Few accusations carry the weight of a child-pornography allegation. They can be charged under both Texas and federal law, the penalties are severe, and the social fallout begins the moment someone is investigated. If you are under investigation or have been charged, the most important things to understand are the charges you may face, the penalties involved, and the rights you have right now.
This is a general overview of the law for someone who is accused or under investigation. It is not legal advice, and it is not a substitute for talking to a defense attorney about your specific situation. If you are facing this, the single most important step is to contact a criminal defense attorney before you talk to investigators.
What the law prohibits
For adults, viewing or possessing legal adult pornography is not a crime. The offenses here involve a narrow, serious category: visual material depicting a minor. Under Texas Penal Code § 43.26, “child pornography” is visual material that depicts a child younger than 18 years of age at the time the image was made engaging in sexual conduct.
The charges: state and federal
State — Texas Penal Code § 43.26. Texas prohibits both the possession and the promotion of child pornography:
- Possession is generally a third-degree felony, and the offense level increases to a second- or first-degree felony based on the number of items involved and any prior convictions.
- Promotion (and possession with intent to promote) is generally a second-degree felony, rising to a first-degree felony with a prior promotion conviction.
Federal — 18 U.S.C. § 2252 and § 2252A. Because these cases almost always involve material that crossed state lines or the internet, they are frequently prosecuted in federal court. Federal law separately addresses possession or accessing-with-intent-to-view, and the more serious conduct of receipt, distribution, and transportation. The U.S. Department of Justice maintains a citizen’s guide to these offenses.
A person can face state and federal exposure for the same underlying conduct.
Penalties
Texas felony ranges (§ 12.32–§ 12.34):
- First-degree felony: 5 to 99 years or life, and a fine of up to $10,000.
- Second-degree felony: 2 to 20 years, and a fine of up to $10,000.
- Third-degree felony: 2 to 10 years, and a fine of up to $10,000.
Federal ranges under § 2252A(b):
- Possession or accessing with intent to view: up to 10 years (up to 20 years where the material involves a prepubescent minor or a minor younger than 12).
- Receipt, distribution, or transportation: a mandatory minimum of 5 years and up to 20 years, with substantially higher ranges for defendants with qualifying prior convictions.
A conviction in either system also carries sex-offender registration — under Chapter 62 of the Texas Code of Criminal Procedure and under federal law — which can follow a person long after a sentence is served.
Your rights if police want to search your devices
If law enforcement asks to look at your phone, computer, or other devices, you have rights:
- They generally need a valid search warrant or your consent. You are not required to consent to a search. You can politely decline and say you want to speak with a lawyer.
- If they have a warrant, you can read it. A warrant describes what may be searched. If officers go beyond its scope, that can matter later — but raise it through your attorney, not by interfering with the search.
- Do not try to alter, delete, or hide anything. Tampering with evidence is a separate crime that can make a situation far worse. The right response to an investigation is a lawyer, not self-help.
For more on what to do when officers arrive with a warrant, see what to do when the police come to your house.
Your rights if you are questioned
You have the right to remain silent and the right to an attorney. You do not have to answer questions or explain yourself, and you should not try to “clear things up” on your own. Investigators are trained, and a conversation meant to help you can do the opposite. Politely state that you are invoking your right to remain silent and that you want a lawyer, then stop talking.
Why early defense counsel matters
An attorney can review whether a search was lawful, whether a warrant was valid and properly limited, and how the evidence was actually obtained and handled. The line between possession and distribution, the counts charged, and whether a case proceeds in state or federal court all carry very different consequences. Those are decisions and challenges better addressed early, with counsel involved before you speak to investigators.
Frequently asked questions
Is adult pornography legal in Texas? For adults, viewing or possessing legal adult material is not a crime. The offenses discussed here involve material depicting a minor.
What counts as child pornography under Texas law? Under § 43.26, it is visual material depicting a child younger than 18 engaged in sexual conduct.
Are these cases handled in state or federal court? Either, and sometimes both, because the material typically moves across the internet or state lines.
Do I have to let police search my phone? Generally officers need a warrant or your consent. You can decline to consent and ask to speak with a lawyer first.
Talk to a McKinney Criminal Defense Attorney
If you are under investigation or have been charged with an offense involving child pornography, the stakes are serious and the early decisions matter. Kent Starr is a criminal defense attorney serving McKinney and Collin County. Defending sex-crime charges is part of that practice. To talk through your situation in a free, confidential consultation, contact us or call (214) 982-1408.
This article is general legal information about Texas and federal law and is not legal advice. Reading it does not create an attorney-client relationship. For advice about a specific situation, consult a licensed attorney.