bill raising penalties for sexual images of children

The text as introduced · 1,475 words

89R1695 CJD-D

By: Johnson
H.B. No. 418

A BILL TO BE ENTITLED

AN ACT

relating to prosecution and punishment of certain criminal offenses

prohibiting sexually explicit visual material involving children

or other persons; increasing a criminal penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 21.16(a)(5), Penal Code, is amended to

read as follows:

(5) "Visual material" means:

(A) any film, photograph, videotape, negative,

or slide or any photographic reproduction that contains or

incorporates in any manner any film, photograph, videotape,

negative, or slide; or

(B) any disk, diskette, or other physical medium ,

or a file in any digital format, that allows an image to be

displayed on a computer or other video screen and any image

transmitted to a computer or other video screen by telephone line,

cable, satellite transmission, or other method.

SECTION 2. Section 43.26(b)(3), Penal Code, is amended to

read as follows:

(3) "Visual material" means:

(A) any film, photograph, videotape, negative,

or slide or any photographic reproduction that contains or

incorporates in any manner any film, photograph, videotape,

negative, or slide; or

(B) any disk, diskette, or other physical medium ,

or a file in any digital format, that allows an image to be

displayed on a computer or other video screen and any image

transmitted to a computer or other video screen by telephone line,

cable, satellite transmission, or other method.

SECTION 3. Section 43.26(d), Penal Code, as amended by

Chapters 93 (S.B. 1527) and 1041 (S.B. 129), Acts of the 88th

Legislature, Regular Session, 2023, is reenacted and amended to

read as follows:

(d) An offense under Subsection (a) is[ :

[ (1) ] a felony of the third degree [ if the person

possesses visual material that contains fewer than 100 visual

depictions of a child as described by Subsection (a)(1);

[ (2) ], except that the offense is:

(1) a felony of the second degree if:

(A) it is shown on the trial of the offense that

the person [ possesses visual material that contains 100 or more

visual depictions of a child as described by Subsection (a)(1) but

fewer than 500 such depictions ] has been previously convicted one

time of an offense under that subsection; or

(B) the person possesses visual material that

contains 10 or more visual depictions of a child as described by

Subsection (a)(1) but fewer than 50 such depictions;

(2) [ (3) ] a felony of the first degree if:

(A) it is shown on the trial of the offense that

the person [ possesses visual material that contains 500 or more

visual depictions of a child as described by Subsection (a)(1) ] has

been previously convicted two or more times of an offense under that

subsection; or

(B) the person possesses visual material that

contains:

(i) 50 or more visual depictions of a child

as described by Subsection (a)(1); or

(ii) a videotape or film that visually

depicts conduct constituting an offense under Section

22.011(a)(2); or

(3) [ (4) ] a felony of the first degree punishable by

imprisonment in the Texas Department of Criminal Justice for life

or for any term of not more than 99 years or less than 25 years if it

is shown on the trial of the offense that, at the time of the

offense, the person was:

(A) an employee at a child-care facility or a

residential child-care facility, as those terms are defined by

Section 42.002, Human Resources Code;

(B) an employee at a residential treatment

facility established under Section 221.056, Human Resources Code;

(C) an employee at a shelter or facility that

serves youth and that receives state funds; or

(D) receiving state funds for the care of a child

depicted by the visual material.

SECTION 4. Section 43.26(d-1), Penal Code, as added by

Chapter 1041 (S.B. 129), Acts of the 88th Legislature, Regular

Session, 2023, is amended to read as follows:

(d-1) If it is shown on the trial of an offense under

Subsection (a) that the visual material depicted a child younger

than 10 years of age at the time the image of the child was made [ or

that the defendant has been previously convicted of an offense

under that subsection ]:

(1) an offense described for purposes of punishment by

Subsection (d) as a felony of the second or third degree [ (d)(1) or

(2) ] is increased to the next higher category of offense; or

(2) the minimum term of confinement for an offense

described for purposes of punishment by Subsection (d)(2) [ (d)(3) ]

is increased to 15 years.

SECTION 5. Sections 43.26(g) and (i), Penal Code, are

amended to read as follows:

(g) An offense under Subsection (e) is a felony of the

second degree, except that the offense is :

(1) a felony of the first degree if the person promotes

or possesses with intent to promote visual material that contains

10 or more visual depictions of a child as described by Subsection

(a)(1) but fewer than 50 such depictions; or

(2) a felony of the first degree with a minimum term of

confinement of 15 years if:

(A) it is shown on the trial of the offense that

the person has been previously convicted of an offense under

Subsection (e); or

(B) the person promotes or possesses with intent

to promote visual material that contains:

(i) 50 or more visual depictions of a child

as described by Subsection (a)(1); or

(ii) a videotape or film that visually

depicts conduct constituting an offense under Section 22.011(a)(2)

[ that subsection ].

(i) For purposes of conduct prohibited under this section,

visual material to which that conduct applies includes :

(1) a depiction of a child:

(A) [ (1) ] who is recognizable as an actual person

by the person's face, likeness, or other distinguishing

characteristic, such as a unique birthmark or other recognizable

feature; and

(B) [ (2) ] whose image as a child younger than 18

years of age was used in creating, adapting, or modifying the visual

material, including computer-generated visual material that was

created, adapted, or modified using an artificial intelligence

application or other computer software ; or

(2) a depiction of a child, created using an

artificial intelligence application or other computer software,

that to a reasonable person is virtually indistinguishable from an

actual child younger than 18 years of age .

SECTION 6. Section 43.261(b-1), Penal Code, is amended to

read as follows:

(b-1) For purposes of conduct prohibited under Subsection

(b), visual material to which that conduct applies includes :

(1) a depiction of a minor:

(A) [ (1) ] who is recognizable as an actual person

by the person's face, likeness, or other distinguishing

characteristic, such as a unique birthmark or other recognizable

feature; and

(B) [ (2) ] whose image as a minor was used in

creating, adapting, or modifying the visual material, including

computer-generated visual material that was created, adapted, or

modified using an artificial intelligence application or other

computer software ; or

(2) a depiction of a minor, created using an

artificial intelligence application or other computer software,

that to a reasonable person is virtually indistinguishable from an

actual minor .

SECTION 7. Section 43.262(b-1), Penal Code, is amended to

read as follows:

(b-1) For purposes of conduct prohibited under Subsection

(b), visual material to which that conduct applies includes :

(1) a depiction of a child:

(A) [ (1) ] who is recognizable as an actual person

by the person's face, likeness, or other distinguishing

characteristic, such as a unique birthmark or other recognizable

feature; and

(B) [ (2) ] whose image as a child younger than 18

years of age was used in creating, adapting, or modifying the visual

material, including computer-generated visual material that was

created, adapted, or modified using an artificial intelligence

application or other computer software ; or

(2) a depiction of a child, created using an

artificial intelligence application or other computer software,

that to a reasonable person is virtually indistinguishable from an

actual child younger than 18 years of age .

SECTION 8. The following provisions of the Penal Code are

repealed:

(1) Section 43.26(d-1), as added by Chapter 93 (S.B.

1527), Acts of the 88th Legislature, Regular Session, 2023; and

(2) Section 43.26(d-2).

SECTION 9. The changes in law made by this Act apply only to

an offense committed on or after the effective date of this Act. An

offense committed before the effective date of this Act is governed

by the law in effect on the date the offense was committed, and the

former law is continued in effect for that purpose. For purposes

of this section, an offense was committed before the effective date

of this Act if any element of the offense was committed before that

date.

SECTION 10. This Act takes effect September 1, 2025.