Possession or promotion of lewd visual material depicting a child is charged under Texas Penal Code § 43.262. The baseline offense is a state jail felony, with felony enhancements for prior convictions. Below: the statute’s exact elements, how § 43.262 differs from child pornography under § 43.26, the punishment table, defense strategies, the device-seizure process, and what a conviction does — and does not — mean for sex-offender registration.
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Published 2026-07-05 · Reviewed by Reggie London and Njeri London, Co-Founding Partners · Last reviewed: 2026-07-05
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Controlling statute:Tex. Penal Code § 43.262 Classification: State jail felony; third-degree felony with one prior conviction under § 43.262 or § 43.26; second-degree felony with two or more priors Punishment range: State jail felony (180 days–2 years state jail + up to $10,000); third-degree felony (2–10 years TDCJ); second-degree felony (2–20 years TDCJ)
What is possession of lewd visual material under § 43.262?
Texas Penal Code § 43.262 makes it an offense to knowingly possess, access with intent to view, or promote visual material that meets all three of the statute’s prongs. In the statute’s words, the material must: (1) depict “the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created”; (2) appeal “to the prurient interest in sex”; and (3) have “no serious literary, artistic, political, or scientific value.” Every one of those prongs is an element. If any prong fails, the offense fails.
The statute borrows its vocabulary from its neighbors: “promote” and “sexual conduct” carry the definitions in § 43.25, and “visual material” carries the broad definition in § 43.26 — film, photographs, video, digital files, and images transmitted to a screen by any means. Two structural points matter for the defense. First, the conduct verbs are alternatives: the State may allege simple possession, mere access with intent to view (no download required), or promotion, which includes distributing or agreeing to distribute. Second, subsection (d) expressly provides that the depicted child’s consent to creating the material is not a defense.
Subsection (b-1), added and then expanded by recent Legislatures, extends the statute to computer-generated content in two situations: material built from a recognizable real person’s image as a child — including content “created, adapted, or modified” with an artificial-intelligence application — and wholly AI-created depictions that are “virtually indistinguishable from an actual child” to a reasonable person. The section was enacted in 2017 (H.B. 1810), and amended in 2023 (H.B. 2700) and 2025 (S.B. 1621) to reach AI-generated and computer-modified depictions.
How is § 43.262 different from child pornography under § 43.26?
The two statutes divide the same subject matter at a statutory line. Section 43.26 requires a visual depiction of a child engaging in sexual conduct as defined by § 43.25. Section 43.262 was written for material that does not meet that definition — imagery whose gravamen is a lewd exhibition rather than sexual conduct, including images of a clothed or partially clothed child. The Legislature added § 43.262 in 2017 precisely because that category of material fell outside § 43.26.
The grading gap is substantial, and it drives charging decisions:
Feature
§ 43.26 (child pornography)
§ 43.262 (lewd visual material)
What the material depicts
A child engaging in “sexual conduct” (§ 43.25 definition)
Lewd exhibition of the genitals or pubic area — clothed, partially clothed, or unclothed — plus prurient appeal and no serious value
Baseline grade (possession)
Third-degree felony
State jail felony
Escalation by number of depictions
Yes — brackets at 10 and 50 depictions raise the grade
No count-based brackets in the statute
Escalation by priors
Yes — priors under Chapter 43 or Art. 62.001(5) offenses
Yes — one prior (§ 43.262 or § 43.26) makes it third-degree; two or more make it second-degree
Sex-offender registration
Listed in CCP Art. 62.001(5)(B)
Not listed in Art. 62.001(5) as currently written
AI / computer-generated provisions
Yes — separate offense tiers for computer-generated depictions
Yes — subsection (b-1) reaches AI-modified and virtually indistinguishable AI-created material
Because the same seized device often contains files on both sides of the line, forensic examiners sort images into statutory buckets, and indictments frequently pair a § 43.26 count with a § 43.262 count. Which bucket an image belongs in is a legal conclusion built on contestable judgments — that classification is itself a defense battleground.
What are the penalties for a § 43.262 conviction?
Grading starts at a state jail felony and climbs only through prior convictions. The ranges below come straight from Penal Code §§ 12.33, 12.34, and 12.35:
Level
When it applies
Confinement
Fine cap
State jail felony
First offense (no qualifying prior)
180 days–2 years, state jail facility
$10,000
Third-degree felony
One prior conviction under § 43.262 or § 43.26
2–10 years, TDCJ
$10,000
Second-degree felony
Two or more prior convictions under § 43.262 or § 43.26
2–20 years, TDCJ
$10,000
Last reviewed
2026-07-05
Three practical notes on the state-jail tier. State jail sentences are generally served day-for-day — there is no parole release from a state jail sentence the way there is from prison time, which changes how plea offers should be valued. On the other side of the ledger, § 12.44 gives a state jail felony two statutory off-ramps: the judge may impose Class A misdemeanor punishment after conviction under § 12.44(a), and the prosecutor may consent to prosecuting the case as a Class A misdemeanor outright under § 12.44(b). And unlike § 43.26, the statute contains no image-count brackets — the number of files matters to negotiation and sentencing argument, but it does not mechanically raise the grade.
Elements the State must prove
Each element must be proven beyond a reasonable doubt. A failure of proof on any one defeats the charge:
1. A culpable act — possession, access with intent to view, or promotion
The State must fix the defendant to one of the three conduct verbs. Possession requires actual care, custody, control, or management of the material; access with intent to view requires a deliberate act of viewing; promotion requires conduct such as distributing, exhibiting, or agreeing to do so under the § 43.25 definition.
2. Knowledge
The conduct must be knowing. Files a person never knew existed — cached thumbnails, auto-downloads, another user’s activity on a shared device — do not satisfy the mental state, and the State must prove awareness circumstantially through forensic artifacts.
3. Visual material depicting a lewd exhibition
The image must depict the lewd exhibition of the genitals or pubic area of a person younger than 18 at the time the material was created — clothed, partially clothed, or unclothed. Whether an exhibition is “lewd” is a contested, fact-specific question, not a label the State gets for free.
4. Appeal to the prurient interest in sex
The material must appeal to a morbid or shameful interest in sex. This obscenity-style limiting language keeps ordinary family photographs, medical imagery, and journalistic material outside the statute — and it is an element the defense can put squarely before a jury.
5. No serious literary, artistic, political, or scientific value
The State must negate serious value. Art, medicine, education, and reporting contexts matter here; the prong exists because the First Amendment requires it for material that does not depict actual sexual conduct.
6. For (b-1) theories — the AI predicates
Where the State proceeds on computer-generated material, it must additionally prove either that a recognizable real person’s image as a child was used in creating or modifying the material, or that the AI-created depiction is virtually indistinguishable from an actual child to a reasonable person.
Why does § 43.262 appear as a companion or fallback count?
In practice, § 43.262 rarely travels alone. When a device examination produces files that clearly meet § 43.26 and others that arguably do not, prosecutors commonly indict both statutes — the § 43.26 counts for the sexual-conduct material and a § 43.262 count covering the remainder. The lower count serves two functions for the State: it captures material the higher statute cannot reach, and it gives the prosecution a landing spot in negotiations if the § 43.26 classification looks vulnerable.
For the defense, that structure cuts both ways. A § 43.262-only resolution can be a dramatically different outcome than a § 43.26 conviction — lower grade, no image-count ladder, and no listing in the registration statute. But a fallback count also means the State can lose its lead theory and still obtain a felony conviction, so each count has to be contested on its own elements rather than treating the lesser charge as harmless. Where the material is genuinely borderline, the entire case may be filed under § 43.262 alone, and the three definitional prongs become the whole fight.
These cases are filed as felonies and indicted to district court. In this firm’s service area that means the Collin County Courthouse in McKinney, the Frank Crowley Courts Building in Dallas, the Denton County Courts Building, and the Tim Curry Criminal Justice Center in Fort Worth, depending on where the conduct is alleged.
Defense strategies against a § 43.262 charge
Defense work on this statute concentrates on five fronts, and several of them are unusual in that they attack the definition of the offense itself:
Definitional failure — the three prongs
The State must prove lewd exhibition, prurient appeal, and the absence of serious value. Each is contestable. Images are evaluated in context, and characterizations that sweep in innocuous photographs — beach and bath pictures in a family album, athletic or dance imagery, medical documentation — overreach the statute. Because prurient appeal and serious value are classic jury questions, a disciplined trial defense can force the State to defend its characterization image by image rather than in the aggregate.
Knowledge and possession challenges
Digital possession is rarely as clean as the indictment reads. Shared family computers, roommates with account access, open Wi-Fi networks, cloud folders synced across users, messaging apps that auto-save incoming media, and malware or remote-access artifacts all break the inference that the accused knowingly possessed a specific file. The distinct “accesses with intent to view” theory has its own weak points: browser caches and thumbnails record what a device rendered, not what a person deliberately sought out.
Forensic attribution
The State’s case typically rests on a forensic extraction report. The defense answer is an independent review of the same image: file-system paths, creation and access timestamps, user-account activity, application provenance, and deletion history. Attribution — tying a particular human being to a particular file at a particular time — is the soft spot in multi-user households and workplaces, and examiners’ conclusions often outrun what the artifacts actually show.
The (b-1) computer-generated predicates
Where AI-generated or edited material is alleged, the statute’s own limits matter: the State must prove a recognizable actual person’s childhood image was used, or that the depiction is virtually indistinguishable from a real child. Material that is obviously synthetic, stylized, or fictional does not satisfy that language. The amendments are also recent — conduct is judged under the statute in effect when it occurred, so timing questions belong in the analysis.
Suppression
Most investigations begin with an electronic tip and end with a search warrant for a home and its devices. Warrant affidavits can be attacked for staleness, lack of probable cause connecting the file to the place searched, and overbroad scope; evidence obtained in violation of the law is excludable under Code of Criminal Procedure Art. 38.23. When the images fall, the case usually falls with them.
What happens to your devices? The seizure and forensic process
A § 43.262 case usually announces itself with a search warrant executed at a home or workplace. Investigators seize phones, computers, tablets, external drives, gaming consoles, and anything else that stores data, then submit the hardware to a forensic laboratory for imaging — a bit-for-bit copy that examiners search with hash-matching and classification tools. That queue is long: months routinely pass between seizure and a charging decision, and people often live in that limbo without being arrested.
That window is not dead time; it is the most valuable stretch of the case. Counsel retained during the investigation phase can speak to investigators in the client’s place, decline interview requests on the client’s behalf, monitor whether a charging decision is coming, arrange for an orderly surrender if a warrant issues (which materially helps bond posture), and begin building the attribution and definitional defenses before the State has locked in its theory. Two cautions apply in every case. Do not consent to searches of anything — consent forfeits suppression arguments that may later be the whole defense. And never delete files or wipe devices after learning of an investigation: destruction of evidence is separately chargeable as tampering under Penal Code § 37.09 and hands the State a consciousness-of-guilt argument it otherwise would not have.
Seized hardware is generally held while the case is open. Devices that are not themselves evidence and contain no contraband can sometimes be returned early through counsel; material the State classifies as contraband is never returned.
Enhancements & collateral consequences
The enhancement ladder is internal to the statute and driven entirely by priors: one previous conviction under § 43.262 or § 43.26 raises a new charge to a third-degree felony, and two or more raise it to a second-degree felony. The cross-reference runs in both directions — a prior § 43.262 conviction likewise aggravates a later § 43.26 charge under that statute’s own enhancement scheme. General felony-enhancement rules in Penal Code Chapter 12 can also apply to the state-jail tier in limited circumstances, so prior-record analysis belongs at the front of every case.
Does § 43.262 require sex-offender registration?
On the current statutory text, no. Chapter 62 of the Code of Criminal Procedure applies only to a “reportable conviction or adjudication,” and the exclusive list in Article 62.001(5) — as amended through the 2025 legislative session — does not include § 43.262. The same list expressly includes § 43.26, § 43.25, and the other Chapter 43 registration offenses, so the omission is a deliberate legislative choice, not an oversight. We verified this against the statute’s current text as of the date on this page.
Three careful caveats belong next to that answer. First, registration follows the statute of conviction — a companion count under § 43.26 or another listed offense triggers Chapter 62 even if the § 43.262 count does not. Second, the Legislature amends Article 62.001(5) nearly every session, so exposure must be re-verified against the text in force at the time of any plea. Third, courts retain broad discretion over conditions of community supervision under Chapter 42A, and supervision in this category of case can include treatment, device monitoring, and internet restrictions even where no registration duty exists.
Other collateral consequences
Any conviction at the state-jail level or above is a felony conviction. That means firearm disability under Penal Code § 46.04 and federal law (18 U.S.C. § 922(g)), professional-license and certification exposure for educators, healthcare workers, and other licensed professionals, immigration consequences for noncitizens that require review by immigration counsel before any plea, and lasting effects in family-law proceedings involving children. Whether any record-sealing remedy is available depends entirely on the disposition; deferred-adjudication outcomes are analyzed under Government Code Chapter 411, Subchapter E-1, and should be mapped out before a plea is entered, not after.
Key Legal Terms
Lewd Exhibition
The display of the genitals or pubic area — clothed, partially clothed, or unclothed — in a manner that is sexually suggestive rather than innocent or incidental. Whether an image is “lewd” is a fact question the State must prove; it is the core contested term in § 43.262 cases.
Prurient Interest
A morbid or shameful interest in sex, as distinct from ordinary interest. Section 43.262(b)(2) requires the material itself to appeal to the prurient interest in sex — obscenity-style limiting language that keeps innocent imagery outside the statute.
Serious-Value Prong
The requirement in § 43.262(b)(3) that the material have no serious literary, artistic, political, or scientific value. The State carries the burden of negating serious value as an element of the offense.
Visual Material
Defined by § 43.26 and incorporated into § 43.262: film, photographs, video, negatives, slides, and any digital file or transmitted image that can be displayed on a screen.
Accesses with Intent to View
A conduct theory added so the State need not prove a download or saved copy; deliberately viewing hosted material can qualify. Intent and knowledge remain required, so involuntary rendering — caches, thumbnails, pop-ups — is contestable.
State Jail Felony
The lowest felony tier in Texas: 180 days to 2 years in a state jail facility and up to a $10,000 fine under Penal Code § 12.35, generally served day-for-day with no parole release, with possible misdemeanor-level punishment under § 12.44.
Frequently Asked Questions
Is possession of lewd visual material a felony in Texas?
Yes. A first offense under Penal Code § 43.262 is a state jail felony, punishable by 180 days to 2 years in a state jail facility and a fine of up to $10,000. One prior conviction under § 43.262 or § 43.26 raises the charge to a third-degree felony; two or more priors make it a second-degree felony.
How is § 43.262 different from child pornography under § 43.26?
Section 43.26 requires a depiction of a child engaging in sexual conduct as defined by § 43.25. Section 43.262 reaches material that does not meet that definition — a lewd exhibition of the genitals or pubic area, whether the child is clothed, partially clothed, or unclothed — when it appeals to the prurient interest in sex and lacks serious value. It carries a lower grade, and it is not on the sex-offender registration list.
Do I have to register as a sex offender after a § 43.262 conviction?
As the statutes read today, no. Code of Criminal Procedure Article 62.001(5), which lists every offense requiring registration, does not include § 43.262, while it expressly includes § 43.26. Companion convictions can change that answer, and the Legislature can amend the list, so registration exposure should be confirmed against the current statute before any plea.
Can AI-generated or cartoon images be charged under § 43.262?
Sometimes. Under subsection (b-1), the statute covers computer-generated or AI-modified material when a recognizable real person's image as a child was used, and AI-created depictions that a reasonable person would find virtually indistinguishable from an actual child. Clearly fictional drawings or cartoon-style images that no reasonable person would mistake for a real child fall outside that language, though where a given image sits is often litigated.
What does “accesses with intent to view” mean?
It criminalizes intentionally viewing prohibited material without ever downloading or saving it — for example, opening files hosted on a remote server. The State still must prove the access was knowing and intentional. Stray browser-cache entries, thumbnails, or pop-ups a person never chose to open are grounds to contest this element.
What if I did not know the file was on my device?
Knowledge is an element the State must prove beyond a reasonable doubt. Shared computers and family devices, cloud accounts with multiple users, auto-downloading messaging apps, and malware can all place files on a device without the owner's awareness. A defense forensic review of file paths, timestamps, and user activity often becomes the center of the case.
Can a § 43.262 charge be reduced or dismissed?
Every path depends on the evidence, but state jail felonies carry two statutory reduction routes: under Penal Code § 12.44(a) a judge may punish the offense as a Class A misdemeanor, and under § 12.44(b) the prosecutor may consent to prosecuting it as one. Suppression of an unlawful search, failure of the lewd-exhibition or serious-value prongs, or attribution problems can also support dismissal or acquittal.
Will police keep my phone and computer?
Devices seized under a warrant are typically held while a forensic laboratory images and examines them, which can take months. Hardware may eventually be returned if it is not needed as evidence and does not contain contraband, but there is no fixed deadline. Counsel can press for imaging-and-return or challenge the seizure's scope.
Is probation or deferred adjudication available for § 43.262?
Community supervision, including deferred adjudication, is generally available for state jail felonies, subject to the eligibility rules in Code of Criminal Procedure Chapter 42A and the court's discretion. Judges may attach restrictive conditions — treatment programs, device monitoring, or internet limits — even though Chapter 62 registration does not attach to this offense. Eligibility should be evaluated on the specific charge and criminal history.
What should I do first if investigators contact me about images?
Decline to be interviewed, do not consent to any search, and call a defense attorney before responding. Do not delete files or wipe devices — destruction of evidence can be charged separately as tampering under Penal Code § 37.09. Early, pre-charge legal work is often where these cases are shaped.
Reggie London co-founded L and L Law Group with a focus on federal criminal defense, complex felony defense, and TEA/SBEC matters. Licensed in Texas, admitted to TXND and TXED.
Njeri London co-founded L and L Law Group with a focus on DWI defense, family violence cases, and juvenile defense. Licensed in Texas, admitted to TXND and TXED.
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