Sexting Between Adults and a Texas Charge: Know What the Law Says

Short Answer: Is Sexting Between Adults a Crime in Texas?

Whether adult messages lead to a charge depends on which Penal Code section applies, what the content shows, who is depicted, and how the material was made, sent or shared.

That is the core of any sexting between adults Texas charge question.

Texas defines these offenses in the Penal Code, including Section 21.16 (Unlawful Disclosure or Promotion of Intimate Visual Material) and the public indecency provisions in Chapter 43 of the Penal Code. Online contact with minors falls under Chapter 33.

Penal Code § 21.19 (unlawful electronic transmission of sexually explicit material) is a Class C misdemeanor.

What Texas Law Actually Says About Sexting

It does not judge a message by the word “sexting.” Each section lists specific conduct, consent and intent terms that the state must prove.

News stories and online posts use “sexting” loosely. That means reading the exact wording of the section and matching each element to the facts.

The grade of an offense also depends on the section. Some are state jail felonies. Others are Class C misdemeanors. Some are third- or second-degree felonies. The statute charged sets the level of exposure.

For an overview of online sex crime charges in Texas, read our online sex crimes overview.

Sharing Intimate Images Without Consent

The statute covers visual material showing a person’s intimate parts or sexual conduct.

The state must show several things. Under § 21.16(b), the disclosure must be made without the depicted person’s effective consent and with intent to harm. The sender must know or have reason to believe the material was made or obtained under a reasonable expectation of privacy. The disclosure must cause harm and reveal the depicted person’s identity.

Under § 21.16(b), the disclosure must be made without the effective consent of the depicted person, and consent to make or send the image is addressed separately in § 21.16(e). Under § 21.16(e), it is not a defense that the depicted person created the material, consented to its creation, or voluntarily sent it to the actor.

Under Subsection (c), a person commits an offense by intentionally threatening, without the consent of the depicted person, to disclose such material in order to obtain a benefit, either in return for not making the disclosure or in connection with the threatened disclosure. An offense under this section is a state jail felony under § 21.16(g).

Some disclosures fall under affirmative defenses. § 21.16(f) provides affirmative defenses to prosecution under subsection (b) or (d) for disclosures made in lawful law enforcement or medical practice, reporting unlawful activity, or a legal proceeding where permitted or required by law; for visual material depicting in a public or commercial setting only a person’s voluntary exposure of intimate parts or the person engaging in sexual conduct; and when an interactive computer service, as defined by 47 U.S.C. Section 230, provides material posted by another person.

Recording Images Without Consent

Under § 21.15(b), the state must show the recording was made without consent and with intent to invade privacy.

Section 21.15(b) applies when a person acts without the other person’s consent and with intent to invade that person’s privacy. One form is photographing, or by videotape or other electronic means recording, broadcasting or transmitting, a visual image of an intimate area of another person (naked or clothed) if the other person has a reasonable expectation that the intimate area is not subject to public view. Another form is promoting either kind of photograph, recording, broadcast or transmission described above, whether of an intimate area or of a person in a place where a person has a reasonable expectation of privacy, while knowing its character and content. Texas Penal Code § 21.15 makes it an offense for someone, acting without the other person’s consent and intending to invade that person’s privacy, to photograph another person, or to record, broadcast, or transmit that person’s visual image by videotape or other electronic means, in a place where a person has a reasonable expectation of privacy. The statute says that place includes a bathroom, bedroom or changing room.

One set of facts can raise questions under both sections. Under § 21.15(d), the conduct may be prosecuted under this section or another law that also applies.

For purposes of Subsection (b)(2), a sign or signs posted indicating that the person is being photographed or that a visual image of the person is being recorded, broadcast, or transmitted are not sufficient to establish the person’s consent under that subdivision. Under Section 21.15(e), a posted sign saying a person is being recorded is not, by itself, enough to establish that person’s consent for purposes of Subsection (b)(2), which concerns recording in a place where the person has a reasonable expectation of privacy. An offense under this section is a state jail felony under § 21.15(c).

When these cases are reviewed, the timeline and the device used to make the recording often matter. Those facts bear on whether each element can be shown.

Why the Ages of Everyone Involved Change the Analysis

Every age fact needs a close reading of the section charged.

Chapter 33 defines a minor for online solicitation. Under § 33.021(a)(1), a minor is an individual younger than 17, or one the actor believes to be younger than 17.

Under § 33.021(b), a person 17 or older commits an offense if, with intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure, the person intentionally communicates in a sexually explicit manner with a minor, or distributes sexually explicit material to a minor, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service. Under Texas law, that offense is generally a felony of the third degree, and a felony of the second degree if the minor is younger than 14 or is someone the actor believes to be younger than 14.

Section 33.021 also covers knowingly soliciting a minor to meet for sexual contact, sexual intercourse or deviate sexual intercourse. Knowingly soliciting a minor online to meet another person for sexual contact, sexual intercourse, or deviate sexual intercourse is, under Texas law, a felony of the second degree. § 33.021(e) sets out defenses for that solicitation offense, including marriage to the minor.

Section 43.261 applies to a person who is a minor. Its affirmative defense in § 43.261(e) covers material depicting only the actor or another minor who was the actor’s spouse at the time of the offense, or who was not more than two years older or younger than the actor and with whom the actor had a dating relationship at the time, when the material was promoted or received only to or from the actor and the other minor.

Section 43.26 covers child sexual material. Section 43.26 also covers visual material that was created or altered using a child’s image, including computer-generated material made with artificial intelligence. Questions about age in any of these cases depend on the exact wording and the facts.

If you have already been arrested, read about the magistrate hearing for an online sex crime arrest.

How the Content, Consent and Sharing Method Are Reviewed

A charge review looks at the facts that each statute makes important. These facts usually include:

• The exact text and images, read in the full conversation.
• What consent existed, to what, and when it was given or withdrawn.
• How and on what device the material was made or saved.
• Which app, platform or service carried the material.
• Whether anything was forwarded, saved, posted or used in a threat.
• The ages of everyone shown or named, measured against the statute’s definitions.

Section 21.19 addresses a person who knowingly transmits by electronic means visual material depicting sexual conduct or exposed intimate parts, or covered male genitals in a discernibly turgid state, when the material is not sent at the request of or with the express consent of the recipient.

Our firm reviews the charge and the messages, including devices and platforms. We then explain the options that exist under the statute charged, so you know what each section requires.

What to Do If You Learn a Sexting Investigation Involves You

Do not copy, save, share or alter any message or material that may depict a minor, and contact Barbieri Law Firm before you take any other step involving your devices or accounts. Deleting or changing material can create new questions about what existed and when.

Do not discuss the messages with the other person, police or anyone else before you speak with a lawyer. Statements made early can be used later, even when they seem harmless.

Employers may act before any charge is filed. Our page on employer action before a charge covers that issue. Cases in Collin County are covered on our Collin County page.

Talk Through Your Messages With Barbieri Law Firm

If messages or images you sent, received or shared are now part of a police, prosecutor or employer concern, the exact content and the charged statute matter. Those facts decide which section fits and what each element requires.

Call (972) 424-1902 or use our contact page to talk through your charge and your messages. Your first consultation is free, confidential and comes with no obligation. No lawyer can promise how a case will turn out.

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