Bill adds offenses for sexually explicit AI images of children

The text as introduced · 2,868 words

89R5261 JRR-F

By: Fairly
H.B. No. 4911

A BILL TO BE ENTITLED

AN ACT

relating to prosecution and punishment of certain criminal offenses

prohibiting sexually explicit visual material involving depictions

of children, computer-generated children, or other persons;

creating criminal offenses; increasing criminal penalties.

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

SECTION 1. Section 43.26, Penal Code, is amended by

amending Subsections (a), (e), (g), and (h) and adding Subsections

(a-1), (a-2), (c-1), (c-2), (c-3), (c-4), (e-1), (f), (g-1), (h-1),

and (h-2) to read as follows:

(a) In this section:

(1) "Depiction of a child" means, with respect to an

image of a child contained in visual material:

(A) a depiction of a child who was younger than 18

years of age at the time the image of the child was made; or

(B) a depiction of a child:

(i) 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

(ii) 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.

(2) "Depiction of a computer-generated child" means,

with respect to an image of a child contained in visual material, a

depiction:

(A) appearing to be a child younger than 18 years

of age;

(B) created using an artificial intelligence

application or other computer software; and

(C) that to a reasonable person is virtually

indistinguishable from an actual child younger than 18 years of

age.

(3) "Promote" and "sexual conduct" have the meanings

assigned by Section 43.25.

(4) "School library" means a library of a public or

private primary or secondary school.

(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.

(a-1) A person commits an offense if:

(1) the person intentionally or knowingly [ or

intentionally ] possesses, or [ knowingly or ] intentionally or

knowingly accesses with intent to view, visual material that

contains a visual depiction of [ visually depicts ] a child [ younger

than 18 years of age at the time the image of the child was made who

is ] engaging in sexual conduct, including a depiction of a child

engaging [ who engages ] in sexual conduct as a victim of an offense

under Section 20A.02(a)(5), (6), (7), or (8); and

(2) the person knows or should have known that the

depiction [ material depicts the child as ] described by Subdivision

(1) is of a child younger than 18 years of age at the time the image

of the child was made .

(a-2) A person commits an offense if the person:

(1) intentionally or knowingly possesses, or

intentionally or knowingly accesses with intent to view, visual

material that contains a visual depiction of a computer-generated

child engaging in sexual conduct; and

(2) either:

(A) knows or should have known that the depiction

described by Subdivision (1) appears to be of a child younger than

18 years of age; or

(B) believes that the depiction is of an actual

child younger than 18 years of age at the time the image of the child

was made.

(c-1) An offense under Subsection (a-1) is a felony of the

third degree, except that the offense is:

(1) a felony of the second degree if it is shown on the

trial of the offense that the actor:

(A) has been previously convicted one time of an

offense:

(i) under this chapter; or

(ii) described by Article 62.001(5), Code

of Criminal Procedure; or

(B) possesses visual material that contains 10 or

more visual depictions of a child engaging in sexual conduct as

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

(2) a felony of the first degree if it is shown on the

trial of the offense that the actor:

(A) has been previously convicted two or more

times of an offense, or any combination of offenses:

(i) under this chapter; or

(ii) described by Article 62.001(5), Code

of Criminal Procedure; or

(B) possesses visual material that contains:

(i) 50 or more visual depictions of a child

engaging in sexual conduct as described by Subsection (a-1)(1); or

(ii) a videotape or film that visually

depicts conduct constituting an offense under Section

22.011(a)(2); or

(3) 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:

(A) at the time of the offense, the actor was:

(i) 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;

(ii) an employee at a residential treatment

facility established under Section 221.056, Human Resources Code;

(iii) an employee at a shelter or facility

that serves youth and that receives state funds; or

(iv) receiving state funds for the care of a

child depicted by the visual material; or

(B) the actor displayed the visual material or

caused the visual material to be displayed in a school library.

(c-2) If it is shown on the trial of an offense under

Subsection (a-1) that the visual material contained a depiction of

a child younger than 10 years of age at the time the image of the

child was made engaging in sexual conduct as described by Section

(a-1)(1):

(1) an offense punishable under Subsection (c-1) as a

felony of the second or third degree 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 (c-1)(2) is

increased to 15 years.

(c-3) An offense under Subsection (a-2) is a state jail

felony, except that the offense is:

(1) a felony of the third degree if it is shown on the

trial of the offense that the actor:

(A) has been previously convicted one time of an

offense:

(i) under this chapter; or

(ii) described by Article 62.001(5), Code

of Criminal Procedure; or

(B) possesses visual material that contains 10 or

more visual depictions of a computer-generated child engaging in

sexual conduct as described by Subsection (a-2)(1) but fewer than

50 such depictions;

(2) a felony of the second degree if it is shown on the

trial of the offense that the actor:

(A) has been previously convicted two or more

times of an offense, or any combination of offenses:

(i) under this chapter; or

(ii) described by Article 62.001(5), Code

of Criminal Procedure; or

(B) possesses visual material that contains 50 or

more visual depictions of a computer-generated child engaging in

sexual conduct as described by Subsection (a-2)(1); or

(3) a felony of the second degree with a minimum term

of imprisonment of 10 years if it is shown on the trial of the

offense that:

(A) at the time of the offense, the actor was an

employee described by Subsection (c-1)(3)(A)(i), (ii), or (iii); or

(B) the actor displayed the visual material or

caused the visual material to be displayed in a school library.

(c-4) If it is shown on the trial of an offense under

Subsection (a-2) that the visual material contained a depiction of

a computer-generated child who appears to be younger than 10 years

of age and is engaging in sexual conduct as described by Subsection

(a-2)(1), the punishment for the offense is increased to the

punishment for the next higher category of offense, provided that

the minimum term of imprisonment for an offense described for

purposes of punishment by Subsection (c-3)(3) is 10 years.

(e) A person commits an offense if:

(1) the person intentionally or knowingly [ or

intentionally ] promotes or possesses with intent to promote visual

material described by Subsection (a-1)(1) [ (a)(1) ]; and

(2) the person knows or should have known that the

depiction [ material depicts the child as ] described by Subsection

(a-1)(1) is of a child younger than 18 years of age at the time the

image of the child was made [ (a)(1) ].

(e-1) A person commits an offense if the person:

(1) intentionally or knowingly promotes or possesses

with intent to promote visual material described by Subsection

(a-2)(1); and

(2) either:

(A) knows or should have known that the depiction

described by Subsection (a-2)(1) appears to be of a child younger

than 18 years of age; or

(B) believes that the depiction is of an actual

child younger than 18 years of age at the time the image of the child

was made.

(f) In the prosecution of an offense under Subsection (a-1)

or (e):

(1) the state is not required to prove the identity of

the child in the depiction described by Subsection (a-1)(1); and

(2) there is a rebuttable presumption that the

depiction is of an actual child, as described by Subsection

(a)(1)(A) or (B), and not of a computer-generated child, as

described by Subsection (a)(2).

(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 it is shown on the

trial of the offense that the actor:

(A) [ person ] has been previously convicted one or

more times of an offense :

(i) under this chapter; or

(ii) described by Article 62.001(5), Code

of Criminal Procedure;

(B) promotes or possesses with intent to promote

visual material that contains 10 or more visual depictions of a

child engaging in sexual conduct as described by Subsection

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

(C) promotes or possesses with intent to promote

visual material that contains one or more visual depictions of a

child who appears to be younger than 10 years of age and is engaging

in sexual conduct as described by Subsection (a-1)(1); or

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

imprisonment of 15 years if it is shown on the trial of the offense

that the actor promotes or possesses with intent to promote visual

material that contains:

(A) 50 or more visual depictions of a child

engaging in sexual conduct as described by Subsection (a-1)(1); or

(B) a videotape or film that visually depicts

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

respect to a depiction of a child [ that subsection ].

(g-1) An offense under Subsection (e-1) is a felony of the

third degree, except that the offense is:

(1) a felony of the second degree if it is shown on the

trial of the offense that the person:

(A) has been previously convicted one or more

times of an offense:

(i) under this chapter; or

(ii) described by Article 62.001(5), Code

of Criminal Procedure;

(B) promotes or possesses with intent to promote

visual material that contains 10 or more visual depictions of a

computer-generated child engaging in sexual conduct as described by

Subsection (a-2)(1); or

(C) promotes or possesses with intent to promote

visual material that contains one or more visual depictions of a

computer-generated child who appears to be younger than 10 years of

age and is engaging in sexual conduct as described by Subsection

(a-2)(1); or

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

of imprisonment of 10 years if it is shown on the trial of the

offense that the person promotes or possesses with intent to

promote visual material that contains 50 or more visual depictions

of a computer-generated child engaging in sexual conduct as

described by Subsection (a-2)(1).

(h) It is a defense to prosecution under this section

[ Subsection (a) or (e) ] that the actor is a law enforcement officer

or a school administrator who:

(1) possessed or accessed the visual material in good

faith solely as a result of an allegation of a violation of Section

43.261;

(2) allowed other law enforcement or school

administrative personnel to possess or access the material only as

appropriate based on the allegation described by Subdivision (1);

and

(3) took reasonable steps to destroy the material

within an appropriate period following the allegation described by

Subdivision (1).

(h-1) It is an affirmative defense to prosecution under this

section that the conduct was for a bona fide educational, medical,

psychological, psychiatric, judicial, law enforcement, or

legislative purpose.

(h-2) It is an affirmative defense to prosecution under

Subsection (a-2) or (e-1) that the actor is not more than two years

older than the depicted child.

SECTION 2. Article 38.45(a), Code of Criminal Procedure, is

amended to read as follows:

(a) During the course of a criminal hearing or proceeding,

the court may not make available or allow to be made available for

copying or dissemination to the public property or material:

(1) that constitutes child pornography, as described

by Section 43.26(a-1)(1) or (a-2)(2) [ 43.26(a)(1) ], Penal Code;

(2) the promotion or possession of which is prohibited

under Section 43.261, Penal Code; or

(3) that is described by Section 2 or 5, Article

38.071, of this code.

SECTION 3. Article 39.15(a), Code of Criminal Procedure, is

amended to read as follows:

(a) In the manner provided by this article, a court shall

allow discovery under Article 39.14 of property or material:

(1) that constitutes child pornography, as described

by Section 43.26(a-1)(1) or (a-2)(2) [ 43.26(a)(1) ], Penal Code;

(2) the promotion or possession of which is prohibited

under Section 43.261, Penal Code; or

(3) that is described by Section 2 or 5, Article

38.071, of this code.

SECTION 4. 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 5. 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 6. 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 7. The following provisions of the Penal Code are

repealed:

(1) Sections 43.26(b), (c), (d), (d-2), and (i);

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

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

(3) Section 43.26(d-1), Penal Code, as added by

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

Session, 2023.

SECTION 8. 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 9. This Act takes effect September 1, 2025.