Texas Revenge Porn Laws: Criminal and Civil Consequences

The §21.16 Criminal Track

Section summarySection 21.16(b) criminalizes disclosure of intimate visual material without effective consent when the depicted person had a reasonable expectation of privacy and the disclosure causes harm. Subsection (c) reaches promotion. Subsection (d) reaches threats to disclose. Each is a Class A misdemeanor.

The criminal statute has several operative subsections:

• §21.16(b) — disclosure of intimate visual material without effective consent, where the depicted person had a reasonable expectation that the material would remain private and the disclosure causes harm.
• §21.16(c) — promotion of intimate visual material the actor knows or has reason to know was originally produced under circumstances giving rise to a reasonable expectation of privacy.
• §21.16(d) — threats to disclose intimate visual material, made with intent to obtain a benefit or in retaliation.

Each is a Class A misdemeanor in its base form. Punishment is up to one year in county jail and a fine up to $4,000. A second-degree-felony enhancement exists when the conduct is committed in conjunction with the offense of stalking under §42.072 — meaning the same underlying course of conduct can ground both charges and dramatically raise exposure.

For the full statutory walkthrough, see our §21.16 elements page.

The §98B Civil Track

Section summaryCivil Practice & Remedies Code §98B is a stand-alone civil cause of action. The plaintiff does not need a criminal conviction or even a pending criminal case. Recoverable damages include actual damages, mental anguish, exemplary damages, court costs, and attorney's fees, plus injunctive relief.

Section §98B mirrors the criminal statute's substantive elements but runs in civil court. A depicted person can sue the discloser for:

• Actual damages — economic harm caused by the disclosure.
• Mental anguish — recoverable without proof of physical injury.
• Exemplary damages — available without the heightened Chapter 41 caps that apply elsewhere, in line with the statute's text.
• Court costs and reasonable attorney's fees.
• Injunctive relief — including takedown orders and prohibitions on further disclosure.

The civil action is independent. A criminal acquittal does not preclude a civil judgment, because the civil standard is preponderance of the evidence rather than beyond a reasonable doubt. The §98B civil remedy walkthrough covers procedural points (statute of limitations, joinder, preservation orders) in more depth.

The Consent and Expectation-of-Privacy Elements

Section summaryEffective consent at the time of creation does not automatically authorize later disclosure. The statute focuses on whether the depicted person consented to the specific disclosure and whether they had a reasonable expectation that the material would remain private.

This is the element most defendants misunderstand. The fact that the material was made consensually — in the context of an intimate relationship, for instance — does not mean the depicted person consented to its distribution after the relationship ended. Courts read "effective consent" as consent to the specific disclosure, not generalized consent to possess the material.

The reasonable-expectation-of-privacy analysis examines:

• Whether the material was created in a private setting.
• Whether the depicted person communicated, expressly or by context, that the material was private.
• Whether the material was shared with the actor under an understanding of confidentiality.
• Whether the depicted person had ever distributed the material publicly themselves.

Public prior distribution by the depicted person can rebut the expectation-of-privacy element, but courts read the carve-out narrowly. A single past sharing in a different context does not strip the expectation of privacy from new, different material.

Promotion and Threats to Disclose

Section summaryForwarding intimate visual material to others, posting it online, or making it available — even without uploading the original — falls under §21.16(c). Threats to disclose, made to obtain something of value or in retaliation, fall under §21.16(d).

The promotion subsection reaches conduct beyond the original poster. A person who forwards material to a group chat, posts a link to it, or makes it available on a shared platform can be charged separately under §21.16(c) if they knew or had reason to know the material was originally produced under circumstances giving rise to a reasonable expectation of privacy.

The threat subsection — §21.16(d) — criminalizes saying "if you do not do X, I will post these." The threat itself is the offense; no actual disclosure is required. This subsection commonly co-occurs with extortion or compelling-prostitution allegations and frequently triggers a separate stalking analysis under §42.072.

Defenses

Section summaryDefenses focus on effective consent to the specific disclosure, the absence of a reasonable expectation of privacy, identity (account takeover, shared-device), the harm element, and — narrowly — First Amendment defenses where the material has clear newsworthy or public-concern dimensions.

Defenses that are factually credible:

• Effective consent to disclosure. Communications showing the depicted person authorized the specific posting or forwarding.
• No reasonable expectation of privacy. The material was previously distributed publicly by the depicted person.
• Identity. Account takeover, shared device, or shared cloud account confusion — particularly common in long-term relationships where credentials were shared.
• No harm. The harm element of §21.16(b) requires proof; the absence of demonstrable harm is a defense, though it is often the weakest path.
• First Amendment. Texas's revenge-porn statute was struck down in 2018 in Ex parte Jones, then re-enacted in narrower form in 2019. The current statute has been upheld in subsequent litigation, but First Amendment challenges remain available in cases involving material with genuine public-concern dimensions.

The online conduct charge identifier can help sort whether facts fit §21.16, §42.072 stalking, §42.07 harassment, or a combination.

Frequently Asked Questions

Next Steps

If you are facing a situation described here, consult counsel promptly. Many issues in this area run on strict deadlines.

• Call (972) 370-5060
• Email info@landllawgroup.com