Texas Sexting Laws: Legal Consequences and Penalties

Texas Teen Sexting Law (§43.261)

Texas enacted a specific teen sexting statute in 2011, codified as Penal Code §43.261, titled "Electronic Transmission of Certain Visual Material Depicting Minor." This law applies exclusively to defendants under 18 years old and provides an alternative to the much harsher child pornography statutes.

Under this law, a minor commits an offense if they intentionally or knowingly:

• Promote (send, distribute, or share) by electronic means visual material depicting a minor engaging in sexual conduct to another minor, if the actor produced the material or knows another minor produced it
• Possess in electronic format visual material depicting another minor engaging in sexual conduct, if the actor produced the material or knows another minor produced it

What Counts as "Sexual Conduct"?

Texas law defines "sexual conduct" broadly under Penal Code §43.25. It includes:

• Sexual intercourse (actual or simulated)
• Masturbation
• Deviate sexual intercourse
• Lewd exhibition of the genitals, anus, or female breast (including the nipple)
• Any act intended to arouse or gratify sexual desire

This means that a nude selfie showing genitals or female breasts would qualify as depicting "sexual conduct" under Texas law, even if the image shows nothing explicitly sexual happening.

Penalties for Teen Sexting

Penalties under §43.261 escalate based on prior convictions and whether the offender acted with intent to harass:

Standard Offenses

Offense	Classification	Maximum Fine	Maximum Jail Time
First offense	Class C misdemeanor	$500	None
Second offense	Class B misdemeanor	$2,000	180 days
Third or subsequent offense	Class A misdemeanor	$4,000	1 year

Offenses With Intent to Harass

If a minor promotes (sends or distributes) visual material with intent to harass, annoy, alarm, abuse, torment, or embarrass another person, the penalties increase:

Offense	Classification	Maximum Fine	Maximum Jail Time
First offense with intent to harass	Class B misdemeanor	$2,000	180 days
Second or subsequent offense	Class A misdemeanor	$4,000	1 year

Additional Court Requirements

Under Code of Criminal Procedure Art. 45.0216, courts may require minors convicted under §43.261 to:

• Complete an educational program about the legal and non-legal consequences of sexting
• Perform community service
• Pay a fine
• Complete counseling if ordered by the court

Affirmative Defenses

Texas law provides several defenses that, if proven, require the court to acquit the defendant:

Dating Relationship Defense

Under §43.261(e), it is an affirmative defense that:

• The visual material depicted only the defendant or another minor who is not more than two years older or younger than the defendant
• At the time the offense occurred, the defendant and the minor depicted were in a dating relationship or married
• The defendant did not promote (share) the material to anyone other than the minor depicted

This is often called a "Romeo and Juliet" defense. It protects teens in relationships who privately share images only with each other.

Unsolicited Receipt Defense

Under §43.261(f), a defendant has a defense to prosecution if:

• The defendant did not produce or solicit the visual material
• Another minor sent the material to the defendant
• The defendant destroyed the material within a reasonable time after receiving it

This protects minors who receive unsolicited images and promptly delete them.

Important Limitations

These defenses do not apply if the defendant:

• Solicited, induced, or coerced the depicted minor to create the material
• Used blackmail, extortion, or threats to obtain the material
• Paid or offered something of value for the material

AI-Generated Imagery (2023-2025 Updates)

Texas has updated its sexting laws to address emerging technology concerns:

2023 Amendment (HB 2700)

The 88th Texas Legislature passed HB 2700, adding subsection (b-1) to §43.261. This expanded the definition of prohibited visual material to include:

• Depictions of a recognizable minor (by face, likeness, or distinguishing characteristics)
• Images created, adapted, or modified using AI or computer software
• So-called "deepfake" imagery that superimposes a minor's likeness onto explicit content

2025 Amendment (SB 1621)

Effective September 1, 2025, SB 1621 from the 89th Legislature further expanded the law to include:

• AI-generated depictions of minors that, to a reasonable person, are virtually indistinguishable from an actual minor
• This applies even if no real minor's image was used in creating the material

These amendments mean that completely AI-generated child sexual abuse material (CSAM) is now covered under Texas sexting laws, regardless of whether any actual child was depicted or harmed.

Child Pornography Laws (§43.26)

While §43.261 provides reduced penalties for minor-to-minor sexting, the more serious child pornography statute at Penal Code §43.26 applies when:

• An adult possesses, accesses, or distributes sexual images of minors
• A minor's conduct falls outside the §43.261 framework
• The material was commercially produced or distributed
• Prosecutors choose to charge under the more serious statute

Penalties Under §43.26

Offense	Classification	Prison Time	Maximum Fine
First offense (possession)	Third-degree felony	2-10 years	$10,000
Second offense	Second-degree felony	2-20 years	$10,000
Third or subsequent offense	First-degree felony	5-99 years or life	$10,000
Promotion (distribution)	Second-degree felony	2-20 years	$10,000

Presumption of Intent to Promote

Under §43.26(e), a person who possesses six or more images or videos of child pornography is presumed to have intent to promote (distribute) the material. This can elevate charges from third-degree to second-degree felony.

Adults Sexting With Minors

Adults (18 and older) who engage in sexting with minors cannot be charged under §43.261, which applies only to minor defendants. Instead, adults face prosecution under more serious statutes:

Possession or Promotion of Child Pornography (§43.26)

An adult who receives, possesses, or distributes sexual images of minors faces felony charges as described above.

Sexual Performance by a Child (§43.25)

Under Penal Code §43.25, an adult who induces, employs, authorizes, or causes a child to engage in sexual conduct (including creating explicit images) commits:

• Second-degree felony if the child is 14-17 years old (2-20 years prison)
• First-degree felony if the child is under 14 years old (5-99 years or life)

Online Solicitation of a Minor (§33.021)

Under Penal Code §33.021, an adult who uses electronic communications to solicit a minor to engage in sexual conduct or send sexual images commits a serious felony offense.

Sending Unwanted Explicit Images (§21.19)

Texas also prohibits sending unsolicited sexually explicit images to anyone, regardless of age. Under Penal Code §21.19, a person commits an offense by knowingly transmitting visual material that:

• Depicts any person engaged in sexual conduct or with exposed intimate parts
• Is sent without the recipient's request or express consent

This law, sometimes called the "cyberflashing" statute, is a Class C misdemeanor punishable by up to a $500 fine. It applies equally to images of adults or minors and does not require that the sender be depicted in the image.

Revenge Porn Laws (§21.16)

Texas has a separate statute addressing the non-consensual sharing of intimate images. Under Penal Code §21.16, "Unlawful Disclosure or Promotion of Intimate Visual Material," a person commits an offense by:

• Disclosing intimate visual material without the depicted person's consent
• Acting with intent to harm the depicted person
• Knowing the material was obtained under circumstances where the depicted person had a reasonable expectation of privacy

This offense is a state jail felony, punishable by 180 days to 2 years in state jail and fines up to $10,000.

Juvenile vs. Adult Court

In Texas, the juvenile justice system generally handles offenders ages 10-16. Seventeen-year-olds are typically prosecuted as adults under Texas law.

Juvenile Court Proceedings

For defendants under 17 charged with Class C misdemeanor sexting:

• Cases are typically handled in justice courts or municipal courts
• Courts may order educational programs, community service, or counseling
• The focus is on rehabilitation rather than punishment

For more serious charges (Class A or B misdemeanors), cases may be handled in juvenile court with possible adjudication of delinquency.

Transfer to Adult Court

In rare cases involving serious felony charges (such as child pornography under §43.26), prosecutors may seek to transfer a juvenile case to adult court through certification proceedings.

Sex Offender Registration

One of the key benefits of being charged under §43.261 rather than §43.26 is that teen sexting convictions do not require sex offender registration.

Under Code of Criminal Procedure Chapter 62, the offenses that require sex offender registration are specifically listed. The §43.261 teen sexting offense is not included on this list.

However, if a minor is charged under the child pornography statute (§43.26) or other listed sex offenses, registration may be required. This is one reason why the existence of the teen sexting statute is so important for young people who make mistakes.

Long-Term Consequences

Even though teen sexting under §43.261 carries relatively light statutory penalties, a conviction can still have lasting impacts:

Criminal Record

• A misdemeanor conviction remains on your record unless expunged
• May appear on background checks for employment, housing, or education
• Could affect college admissions or financial aid eligibility

Expungement Possibilities

Under Code of Criminal Procedure Art. 45.0216 and Family Code §59.004, a juvenile with only one conviction for teen sexting may petition for expunction after turning 17, provided they meet certain requirements.

Social and Emotional Impact

• Images shared online can be extremely difficult to remove permanently
• Victims may experience ongoing harassment, anxiety, or depression
• Both senders and depicted individuals may face social stigma

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