Sale, Distribution, or Display of Harmful Material to a Minor | Penal Code 43.24

Penal Code 43.24 criminalizes the sale, distribution, or display of harmful material to a minor in Texas. It is not an offense you hear about a lot, but a recent news story has raised interest in this statute and how it can be used.

This week, NBC News revealed a two-year investigation into school librarians in Granbury, Texas, over allegations of providing allegedly harmful material to minors through library books. This article serves as an analysis—not of what books should be available in libraries—of only whether the criminal charge of “Sale, Distribution, or Display of Harmful Material to Minor” fits the alleged facts and, if it does, who could be held criminally responsible.

Here’s what we know: Chief Deputy Constable Scott London conducted a months-long investigation resulting in an 824-page investigative report targeting three school librarians in Granbury, Texas. The offense Deputy London wrote charging instruments for was Distributing Harmful Material to a Minor. The charges were turned down by the local district attorney.

The charging instrument drafted by Deputy London alleged violations under Texas Penal Code 43.24.

Penal Code 43.24 Explained

Penal Code defines “harmful material” as content appealing to minors’ prurient interests, offensive to community standards, and lacking social value for minors. It criminalizes knowingly selling or displaying such material to minors.

It makes the offense a Class A misdemeanor under most circumstances, but the charge is increased to a State Jail Felony if a minor is used to commit the offense.

Common Applications of Penal Code 43.24

The statute is commonly used to prosecute:

• Adults who sell pornographic magazines to teenagers.
• Store owners who display explicit content where minors can easily see it.
• Adults who send sexually explicit images to a minor.

Could Books Qualify as Harmful Materials?

Penal Code 43.24 addresses material without distinction between visual or any other type of material.  So the analysis focuses on whether the book is “harmful.”

How does Penal Code 43.24 define harmful material?

“Harmful material” means material whose dominant theme taken as a whole: (A) appeals to the prurient interest of a minor, in sex, nudity, or excretion; (B) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and (C) is utterly without redeeming social value for minors.

This definition is in the conjunctive, meaning for it to be illegal, the material must meet all three prongs of the definition.

3-Part Test Under Penal Code 43.24

Is the dominant theme one that appeals to prurient interests?

For a book to qualify under this definition, it must have a dominant theme that appeals to the prurient interest of a minor, in sex, nudity, or excretion. It would not be sufficient under this standard if such topics were included as a minor theme.

Is the material patently offensive to the adult community as a whole with respect to what is suitable for minors?

Second, the book must be patently offensive to the adult community as a whole with respect to what is suitable for minors. This is subjective and depends on community standards. What some consider offensive, others may view as educational or culturally significant.

Is the material utterly without redeeming social value for minors?

Third, the book must be utterly without redeeming social value for minors. At least some would argue the books that were at the crux of Deputy London’s investigation were recognized for their literary and educational value. The argument that a book is utterly or completely without redeeming social value for minors is a difficult one to make.

Affirmative Defense

Penal Code 43.25 also provides for an affirmative defense for prosecution “under this section that the sale, distribution, or exhibition was by a person having scientific, educational, governmental, or other similar justification.” School librarians could certainly be able to claim this defense.

An affirmative defense in Texas criminal law is a defense in which the defendant admits to the conduct but asserts a legal justification or excuse that negates criminal liability, such as self-defense.

Knowing the statute has an affirmative defense for educators, it is hard to imagine an investigator who had read the statute could pursue an investigation into librarians for months. An affirmative defense means that even if all the elements of the offense could be proven, the librarians still could not be punished. It also makes it understandable why the Hood County District Attorney declined to prosecute these charges.

To circle back to the question we set out to answer, no, the facts here do not provide a basis for criminal prosecution against librarians in Texas.

Can parents influence what books are in school libraries?

While librarians and other educators have been provided immunity to criminal prosecution under these facts, does that mean parents have no influence over what books are in a school library? Not at all.

In Texas, parents have several ways to influence which books are available in public school libraries:

School Board Meetings: Parents can attend and speak at local school board meetings, where policies regarding library materials are often discussed and decided. School board members are elected officials who represent the interests of the community.

Library Review Committees: Some school districts have committees that review library materials. Parents can sometimes volunteer or be appointed to serve on these committees to help review and recommend books.

Formal Challenges: Most school districts have a formal process for parents to challenge or request the removal of specific books from the library. This usually involves submitting a written request and participating in a review process.

Parent-Teacher Associations (PTAs): Active involvement in PTAs can give parents a voice in library and curriculum decisions. PTAs often work closely with school administration on various issues, including library content.

Direct Communication with Librarians: Parents can communicate directly with school librarians and administrators to express concerns or suggest books for inclusion or removal.

Surveys and Public Input Sessions: Some school districts conduct surveys or hold public input sessions to gather feedback from parents and the community about library materials.

By engaging in these processes, parents can have a significant impact on the selection of books in public school libraries in Texas.