Title 9, Chapter 43, Subchapter B, Texas Penal Code on Obscenity

(Current through the 1999 supplement - 2003 session of the Texas Legislature)

Section 43.21. Definitions

1. In this subchapter:

1. "Obscene" means material or a performance that:
1. the average person, applying contemporary community standards,would find that taken as a whole appeals to the prurient interest in sex;
2. depicts or describes:
1. patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
2. 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 stimulation of the human genital organs; and
3. taken as a whole, lacks serious literary, artistic, political,and scientific value.
2. "Material" means anything tangible that is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound, or in any other manner, but does not include an actual three dimensional obscene device.
3. "Performance" means a play, motion picture, dance, or other exhibition performed before an audience.
4. "Patently offensive" means so offensive on its face as to affront current community standards of decency.
5. "Promote" means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same.
6. "Wholesale promote" means to manufacture, issue, sell, provide, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, or to offer or agree to do the same for purpose of resale.
7. "Obscene device" means a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.

2. If any of the depictions or descriptions of sexual conduct described in this section are declared by a court of competent jurisdiction to be unlawfully included herein, this declaration shall not invalidate this section as to other patently offensive sexual conduct included herein.

Section 43.22. Obscene Display or Distribution

1. A person commits an offense if he intentionally or knowingly displays or distributes an obscene photograph, drawing, or similar visual representation or other obscene material and is reckless about whether a person is present who will be offended or alarmed by the display or distribution.
2. An offense under this section is a Class C misdemeanor.

Section 43.23. Obscenity

1. A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device.
2. Except as provided by Subsection (h), an offense under Subsection (a) is a state jail felony.
3. A person commits an offense if, knowing its content and character, he:

1. promotes or possesses with intent to promote any obscene material or obscene device; or
2. produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity.

4. Except as provided by Subsection (h), an offense under Subsection (c) is a Class A misdemeanor.
5. A person who promotes or wholesale promotes obscene material or an obscene device or possesses the same with intent to promote or wholesale promote it in the course of his business is presumed to do so with knowledge of its content and character.
6. A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same.
7. It is an affirmative defense to prosecution under this section that the person who possesses or promotes material or a device proscribed by this section does so for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.
8. The punishment for an offense under Subsection (a) is increased to the punishment for a felony of the third degree and the punishment for an offense under Subsection (c) is increased to the punishment for a state jail felony if it is shown on the trial of the offense that obscene material that is the subject of the offense visually depicts activities described by Section 43.21(a)(1)(B) engaged in by:

1. a child younger than 18 years of age at the time the image of the child was made;
2. an image that to a reasonable person would be virtually indistinguishable from the image of a child younger than 18 years of age; or
3. an image created, adapted, or modified to be the image of an identifiable child.

9. In this section, "identifiable child" means a person, recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature:

1. who was younger than 18 years of age at the time the visual depiction was created, adapted, or modified; or
2. whose image as a person younger than 18 years of age was used in creating, adapting, or modifying the visual depiction.

10. An attorney representing the state who seeks an increase in punishment under Subsection (h)(3) is not required to prove the actual identity of an identifiable child.

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