PENAL CODE
CHAPTER 43. PUBLIC INDECENCY
SUBCHAPTER A. PROSTITUTION
§ 43.01. DEFINITIONS. In this subchapter:
(1) "Deviate sexual intercourse" means any contact
between the genitals of one person and the mouth or anus of another
person.
(2) "Prostitution" means the offense defined in
Section 43.02.
(3) "Sexual contact" means any touching of the anus,
breast, or any part of the genitals of another person with intent to
arouse or gratify the sexual desire of any person.
(4) "Sexual conduct" includes deviate sexual
intercourse, sexual contact, and sexual intercourse.
(5) "Sexual intercourse" means any penetration of the
female sex organ by the male sex organ.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1979, 66th Leg., p. 373, ch. 168, § 2, eff. Aug.
27, 1979; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.
§ 43.02. PROSTITUTION. (a) A person commits an
offense if he knowingly:
(1) offers to engage, agrees to engage, or engages in
sexual conduct for a fee; or
(2) solicits another in a public place to engage with
him in sexual conduct for hire.
(b) An offense is established under Subsection (a)(1)
whether the actor is to receive or pay a fee. An offense is
established under Subsection (a)(2) whether the actor solicits a
person to hire him or offers to hire the person solicited.
(c) An offense under this section is a Class B misdemeanor,
unless the actor has previously been convicted one or two times of
an offense under this section, in which event it is a Class A
misdemeanor. If the actor has previously been convicted three or
more times of an offense under this section, the offense is a state
jail felony.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1977, 65th Leg., p. 757, ch. 286, § 1, eff. May
27, 1977; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994; Acts 2001, 77th Leg., ch. 987, § 1, eff. Sept. 1, 2001.
§ 43.03. PROMOTION OF PROSTITUTION. (a) A person
commits an offense if, acting other than as a prostitute receiving
compensation for personally rendered prostitution services, he or
she knowingly:
(1) receives money or other property pursuant to an
agreement to participate in the proceeds of prostitution; or
(2) solicits another to engage in sexual conduct with
another person for compensation.
(b) An offense under this section is a Class A misdemeanor.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1977, 65th Leg., p. 758, ch. 287, § 1, eff. May
27, 1977; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.
§ 43.04. AGGRAVATED PROMOTION OF PROSTITUTION. (a) A
person commits an offense if he knowingly owns, invests in,
finances, controls, supervises, or manages a prostitution
enterprise that uses two or more prostitutes.
(b) An offense under this section is a felony of the third
degree.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.
§ 43.05. COMPELLING PROSTITUTION. (a) A person
commits an offense if he knowingly:
(1) causes another by force, threat, or fraud to
commit prostitution; or
(2) causes by any means a person younger than 17 years
to commit prostitution.
(b) An offense under this section is a felony of the second
degree.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.
§ 43.06. ACCOMPLICE WITNESS; TESTIMONY AND
IMMUNITY. (a) A party to an offense under this subchapter may be
required to furnish evidence or testify about the offense.
(b) A party to an offense under this subchapter may not be
prosecuted for any offense about which he is required to furnish
evidence or testify, and the evidence and testimony may not be used
against the party in any adjudicatory proceeding except a
prosecution for aggravated perjury.
(c) For purposes of this section, "adjudicatory proceeding"
means a proceeding before a court or any other agency of government
in which the legal rights, powers, duties, or privileges of
specified parties are determined.
(d) A conviction under this subchapter may be had upon the
uncorroborated testimony of a party to the offense.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.
SUBCHAPTER B. OBSCENITY
§ 43.21. DEFINITIONS. (a) In this subchapter:
(1) "Obscene" means material or a performance that:
(A) the average person, applying contemporary
community standards, would find that taken as a whole appeals to the
prurient interest in sex;
(B) depicts or describes:
(i) patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, actual
or simulated, including sexual intercourse, sodomy, and sexual
bestiality; or
(ii) 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
(C) 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.
(b) 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.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1975, 64th Leg., p. 372, ch. 163, § 1, eff. Sept.
1, 1975; Acts 1979, 66th Leg., p. 1974, ch. 778, § 1, eff. Sept.
1, 1979; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.
§ 43.22. OBSCENE DISPLAY OR DISTRIBUTION. (a) 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.
(b) An offense under this section is a Class C misdemeanor.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.
§ 43.23. OBSCENITY. (a) 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.
(b) Except as provided by Subsection (h), an offense under
Subsection (a) is a state jail felony.
(c) 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.
(d) Except as provided by Subsection (h), an offense under
Subsection (c) is a Class A misdemeanor.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1979, 66th Leg., p. 1975, ch. 778, § 2, eff.
Sept. 1, 1979; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept.
1, 1994; Acts 2003, 78th Leg., ch. 1005, § 1, eff. Sept. 1, 2003.
§ 43.24. SALE, DISTRIBUTION, OR DISPLAY OF HARMFUL
MATERIAL TO MINOR. (a) For purposes of this section:
(1) "Minor" means an individual younger than 18 years.
(2) "Harmful material" means material whose dominant
theme taken as a whole:
(A) appeals to the prurient interest of a minor,
in sex, nudity, or excretion;
(B) is patently offensive to prevailing
standards in the adult community as a whole with respect to what is
suitable for minors; and
(C) is utterly without redeeming social value for
minors.
(b) A person commits an offense if, knowing that the
material is harmful:
(1) and knowing the person is a minor, he sells,
distributes, exhibits, or possesses for sale, distribution, or
exhibition to a minor harmful material;
(2) he displays harmful material and is reckless about
whether a minor is present who will be offended or alarmed by the
display; or
(3) he hires, employs, or uses a minor to do or
accomplish or assist in doing or accomplishing any of the acts
prohibited in Subsection (b)(1) or (b)(2).
(c) It is a defense to prosecution under this section that:
(1) the sale, distribution, or exhibition was by a
person having scientific, educational, governmental, or other
similar justification; or
(2) the sale, distribution, or exhibition was to a
minor who was accompanied by a consenting parent, guardian, or
spouse.
(d) An offense under this section is a Class A misdemeanor
unless it is committed under Subsection (b)(3) in which event it is
a felony of the third degree.
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.
§ 43.25. SEXUAL PERFORMANCE BY A CHILD. (a) In this
section:
(1) "Sexual performance" means any performance or part
thereof that includes sexual conduct by a child younger than 18
years of age.
(2) "Sexual conduct" means sexual contact, actual or
simulated sexual intercourse, deviate sexual intercourse, sexual
bestiality, masturbation, sado-masochistic abuse, or lewd
exhibition of the genitals, the anus, or any portion of the female
breast below the top of the areola.
(3) "Performance" means any play, motion picture,
photograph, dance, or other visual representation that can be
exhibited before an audience of one or more persons.
(4) "Produce" with respect to a sexual performance
includes any conduct that directly contributes to the creation or
manufacture of the sexual performance.
(5) "Promote" means to procure, 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 any of the above.
(6) "Simulated" means the explicit depiction of sexual
conduct that creates the appearance of actual sexual conduct and
during which a person engaging in the conduct exhibits any
uncovered portion of the breasts, genitals, or buttocks.
(7) "Deviate sexual intercourse" and "sexual contact"
have the meanings assigned by Section 43.01.
(b) A person commits an offense if, knowing the character
and content thereof, he employs, authorizes, or induces a child
younger than 18 years of age to engage in sexual conduct or a sexual
performance. A parent or legal guardian or custodian of a child
younger than 18 years of age commits an offense if he consents to
the participation by the child in a sexual performance.
(c) An offense under Subsection (b) is a felony of the
second degree.
(d) A person commits an offense if, knowing the character
and content of the material, he produces, directs, or promotes a
performance that includes sexual conduct by a child younger than 18
years of age.
(e) An offense under Subsection (d) is a felony of the third
degree.
(f) It is an affirmative defense to a prosecution under this
section that:
(1) the defendant was the spouse of the child at the
time of the offense;
(2) the conduct was for a bona fide educational,
medical, psychological, psychiatric, judicial, law enforcement, or
legislative purpose; or
(3) the defendant is not more than two years older than
the child.
(g) When it becomes necessary for the purposes of this
section or Section 43.26 to determine whether a child who
participated in sexual conduct was younger than 18 years of age, the
court or jury may make this determination by any of the following
methods:
(1) personal inspection of the child;
(2) inspection of the photograph or motion picture
that shows the child engaging in the sexual performance;
(3) oral testimony by a witness to the sexual
performance as to the age of the child based on the child's
appearance at the time;
(4) expert medical testimony based on the appearance
of the child engaging in the sexual performance; or
(5) any other method authorized by law or by the rules
of evidence at common law.
Added by Acts 1977, 65th Leg., p. 1035, ch. 381, § 1, eff. June
10, 1977. Amended by Acts 1979, 66th Leg., p. 1976, ch. 779, § 1,
eff. Sept. 1, 1979; Acts 1985, 69th Leg., ch. 530, § 1, eff.
Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept.
1, 1994; Acts 1999, 76th Leg., ch. 1415, § 22(b), eff. Sept. 1,
1999; Acts 2003, 78th Leg., ch. 1005, § 4, 5 eff. Sept. 1, 2003.
§ 43.251. EMPLOYMENT HARMFUL TO CHILDREN. (a) In this
section:
(1) "Child" means a person younger than 18 years of
age.
(2) "Massage" has the meaning assigned to the term
"massage therapy" by Section 455.001, Occupations Code.
(3) "Massage establishment" has the meaning assigned
by Section 455.001, Occupations Code.
(4) "Nude" means a child who is:
(A) entirely unclothed; or
(B) clothed in a manner that leaves uncovered or
visible through less than fully opaque clothing any portion of the
breasts below the top of the areola of the breasts, if the child is
female, or any portion of the genitals or buttocks.
(5) "Sexually oriented commercial activity" means a
massage establishment, nude studio, modeling studio, love parlor,
or other similar commercial enterprise the primary business of
which is the offering of a service that is intended to provide
sexual stimulation or sexual gratification to the customer.
(6) "Topless" means a female child clothed in a manner
that leaves uncovered or visible through less than fully opaque
clothing any portion of her breasts below the top of the areola.
(b) A person commits an offense if the person employs,
authorizes, or induces a child to work:
(1) in a sexually oriented commercial activity; or
(2) in any place of business permitting, requesting,
or requiring a child to work nude or topless.
(c) An offense under this section is a Class A misdemeanor.
Added by Acts 1987, 70th Leg., ch. 783, § 1, eff. Aug. 31, 1987.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994; Acts 2001, 77th Leg., ch. 1420, § 14.832, eff. Sept. 1,
2001.
§ 43.26. POSSESSION OR PROMOTION OF CHILD
PORNOGRAPHY. (a) A person commits an offense if:
(1) the person knowingly or intentionally possesses
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; 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 Section 43.25(f)
also apply to a prosecution under this section.
(d) An offense under Subsection (a) is a felony of the third
degree.
(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) A person who possesses visual material that contains six
or more identical visual depictions of a child as described by
Subsection (a)(1) is presumed to possess the material with the
intent to promote the material.
(g) An offense under Subsection (e) is a felony of the
second degree.
Added by Acts 1985, 69th Leg., ch. 530, § 2, eff. Sept. 1, 1985.
Amended by Acts 1989, 71st Leg., ch. 361, § 1, eff. Sept. 1,
1989; Acts 1989, 71st Leg., ch. 968, § 1, eff. Sept. 1, 1989;
Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994; Acts
1995, 74th Leg., ch. 76, § 14.51, eff. Sept. 1, 1995; Acts 1997,
75th Leg., ch. 933, § 1, eff. Sept. 1, 1997; Acts 1999, 76th
Leg., ch. 1415, § 22(c), eff. Sept. 1, 1999.
§ 43.27. DUTY TO REPORT. (a) For purposes of this
section, " visual material" has the meaning assigned by Section
43.26.
(b) A business that develops or processes visual material
and determines that the material may be evidence of a criminal
offense under this subchapter shall report the existence of the
visual material to a local law enforcement agency.
Added by Acts 2003, 78th Leg., ch. 1005, § 6, eff. Sept. 1, 2003.
