A Guide to Texas Obscenity Laws

Obscenity is a crime in Texas that involves the promotion of obscene material or devices. If you have been charged with violating Texas obscenity laws, you should be aware that obscenity is a serious criminal offense. We recommend discussing your case with one of the skilled criminal defense attorneys at Wilder Law Firm as soon as possible so we can begin preparing your legal defense. We have also prepared this guide to Texas obscenity laws to help residents understand what it means to be charged with a crime of obscenity.

Understanding Texas Obscenity Laws

Obscenity is a legal term that often applies to subject matter that has been deemed morally offensive. Even though people in America have the right to freedom of speech and expression, there are limits to the type of content a person can express. Possessing or distributing obscene material is illegal under state and federal law. However, not all offensive material constitutes obscene material. Under Texas state law, it is a crime to promote, produce, present, or direct obscene material under Texas state law. Most of the obscene material that results in criminal prosecution involves some types of pornography, including child pornography.

Under section “a” of Texas Penal Code § 43.23, a person will commit the crime of obscenity if they promote or possess with intent to sell or promote any obscene material or device. To convict a defendant of obscenity, the prosecutor must prove that the defendant knew about the material’s content and character. 

Under section “c” of the obscenity law, a person commits the crime of obscenity, if they know about the material’s content and character and:

    • Promote or possess with intent to promote any obscene material or obscene device; or
    • Produce, present, or direct an obscene performance or participate in a portion thereof that is obscene or that contributes to its obscenity.

 

Penalties for Criminal Obscenity in Texas

In Texas, being convicted of the crime of obscenity under the section, “a” will result in a class A misdemeanor on your record if the offense was a simple promotion or production. The penalty for a class A misdemeanor is a jail sentence of up to one year and/or a fine of up to $4,000. However, a defendant can face a state jail felony if the offense involved the wholesale promotion of obscene material or an obscene device. If you are charged with a state jail felony, you face up to two years in state jail and/or a fine of up to $10,000. 

There are enhanced penalties for individuals convicted of possessing six or more obscene articles or identical or similar obscene articles. Such a person will be presumed to possess these obscene articles with the intent to promote them. They will face a second-degree felony punishable by up to 20 years in prison and/or a fine of up to $10,000. However, the prosecution must show at trial that the obscene material visually depicts activities described in Texas Penal Code § 43.21(a)(1)(B) and that, taken as a whole, lack serious artistic, literary, political, or scientific value. The material must depict or describe patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including:

  • Sexual intercourse
  • Sodomy
  • Sexual bestiality
  • Patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, 
  • Lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal
  • Covered male genitals in a discernibly turgid state, or
  • A device designed and marketed as useful primarily for the stimulation of the human genital organs

The defendant’s conviction will be enhanced to a second-degree felony if the subject of the material involved:

  • A child younger than 18 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 under the age of 18, or
  • An image adapted, created, or modified to be the image of an identifiable child

 

Affirmative Defenses to Obscenity Charges in Texas

Defendants have an affirmative defense against obscenity charges if the possession of the material was under a “bonafide medical, psychiatric, judicial, legislative, or law enforcement purpose.”

 

The Definition of “Obscene Material”

When it comes to criminal charges for obscenity, a large part of the prosecution’s case depends on the definition of ‘obscene.’ If a defendant can show that the content in question was not obscene, they cannot be convicted under Texas’s obscenity law. Under Texas law, obscene means material or a performance that the average person using contemporary community standards would find, that taken as a whole, appeals to the prurient interest in sex. Obscene material depicts or describes:

    • Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
    • Patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for the stimulation of the human genital organs; and

When taken as a whole, the material must lack serious literary, artistic, political, and scientific value. Without proof that the material is obscene, no crime of obscenity has been committed. There are important legal limitations on what a court can consider obscene. If the definition of obscene becomes too broad, it will infringe on a defendant’s constitutional right to free speech. 

 

About Doug Wilder | Wilder Law Firm

Founding partner Doug Wilder began his legal career as a prosecutor, which he did from 1995-2000.  After prosecuting thousands of DWI’s and teaching police officers how to be more effective, he took all of his skill and knowledge and applied it to defending people, many of whom are wrongly accused. Doug Wilder is also a Field Sobriety Test Instructor and has taught the Student Field Sobriety Test Course around the country, and continues to be involved in teaching police officers as well.

* Please note: All articles on this blog are for informative purposes only, and are no substitute for legal advice or an attorney-client relationship. If you are being accused of a crime, please contact our law firm directly for professional representation.

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