Sec. 43.26.  POSSESSION OR PROMOTION OF CHILD PORNOGRAPHY.  (a)  A person commits an offense if:
(1)  the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that 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 child 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 that the material depicts the child as described by Subdivision (1).
(b)  In this section:
(1)  "Promote" has the meaning assigned by Section 43.25.
(2)  "Sexual conduct" has the meaning assigned by Section 43.25.
(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 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.
(c)  The affirmative defenses provided by Sections 43.25(f)(2) and (3) also apply to a prosecution under this section.
 
Text of subsection as amended by Acts 2023, 88th Leg., R.S., Ch. 93 (S.B. 1527), Sec. 6.02
 
(d)  An offense under Subsection (a) is a felony of the third degree, 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 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; and
(2)  a felony of the first degree if:
(A)  it is shown on the trial of the offense that the person 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).
 
Text of subsection as amended by Acts 2023, 88th Leg., R.S., Ch. 1041 (S.B. 129), Sec. 2
 
(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)  a felony of the second degree if 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;
(3)  a felony of the first degree if the person possesses visual material that contains 500 or more visual depictions of a child as described by Subsection (a)(1); or
(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.
 
Text of subsection as added by Acts 2023, 88th Leg., R.S., Ch. 93 (S.B. 1527), Sec. 6.02
 
(d-1)  If it is shown on the trial of an offense under Subsection (a) that the person engaged in conduct that constituted an offense under Subsection (e) during the same criminal episode:
(1)  an offense described for purposes of punishment by Subsection (d)(1) is a felony of the first degree; or
(2)  the minimum term of confinement for an offense described for purposes of punishment by Subsection (d)(2) is increased to 15 years.
 
Text of subsection as added by Acts 2023, 88th Leg., R.S., Ch. 1041 (S.B. 129), Sec. 2
 
(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)(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)(3) is increased to 15 years.
(d-2)  The enhancement provided by Subsection (d-1) is unavailable if the person is also prosecuted under Subsection (e) for conduct occurring during the same criminal episode.
(e)  A person commits an offense if:
(1)  the person knowingly or intentionally promotes or possesses with intent to promote material described by Subsection (a)(1);  and
(2)  the person knows that the material depicts the child as described by Subsection (a)(1).
(f)  Repealed by Acts 2023, 88th Leg., R.S., Ch. 93 (S.B. 1527), Sec. 6.03, eff. September 1, 2023.
(g)  An offense under Subsection (e) is a felony of the second degree, except that the offense is a felony of the first degree if it is shown on the trial of the offense that the person has been previously convicted of an offense under that subsection.
(h)  It is a defense to prosecution under 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).
(i)  For purposes of conduct prohibited under this section, visual material to which that conduct applies includes a depiction of a child:
(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
(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.
Added by Acts 1985, 69th Leg., ch. 530, Sec. 2, eff. Sept. 1, 1985.  Amended by Acts 1989, 71st Leg., ch. 361, Sec. 1, eff. Sept. 1, 1989;  Acts 1989, 71st Leg., ch. 968, Sec. 1, eff. Sept. 1, 1989;  Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994;  Acts 1995, 74th Leg., ch. 76, Sec. 14.51, eff. Sept. 1, 1995;  Acts 1997, 75th Leg., ch. 933, Sec. 1, eff. Sept. 1, 1997;  Acts 1999, 76th Leg., ch. 1415, Sec. 22(c), eff. Sept. 1, 1999.
Amended by: 
Acts 2011, 82nd Leg., R.S., Ch. 1322 (S.B. 407), Sec. 2, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 1252 (H.B. 8), Sec. 20, eff. September 1, 2013.
Acts 2015, 84th Leg., R.S., Ch. 933 (H.B. 2291), Sec. 2, eff. September 1, 2015.
Acts 2023, 88th Leg., R.S., Ch. 93 (S.B. 1527), Sec. 6.02, eff. September 1, 2023.
Acts 2023, 88th Leg., R.S., Ch. 93 (S.B. 1527), Sec. 6.03, eff. September 1, 2023.
Acts 2023, 88th Leg., R.S., Ch. 730 (H.B. 2700), Sec. 1, eff. September 1, 2023.
Acts 2023, 88th Leg., R.S., Ch. 1041 (S.B. 129), Sec. 2, eff. September 1, 2023.