Amendments to the Texas Penal Code will take effect on September 1st criminalizing what appears to be a recent hobby among teenagers. Sexting has been defined as “teenagers sending nude photos of themselves and others," Aman Batheja, Prosecutors Find Glitches in Human Trafficking, Sexting and Domestic Abuse Laws, Star-Telegram, Aug. 6, 2011, available at http://www.star-telegram.com/2011/08/06/3273840/prosecutors-find-glitches-in-human.html, or as the “act of sending sexually explicit images via cell phone." Jalah Gray, Proposed Texas Sexting Law, KXII First News 12, Mar. 23, 2011, available at http://www.kxii.com/news/headlines/Proposed\Texas_Sexting_Law_118512344.html_.

Without using the term “sexting," the Texas Legislature has criminalized the act among teenagers by adding § 43.261 to the Penal Code. The new section will prohibit a person under the age of 18 from intentionally or knowingly using electronic means to produce or transmit pictures of a minor engaging in sexual conduct or nude pictures of a minor. S.B. 407 § 3, 2011 Leg., 82(R) Sess. (Tex. 2011). The new law appears to be drafted carefully so as to not penalize a minor who is married or in a dating relationship from sending nude images of his or herself to his or her partner. Id. A defense to prosecution under the new statute will be that the images depicted only the accused, the accused and another minor—within two years of age from the accused—with which the accused has a dating relationship, or the accused and his or her spouse. Id. Additionally, for the defense to apply, the images must not be sent to any third party. Id.

Under certain circumstances, the law will also punish minors found in possession of such pictures in an electronic format. Id. Section 43.261(b)(2) of the Penal Code will penalize possession of such material if the recipient knows the picture is of a minor. Id. However, a valid defense to criminal responsibility under this subsection will be that the recipient “possessed the visual material only after receiving the material from another minor," destroyed the images within a reasonable time after receipt, and did not solicit the images. Id.

A first offense of the new law will be a Class C misdemeanor. However, if it is shown that the accused distributed the images with an intent to “harass, annoy, alarm, abuse, torment, embarrass, or offend another," it becomes a Class B misdemeanor. Id. Conduct which violates this new law will also be considered conduct indicating a need for supervision under § 51.03 of the Texas Family Code, even in the absence of a sexting conviction. Id. at § 4. Further, if a minor is found to have violated the new law, the court may order the child to take courses under § 37.218 of the Texas Education Code, a section also added through S.B. 407. Id. at § 22.

The amendment to the Education Code provides for a new program on the legal, criminal, emotional, educational, and occupational implications of sexting. Id. The new program must also be designed to teach about certain characteristics of the internet and technology that allow for the easy spread of such images. Id. Class participants will be made aware that sexting imaged may easily be replicated and passed on to others without the consent of the image’s subject. Id. Further, class participants will be made aware of the image’s potential to reach a worldwide audience by going viral, even if the minor deleted his or her own copy of the images. Id.

Though the Texas Attorney General praises the law, the Texas District and County Attorney Association is critical of it. Batheja, supra. Representatives from the association believe the law places adults in a Catch 22. Id. While the law itself is directed toward only criminalizing the act done by minors, the association believes an adult in possession of images prohibited by the new amendment has the difficult choice between deleting the image and risk prosecution for destruction of evidence under § 37.09 of the Texas Penal Code or holding on to the image and risk prosecution for possession of child pornography under § 43.26 of the Texas Penal Code. Id. The association further urges prosecutors to ignore the new law. Id. This criticism is slightly perplexing considering S.B. 407 also amends the Texas Penal Code to exclude school officials and law enforcement officers from criminal prosecution for possession of child pornography for the possession of sexting images. S.B. 407 § 2, 2011 Leg., 82(R) Sess. (Tex. 2011). It further excludes all persons who deleted sexting images from prosecution for destruction of evidence. Id. at § 1.