{"id":3631,"date":"2026-10-26T06:17:52","date_gmt":"2026-10-26T06:17:52","guid":{"rendered":"https:\/\/barbierilawfirm.com\/guides\/online-sex-crimes-defense-lawyer\/what-is-the-offense-defined-by-penal-code-43-23-in-texas\/"},"modified":"2026-11-03T05:02:26","modified_gmt":"2026-11-03T05:02:26","slug":"what-is-the-offense-defined-by-penal-code-43-23-in-texas","status":"publish","type":"page","link":"https:\/\/barbierilawfirm.com\/guides\/online-sex-crimes-defense-lawyer\/what-is-the-offense-defined-by-penal-code-43-23-in-texas\/","title":{"rendered":"Penal Code 43.23: Texas Obscenity Offense Explained"},"content":{"rendered":"\n
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Sex Crimes Defense | Frisco, Texas<\/p>

Understand What the Obscenity Offense Means<\/h1>

Barbieri Law Firm explains how Texas defines obscenity, why intent to promote matters, and how we review the evidence in these cases.<\/p>

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By Heather Barbieri \u00b7 Published October 26, 2026<\/p>\n\n

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Texas Penal Code \u00a7 43.23<\/a> 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<\/a> in Texas? It covers what the state must prove, how digital files fit in, and the penalties.<\/p>\n

What Texas Penal Code \u00a743.23 Prohibits<\/h2>\n

Section 43.23 prohibits promoting obscene material and possessing it with intent to promote. Section 43.23<\/a> 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).<\/p>\n

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.<\/p>\n

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.<\/p>\n

The statute doesn’t limit the offense to one format. It names material, devices, and performances.<\/p>\n\n

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If you've received a notice about obscene material on a phone or account, you don't have to work through it alone. Our team can talk through your situation with you. Talk it through with our team — the first consultation is free, confidential, and carries no obligation.<\/p>

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The Elements the State Must Prove<\/h2>\n

The state must prove a knowing act, one of the listed kinds of conduct, and material or a device that is obscene.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Section 43.21 in the Obscenity Statute<\/h2>\n

The link shows up in subsection (h), which refers to depicted activities described in \u00a7 43.21(a)(1)(B). That reference describes the depicted conduct that can trigger a higher penalty under the enhanced-penalty rule.<\/p>\n

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.<\/p>\n

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.<\/p>\n

How Obscenity Charges Apply to Digital Files, Messages, and Online Sharing<\/h2>\n

Yes, the statute can reach digital material.<\/p>\n

Under Texas Penal Code Section 43.23<\/a>, 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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Classification and Penalties Under \u00a743.23<\/h2>\n

Under \u00a7 43.23(b)<\/a>, 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 \u00a7 43.23(d)<\/a>. Subsection (c) conduct is a Class A misdemeanor under subsection (d). Subsection (h) can raise either one to a second-degree felony.<\/p>\n