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Obscenity

Chapter 43 of the Texas Penal Code defines charges and punishments for offenses of public indecency.

“Obscenity”, as per § 43.23 of the Texas Penal Code, occurs when a person, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device.

An offense under this subsection is a state jail felony.

A person commits an offense if, knowing its content and character, he:

promotes or possesses with intent to promote any obscene material or obscene device; or

  • produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity.
  • A person who promotes or wholesale promotes obscene material or an obscene device or possesses the same with intent to promote or wholesale promote it in the course of his business is presumed to do so with knowledge of its content and character.

A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same.

It is an affirmative defense to prosecution under this section that the person who possesses or promotes material or a device proscribed by this section does so for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.

The punishment for an offense under this Subsection is increased to the punishment for a felony of the second degree if it is shown on the trial of the offense that obscene material that is the subject of the offense visually depicts activities described by Section 43.21(a)(1)(B) engaged in by:

  • a child younger than 18 years of age at the time the image of the child was made;
  • an image that to a reasonable person would be virtually indistinguishable from the image of a child younger than 18 years of age; or
  • an image created, adapted, or modified to be the image of an identifiable child.

Punishment Range

State Jail Felony

  • Confinement in a state jail for not more than two years and not less than 180 days
  • In addition to confinement, may receive a fine not to exceed $10,000

Second Degree Felony

  • Imprisonment in the institutional division for not more than 20 years or less than two years
  • In addition to imprisonment, may receive a fine not to exceed $10,000

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