Texas Sexting Laws

By | May 27, 2016

Sexting Laws in Texas

Smart phones are quickly becoming an integral part of daily life for the millions of people that use them. It takes only a few seconds to snap an image with a smart phone camera and send it to friends or post it on social media. When people choose to send images of a sexual nature, however, there is a potential that a law has been broken.

Although it is not illegal for two consenting adults to send sexual images to each other via text messages, adults may face criminal charges for sending explicit images to minors. Also, a minor who sends an explicit message to another minor may also face prosecution. Texas, like several other states, has recently changed its law regarding the criminal prosecution of sexting.

Is Sexting Illegal?

In many cases, there is nothing illegal about taking a sexually explicit photo and sharing it with someone else via a text message or email. However, the line into illegality can be crossed depending on who receives the image or who is depicted in the image.

For example, Jake uses his smart phone to send an explicit image to his girlfriend, Sarah. As long as Sarah is okay with receiving the image and is not being harassed, no crime has been committed.

However, if either Jake or Sarah are minors under the age of 18, a crime may have occurred. This is because it is against the law to create, distribute or promote sexually explicit images of minors under Texas law. A person who takes such an image may not think of their photo as pornographic. They may think “I just took a picture to share with my partner”. However, Texas law states that nude or explicit images may be considered pornographic. If those images depict a minor, they may be considered child pornography and the person who took the picture may be considered a creator or distributor of child pornography. This is true even if they took an image of themselves.

Legal Penalties

In Texas, it is against the law to send, receive or possess sexually explicit images of people under the age of 18. When it comes to sexting, sending or receiving these kinds of images may lead to charges of possession or distribution of child pornography.

Under Texas law, a person who is convicted on a count of child pornography can face:

  • Sentencing under a third degree felony charge
  • Two to 10 years in state prison
  • A fine of up to $10,000
  • Mandatory lifelong registration as a sex offender

Repeat violations of this type can lead to enhanced penalties. For example, a person with two or more previous child pornography convictions may have any new offenses of this type automatically upgraded to first degree felony charges.

The legal penalties are slightly different for minors. Similar to “Romeo and Juliet” laws regarding sexual activity between young people, sexting laws have been changed for certain cases involving minors. In order to avoid harsh punishments for young people who simply made a mistake, the penalties can be lessened for minors in sexting cases. For example, a minor who is charged with sending sexually explicit messages may only face a Class C misdemeanor charge for a first offense and a Class B misdemeanor charge for subsequent offenses.

Legal Defenses

Minors who are charged with sexting offenses may face reduced penalties. In some cases, they may avoid most penalties altogether. For example, if:

  • A minor under age 18 sent an explicit message to another minor
  • The images exchanged only depicted the sender or the person receiving the message
  • The sender and recipient were in a dating relationship at the time of sending the message
  • The sender and recipient are no more than two years apart in age

If these circumstances are met, the parties involved may avoid penalties. However, they may be ordered to attend educational programs and appear in court with their parents. If they commit violations in the future, they may be ineligible for this leniency and they may face criminal penalties.

Adults who face charges for sexting can hire a defense attorney to create a legal defense. The defense attorney may choose to focus on the issue of intent and argue that the defendant did not intentionally seek out explicit messages. If the prosecution cannot prove that the defendant intentionally received or sent explicit messages, it may be possible to avoid a conviction.

About Author:

Houston lawyer Brett Podolsky is an accomplished trial attorney and is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He will champion your rights and protect your interests to the best of his ability. As a former Assistant Criminal District Attorney representing the State of Texas, Mr. Podolsky has worked on both sides of the criminal justice system and has years of experience in criminal law and related criminal matters. His jury trial experience includes: capital murder, murder, robbery, DWI, drug possession, assault and theft.

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