While sexting can be consensual between adults, it can also amount to a crime when minors are involved. If a sexual image of a minor is sent to another person, whether they are an adult or a minor may trigger a criminal offense under Texas law.
Attorney Ned Barnett understands how devastating it is to face accusations of sex crimes involving minors. If you have been charged or accused of sexting minors in Texas, schedule a free and confidential consultation at (713) 222-6767.
Texas Sexting Laws Seem Contradictory
Almost everyone has a smartphone. From 15-year-olds to 65-year-olds, these devices have become a necessity. But teens and adults alike have increasingly been using their phones to send sexually explicit messages, photos, and videos.
The laws in Texas regarding sexting have led to several conflicting results because of the state’s age of consent, which is 17. As a result, someone who is 17 years old can have a consensual sexual relationship with someone older, yet not necessarily send that person sexual images.
While a 17-year-old can legally consent to sexual activity and legally send sexually explicit images to someone within two years of their age, they cannot send sexual images to someone 20-years-old or older. This could lead to an offense for both the teen and adult.
These are just a couple of instances in which the laws in Texas regarding sexting and minors can be contradictory. In general, sexual images of adults consensually sent and received are not illegal.
When Does Sexting Become a Crime?
Texas Penal Code §43.261
This law outlines the electronic transmission of certain visual material depicting a minor. It states that a minor (17-years-old or younger) commits a crime if they intentionally and knowingly:
- Electronically send a visual material to another minor depicting any minor engaging in sexual conduct if they produced the material or know another minor did so.
- Possess electronic, visual material depicting another minor engaging in sexual conduct if they produced the material or knows another minor did so.
Texas law does give teenagers a break if the material only shows the sender or another minor who is not more than two years older or younger than the sender. It also doesn’t apply to individuals in a dating relationship at the time.
For example, if a 16-year-old girl sent a nude photograph to her 18-year-old boyfriend, this would not be an offense. However, if the 16-year-old girl was dating someone older than 18 and sent him a nude photograph, or if she sent the picture to someone who was not her boyfriend, it would be a crime.
Texas Penal Code §43.26
Under this law, sexting also becomes a crime when it involves sexual images of minors. The possession or promotion of child pornography occurs if an individual knowingly or intentionally possesses or knowingly or intentionally accesses with the intent to view:
- Visual material that shows a child younger than 18 at the time the image was taken
- Minors engaging in forced or consensual sexual conduct
Individuals can also be found guilty of violating this statute if they know the material depicts a child.
While §43.261 of the Texas Penal Code focuses on the actions of teenagers spreading illicit images of minors, §43.26 has no such age limits or age-related defenses.
Penalties for Sexting Between Minors
Texas has some of the harshest penalties for sex crimes and offenses involving minors. Depending on the statute, you could face several statutory and collateral consequences.
Texas Penal Code §43.261
This is normally a class C misdemeanor punishable by a fine of up to $500. However, if a minor sent the pictures to harass, embarrass, abuse, or offend someone, it may be enhanced to a class B misdemeanor. This is punishable by up to 180 days in jail and fines reaching $2,000. Secondary and subsequent offenses may be classified as class A misdemeanors, punishable by up to one year in jail and $4,000.
Penal Code §43.26
Child pornography crimes are charged as felonies and penalized with lengthy prison terms and thousands in fines. The statutory penalties are:
- First Offense – A third-degree felony punishable by two to 10 years in prison and a maximum fine of $10,000
- Second Offense – A second-degree felony that can bring about two to 20 years in prison and fines reaching $10,000
- Subsequent Offenses – First-degree felonies punishable by five to 99 years (or life) in prison and fines reaching $10,000
Collateral Penalties of a Sexting Conviction
The previously mentioned consequences are only those that you might face criminally. They do not include the additional penalties if you are found guilty of sexting a minor in Texas. You can also expect:
- Difficulty finding and maintaining employment
- Issues with obtaining rental housing
- Loss of the right to vote
- Loss of the right to own a firearm
- Immigration issues
- Child custody/visitation issues
- Sex offender registration
- Community service
- Probation or parole requirements
- Restitution to the victim(s)
- Trouble with personal and professional relationships
- Suspension or revocation of professional licenses
Defenses for Your Sexting Case
Accusations of sexting a minor are bad enough but keep in mind the prosecutor has the burden of proof to convict you. There is a lot a defense lawyer can do to improve your case, like explain elements in your favor, pursue alternative resolutions, and work to clear your name.
There may be several potential defenses for individuals charged with possessing or transmitting sexual depictions of other minors, depending on the details. Some include:
- The visual showed only the defendant
- The minor depicted in the image was no more than two years older or younger than the defendant, and they were in a dating relationship at the time of the offense
- They were married at the time of the offense
- The defendant did not produce the illicit material
- They destroyed the material within a reasonable amount of time after
To learn more about the possible defenses in your sexting case, contact a Houston child sex crimes lawyer ASAP.
Attorney Barnett Can Help
Whether you’re an adult accused of having child pornography on your laptop or you’re the parent of a teenager charged with sexting a friend, you need an experienced criminal defense attorney. The penalties for child pornography or possessing or transmitting sexual material of a minor can leave someone with a permanent criminal record.
Attorney Ned Barnett has more than 30 years of experience as a prosecutor and a criminal defense attorney. He knows the ins and outs of Texas law and how a prosecutor will likely address your case. Let him build a strong defense and aggressively advocate for you.
Call The Law Offices of Ned Barnett today at (713) 222-6767 to schedule a free and confidential case consultation.