Kent Starr is a criminal defense attorney in McKinney, Texas. He has practiced criminal defense in Collin County since 1997 and takes every consultation himself. The consultation is free and confidential: (214) 982-1408.
Child pornography is a phrase people think they understand until someone they love is accused of possessing it. Then the questions get specific in a hurry. What exactly does the law cover? And why are federal agents involved in something the local police started?
This post covers the definition. It is a general overview of Texas law, not legal advice, and every case is different.
The three elements of the definition
Texas Penal Code Section 43.26 is titled Possession or Promotion of Child Pornography. The material it covers has three parts:
- Visual material. Photographs, film, video, and digital files, including material stored on a phone, a computer, or a cloud account.
- A child younger than 18 at the time the image was made.
- Sexual conduct, which Section 43.25 defines to include actual or simulated sexual intercourse, deviate sexual intercourse, sexual contact, bestiality, masturbation, sado-masochistic abuse, and lewd exhibition of the genitals, the anus, or a portion of the female breast below the top of the areola.
There is a fourth part people miss, and it matters most for the defense: the mental state. The State has to prove the person knowingly or intentionally possessed the material, or knowingly accessed it with intent to view it. Files a person never knew existed do not satisfy that element, no matter what folder they sat in. One caution about the age side: since September 1, 2025, the statute requires only that the person knew or should have known the depiction is of a child under 18, so not asking questions about age is no longer a shield.
Federal investigators and prosecutors now generally use the term child sexual abuse material, or CSAM, for the same category of material. The Texas statute keeps the older name.
Possession versus promotion
Texas draws a hard line between having the material and moving it. “Promote” under Section 43.25 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 those things.
That definition is broad on purpose. A peer-to-peer program that shares files out of a download folder can turn a possession case into a promotion case without the person ever hitting a send button. The charge level, the punishment range, and the plea posture all change with that one word, which is why the 3G offense post walks through the penalty structure in detail.
The short version: since the September 1, 2025 overhaul of Section 43.26, Texas treats material depicting a real child and computer-generated or AI material as separate offenses. Possession of real-child material starts at a third-degree felony and scales to a first-degree felony based on the number of images, the age of the child depicted, and prior convictions; the separate computer-generated offense starts at a state jail felony. Promotion is punished more harshly than possession. Texas also passed a law aimed squarely at AI-generated images, covered in the House Bill 2700 post.
Two more consequences ride along with any conviction. Sex offender registration under Chapter 62 of the Code of Criminal Procedure. And because this is a 3G offense under Article 42A.054, a judge cannot hand down straight probation for the more serious offense levels.
Why the federal government shows up
The same conduct is a federal crime under 18 U.S.C. Sections 2252 and 2252A, and internet activity almost always supplies the interstate-commerce hook federal jurisdiction needs. A case that begins with a Collin County detective can be adopted by federal prosecutors, and the difference is not academic: receipt and distribution charges in federal court carry mandatory minimum prison terms, and federal sentencing runs on its own guidelines.
Whether a case lands in state or federal court often turns on how the investigation started. The post on how federal investigators identify material on a computer explains the technical side, including hash-value matching on known files.
Where these cases are actually fought
The definition above is where the fight starts, not where it ends. The recurring battlegrounds:
- Knowledge. Shared computers, roommates, prior owners of a used device, and unsolicited files all put the knowing-possession element in dispute.
- The search. Nearly every one of these cases begins with a device seizure, and the warrant behind it can be challenged. If police are at the door, the search warrant post covers what to do in that moment.
- The forensic story. When a file arrived, whether it was ever opened, and what program put it there are questions a forensic examiner can answer, and the State’s version is not always the full version.
If you have been contacted by investigators or a device has been seized, say nothing beyond asking for a lawyer, and do not consent to any search. The post on what happens when police find material on a phone lays out how that situation unfolds.
Talk to a defense lawyer before you talk to anyone else
Kent Starr has practiced criminal defense since 1997, and he handles sex crimes defense in the Collin County courts at both the investigation stage and after charges are filed. An accusation like this moves fast, and the earliest decisions, what gets said and what gets handed over, shape everything after.
The consultation is free and confidential: (214) 982-1408.
Frequently asked questions
- What counts as child pornography in Texas?
- Texas Penal Code Section 43.26 covers visual material that depicts a child younger than 18 at the time the image was made who is engaging in sexual conduct, as that term is defined in Section 43.25. The State also has to prove the person knowingly or intentionally possessed the material, or knowingly accessed it with intent to view it, and that the person knew or should have known the depiction is of a child under 18.
- Is child pornography a state or federal crime?
- It can be either, or both. Texas prosecutes under Penal Code Section 43.26. Federal prosecutors use 18 U.S.C. Sections 2252 and 2252A, and because internet activity crosses state lines, a case that starts with a local investigation can end up in federal court, where receipt and distribution charges carry mandatory minimum prison terms.
- What is the penalty for possession of child pornography in Texas?
- It is a felony at every level. Possession of material depicting a real child starts at a third-degree felony and scales up to a first-degree felony, the separate computer-generated-material offense starts lower, and a conviction requires sex offender registration. The penalty structure is covered in detail in the 3G offense post on this site.
- What does it mean that child pornography is a 3G offense?
- 3G is the Texas courthouse shorthand for the short list of most-serious felonies, now found in Code of Criminal Procedure Article 42A.054. The practical effect is on probation eligibility after a conviction, which the 3G offense post on this site explains.
- Is it a crime in Texas if I received an image I never asked for?
- The statute requires knowing or intentional possession, or knowingly accessing the material with intent to view it. An unsolicited file someone else sent, a shared device another person used, or material a person never knew existed can all put that element in dispute. That is a fact fight, and it is exactly where these cases are defended.