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This statute specifically covers electronic images of minors engaging in sexual conduct. Sexual conduct, under the statute, includes both actual and simulated sexual intercourse. It also includes sexual bestiality, masturbation, acts of sado-masochism, the exhibition of genitals or a female breast below the top of the areola, and/or the anus. Where a minor possesses visual material depicting another minor engaging in any of the above sexual conduct, and the actor either created or assisted in the creation of the material, they are guilty of the offense. Additionally, if the minor possessing the material did not produce the material themselves, but knows that another minor produced the material, they have met the elements of the statute. See Penal Code section 43.261 for more information.
The final way a minor may commit the offense involves “promotion” of visual material by one minor to another minor. “Promotion” has a specific definition under Texas law. For purposes of this statute, promotion includes the following behavior:
Additionally, offering or agreeing to do any of the above is covered under “promotion.”
When a minor engages in any of the above conduct, in regards to material showing a minor, including the minor who is the actor, and the minor either made the material themselves or knows that another minor made the materials, they are also guilty of the offense.
The possession or promotion must be intentional or knowing.
Generally, this is a Class C misdemeanor, punishable by a $500 fine. However, in certain cases, the offense can be charged as a Class B misdemeanor, or a Class A misdemeanor. Class B misdemeanors are punishable by fines up to $2,000 and up to 180 days in jail. Class A misdemeanors can include fines up to $4,000 and up to one year in jail.
The charge for electronic transmission of certain visual material depicting a minor in Fort Worth includes several affirmative defenses. These defenses are fact-specific and should be discussed with an experienced criminal defense attorney.