As a starting point, the crime of obscenity involves materials that are obscene or devices that are obscene. The state of Texas defines “obscene” as follows:
- Something that does not have serious literary, artistic, political or scientific value;
- Something that, using contemporary community standards, appeals to the prurient interest in sex; and
- Depicts or describes either patently offensive representations or descriptions of sexual acts (either real or simulated); or masturbation, sadism, masochism, lewd exhibition of genitals, genitals in the state of arousal or stimulation, including an erect penis, even if covered, or a device designed for the sexual stimulation of genitals.
If you have been charged with a felony for possessing or promoting obscene content, our Fort Worth obscenity lawyers could help you protect your legal rights.
There are two different levels of obscenity offenses in the state of Texas. It is a state jail felony for one to wholesale promote or possess with the intent to wholesale promote obscene materials or devices. It is a Class A misdemeanor for one to either promote or possess with the intent to promote any obscene material or device, or to produce, present, direct, or participate in a performance that is obscene.
The difference between promoting and wholesale promoting obscenity is found in the result – does the person stand to make a profit? Wholesale promotion involves the manufacturing, issuing, selling, providing, mailing, delivering, transferring, transmitting, publishing, distributing, circulating, disseminating, or an offer or agreement to do one of these for the purpose of resale. Promoting, on the other hand, includes these same actions, (manufacturing, issuing, selling, etc.) along with giving, lending, presenting, exhibiting, and advertising, as well as the offer or agreement to do one of these things, without the purpose of resale.
In both instances, the state must prove the person knows the content and character of the material. Class A misdemeanors are punishable by up to a year in jail and a fine of up to $4,000. State jail felonies are punishable by a term of no more than two years or less than 180 days, as well as a fine of up to $10,000. Additionally, in both instances, if the person depicted is a minor, or if the depiction is designed to appear to involve a minor, the punishment is greater. Reference Texas Penal Code 43.23 for more information.