Possession Of Child Pornography | PC 43.26 (2026 Update)

Possession of child pornography in Texas is a felony under Texas Penal Code § 43.26. Depending on the number of images, it can be charged as a third-degree felony (2 to 10 years) up to a first-degree felony (5 to 99 years or life in prison). A conviction also requires lifetime sex offender registration.

The Texas Legislature completely overhauled this law effective September 1, 2025. The penalty structure is now driven primarily by the quantity of visual depictions possessed, with additional enhancements based on the age of the child, prior convictions, and whether the offender worked in a child-care setting. The 2025 amendments also expanded the law to cover AI-generated and computer-generated images of children for the first time.

At Varghese Summersett, our criminal defense attorneys have defended some of the most serious child pornography cases in Texas, including federal cases involving the hosting and distribution of child sexual abuse material. With more than 100 years of combined legal experience, 1,600+ dismissals, and 800+ charge reductions, we understand the technology law enforcement uses, the mistakes investigators make, and the defenses that work. Our team includes multiple Board Certified criminal law specialists and former prosecutors who know how to challenge these cases at every stage.

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What Is Possession of Child Pornography Under Texas Law?

Under Texas Penal Code § 43.26, a person commits the offense of possession of child pornography if they intentionally or knowingly possess or access with intent to view visual material that depicts a child younger than 18 engaging in sexual conduct, and the person knows or should have known the material depicts a child.

As of September 1, 2025, the law also covers computer-generated images that are virtually indistinguishable from a real child. This means AI-generated deepfakes and other digitally created material now fall within the statute’s reach if they appear to depict a child engaging in sexual conduct.

“Sexual conduct” is defined broadly under Penal Code § 43.25(a)(2). It includes sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, anus, or any portion of the female breast below the top of the areola.

Notably, a video or image does not have to show an explicit sexual act to be prosecuted as child pornography. A “lewd exhibition” of a child’s genitals can be sufficient. In Romo v. State, 663 S.W.3d 716 (Tex. Crim. App. 2022), the Texas Court of Criminal Appeals applied a six-factor analysis derived from United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), to determine whether depictions of naked children qualify as “lewd.” Under this framework, courts consider factors such as whether the focal point of the image is the child’s genitals or pubic area, whether the setting is sexually suggestive, whether the child is in an unnatural pose, and whether the image is designed to elicit a sexual response in the viewer.

“Visual material” includes photographs, films, videotapes, negatives, slides, and any digital medium that allows an image to be displayed on a computer or video screen, including images transmitted by telephone, cable, satellite, or other method.

Understanding Your Charging Document

If you or a loved one has been charged with possession of child pornography, the first document you will see is typically an indictment, information, or complaint. These charging documents use standardized abbreviations that can be confusing to read. Here is what the most common abbreviations mean:

Here are examples of how these abbreviations appear in actual charging documents and what they mean:

Understanding these abbreviations is the first step in understanding the severity of the charges and the potential consequences. The quantity of depictions listed in the charging document determines which penalty tier applies, and additional language about enhancements, prior convictions, or the age of the child will further affect the offense level.

What Offense Level Is Possession of Child Pornography in Texas?

The 2025 amendments to Texas Penal Code § 43.26 created the most complex penalty structure in the Texas Penal Code. The offense level depends on the type of material (real child vs. computer-generated), the number of visual depictions, the age of the child depicted, prior convictions, and whether the offender held a position of trust over children. These factors operate as a matrix — any combination can compound to increase the punishment.

Possession of Depictions of Real Children (§ 43.26(a-1))

The base offense for possessing material that depicts a real child engaging in sexual conduct is a third-degree felony. The offense level increases with the number of images, prior convictions, and other aggravating factors:

Age Enhancement: Child Under 10 (§ 43.26(c-2))

The 2025 law added a separate age enhancement that layers on top of the base offense level. If the material depicts a child who appears to be younger than 10 years old, the punishment increases as follows:

This means the number of images sets the baseline penalty tier, and the age of the depicted child acts as an enhancement that ratchets it up further. Prior convictions and the offender’s position of trust serve as additional, independent pathways to a higher punishment.

Promotion of Child Pornography / Possession with Intent to Promote (§ 43.26(e))

Promoting child pornography — or possessing it with the intent to promote — is charged separately and carries higher penalties. “Promote” means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do any of these things.

A note about the 2025 amendments: Two bills passed during the 2025 legislative session — HB 1778 and SB 1621 — both amended the promotion penalties under § 43.26, and their changes conflict. HB 1778 set promotion of real-child material as a default first-degree felony. SB 1621 passed 12 days later and set it as a default second-degree felony with a more nuanced enhancement structure. Under the Code Construction Act, the bill approved last in time controls, which means SB 1621’s penalty structure likely governs — though courts will ultimately decide. The table below reflects SB 1621’s framework:

Promotion of Computer-Generated Child Pornography (§ 43.26(e-1))

Promoting computer-generated child pornography carries its own penalty structure under § 43.26(g-1), generally one degree lower than promotion of real-child material:

Possession of Computer-Generated Child Pornography (§ 43.26(a-2))

The 2025 amendments created an entirely new offense for possessing AI-generated or computer-generated images of children engaging in sexual conduct. These images must be “virtually indistinguishable” from a depiction of a real child. The penalty structure mirrors the framework for real-child material but is generally one degree lower across the board:

The same under-10 age enhancement applies to computer-generated images — bumping the offense to the next higher category.

There is a rebuttable presumption that any depiction is of an actual child rather than a computer-generated one. This means the burden falls on the defense to establish that the material is computer-generated rather than a depiction of a real child, which can make a significant difference in the applicable penalty range.

Can You Be Charged for AI-Generated or Computer-Generated Child Pornography in Texas?

Yes. Texas now criminalizes purely computer-generated child sexual abuse material (CSAM) even when no real child was involved in creating the images. There is no “no real victim” safe harbor. The 2025 legislative amendments closed prior loopholes and treat AI-generated depictions as seriously as real-child exploitation. Creating, possessing, or promoting purely computer-generated child pornography is a felony in Texas, and enhancements based on quantity and the apparent age of the depicted child mean exposure can quickly reach decades in prison — even where every file is synthetic.

Texas uses three main statutes to prosecute different types of AI-generated and computer-created material:

Photorealistic AI Child Pornography — Penal Code § 43.26(a-2)

If the AI-generated image is “virtually indistinguishable” from a depiction of a real child engaging in sexual conduct, the State can charge computer-generated child pornography under Penal Code § 43.26(a-2). This is the primary statute used to prosecute photorealistic AI-generated CSAM, including deepfakes and other digitally created imagery that looks like a real child.

Possession starts as a state jail felony and scales up based on quantity, prior convictions, and the apparent age of the child depicted. Promotion of photorealistic AI-generated CSAM starts as a third-degree felony or higher, with quantity-based and age-based enhancements. If the depicted child appears to be younger than 10, the offense level ratchets up further.

Non-Photorealistic AI, Cartoon, and Anime-Style Depictions — Penal Code § 43.235

Penal Code § 43.235 covers obscene visual material that appears to depict a child engaging in sexual conduct, including cartoons, anime-style drawings, and AI images that do not necessarily look photorealistic. This statute expressly includes AI-generated and computer-created images in the definition of covered visual material.

This is the statute the State uses to prosecute “fantasy” AI depictions that may not meet the “virtually indistinguishable from a real child” standard required under § 43.26(a-2). Even highly stylized or clearly artificial imagery can be prosecuted under § 43.235 if it is obscene and appears to depict a child in sexual conduct. Penalties range from a state jail felony up to a second-degree felony depending on prior convictions and enhancements.

Lewd Visual Material Depicting a Child — Penal Code § 43.262

Penal Code § 43.262 targets the “lewd exhibition” of a child’s genitals, pubic area, or breast — including images in non-nude or semi-clothed contexts that do not rise to the level of full sexual conduct. The 2025 amendments extended this statute so that AI or computer-created depictions that are virtually indistinguishable from an actual child are covered in the same way as images of real children.

This means that AI-generated images showing a child in a lewd pose or context can be prosecuted even if the image does not depict explicit sexual conduct, as long as the image is virtually indistinguishable from a real child.

Summary: How Texas Categorizes AI-Generated CSAM

The practical effect of these three statutes is that virtually every type of AI-generated child sexual exploitation material is now prosecutable in Texas — from photorealistic deepfakes to stylized anime and cartoon depictions. The specific statute and penalty range depend on how realistic the material appears and the nature of the depicted conduct.

What Must the State Prove?

To convict someone of possession of child pornography, the prosecution must prove every element of the offense beyond a reasonable doubt. The burden is entirely on the State. The defendant has no obligation to prove innocence.

For offenses involving a depiction of a real child under § 43.26(a-1), the State must prove:

1. The defendant intentionally or knowingly possessed, or intentionally or knowingly accessed with intent to view, visual material containing a visual depiction of a child engaging in sexual conduct.
2. The defendant knew or should have known that the depiction was of a child younger than 18 at the time the image was made.

For offenses involving computer-generated images under § 43.26(a-2), the State must prove:

1. The defendant intentionally or knowingly possessed, or intentionally or knowingly accessed with intent to view, visual material containing a visual depiction of a computer-generated child engaging in sexual conduct.
2. The defendant knew or should have known the depiction appears to be of a child younger than 18, or believed the depiction was of an actual child.

The 2025 amendments broadened the knowledge requirement. Previously, the State had to prove the defendant knew the material depicted a child. Now, proving the defendant should have known is sufficient. This is a significant change that makes these cases easier to prosecute.

Defense attorneys challenge specific elements to create reasonable doubt. For example, questioning whether the defendant actually “possessed” the material (especially when a computer is shared), whether the images depict actual children or are simulated, and whether the defendant had the required mental state are all viable strategies.

Is Possession of Child Pornography a 3G Offense in Texas?

Yes. Effective September 1, 2023, possession or promotion of child pornography is classified as a 3G offense in Texas. This designation carries serious consequences. A person convicted of a 3G offense must serve at least half of their prison sentence before becoming eligible for parole. A judge also cannot grant straight probation unless a jury recommends it following a trial.

What Are the Bond Amounts for Child Pornography Cases?

Bond amounts in child pornography cases are among the highest for any offense. Based on an analysis Varghese Summersett completed of over 600 bonds in Tarrant County for child-related offenses:

These figures reflect bonds set in Tarrant County. Bond amounts can vary significantly depending on the specific charges, the defendant’s criminal history, ties to the community, and the judge assigned to the case. If you or someone you love is facing an unreasonably high bond, an experienced attorney can file a motion to reduce the bond amount. Talk to a lawyer before you speak to police.

Do You Have to Register as a Sex Offender?

Yes. If you plead guilty to or are found guilty of possession of child pornography, Texas law requires you to register as a sex offender for life. This requirement applies whether you receive a conviction or are placed on deferred adjudication. Lifetime registration affects where you can live, where you can work, your ability to be around children, and your reputation in the community.

How Are Child Pornography Cases Investigated?

Tip Lines and Electronic Service Providers

The internet gives offenders a convenient but traceable way to possess child pornography. The National Center for Missing and Exploited Children (NCMEC) operates a CyberTipline where electronic service providers and the public can report suspected child sexual exploitation. After a report is filed, NCMEC staff review the tip and attempt to identify a geographic location. That information is then shared with federal, state, and local investigators.

Electronic service providers like Dropbox, Microsoft, Google, and Facebook actively work with NCMEC to detect known child sexual abuse material. In 2009, Microsoft, with the help of Dartmouth College, developed PhotoDNA, a tool that creates a unique hash (digital signature) of an image and matches it against a database of known child pornography. Microsoft donated PhotoDNA to NCMEC. When a match is detected on a platform, the service provider files a CyberTipline report, which can trigger a law enforcement investigation. PhotoDNA does not currently detect videos or encrypted files.

Sting Operations

Law enforcement also uses undercover operations to identify individuals who possess or distribute child pornography. Agents may operate or take over websites that host child sexual abuse material and use network investigative techniques (NITs) to identify the IP addresses and devices of users who access the material.

In one well-known example, the FBI seized a child pornography website called “Playpen” in December 2014 and continued operating it for roughly two weeks. During that time, the FBI deployed malware that copied identifying information from the computers of users who downloaded images. The operation led to criminal charges against 137 individuals across the country. These types of operations raise serious Fourth Amendment questions that experienced defense attorneys can challenge.

IP Address Tracing

In most child pornography investigations, law enforcement identifies a suspect by tracing an IP address back to a physical location. An IP address is assigned by an internet service provider (ISP) and can often be linked to a specific home or business. However, an IP address alone does not prove who was using a particular device at a particular time. This is especially relevant in cases involving shared computers, unsecured Wi-Fi networks, or public internet access points.

What Are the Defenses to Child Pornography Charges?

Challenging the Classification of the Material

It is important to understand that computer-generated and AI-created child pornography is now a felony in Texas — there is no “no real victim” safe harbor. However, the classification of the material matters because it determines which statute applies and the severity of the punishment. The penalty structure for computer-generated material under § 43.26(a-2) is generally one degree lower than for material depicting real children under § 43.26(a-1). There is a rebuttable presumption that any depiction involves an actual child, so the burden falls on the defense to establish that the material is purely computer-generated. Successfully doing so does not result in an acquittal — it shifts the case into a lower penalty tier.

Before the 2025 amendments, the plain language of the Texas statute prohibited only material depicting actual children, not material that merely “appeared” to depict a child. Webb v. State, 109 S.W.3d 580, 583 (Tex. App., Fort Worth 2003, no pet.). The 2025 law closed that gap entirely. Defense attorneys now focus on which statutory subsection applies and whether the State can meet the specific elements of the charged offense, including the “virtually indistinguishable” standard for computer-generated material under § 43.26(a-2).

Challenging “Possession”

The State must prove the defendant actually possessed or accessed the material with intent to view. This can be challenged in cases where files were automatically downloaded by a browser, cached without the user’s knowledge, placed on a shared computer by someone else, or accessed through malware or a compromised network. Forensic experts can analyze a computer to determine whether files were deliberately saved or simply cached by web browsing activity.

Fourth Amendment Violations (Illegal Searches)

The Fourth Amendment protects against unreasonable searches and seizures. In child pornography cases, defense attorneys frequently challenge the legality of how evidence was obtained. Common Fourth Amendment issues include search warrants that lack probable cause, warrants that are overly broad, searches that exceed the scope of the warrant, and evidence obtained through law enforcement hacking or malware deployment without proper authorization.

For example, the United States Fifth Circuit Court of Appeals reversed a nine-year sentence for a man named Brian Morton who was accused of possessing child pornography. Morton was pulled over for speeding near Palo Pinto, Texas, and officers obtained warrants to search his cellphones based on drug-related probable cause. When officers searched through Morton’s camera roll and discovered explicit images of children, Morton was charged with possession of child pornography. The Fifth Circuit found that the warrants lacked probable cause to search the camera roll for evidence of drug possession, and the images should have been suppressed.

Affirmative Defenses

Texas law provides several affirmative defenses under Penal Code § 43.25(f) and § 43.26 itself. An affirmative defense means the defendant admits the conduct but provides a legal justification. These include:

• The defendant was the spouse of the child at the time of the offense.
• The conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose.
• The defendant is no more than two years older than the child.
• Judicial or law enforcement officers: Under § 43.26(h-1), it is an affirmative defense that the actor was a judicial or law enforcement officer discharging official duties at the time of the offense.
• Computer-generated material — close in age: Under § 43.26(h-2), it is an affirmative defense to prosecution for possessing or promoting computer-generated child pornography under § 43.26(a-2) or (e-1) that the actor is not more than two years older than the depicted child. This is a new defense added by the 2025 amendments that applies only to computer-generated images.

Age of the Subject

If there is a question about whether the person depicted is under 18, Section 43.25(g) allows the determination to be made by personal inspection of the child, inspection of the photograph, oral testimony by a witness as to the child’s age based on appearance, expert medical testimony, or any other method authorized by law.

Law Enforcement and School Administrator Exception

No criminal liability attaches if a law enforcement officer or school administrator possessed or accessed explicit images in good faith as a result of an allegation that two minors were sexting, allowed only appropriate personnel to access the material, and took reasonable steps to promptly destroy the images.

Protect your rights and your record. If you are under investigation or have been arrested for possession of child pornography, do not speak to investigators before talking to an attorney. Call 817-203-2220 to schedule a free consultation.

Varghese Summersett’s Track Record in Child Pornography Cases

Varghese Summersett has a proven record of achieving favorable results in child pornography and related sex crime cases. In one case, a client was charged with possession with intent to promote child pornography in Tarrant County. The defense team at Varghese Summersett thoroughly investigated the evidence, challenged the State’s case, and ultimately secured a dismissal of all charges.

Past results do not guarantee future outcomes.

We have defended cases at both the state and federal level, including a federal case involving the hosting of child pornography that was described by agents as the “Netflix of child porn.” We know how to challenge the technology, the investigation, and the assumptions that law enforcement makes. We have forensic experts who can distinguish between actual and simulated child pornography, and we have gone to trial against the most serious charges.

What to Expect From Varghese Summersett

When you hire Varghese Summersett to defend a child pornography case, you get a team of seasoned attorneys who treat you with respect and fight aggressively on your behalf. Our firm has more than 70 team members across four Texas offices in Fort Worth, Dallas, Houston, and Southlake. We understand the stigma attached to these charges and the fear you are experiencing. Here is what you can expect from us:

• Immediate case evaluation. We will review the facts, assess the evidence, and develop a defense strategy tailored to your case.
• Technology expertise. We work with forensic computer experts to analyze devices, challenge the State’s digital evidence, and identify weaknesses in the investigation.
• Aggressive representation. Whether through pretrial motions, plea negotiations, or trial, we will fight to protect your rights at every stage.
• Compassionate guidance. We understand what you are going through. We will guide you through every step of the legal process and keep you informed.

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Frequently Asked Questions About Child Pornography Charges in Texas

How many years can you get for possession of child pornography in Texas?

The sentence depends on the quantity of images and other factors. At minimum, possession of material depicting a real child is a third-degree felony carrying 2 to 10 years. If you possess 50 or more visual depictions, it becomes a first-degree felony with a range of 5 to 99 years or life. Employees at child-care facilities face a mandatory minimum of 25 years. If the material is computer-generated, the penalties are generally one degree lower — starting as a state jail felony (180 days to 2 years) and scaling up to a second-degree felony (2 to 20 years).

Can you get probation for possession of child pornography?

It is extremely difficult. Because possession of child pornography is a 3G offense, a judge cannot grant straight probation unless a jury recommends it after trial. Deferred adjudication may be possible in limited circumstances, but even deferred adjudication triggers lifetime sex offender registration.

Is viewing child pornography the same as possessing it under Texas law?

Yes. Under § 43.26, the offense includes both possessing visual material and accessing it with intent to view. You do not have to download or save the material to be charged. Simply accessing it with the intent to view it is enough.

What is the difference between possession and promotion of child pornography?

Possession means having or accessing the material for personal viewing. Promotion means distributing, selling, or sharing it — or possessing it with the intent to do so. Promotion carries higher penalties, starting as a second-degree felony for depictions of real children under SB 1621’s framework. The State can prove intent to promote through circumstantial evidence such as the way the material was stored, organized, or made available to others.

Does Texas law cover AI-generated child pornography?

Yes. Texas uses three statutes to prosecute AI-generated child sexual abuse material. Photorealistic AI images that are virtually indistinguishable from a real child are charged under Penal Code § 43.26(a-2), with penalties starting as a state jail felony and scaling based on quantity and aggravating factors. Non-photorealistic material, including cartoon or anime-style depictions, can be prosecuted under § 43.235 if the material is obscene and appears to depict a child. AI images showing lewd exhibition of a child can be charged under § 43.262. There is no safe harbor for the absence of a real victim — purely synthetic material is prosecutable.

Can you be charged under both state and federal law?

Yes. Texas and the federal government can both prosecute child pornography offenses. Federal penalties are often more severe. A first-time conviction for possessing child pornography under 18 U.S.C. § 2252 carries up to 20 years in prison, and producing child pornography under 18 U.S.C. § 2251 carries a mandatory minimum of 15 years.

What should I do if I am under investigation for child pornography?

Do not speak to police or investigators without an attorney present. Do not consent to a search of your home, computer, or phone. Do not attempt to delete files, as that can result in additional charges for tampering with evidence. Contact an experienced criminal defense attorney immediately. Call 817-203-2220 for a free consultation.

Facing Possession of Child Pornography Charges? Don’t Wait.

If you are under investigation or have been arrested for possession of child pornography or any offense involving the sexual exploitation of children, the decisions you make right now will affect the rest of your life. Do not speak to investigators. Do not consent to any searches. Contact an experienced criminal defense attorney immediately. We can help. Call 817-203-2220 to schedule a free consultation with a defense attorney who knows how to fight these cases.