abuse patterns
• Ensure the AI developer defense under § 21.165(c-5) is available by implementing all required safeguards
• Join industry initiatives like the National Center for Missing & Exploited Children’s Technology Coalition
• Conduct regular penetration testing to identify vulnerabilities

For Legal Practitioners

Defense Considerations:

• Immediately determine which statute(s) the client is charged under—penalties vary dramatically
• Examine whether material truly “appears to depict” a minor or is “virtually indistinguishable” from actual child (expert analysis required)
• Challenge knowledge and intent elements through digital forensics and device usage patterns
• Review chain of custody for all digital evidence carefully
• Assess search warrant validity and Fourth Amendment issues (probable cause, scope, execution)
• Determine whether material meets statutory definition of “sexual conduct” or “obscenity”
• Evaluate availability of affirmative defenses (close-in-age, official duties, AI developer safeguards)
• Obtain comprehensive mental health evaluations for sentencing mitigation
• Consider constitutional challenges under Ashcroft v. Free Speech Coalition standards for § 43.235 and § 43.26(a-2)
• Challenge the rebuttable presumption in § 43.26(f) with forensic evidence of computer generation
• Explore plea negotiations given mandatory minimums and enhancement provisions
• Advise clients about collateral consequences beyond incarceration before accepting plea deals

Frequently Asked Questions

Is it illegal to create AI-generated pornography of adults without their consent in Texas?

Yes. Under § 21.165, creating or distributing deep fake media depicting an identifiable person with intimate parts visible or engaging in sexual conduct without their written consent is a crime. First offense is a Class A misdemeanor, with enhanced penalties for repeat offenses or if the victim is under 18.

What if the AI image is labeled as fake or includes a disclaimer?

This is not a defense. Section 21.165(c-2) explicitly states that disclaimers or labels indicating the content is not authentic do not provide a defense to prosecution.

Can someone be prosecuted for AI-generated child pornography that doesn’t depict any real child?

Yes. Under § 43.26(a-2), purely computer-generated images that are “virtually indistinguishable” from actual children are illegal. Under § 43.235, obscene material that “appears to be” a child is illegal, even if clearly fictional like cartoons or anime.

What’s the difference between § 43.26 and § 43.235?

Section 43.26 has two subsections: (a-1) covers material depicting actual children or AI-generated content using real children’s images (harshest penalties); (a-2) covers computer-generated children that are “virtually indistinguishable” from real children. Section 43.235 covers obscene material “appearing to be” children, including cartoons and animations, and specifically prohibits using children’s images to train AI models. Section 43.235 has lower penalties but broader coverage of non-realistic depictions.

Can AI developers be held criminally liable for child pornography created using their tools?

Generally no, if they qualify for the affirmative defense under § 21.165(c-5). To qualify, developers must: (1) prohibit creation of illegal deepfakes in terms of service, (2) require users to acknowledge these terms, and (3) implement technological safeguards including AI training to detect prohibited content, reporting tools, output filtering, and training data filtering. However, developers who knowingly facilitate illegal content creation or fail to implement these safeguards can be prosecuted.

What if someone creates this content as a “joke” or “prank”?

Intent and motive are largely irrelevant. Simply creating or possessing the material is criminal. Texas courts do not recognize “prank,” “artistic expression,” or “educational purpose” defenses for child sexual abuse material. The only intent requirement is that you knowingly created or possessed the material, not that you intended any particular harm.

Are the penalties really the same for AI-generated CSAM as for real child pornography?

It depends. For § 43.26(a-1) (material depicting actual children or using real children’s images), yes—penalties range from third-degree felony to life imprisonment. For § 43.26(a-2) (computer-generated children), penalties are somewhat lower, starting at state jail felony with a maximum of 20 years. However, there’s a rebuttable presumption that material depicts an actual child, so defendants must prove it’s computer-generated to get the lower penalties.

What about cartoons or anime-style depictions of minors?

These fall under § 43.235 if they are obscene and appear to depict children younger than 18 engaging in sexual conduct. The material must meet the three-part Miller obscenity test. Penalties range from state jail felony to second-degree felony (20 years) based on prior convictions.

Can families sue if someone creates AI pornography of their child?

Yes. Victims and their families have multiple civil remedies including lawsuits for emotional distress, invasion of privacy, and reputational harm. Under § 21.165, courts must order mandatory restitution for psychological, financial, and reputational harm. There is no statute of limitations for civil claims by CSAM victims in Texas. Federal restitution is also available under 18 U.S.C. § 2259.

Does possession mean you have to have saved the file, or does viewing count?

Both. Under § 43.26(a-1) and (a-2), the statute criminalizes both possession and “accessing with intent to view.” Even if you stream content without saving it, accessing with intent to view constitutes an offense. Cached files on your device from viewing also constitute possession if knowingly retained.

What if I accidentally encounter this material online?

Accidental, brief exposure is not typically prosecuted. However, you must not download, save, or continue viewing it. Close it immediately and report it to NCMEC’s CyberTipline or law enforcement. Do not screenshot it, share it with others (even to warn them), or discuss the specific content. Continuing to view after realizing the nature of the content can establish the “knowingly” element required for prosecution.

Can minors be prosecuted under these laws?

Yes. Minors can be prosecuted under § 43.26 and § 43.235. Texas has a separate statute (§ 43.261) for electronic transmission of sexual material by minors (“sexting”), but creating AI-generated CSAM or possessing CSAM of other minors can be charged under the adult statutes. Minors as young as 14 can be certified to stand trial as adults for serious felonies.

How long do these convictions stay on your record?

Permanently. Felony convictions in Texas cannot be expunged or sealed. They remain on your criminal record for life, appear on all background checks, and require sex offender registration (typically for life). The conviction will be publicly accessible forever.

What if the AI-generated content is of someone who is now an adult but was under 18 when the source photo was taken?

This is still illegal under § 43.26(a-1). The statute specifically criminalizes depictions of individuals who were “younger than 18 years of age at the time the image of the child was made.” The current age of the person is irrelevant; what matters is their age when the source image was created.

Key Takeaways about AI-Generated Pornography in Texas

Texas has established one of the nation’s most comprehensive legal frameworks for addressing AI-generated pornography through three interrelated statutes:

• § 21.165 addresses non-consensual deepfake pornography of identifiable adults and minors, requiring written consent and imposing penalties from Class A misdemeanor to third-degree felony, with mandatory restitution for victims.
• § 43.26 addresses child pornography in two subsections: (a-1) for material depicting actual children or using real children’s images in AI-generated content (third-degree felony to life imprisonment), and (a-2) for computer-generated children virtually indistinguishable from real children (state jail felony to 20 years), with a rebuttable presumption favoring prosecution under the harsher subsection.
• § 43.235 criminalizes obscene visual material appearing to depict children, including cartoons, animations, and AI-generated content, and uniquely prohibits using real children’s images to train AI models (state jail felony to second-degree felony).

The law makes no meaningful distinction between real and synthetic content when minors are involved:

• Creating AI-generated CSAM is prosecuted as harshly as possessing photographs of actual abuse
• Using a real child’s likeness triggers the highest penalties under § 43.26(a-1)
• Even purely fictional depictions face serious felony charges
• The “no real victim” argument has been rejected by courts and legislatures

Consent is not a defense for content involving minors:

• No minor can legally consent to sexually explicit imagery
• For adults, only written consent meeting specific statutory requirements is valid under § 21.165
• Verbal consent or assumed consent provides no legal protection

Penalties are severe and carry lifelong consequences:

• Prison sentences range from 180 days to life imprisonment
• Mandatory sex offender registration with public disclosure
• Severe restrictions on residence, employment, and family contact
• Permanent criminal record that cannot be expunged
• Deportation for non-citizens with no possibility of return

Technology does not provide anonymity or protection:

• Law enforcement uses sophisticated AI detection tools and forensic analysis
• Encryption and anonymity tools do not prevent detection
• Metadata, device forensics, and cryptocurrency tracing enable prosecution
• International cooperation allows cross-border investigations

Platforms and AI developers face significant liability:

• 48-hour takedown requirements under federal law
• Mandatory CSAM reporting to NCMEC
• Criminal and civil liability for hosting prohibited content
• AI developers must implement comprehensive safeguards to qualify for affirmative defenses

The legal framework continues to evolve:

• Courts are still interpreting the 2025 amendments
• Constitutional challenges to § 43.235 and § 43.26(a-2) are likely
• Additional legislation targeting emerging AI capabilities is anticipated
• Federal legislation may preempt or supplement state laws

Summary of Criminal Liability for AI-Generated Pornography

Conduct	Applicable Statute(s)	Minimum Penalty	Maximum Penalty
Creating non-consensual adult deepfake	§ 21.165(b)	Up to 1 year jail	10 years prison (if prior conviction or minor victim)
Threatening to create deepfake	§ 21.165(b-1)	Up to 180 days jail	1 year jail (if prior conviction or minor victim)
Possessing CSAM of actual child	§ 43.26(a-1)	2 years prison	Life imprisonment
Promoting CSAM of actual child	§ 43.26(e)	2 years prison	Life imprisonment (minimum 15 years if 50+ images)
Possessing computer-generated CSAM	§ 43.26(a-2)	180 days jail	20 years prison
Promoting computer-generated CSAM	§ 43.26(e-1)	2 years prison	20 years prison (minimum 10 years if 50+ images)
Possessing obscene material appearing to depict child	§ 43.235(b)(1)	180 days jail	20 years prison (with two prior convictions)
Using child’s image to train AI for CSAM	§ 43.235(b)(2)	180 days jail	20 years prison (with two prior convictions)

All penalties listed are in addition to fines up to $10,000, mandatory restitution, sex offender registration, and the numerous collateral consequences detailed throughout this article.

 

If you have been accused of a crime stemming from allegations of using AI-generated pornography, it’s essential to contact an experienced defense attorney aas soon as possible. These types of allegations can have devastating effects on your personal and professional reputation, even before any formal charges are filed.

Our legal team understands the complexities of emerging AI-related laws and the nuances of digital evidence. We will thoroughly investigate the claims against you, challenge improper or misleading evidence, and work tirelessly to protect your rights and your future.

Don’t face these accusations alone — contact us today for a confidential consultation and start building your defense immediately. Call Varghese Summersett today at 817-203-2220.