Sexting in Texas: Penalties and Defenses

Sexting refers to the act of sending sexually explicit photos or messages with a cellphone. In general, if this is done by consenting adults who agree to exchange photos of themselves, then no crime has been committed. However, this activity can become an illegal action if minors are involved. If minors under the age of 18 send sexually explicit photos or messages to another person, they may be charged with a crime.

Sexting Penalties

The penalties for this crime can vary considerably based on who is involved in the case. In general, the penalty for minors who are convicted of sending sexually explicit messages to other minors will be less severe than for adults who message minors.

For example, the penalties for a minor on a first-time sexting conviction could include:

  • Conviction on a Class C misdemeanor charge
  • A fine of up to $500
  • Mandatory participation in a educational program about the dangers of sexting

Adults who engage in sharing sexually explicit photos with minors are subject to much greater penalties. In these cases, the adults may face child pornography charges. An adult who is found to be in possession of explicit photos of minors could be charged with possession of child pornography, possibly leading to:

  • Conviction on a third degree felony charge
  • Incarceration in prison for two to 10 years
  • A fine of up to $10,000
  • Registration as a sex offender

If an adult receives sexually explicit text messages from a minor and then attempts to send the messages to others, the charge could be upgraded to intent to distribute child pornography. This charge could lead to:

  • Conviction on a second degree felony charge
  • Incarceration in prison for two to 20 years
  • A fine of up to $10,000
  • Registration as a sex offender

All of these charges are related to sharing sexually explicit photos of minors under the age of 18. However, any of these charges may be enhanced if the minor involved in the case is under 14 years of age.

Legal Defenses

Texas has enacted certain legal provisions that may offer protection to defendants in some sexting cases. These provisions are intended to protect the reputation of minors and to allow them to learn from their mistakes in the future. As such, the provisions state that minors who meet certain conditions may be exempt from prosecution. To qualify for the exemption, the minors involved in a sexting case must:

  • Be a minor sender or recipient of explicit messages
  • Only exchange photos of the sender or recipient
  • Exchange photos in the context of a dating relationship
  • Be no more than two years apart in age from one another

Minors who send or receive explicit messages for the purposes of bullying or harassment may not qualify for this exemption.

While it is possible for minors to face criminal charges as a result of exchanging explicit messages, first-time offenders in Texas may not necessarily have to deal with criminal penalties. Instead, they may be ordered to attend a mandatory educational program with their parents. Also, minor defendants who are convicted of sexting offenses may be eligible to have their records expunged upon reaching the age of 18.

Although federal guidelines recommend that minors face prosecution in state rather than federal courts, minors who are repeatedly convicted of sending sexually explicit photos may face serious charges. This could potentially include federal child pornography distribution charges. However, minors who repeatedly receive explicit photos because they are a victim of cyber-bullying are unlikely to be charged with a crime.

Although adults cannot take part in this exemption, it is still possible to defend against sexting charges in court. The defense attorney could argue that the defendant never actually sent any messages or that there is insufficient evidence for a conviction. It may also be possible to argue that the defendant did not wish to receive the explicit messages or that the defendant was the victim of blackmail.

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About the Author

Law Office of James Alston. serves people who need legal assistance in their Criminal Defense Cases in Texas.

Houston Criminal Lawyer James Alston represents clients in the Houston area, including Pasadena, Sugar Land, Missouri City, Channelview, Conroe, Galveston, Angleton, Richmond, Rosenberg, Beaumont, Galveston County, Ft. Bend County, Montgomery County, Brazoria County, Harris County and Jefferson County in Texas.