Defending Texans Accused of Sexual Performance by a Child

Sexual performance by a child is a Texas felony. Under Texas Penal Code § 43.25, a “sexual performance” means any performance or part of one that includes sexual conduct by a child younger than 18 years of age. Each part is something a defense lawyer reviews closely.

If a family member, partner, or you yourself have been accused, you’re probably worried and short on facts. This page explains the charge, what the State must prove, and what a sexual performance by a child defense lawyer Texas review covers.

What Sexual Performance by a Child Means Under Texas Law

Sexual performance by a child covers any performance that includes sexual conduct by a child younger than 18. A “performance” can be a photograph, video, or other visual representation that can be exhibited before an audience of one or more persons. It does not have to have actually been shown to anyone (Texas Penal Code § 43.25).

The statute reaches more than the recording itself. A person commits an offense if, knowing what the material is, they employ, authorize, or induce a child to take part. A parent or guardian who consents to the child’s participation also commits an offense.

Producing, directing, or promoting such a performance is a separate offense when the person knows its character and content. Felony levels depend on the subsection. Under subsection (b), the offense is a second-degree felony, or a first-degree felony if the child is younger than 14. Under subsection (d), it is a third-degree felony, or second-degree if the child is younger than 14.

Possession is a different charge. Texas Penal Code § 43.26 covers possessing, or accessing with intent to view, visual material showing a child in sexual conduct. If you face more than one allegation, we can review each one with you.

The charge can start from in-person conduct, recorded files, or online messages. The facts decide which part of the offense is actually in dispute.

What the State Must Prove

We review the evidence behind each allegation and explain your options. Under Texas Penal Code § 43.25, 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.

• Age. The offense applies to a child younger than 18. Knowing the child’s age is not required, because the conduct is an offense regardless of whether the actor knows the age (§ 43.25(h)).
• Conduct or performance. The material or act must include sexual conduct as the statute defines it. A reviewer checks what the images or messages actually show, not only how they were described.
• Role. For employing, authorizing, or inducing, the State points to what the accused did to bring the child into the conduct. For producing or promoting, the State must show the person knew the character and content of the material.

The State can establish age in several ways. A defense review asks how age was established.

Defense Issues a Criminal Defense Lawyer Examines

A defense lawyer asks who made, shared, or accessed the material. The lawyer also asks whether the evidence proves age, identity, and conduct. These are reviewed issues, not outcomes anyone can predict.

• Attribution. Shared computers, phones, cloud accounts, and home networks can make it hard to tie a file to one person.
• Age and identity. The lawyer checks whether the evidence reliably shows the child’s age and identity.
• Digital evidence handling. How devices were seized, copied, and searched matters. We also review how the search was carried out.
• Context. Messages and recordings are read in full, not in fragments. The State’s description is compared with what the evidence shows.
• Motive and reliability. Custody disputes, family or school conflicts, and statements that change over time all get examined.

Texas Penal Code § 43.25 also sets out affirmative defenses to a prosecution under that section. The defendant was the child’s spouse at the time. The conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose. Or the defendant was not more than two years older than the child (§ 43.25(f)). We review the facts of your case with these defenses in mind.

Wrongful-conviction research tracks false accusations and mistaken identification as causes (National Registry of Exonerations). That is why these questions get close review.

Related Charges and How They Differ

One investigation can produce several counts. We review each count in your case with you. Four related offenses come up often.

• Indecency with a child. Applies to a child younger than 17. Sexual contact is a second-degree felony. Exposure with intent to arouse is a third-degree felony (§ 21.11(d)).
• Aggravated sexual assault. A first-degree felony (§ 22.021(e)). Under Penal Code § 22.021(f), the minimum prison term rises to 25 years if the victim was younger than 6 when the offense was committed, or if the victim was younger than 14 and the offense was committed in a manner described in § 22.021(a)(2)(A), such as causing serious bodily injury or using or exhibiting a deadly weapon.
• Online solicitation of a minor. Soliciting a minor online to meet for sexual contact is a second-degree felony (§ 33.021(f)).

Under Texas law, a second-degree felony is punishable by 2 to 20 years in prison and a fine of up to $10,000 (§ 12.33). A third-degree felony carries 2 to 10 years (§ 12.34). A first-degree felony carries life or 5 to 99 years (§ 12.32).

What to Expect: The Process From Investigation to Resolution

A case typically moves through investigation, arrest and bond, indictment, evidence review, and then negotiation, motions, or trial. Timing varies by county, court, and how complex the evidence is.

1. Investigation. Don’t give a statement, hand over a phone, or unlock devices without advice. A lawyer can handle contact with investigators.
2. Arrest and bond. Bond conditions can include no contact with children or limits on internet use. Review them early, because a violation can create new problems.
3. Indictment and arraignment. Court dates and deadlines are not optional. Missing one can seriously harm the defense.
4. Discovery. The lawyer requests the State’s file, including forensic and digital reports, and looks for gaps.
5. Resolution path. Negotiation, pretrial motions, or trial preparation depends on the evidence. No outcome can be predicted at the start.

Also don’t delete messages, accounts, or files, and don’t wipe a device. Doing so can create new problems for the case.

Why Barbieri Law Firm

Barbieri Law Firm is an all-women criminal defense firm in Frisco, Texas. It defends people and families facing sex crimes and assaultive-offense charges across Collin County, Dallas-Fort Worth, and Texas.

Heather Jean Barbieri, Board Certified, Criminal Law — Texas Board of Legal Specialization.

For each matter, the firm reviews the charging documents, the digital and forensic evidence, and the circumstances of the accusation. Options are explained so you can decide what comes next. No lawyer can predict how a case will end, and this page does not suggest otherwise.

Common Questions About Sexual Performance by a Child Charges

Talk With Our Team About Your Situation

Hearing that you or someone you love is accused of this offense is frightening. Decisions about statements, bond, and evidence often come before everything feels clear.

If you want to talk through the charge, call (972) 424-1902 or send your case details through our contact form. Our team can review what you know and explain your options.

Attorney responsible for this site: Heather Jean Barbieri, Barbieri Law Firm, Frisco, Texas.