The Ins and Outs of Sexting Laws in Texas

Sexting Laws in Texas: Introduction

In Texas and around the country, sexting-or "sending sexually explicit messages or images by cell phone"-is a common practice among teenagers and young adults. According to experts, at least 40% of high school age teenagers report having engaged in sexting. However, although teenagers may think of sexting as harmless fun or as a way to flirt with their crushes, in certain circumstances, sexting can lead to serious criminal consequences in Texas. In 2009 the Texas Legislature passed Texas Penal Code Section 43.261 in order to make it a crime to send or solicit sexual images of persons younger than 17 without the other’s consent. Any eighteen year old or older who sends an image of a minor or solicits a minor to engage in the consensual exchange of such images is guilty of a Class B misdemeanor for the first offense, which means a maximum fine of $2000 and six months in jail. A second offense carries a ten thousand dollar fine and one year in jail. In addition to these penalties, any juvenile who engages in this conduct may be barred from viewing sexually explicit material and from attending school dances, among other things. Despite popular misconceptions, however, sexting can also be a crime even if both persons involved are over 17. For instance, it is a crime to send a nude photo of yourself to someone else without their consent. According to Texas Penal Code Section 21 . 11, sending or displaying a nude or semi-nude photo of another person, without that person’s consent and with the intent to arouse or gratify the sexual desire of either person, is a third degree felony. Furthermore, pursuant to Texas Penal Code Section 21.08, soliciting a sexual image of another person over the Internet is a Class C misdemeanor, punishable only by a fine up to $500. In addition to violating state laws, sexting can also violate school conduct codes, leading to school discipline or expulsion. For example, under Galveston Independent School District’s Student Code of Conduct, students can be subjected to disciplinary action for hazing, bullying, making bullying, abusive, or harassing communications, and any conduct aimed at humiliating or intimidating another student or group of students, all of which could include sexting. Not only can individuals face criminal and school disciplinary consequences for sexting, but they can also be dragged into civil litigation as a result of the practice. For instance, a person who receives unsolicited nude or semi-nude photographs or videos can sue the sender for negligent or intentional infliction of emotional distress, battery, negligence, invasion of privacy, defamation, and even statutory causes of action such as under the California Anti-Paparazzi Statute, while a person who receives a nude photo or video of a minor without their consent can be prosecuted under the federal child pornography statute.

Definition of Sexting in Texas

To begin with, sexting itself is not a defined term in the Texas Penal Code. The term "sending lewd electronic material" comes closest to describing sexting. Under Texas law, you commit an offense if you send (the State didn’t define this term) a nude photograph or obscene video through a smartphone or other mobile device or by computer or similar thing capable of sending the material. The section applies only when you’ve sent or displayed the material to a child or an officer posing as a child.
The statute making this an offense, a Class C misdemeanor, states the elements of the offense as follows:
(a) A person commits an offense if the person knowingly:

(1) sends, communicates, or otherwise transmits by any means to another by an electronic device:

(A) a photograph, film or videotape or other similar reproduction or reconstruction of a nude minor; or
(B) an obscene photograph, film, videotape or other similar reproduction or reconstruction that is obscene as to the minor to whom the communication is made; or

(2) solicits by any electronic means the photograph, film, videotape or other reproduction or reconstruction described by Subdivision (1) from another, regardless of whether the minor solicited is the intended recipient of the photograph or other reproduction or reconstruction.

(b) Except as provided by Subsection (d), a person commits an offense if, with intent to arouse or gratify the sexual desire of a child, the person:

(1) with knowledge of the character and content of the photograph, film, videotape, or other reproduction or reconstruction, causes a child to see or view a photograph, film, videotape, or other reproduction or reconstruction that is obscene as to the child; or
(2) with intent that the child see or view the photograph, film, videotape or other reproduction or reconstruction, causes a child to see or view a photograph, film, videotape or other reproduction or reconstruction that is obscene as to the child.

(c) Except as provided by Subsection (d), a person commits an offense if, with intent to arouse or gratify the sexual desire of the person or the child, the person uses an electronic device to display to a child a photograph, film, videotape or other reproduction or reconstruction that is obscene as to the child.
(d) It is a defense to prosecution under Subsection (a)(2) or (c) that:

• (1) the child was at least 14 years of age at the time the depiction was displayed, caused to see, or caused to view;
• (2) the actor had not previously been convicted of an offense under this section involving a child younger than 17 years of age; and
• (3) the depiction involved was not distributed to more than one child.

(e) An offense under this section is a Class C misdemeanor.

Legal Penalties for Sexting in Texas

Individuals convicted of "sexting" may face a number of legal penalties. In particular, senders and recipients of nude or partially clothed photographs whose ages are within two years of one another could potentially face misdemeanor charges in the form of a Class C fine (up to $500).
However, if a minor engages in sexting with an individual over the age of 17 – even if the teen is old enough to legally consent to consensual sexual conduct – they may be charged with distribution of child pornography, a third-degree felony. Conviction on one count can lead to a minimum prison sentence of two years and a maximum of ten years.
If convicted of distributing child pornography, offenders will also be required to register as sex offenders, which can have a significant impact on virtually every aspect of life moving forward.

Teens and Sexting Laws in Texas

The impact on teens is tremendous. Sexting by teens is estimated to be as high as one in four. Studies have shown that sexting can lead to depression – especially for the girl. This effect is exacerbated when a relationship ends in a broken heart. Even if the young woman breaks up with the boy, the dissemination of her intimate images can come back to haunt her. It is like a vicious cycle of depression and humiliation. Sexting can also result in bullying and harassment. Teens can face charges of harassment and stalking under Texas law.
As with most criminal offenses, a minor can be charged in juvenile court, or charged as an adult in criminal court. Unfortunately, sexting laws impact the minor worse if they are certified to stand trial as an adult. Sexting as a Class A misdemeanor would ordinarily be punishable by up to a $4,000 fine. If a minor over 17 years old is charged in criminal court as an adult, and they are convicted, they can face up to a year in jail. This is especially common when minors break the law when they are on school property. Furthermore, when minors are charged with a Class A misdemeanor, their parents can be liable for a court fine of up to $10,000. There is no mens rea (criminal mind) requirement in a Class C misdemeanor. Thus, minors who send nude photos or videos to someone else can be charged even if it was an accident. Parents may want to consider having conversations with their children about not forwarding messages or images they should not have received in the first place; however, many teens will not listen because they believe an image sent to someone else is private and can be deleted. As such, it is wise for parents to be aware of the legal implications of sexting. It is also important to be aware of the possibility of an exception to the law. As with all defenses, each situation is unique. The image or video must have been sent after consent was given by everyone pictured. If parties under 17 saw a need to record their intimate acts, then all the parties must give prior consent to the recording, viewing, and passing along of the recording. This issue often arises when minors use their phones to record sexual activities to keep as evidence of abuse. Finally, there are some statutory rape exceptions.

Updates and New Court Decisions

Historically, sexting was seen as a ‘new ‘ problem, with legislators and law enforcement unsure how to tackle the issue effectively. As technology has grown and changed, the laws surrounding the issue have also altered to reflect those changes. In 2011, House Bill 2221 was passed and went into effect on September 1stst of that year. This amendment updated the definitions surrounding the case of sexting, expanded the ages concerned in the offense, and more clearly defined penalties for the transmission and receipt of obscene photos involving minors. It made charges resulting from sexting minors an offense of "risky sexual behavior," with a class C or D misdemeanor attached. Further updates were made in 2015, as Senate Bill 1031 amended Section 21.12(a), stating that "it is an offense if the person has access to a cell-phone or any other wireless device that can transmit images, and with the intent to harm or defraud someone, knows that person would not consent to its installation or activation . " Sexting laws have also changed in municipalities across Texas, including updates to the Sanger, TX ordinance that goes into effect on May 1, 2017. The amendment notes that "(a) person who engages in retaliation is guilty of a Class A misdemeanor. (b) A finding by the court that the defendant has engaged in retaliation after a trial on the merits of the underlying family violence, protective order, or temporary ex parte protective order that forms the basis of the original protective order is an enhancement factor. (d) This section does not apply to a person who engaged in retaliation that is connected to a third party deportation proceeding if the person acted solely for a legitimate purpose. (e) To the extent of conflict between this section and other provisions, this section controls."

Legal Solutions and Prevention

The best way to stay out of trouble for sexting in Texas is to avoid it altogether. However, if you do choose to engage in it, just like many other things in life, there are ways to protect yourself. Both you and the person receiving your text should be of legal consent, and that typically means either 18 years old or the same age as your boyfriend/girlfriend. If the sender has sufficient age to give consent, then the recipient does not need to be the same age—just 18 or older. Even so, the law tends to protect youth who exchange sexually explicit texts, either purposely or when it is forwarded to others without their consent. When it comes to adolescents, even a nude image of themselves can be considered child pornography. Fortunately, the law provides certain affirmative defenses to criminal charges. There are several things you can start doing immediately to ensure you’re complying with the law. Are you a parent? Talk to your teen about the potential dangers and pitfalls of sexting. Address the emotional and social issues of being a victim of sexting. Check your cell phone bill often: it’s possible to find out where the recipient of the sext is located if they use their data plan. If you find one of your children has sent a sext, discuss it with them. If you learn they are under 17, do not share what you have learned about them with their friends or parents to maintain their trust. To effectively deal with the situation, you must ask them open-ended questions to develop context about the image and the relationship. Consider taking away their phone for a time, or taking away their computer or tablet. This is an effective and immediate solution for sending explicit images, but it does not address the underlying reasons for why they did it. What might this be? Attracting the attention of a crush, bragging to friends, peer pressure, or trying out new sexual behaviors. This behavior can be a red flag for many issues; if parents haven’t talked to teens about sexual health, coming up against concerns about pregnancy or disease can be frightening. Have an open and honest discussion about why they chose to behave inappropriately, address questions, and remind them of the legal implications if they ever choose to take such risks again. You may also want to speak with a qualified lawyer to decide your next steps.

Wrap Up: Sexting Laws in Texas

In conclusion, sex-related conduct using electronic devices is a gray area in the law, and many people have little knowledge of the full scope of legal boundaries for sexting in Texas. Understanding the laws in your area will help you properly define those boundaries in your life. Additionally, some people believe that the laws focused on "sexting" are geared more toward policing minors , but criminal offenses involving sexual conduct are applicable to adults as well. These include publicly exposing one’s intimate body parts, indecent exposure and enticement of a minor. If you decide to practice "sexting" as an adult, it is crucial to understand and abide by the laws in your area. Otherwise, you could be subject to legal repercussions.