CHAPTER 43. PUBLIC INDECENCY - Texas Statutes

PENAL CODE

TITLE 9. OFFENSES AGAINST PUBLIC ORDER AND DECENCY

CHAPTER 43. PUBLIC INDECENCY

SUBCHAPTER A. PROSTITUTION

Sec. 43.01. DEFINITIONS. In this subchapter:

(1) "Deviate sexual intercourse" means any contact between the

genitals of one person and the mouth or anus of another person.

(2) "Prostitution" means the offense defined in Section 43.02.

(3) "Sexual contact" means any touching of the anus, breast, or

any part of the genitals of another person with intent to arouse

or gratify the sexual desire of any person.

(4) "Sexual conduct" includes deviate sexual intercourse, sexual

contact, and sexual intercourse.

(5) "Sexual intercourse" means any penetration of the female sex

organ by the male sex organ.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1979, 66th Leg., p. 373, ch. 168, Sec. 2, eff.

Aug. 27, 1979; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff.

Sept. 1, 1994.

Sec. 43.02. PROSTITUTION. (a) A person commits an offense if

he knowingly:

(1) offers to engage, agrees to engage, or engages in sexual

conduct for a fee; or

(2) solicits another in a public place to engage with him in

sexual conduct for hire.

(b) An offense is established under Subsection (a)(1) whether

the actor is to receive or pay a fee. An offense is established

under Subsection (a)(2) whether the actor solicits a person to

hire him or offers to hire the person solicited.

(c) An offense under this section is a Class B misdemeanor,

unless the actor has previously been convicted one or two times

of an offense under this section, in which event it is a Class A

misdemeanor. If the actor has previously been convicted three or

more times of an offense under this section, the offense is a

state jail felony.

(d) It is a defense to prosecution under this section that the

actor engaged in the conduct that constitutes the offense because

the actor was the victim of conduct that constitutes an offense

under Section 20A.02.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1977, 65th Leg., p. 757, ch. 286, Sec. 1, eff.

May 27, 1977; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff.

Sept. 1, 1994; Acts 2001, 77th Leg., ch. 987, Sec. 1, eff. Sept.

1, 2001.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1002, Sec. 8, eff. September 1, 2009.

Sec. 43.03. PROMOTION OF PROSTITUTION. (a) A person commits an

offense if, acting other than as a prostitute receiving

compensation for personally rendered prostitution services, he or

she knowingly:

(1) receives money or other property pursuant to an agreement to

participate in the proceeds of prostitution; or

(2) solicits another to engage in sexual conduct with another

person for compensation.

(b) An offense under this section is a Class A misdemeanor.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1977, 65th Leg., p. 758, ch. 287, Sec. 1, eff.

May 27, 1977; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff.

Sept. 1, 1994.

Sec. 43.04. AGGRAVATED PROMOTION OF PROSTITUTION. (a) A person

commits an offense if he knowingly owns, invests in, finances,

controls, supervises, or manages a prostitution enterprise that

uses two or more prostitutes.

(b) An offense under this section is a felony of the third

degree.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 43.05. COMPELLING PROSTITUTION. (a) A person commits an

offense if the person knowingly:

(1) causes another by force, threat, or fraud to commit

prostitution; or

(2) causes by any means a child younger than 18 years to commit

prostitution, regardless of whether the actor knows the age of

the child at the time the actor commits the offense.

(b) An offense under this section is a felony of the second

degree.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1002, Sec. 9, eff. September 1, 2009.

Sec. 43.06. ACCOMPLICE WITNESS; TESTIMONY AND IMMUNITY. (a) A

party to an offense under this subchapter may be required to

furnish evidence or testify about the offense.

(b) A party to an offense under this subchapter may not be

prosecuted for any offense about which he is required to furnish

evidence or testify, and the evidence and testimony may not be

used against the party in any adjudicatory proceeding except a

prosecution for aggravated perjury.

(c) For purposes of this section, "adjudicatory proceeding"

means a proceeding before a court or any other agency of

government in which the legal rights, powers, duties, or

privileges of specified parties are determined.

(d) A conviction under this subchapter may be had upon the

uncorroborated testimony of a party to the offense.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

SUBCHAPTER B. OBSCENITY

Sec. 43.21. DEFINITIONS. (a) In this subchapter:

(1) "Obscene" means material or a performance that:

(A) the average person, applying contemporary community

standards, would find that taken as a whole appeals to the

prurient interest in sex;

(B) depicts or describes:

(i) patently offensive representations or descriptions of

ultimate sexual acts, normal or perverted, actual or simulated,

including sexual intercourse, sodomy, and sexual bestiality; or

(ii) patently offensive representations or descriptions of

masturbation, excretory functions, sadism, masochism, lewd

exhibition of the genitals, the male or female genitals in a

state of sexual stimulation or arousal, covered male genitals in

a discernibly turgid state or a device designed and marketed as

useful primarily for stimulation of the human genital organs; and

(C) taken as a whole, lacks serious literary, artistic,

political, and scientific value.

(2) "Material" means anything tangible that is capable of being

used or adapted to arouse interest, whether through the medium of

reading, observation, sound, or in any other manner, but does not

include an actual three dimensional obscene device.

(3) "Performance" means a play, motion picture, dance, or other

exhibition performed before an audience.

(4) "Patently offensive" means so offensive on its face as to

affront current community standards of decency.

(5) "Promote" means to 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 the same.

(6) "Wholesale promote" means to manufacture, issue, sell,

provide, mail, deliver, transfer, transmit, publish, distribute,

circulate, disseminate, or to offer or agree to do the same for

purpose of resale.

(7) "Obscene device" means a device including a dildo or

artificial vagina, designed or marketed as useful primarily for

the stimulation of human genital organs.

(b) If any of the depictions or descriptions of sexual conduct

described in this section are declared by a court of competent

jurisdiction to be unlawfully included herein, this declaration

shall not invalidate this section as to other patently offensive

sexual conduct included herein.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1975, 64th Leg., p. 372, ch. 163, Sec. 1, eff.

Sept. 1, 1975; Acts 1979, 66th Leg., p. 1974, ch. 778, Sec. 1,

eff. Sept. 1, 1979; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01,

eff. Sept. 1, 1994.

Sec. 43.22. OBSCENE DISPLAY OR DISTRIBUTION. (a) A person

commits an offense if he intentionally or knowingly displays or

distributes an obscene photograph, drawing, or similar visual

representation or other obscene material and is reckless about

whether a person is present who will be offended or alarmed by

the display or distribution.

(b) An offense under this section is a Class C misdemeanor.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 43.23. OBSCENITY. (a) A person commits an offense if,

knowing its content and character, he wholesale promotes or

possesses with intent to wholesale promote any obscene material

or obscene device.

(b) Except as provided by Subsection (h), an offense under

Subsection (a) is a state jail felony.

(c) A person commits an offense if, knowing its content and

character, he:

(1) promotes or possesses with intent to promote any obscene

material or obscene device; or

(2) produces, presents, or directs an obscene performance or

participates in a portion thereof that is obscene or that

contributes to its obscenity.

(d) Except as provided by Subsection (h), an offense under

Subsection (c) is a Class A misdemeanor.

(e) A person who promotes or wholesale promotes obscene material

or an obscene device or possesses the same with intent to promote

or wholesale promote it in the course of his business is presumed

to do so with knowledge of its content and character.

(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 the same.

(g) It is an affirmative defense to prosecution under this

section that the person who possesses or promotes material or a

device proscribed by this section does so for a bona fide

medical, psychiatric, judicial, legislative, or law enforcement

purpose.

(h) The punishment for an offense under Subsection (a) is

increased to the punishment for a felony of the third degree and

the punishment for an offense under Subsection (c) is increased

to the punishment for a state jail felony if it is shown on the

trial of the offense that obscene material that is the subject of

the offense visually depicts activities described by Section

43.21(a)(1)(B) engaged in by:

(1) a child younger than 18 years of age at the time the image

of the child was made;

(2) an image that to a reasonable person would be virtually

indistinguishable from the image of a child younger than 18 years

of age; or

(3) an image created, adapted, or modified to be the image of an

identifiable child.

(i) In this section, "identifiable child" means a person,

recognizable as an actual person by the person's face, likeness,

or other distinguishing characteristic, such as a unique

birthmark or other recognizable feature:

(1) who was younger than 18 years of age at the time the visual

depiction was created, adapted, or modified; or

(2) whose image as a person younger than 18 years of age was

used in creating, adapting, or modifying the visual depiction.

(j) An attorney representing the state who seeks an increase in

punishment under Subsection (h)(3) is not required to prove the

actual identity of an identifiable child.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1979, 66th Leg., p. 1975, ch. 778, Sec. 2, eff.

Sept. 1, 1979; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff.

Sept. 1, 1994; Acts 2003, 78th Leg., ch. 1005, Sec. 1, eff. Sept.

1, 2003.

Sec. 43.24. SALE, DISTRIBUTION, OR DISPLAY OF HARMFUL MATERIAL

TO MINOR. (a) For purposes of this section:

(1) "Minor" means an individual younger than 18 years.

(2) "Harmful material" means material whose dominant theme taken

as a whole:

(A) appeals to the prurient interest of a minor, in sex, nudity,

or excretion;

(B) is patently offensive to prevailing standards in the adult

community as a whole with respect to what is suitable for minors;

and

(C) is utterly without redeeming social value for minors.

(b) A person commits an offense if, knowing that the material is

harmful:

(1) and knowing the person is a minor, he sells, distributes,

exhibits, or possesses for sale, distribution, or exhibition to a

minor harmful material;

(2) he displays harmful material and is reckless about whether a

minor is present who will be offended or alarmed by the display;

or

(3) he hires, employs, or uses a minor to do or accomplish or

assist in doing or accomplishing any of the acts prohibited in

Subsection (b)(1) or (b)(2).

(c) It is a defense to prosecution under this section that:

(1) the sale, distribution, or exhibition was by a person having

scientific, educational, governmental, or other similar

justification; or

(2) the sale, distribution, or exhibition was to a minor who was

accompanied by a consenting parent, guardian, or spouse.

(d) An offense under this section is a Class A misdemeanor

unless it is committed under Subsection (b)(3) in which event it

is a felony of the third degree.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 43.25. SEXUAL PERFORMANCE BY A CHILD. (a) In this

section:

(1) "Sexual performance" means any performance or part thereof

that includes sexual conduct by a child younger than 18 years of

age.

(2) "Sexual conduct" means sexual contact, actual or simulated

sexual intercourse, deviate sexual intercourse, sexual

bestiality, masturbation, sado-masochistic abuse, or lewd

exhibition of the genitals, the anus, or any portion of the

female breast below the top of the areola.

(3) "Performance" means any play, motion picture, photograph,

dance, or other visual representation that can be exhibited

before an audience of one or more persons.

(4) "Produce" with respect to a sexual performance includes any

conduct that directly contributes to the creation or manufacture

of the sexual performance.

(5) "Promote" 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 the above.

(6) "Simulated" means the explicit depiction of sexual conduct

that creates the appearance of actual sexual conduct and during

which a person engaging in the conduct exhibits any uncovered

portion of the breasts, genitals, or buttocks.

(7) "Deviate sexual intercourse" and "sexual contact" have the

meanings assigned by Section 43.01.

(b) A person commits an offense if, knowing the character and

content thereof, he employs, authorizes, or induces a child

younger than 18 years of age to engage in sexual conduct or a

sexual performance. A parent or legal guardian or custodian of a

child younger than 18 years of age commits an offense if he

consents to the participation by the child in a sexual

performance.

(c) An offense under Subsection (b) is a felony of the second

degree, except that the offense is a felony of the first degree

if the victim is younger than 14 years of age at the time the

offense is committed.

(d) 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.

(e) An offense under Subsection (d) is a felony of the third

degree, except that the offense is a felony of the second degree

if the victim is younger than 14 years of age at the time the

offense is committed.

(f) It is an affirmative defense to a prosecution under this

section that:

(1) the defendant was the spouse of the child at the time of the

offense;

(2) the conduct was for a bona fide educational, medical,

psychological, psychiatric, judicial, law enforcement, or

legislative purpose; or

(3) the defendant is not more than two years older than the

child.

(g) When it becomes necessary for the purposes of this section

or Section 43.26 to determine whether a child who participated in

sexual conduct was younger than 18 years of age, the court or

jury may make this determination by any of the following methods:

(1) personal inspection of the child;

(2) inspection of the photograph or motion picture that shows

the child engaging in the sexual performance;

(3) oral testimony by a witness to the sexual performance as to

the age of the child based on the child's appearance at the time;

(4) expert medical testimony based on the appearance of the

child engaging in the sexual performance; or

(5) any other method authorized by law or by the rules of

evidence at common law.

Added by Acts 1977, 65th Leg., p. 1035, ch. 381, Sec. 1, eff.

June 10, 1977. Amended by Acts 1979, 66th Leg., p. 1976, ch. 779,

Sec. 1, eff. Sept. 1, 1979; Acts 1985, 69th Leg., ch. 530, Sec.

1, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01,

eff. Sept. 1, 1994; Acts 1999, 76th Leg., ch. 1415, Sec. 22(b),

eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1005, Sec. 4, 5

eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

593, Sec. 1.20, eff. September 1, 2007.

Sec. 43.251. EMPLOYMENT HARMFUL TO CHILDREN. (a) In this

section:

(1) "Child" means a person younger than 18 years of age.

(2) "Massage" has the meaning assigned to the term "massage

therapy" by Section 455.001, Occupations Code.

(3) "Massage establishment" has the meaning assigned by Section

455.001, Occupations Code.

(4) "Nude" means a child who is:

(A) entirely unclothed; or

(B) clothed in a manner that leaves uncovered or visible through

less than fully opaque clothing any portion of the breasts below

the top of the areola of the breasts, if the child is female, or

any portion of the genitals or buttocks.

(5) "Sexually oriented commercial activity" means a massage

establishment, nude studio, modeling studio, love parlor, or

other similar commercial enterprise the primary business of which

is the offering of a service that is intended to provide sexual

stimulation or sexual gratification to the customer.

(6) "Topless" means a female child clothed in a manner that

leaves uncovered or visible through less than fully opaque

clothing any portion of her breasts below the top of the areola.

(b) A person commits an offense if the person employs,

authorizes, or induces a child to work:

(1) in a sexually oriented commercial activity; or

(2) in any place of business permitting, requesting, or

requiring a child to work nude or topless.

(c) An offense under this section is a Class A misdemeanor.

Added by Acts 1987, 70th Leg., ch. 783, Sec. 1, eff. Aug. 31,

1987. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff.

Sept. 1, 1994; Acts 2001, 77th Leg., ch. 1420, Sec. 14.832, eff.

Sept. 1, 2001.

Sec. 43.26. POSSESSION OR PROMOTION OF CHILD PORNOGRAPHY. (a)

A person commits an offense if:

(1) the person knowingly or intentionally possesses visual

material that visually depicts a child younger than 18 years of

age at the time the image of the child was made who is engaging

in sexual conduct; and

(2) the person knows that the material depicts the child as

described by Subdivision (1).

(b) In this section:

(1) "Promote" has the meaning assigned by Section 43.25.

(2) "Sexual conduct" has the meaning assigned by Section 43.25.

(3) "Visual material" means:

(A) any film, photograph, videotape, negative, or slide or any

photographic reproduction that contains or incorporates in any

manner any film, photograph, videotape, negative, or slide; or

(B) any disk, diskette, or other physical medium that allows an

image to be displayed on a computer or other video screen and any

image transmitted to a computer or other video screen by

telephone line, cable, satellite transmission, or other method.

(c) The affirmative defenses provided by Section 43.25(f) also

apply to a prosecution under this section.

(d) An offense under Subsection (a) is a felony of the third

degree.

(e) A person commits an offense if:

(1) the person knowingly or intentionally promotes or possesses

with intent to promote material described by Subsection (a)(1);

and

(2) the person knows that the material depicts the child as

described by Subsection (a)(1).

(f) A person who possesses visual material that contains six or

more identical visual depictions of a child as described by

Subsection (a)(1) is presumed to possess the material with the

intent to promote the material.

(g) An offense under Subsection (e) is a felony of the second

degree.

Added by Acts 1985, 69th Leg., ch. 530, Sec. 2, eff. Sept. 1,

1985. Amended by Acts 1989, 71st Leg., ch. 361, Sec. 1, eff.

Sept. 1, 1989; Acts 1989, 71st Leg., ch. 968, Sec. 1, eff. Sept.

1, 1989; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,

1994; Acts 1995, 74th Leg., ch. 76, Sec. 14.51, eff. Sept. 1,

1995; Acts 1997, 75th Leg., ch. 933, Sec. 1, eff. Sept. 1, 1997;

Acts 1999, 76th Leg., ch. 1415, Sec. 22(c), eff. Sept. 1, 1999.

Sec. 43.27. DUTY TO REPORT. (a) For purposes of this section,

" visual material" has the meaning assigned by Section 43.26.

(b) A business that develops or processes visual material and

determines that the material may be evidence of a criminal

offense under this subchapter shall report the existence of the

visual material to a local law enforcement agency.

Added by Acts 2003, 78th Leg., ch. 1005, Sec. 6, eff. Sept. 1,

2003.