Texas Penal Code Section 43.26 makes it a felony to possess, or to access with intent to view, visual material depicting a child engaged in sexual conduct. Punishment starts at a third-degree felony with two to ten years in prison and climbs to a first-degree felony carrying up to life in prison, depending on how many images are involved and whether you have prior convictions.1State of Texas. Texas Penal Code 43.26 – Possession or Promotion of Child Pornography Every conviction also triggers lifetime sex offender registration.
What the Statute Prohibits
After 2025 amendments restructured the section, the definitions sit in subsection (a) and the core possession offense is in subsection (a-1). If you searched for “43.26(a),” the conduct you are looking for is now in (a-1). That subsection criminalizes possessing, or accessing with intent to view, visual material containing a depiction of a child engaged in sexual conduct.1State of Texas. Texas Penal Code 43.26 – Possession or Promotion of Child Pornography
The “access with intent to view” language is important. You do not have to download or save a file for the statute to apply. Deliberately pulling up prohibited material through a browser or streaming service can be enough.
Subsection (a-2) extends the same prohibition to computer-generated and AI-created imagery. If a depiction was produced using artificial intelligence or other software and appears to a reasonable person to be virtually indistinguishable from an actual child under 18, possessing it or accessing it with intent to view is also a crime.1State of Texas. Texas Penal Code 43.26 – Possession or Promotion of Child Pornography
How the Key Terms Are Defined
A “child” is anyone younger than 18 at the time the image was made. The statute also reaches images that use a recognizable real child’s likeness, including likenesses modified by AI tools. Taking a real child’s face and using software to generate prohibited imagery falls within the statute.1State of Texas. Texas Penal Code 43.26 – Possession or Promotion of Child Pornography
“Visual material” is defined broadly. It covers photographs, film, videotape, negatives, and slides, and it covers any digital file capable of displaying an image on a screen, however the file was transmitted. A JPEG on a phone, a video on a USB drive, and a printed photograph all qualify.
“Sexual conduct” is pulled from Section 43.25 of the Penal Code and covers sexual contact, actual or simulated intercourse, masturbation, and sadomasochistic abuse, among other acts. The depicted conduct does not need to be real rather than simulated.
What the Prosecution Has to Prove
The state must prove two mental elements. You intentionally or knowingly possessed the material, or intentionally or knowingly accessed it with the intent to view it. And you knew or should have known the depiction was of a child under 18.1State of Texas. Texas Penal Code 43.26 – Possession or Promotion of Child Pornography
The “knew or should have known” standard is lower than requiring actual knowledge. A prosecutor does not have to prove you confirmed the child’s age. If the content would make a reasonable person recognize that the subject appeared to be a minor, that can be enough. The AI subsection applies a similar standard: you knew or should have known the depiction appeared to be of someone under 18, or believed it depicted an actual child.
Possession itself goes well beyond holding something physically. Courts recognize both actual possession and constructive possession, meaning you had the ability and intent to control the material even if it was not on your person. Files on a personal computer, external drive, phone, or tablet all count. Material on a remote server you reach through a personal account with login credentials counts too. Where a file exists on a shared device and you never accessed, organized, or searched for it, the knowledge element is not satisfied.
Penalty Tiers by Image Count and Priors
Penalties scale with the number of images and your criminal history, and the thresholds catch people off guard because digital collections grow fast and each depiction counts separately.
Third-Degree Felony
Possessing fewer than ten images with no prior conviction under the subsection is a third-degree felony. The range is two to ten years in prison and a fine up to $10,000.2State of Texas. Texas Penal Code 12.34 – Third Degree Felony Punishment
Second-Degree Felony
The offense becomes a second-degree felony with ten to forty-nine images, or with one prior conviction under the subsection.1State of Texas. Texas Penal Code 43.26 – Possession or Promotion of Child Pornography Punishment is two to twenty years in prison and a fine up to $10,000.3State of Texas. Texas Penal Code 12.33 – Second Degree Felony Punishment
First-Degree Felony
The charge jumps to a first-degree felony with fifty or more images, two or more prior convictions under the subsection, or possession of a video depicting a sexual assault of a child.1State of Texas. Texas Penal Code 43.26 – Possession or Promotion of Child Pornography The punishment range is five to ninety-nine years, or life, plus a fine up to $10,000.4State of Texas. Texas Penal Code 12.32 – First Degree Felony Punishment
Someone who assumes the exposure is two to ten years can actually be facing a potential life sentence based on volume alone.
Lifetime Sex Offender Registration
A conviction under Section 43.26 is a reportable conviction for Texas sex offender registration purposes.5State of Texas. Texas Code of Criminal Procedure Article 62.001 The duty to register does not expire after a set number of years. Under Article 62.101, it ends only when the person dies.6State of Texas. Texas Code of Criminal Procedure Article 62.101 – Expiration of Duty to Register
Lifetime registration means regular check-ins with local law enforcement, restrictions on where you can live and work, and a public listing anyone can search. The obligation follows you across state lines, because federal law requires states to honor each other’s registration requirements. For many people, this ongoing burden affects daily life more than the prison sentence itself.
Defenses the Statute Allows
The available defenses are narrow and do not fit the typical defendant. Law enforcement officers and school administrators have a defense if they possessed or accessed the material in good faith solely because of an allegation involving a minor’s sexting under Section 43.261, shared it only with appropriate personnel, and took reasonable steps to destroy it afterward.1State of Texas. Texas Penal Code 43.26 – Possession or Promotion of Child Pornography Judicial and law enforcement officers have an affirmative defense when possessing the material as part of their official duties.
For AI-generated imagery under subsection (a-2) only, there is a close-in-age affirmative defense: prosecution fails if the defendant is no more than two years older than the depicted child.1State of Texas. Texas Penal Code 43.26 – Possession or Promotion of Child Pornography It does not apply to real images under subsection (a-1).
One defense Texas does not provide: there is no general safe harbor for someone who stumbles across prohibited material and promptly deletes it or reports it to law enforcement. Some jurisdictions have that kind of exception. Texas does not for this offense.
Federal Prosecution for the Same Conduct
State charges are not the only exposure. If the material crossed state lines or traveled over the internet, federal prosecutors can bring separate charges under 18 U.S.C. ยง 2252A. A first-time federal possession conviction carries up to ten years in prison. If any image involved a child under twelve, the maximum rises to twenty years. A defendant with a prior conviction for a similar offense faces a mandatory minimum of ten years and a maximum of twenty.7Office of the Law Revision Counsel. 18 U.S. Code 2252A – Certain Activities Relating to Material Constituting or Containing Child Pornography
State and federal prosecutors can charge the same conduct independently. A conviction or acquittal in state court does not prevent federal prosecution, and the reverse is also true. In practice, federal authorities tend to pursue cases involving large volumes, distribution networks, or production, though simple possession cases do get picked up federally, particularly those originating from tips through the National Center for Missing and Exploited Children.
Life After a Conviction
A felony under this statute carries consequences well beyond prison, fines, and registration. You lose the right to possess firearms under both Texas and federal law. You lose the right to vote while incarcerated or on parole or community supervision, though Texas restores voting rights after you fully complete your sentence.
Employment becomes significantly harder. Most employers run background checks, and a conviction of this kind creates barriers in nearly every industry, with outright legal disqualification from jobs involving children, education, healthcare, and positions requiring professional licensing. Housing is similarly constrained, because registration rules limit where you can live and many landlords screen for registered offenders.
Where the case involves federal conviction or supervision, courts can impose strict technology-monitoring conditions on release. These may include monitored computer use, restricted internet access, and software installed on personal devices that tracks activity.8United States Courts. Chapter 3 – Cybercrime-Related Conditions Probation and Supervised Release Conditions Some defendants are prohibited from owning smartphones or using devices that cannot be monitored, and these restrictions can last for years after release.