Understand What the Obscenity Offense Means

Texas Penal Code § 43.23 makes it an offense to knowingly promote obscene material or obscene devices, or to possess them with intent to promote. This guide answers the question: What is the offense defined by Penal Code 43.23 in Texas? It covers what the state must prove, how digital files fit in, and the penalties.

What Texas Penal Code §43.23 Prohibits

Section 43.23 prohibits promoting obscene material and possessing it with intent to promote. Section 43.23 covers conduct under Subsection (a) and conduct under Subsection (c), and each carries a different classification: an offense under Subsection (a) is a state jail felony, and an offense under Subsection (c) is a Class A misdemeanor, except as provided by Subsection (h).

Subsection (a) covers wholesale promotion. A person commits that offense by wholesale promoting obscene material or an obscene device, or by possessing one with intent to wholesale promote it.

Subsection (c) covers promoting or possessing with intent to promote obscene material or devices. It also covers producing, presenting, or directing an obscene performance, or taking part in an obscene portion of one.

The statute doesn’t limit the offense to one format. It names material, devices, and performances.

The Elements the State Must Prove

The state must prove a knowing act, one of the listed kinds of conduct, and material or a device that is obscene.

Knowledge comes first. Subsections (a) and (c) both require that the person act “knowing its content and character.” The person must have been aware of what the material was. Knowledge questions can arise when material arrives unsolicited, saves automatically to a device, or is shared by someone else.

Under subsection (e), a person who promotes or wholesale promotes obscene material or an obscene device, or possesses one with intent to promote or wholesale promote it, in the course of business is presumed to know its content and character. Under subsection (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.

Subsection (g) provides an affirmative defense, a legal reason that can defeat the charge. It applies to a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.

Section 43.21 in the Obscenity Statute

The link shows up in subsection (h), which refers to depicted activities described in § 43.21(a)(1)(B). That reference describes the depicted conduct that can trigger a higher penalty under the enhanced-penalty rule.

Applying the definition is a question about content. A reviewer looks at the actual files, what they show, and how they were found or sent. Two items that look alike in a list can raise different questions once they’re opened.

That review is often the first real step in a case. A careful review covers the file itself, its source, and any messages or accounts tied to it.

How Obscenity Charges Apply to Digital Files, Messages, and Online Sharing

Yes, the statute can reach digital material.

Under Texas Penal Code Section 43.23, a person commits an offense if, knowing its content and character, he promotes obscene material or an obscene device, or possesses it with intent to promote it. A person who only received a file may stand in a different position than one who sent or stored it with intent to promote.

Digital cases often turn on four questions: who created the file, who sent it, who stored it, and who shared it. The answers help show what the person knew and intended.

Messages add context. Texts can show what was said about a file and when. Our related guides on sexting and on text messages as evidence in Texas cover those issues in more depth.

Classification and Penalties Under §43.23

Under § 43.23(b), an offense under subsection (a) is a state jail felony, except as provided by subsection (h), and an offense under subsection (c) is a Class A misdemeanor under § 43.23(d). Subsection (c) conduct is a Class A misdemeanor under subsection (d). Subsection (h) can raise either one to a second-degree felony.

• State jail felony: confinement in a state jail for not more than two years or less than 180 days; in addition to confinement, a fine not to exceed $10,000 may be imposed (§ 12.35). Using or exhibiting a deadly weapon, or certain prior convictions, can raise it to a third-degree felony under § 12.35(c).
• Class A misdemeanor: a fine up to $4,000, jail for up to one year, or both (§ 12.21).
• Second-degree felony: a prison term in the Texas Department of Criminal Justice of not less than 2 years and not more than 20 years, and a possible fine not to exceed $10,000 in addition to imprisonment (§ 12.33).

The rule that subsection (h) of § 43.23 can raise an obscenity offense to this punishment is in § 43.23, not § 12.33: it applies if the state shows at trial that the material depicts described activities by a child under 18 when the image was made. Under § 12.33, a second-degree felony is punished by imprisonment in the Texas Department of Criminal Justice for 2 to 20 years, with a possible fine up to $10,000. The rule covering an image virtually indistinguishable from such a child, or created or modified to be an identifiable child, is in § 43.23(h), not § 12.33. Under subsection (i), an identifiable child is recognizable as an actual person and was under 18 when the depiction was made, or the child’s minor image was used to create it. Under subsection (j), the state doesn’t have to prove the child’s actual identity for the third category.

Cases involving minors are also covered on our child sex crimes defense page.

Where Obscenity Overlaps With Other Texas Sex-Crime Charges

Obscenity is one of several Texas offenses that can arise from sexual content. The facts of each case decide which statute applies.

Section 43.23 lists wholesale promotion and possession with intent to wholesale promote, promotion and possession with intent to promote, producing, presenting, or directing an obscene performance, and participating in a portion of one that is obscene.

Messages raise separate questions. Subsection (h) concerns images tied to a child under 18, so the ages of the people and images involved must be reviewed. Our guide on sexting consequences in Texas covers message exchanges in more detail.

Each charge needs its own elements. Every offense should be tied to its own statutory words.

Common Questions About a Texas Obscenity Charge

Most questions come back to the statute’s words: the conduct listed, the knowledge element, and the content of the material.

If You Are Facing This Charge: Talk Through Your Situation

If you’ve received a notice about an obscenity accusation, you may be trying to make sense of it.

A conversation with our team can focus on the specific material, how it was obtained or shared, and the elements the state would need to prove. Barbieri Law Firm, in Frisco, Texas, is led by Heather Barbieri. The initial consultation is free, confidential, and without obligation. To talk through your situation, call (972) 424-1902 or send your case details through our contact page.

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