Walsdorf Law Firm

WHICH ONE OF THE FOLLOWING IS ILLEGAL:
​ELECTRONIC TRANSMISSION OF CERTAIN VISUAL MATERIAL DEPICTING MINOR

OR SEXTING? 

Would you be surprised to find out they are one in the same? In Texas, the law making Sexting illegal, is named electronic transmission of certain visual material depicting minor. See Penal Code sec. 43.261. Up until 2011, when the law was changed, those convicted of sexting faced felony charges, prison time and life time registration as a sex offender. Now, sexting carries a maximum penalty of one year in jail, a $4000 fine, and the court can order parents to attend classes as part of the child’s punishment.
What is sexting? In short, anyone under the age of 18 who takes, possesses, or sends a photo of themselves or another minor that depicts any “sexual conduct”, is in violation of the law. A cell phone is something we own like a car; we consider it personal or private property. However, any transmission (text/posting/tagging) is considered public under the law. So when we send something into cyberspace it uses cell towers, wires etc. that belong to companies (AT&T, Yahoo, Facebook, Twitter). At this moment, the law regards that communication as non-private communication. Thus, when two 13 year olds in Indiana consensually sent photos of each other, to each
other, because they were “in love”, once discovered, they were each

charged with felony child pornography. Today, each must register as a sex offender for the remainder of their lifetimes.​
​Teenagers will be teenagers and studies have shown that one in five teenagers admit to sending explicit photos or messages through their phone. The definition of “sexual conduct” is vague at best and includes actual or simulated conduct. Thus, a nude or scantily clad photo, blowing a kiss, striking a sexy pose, even intimating or hinting to any sort of sexual behavior is actionable under this law. Any reliance on the state to use a common sense approach in deciding when to press charges is foolish. As parents we need to be aware of this potentially life changing landmine and educate, warn, peek and pester our children about seemingly innocent playful or adult like behavior. As parents, we may not approve of our teenage daughters sending “sexy” photos, or our sons sending shirtless muscle poses of themselves to their girlfriends or even posting them on instagram, and we may punish them, ground them, or take away their phone. Here in Texas, when discovered the state can put your child in jail for one year. Do your family a favor, and talk about this serious issue before you need to hire a lawyer to keep your child out of jail.