Statutory History
Section summaryThe prior version of §21.15, titled "improper photography," was struck down in 2014 in Ex parte Thompson on the ground that it was a content-based restriction on expression that failed strict scrutiny. The Legislature responded with a narrower statute focused on privacy interests.
In Ex parte Thompson, 414 S.W.3d 872 (Tex. Crim. App. 2014), the Texas Court of Criminal Appeals held that the then-current §21.15(b)(1) — which criminalized photographing or recording another person without consent and with intent to arouse or gratify sexual desire — was facially unconstitutional. The court reasoned that photography is inherently expressive conduct protected by the First Amendment, and that intent to arouse is a content-based element that triggers strict scrutiny. The statute was held to be substantially overbroad.
The Legislature responded by replacing the offense with the current "invasive visual recording" framework, which focuses on locations where reasonable expectation of privacy exists (bathrooms, changing rooms) and on capture of intimate areas. The new statute is narrower and is generally treated as content-neutral.
Current Elements
Section summarySection 21.15 has two principal subsections: capturing intimate areas of another person without consent in a private setting, and recording in bathrooms or changing rooms. Both require the absence of consent and a location-based or area-based privacy element.
Elements under §21.15(b):
- The actor, without consent, photographed or recorded by electronic means a visual image of an intimate area of another person.
- The other person had a reasonable expectation that the intimate area would not be visible to the public.
- Or, the actor recorded in a bathroom or changing room.
"Intimate area" is defined in the statute and generally includes the naked or clothed genitals, pubic area, anus, buttocks, or female breast. "Promote" and "broadcast" variants are also covered.
Reasonable Expectation of Privacy
Section summaryThe reasonable-expectation-of-privacy element does much of the constitutional work in distinguishing protected expression from criminalized conduct. The analysis tracks Fourth Amendment privacy doctrine in some respects but is statute-specific.
Factors that bear on the reasonable expectation element:
- Whether the location was generally accessible to the public (a public beach versus a private home).
- Whether the person was in a state of partial or full undress.
- Whether the area photographed was openly visible (clothing covering vs. up-skirt or down-blouse photography of areas not visible from ordinary view).
- Whether the actor used special means (telephoto lenses, hidden cameras, drones) to capture what was not otherwise visible.
Texas courts have analyzed the reasonable-expectation element in the context of public places, finding that even in public, certain intimate areas (those covered by clothing and not visible from ordinary view) can carry an expectation of privacy.
Distinguishing §21.16
Section summarySection 21.16 targets the unlawful disclosure or promotion of intimate visual material — the so-called "revenge porn" statute. The two statutes can charge sequential conduct: capture under §21.15, distribution under §21.16.
Section 21.16 in summary:
- Targets disclosure of visual material depicting another person in a state of undress or engaged in sexual conduct.
- Requires disclosure without the depicted person's effective consent.
- Requires that the depicted person had a reasonable expectation that the material would remain private.
- Requires intent to harm or other specified mental states.
- State-jail felony grade.
Section 21.16 was sustained against constitutional challenge in Ex parte Jones, 596 S.W.3d 779 (Tex. Crim. App. 2021), after intermediate appellate proceedings. The two statutes can charge different aspects of the same factual transaction.
First Amendment Overlay
Section summaryPhotography is expressive conduct. Any statute that regulates it must be carefully drawn to avoid criminalizing protected expression. The current §21.15 framework is generally regarded as content-neutral but specific applications can raise as-applied challenges.
Constitutional considerations:
- Photography of public places and public figures generally enjoys broad First Amendment protection.
- Content-based restrictions on photography trigger strict scrutiny under Reed v. Town of Gilbert, 576 U.S. 155 (2015).
- The privacy-based framework of §21.15 is treated as content-neutral and analyzed under intermediate scrutiny.
- As-applied challenges may succeed in specific contexts where the application sweeps in protected expression.
- Federal counterparts include 18 U.S.C. §1801 (video voyeurism in federal jurisdiction).
Defense Issues
Section summaryDefense centers on consent, the location or area element, the actor's identity, and the constitutional framework. Suppression of devices, cloud-stored images, and forensic computer evidence frequently drives the case.
Common defense angles:
- Consent — explicit or implied consent to the recording negates the offense.
- Reasonable expectation of privacy — whether the location or the intimate area was the kind of setting where the statute reaches.
- Identity — whether the defendant was the operator of the device, especially in shared-device or shared-account contexts.
- Suppression of digital evidence — warrant scope issues, particularity requirements for searches of phones and cloud accounts under Riley v. California, 573 U.S. 373 (2014), and CCP Chapter 18 for state search warrants.
- As-applied First Amendment challenges — in specific applications where the conduct fell within protected expression.
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Call (972) 370-5060 →The improper photography statute and its constitutional history
Texas Penal Code Section 21.15 (improper photography or visual recording) was rewritten after the Texas Court of Criminal Appeals decision in Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014), struck down the original version on First Amendment grounds. The Thompson decision held that the original statute reached too much protected expressive activity, prompting legislative revision. The current statute is more narrowly drawn and includes specific elements designed to address the constitutional concerns.
The current Section 21.15 reaches photographs, videos, or recordings made without the consent of the person depicted and with the intent to arouse or gratify the sexual desire of any person. The statute also reaches photographs, videos, or recordings of a person in a bathroom or in a changing room without the consent of the person depicted, regardless of the intent. The bathroom and changing room provisions reflect the specific privacy expectations in those locations.
The base offense is a state jail felony punishable by 180 days to 2 years in state jail and a fine up to $10,000. The penalty enhancement provisions can elevate the offense to a third-degree felony in cases involving children, multiple incidents, or other specific aggravating factors. The penalty structure reflects the serious privacy violations the offense addresses while preserving the constitutional balance struck after Thompson.
The consent element and the privacy expectation analysis
The consent element under Section 21.15 reaches the absence of consent from the person depicted. The consent must be specific to the photographic or recording conduct, not merely consent to be present in the location. A person who consents to be photographed in social media style does not necessarily consent to bathroom or intimate photography. The specific consent analysis requires factual development of the relationship between the parties and the specific circumstances of the photography.
The privacy expectation analysis applies to cases involving photography in semi-public spaces. The bathroom and changing room provisions reflect the heightened privacy expectations in those specific locations. Other locations including private homes, hotel rooms, and other private spaces also produce specific privacy expectations that affect the consent analysis. The defense should examine the specific location and the privacy expectations associated with it.
The defense in many cases focuses on whether consent was actually given or whether the defendant reasonably believed consent had been given. The consent can be implied through the conduct of the parties, the relationship between them, and the circumstances of the photography. Photography that occurred openly in social settings with the apparent knowledge of the photographed person may support a consent defense even where formal consent was not obtained.
The intent element and the bathroom-and-changing-room exception
The intent to arouse or gratify the sexual desire of any person is the central mens rea element for the general Section 21.15 offense. The intent requirement applies to photography in most settings but not to photography in bathrooms or changing rooms. The bathroom and changing room provisions impose strict liability with respect to the intent element, reflecting the legislative judgment that the privacy interests in those settings are absolute.
The intent element in non-bathroom cases provides substantial scope for defense argument. The defense can challenge the intent through alternative explanations of the photography including legitimate journalistic purpose, artistic purpose, documentation purpose, and other non-sexual purposes. The defense can also challenge the intent through evidence that the photography was incidental to a broader scene or context rather than focused on the depicted person.
The bathroom and changing room cases require careful factual development of the specific location and the specific photography. The strict liability framework for these cases means that the defense cannot rely on intent challenges, which forces focus on whether the location qualifies as a bathroom or changing room and whether the consent element is satisfied. The factual record about the specific location and the photography circumstances can substantially affect the case.
Defense strategy and the practical considerations
The defense strategy in Section 21.15 cases must address the specific elements of the charged subsection. The general subsection cases focus on intent and consent. The bathroom and changing room cases focus on location and consent. The defense should be familiar with the specific elements and the available defenses for each subsection.
The pretrial motions in these cases can address the constitutional issues, the specific element challenges, and the evidentiary issues. The Thompson framework continues to inform the constitutional analysis, and the defense should preserve constitutional issues through pretrial motions even where the current statute has been upheld against facial challenges. As-applied challenges remain available in specific cases.
The disposition options include various plea structures, deferred adjudication for first-time defendants, and contested litigation. The defense should evaluate the comparative implications of each disposition including the immediate sentencing exposure, the criminal record consequences, and the long-term implications including any registration requirements. Section 21.15 convictions do not require sex offender registration in most cases, which substantially reduces the long-term consequences compared to other sex-related offenses. The defense should ensure that any negotiated disposition produces a Section 21.15 conviction rather than a related offense that would trigger registration requirements.
Frequently Asked Questions
Is upskirt photography in public covered by §21.15?
Does §21.15 require sex offender registration?
What does Ex parte Thompson mean for current §21.15 cases?
How is §21.15 different from §21.16?
Can the State search a phone or cloud account based on a §21.15 allegation?
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Cite this guide
Bluebook: Reggie London & Njeri London, Improper Photography Defense in Texas, L&L Law Group (May 30, 2026), https://landllawgroup.com/insights/improper-photography-visual-recording-21-15/.
APA: London, R., & London, N. (2026, May 30). Improper Photography Defense in Texas. L&L Law Group.