Is it illegal to create an AI deepfake in Texas? If it involves sexual content, then yes, it is. Previously, I talked about what constitutes an illegal depiction of a minor in Texas. Today I want to zero in on a specific component of the law that’s been rapidly changing in the last few years: deepfakes.
A deepfake is a “video, photo, or audio recording that seems real but has been manipulated with AI.”¹ If individuals use the technology to make it look like someone did or said something they didn’t, that’s a deepfake.
Individuals who use AI to create non-consensual, sexually explicit deepfakes of real people are breaking Texas law.
Before 2023, there were no laws against creating deepfakes for sexual content. Individuals may also be charged with a federal crime, a change that came with Senate Bill 1361, which criminalized the non-consensual creation of sexually explicit deepfakes of real people.
It is now a crime in Texas to knowingly produce or distribute deepfake media that “appears to depict a person with their intimate parts exposed or engaging in sexual conduct without their effective consent.”² If the image depicted a fictional person created out of whole cloth, it was legal.
Texas’s penalties for deepfakes are among the most severe in the country.
Penalties start at a Class A misdemeanor, punishable by up to one year in jail and a $4,000 fine. These charges can escalate to a third-degree felony for repeat offenders and for other aggravating factors, potentially resulting in two to 10 years in prison.
The Texas Responsible AI Governance Act also allows for massive civil penalties, up to $200,000.³
Sexual content is not the only illegal use case for deepfakes.
Using deepfakes to influence elections, commit fraud, or incite harm is also illegal in Texas, though those acts are covered by their own laws.
Pre-2025 loopholes were closed with the passage of the “Stopping AI-Generated Child Pornography Act.”
So far, we’ve discussed using AI to create sexual content depicting real people, but that’s not the only component of the law that’s changed recently.
Before 2025, there were massive legal loopholes in Texas: If the image depicted a fictional person created out of whole cloth, it was legal. That technicality is no longer a viable out.
With 2025’s Texas Senate Bill 20, also known as the "Stopping AI-Generated Child Pornography Act," the state expanded its ability to prosecute the creation and possession of AI-generated content.
As Lt. Governor Dan Patrick said in a statement following the bill’s passage,
“SB 20 keeps Texas up to date with advancements in technology and cuts off any loopholes in the law to protect our kids.”⁴
SB 20 created a new criminal offense under Section 43.235 of the Texas Penal Code: Possession or Promotion of Obscene Visual Material Appearing to Depict a Child. This bill is the reason why "it's just AI" is no longer a valid argument.
Under SB 20, prosecutors no longer have to prove that a real, physical child was harmed in the creation of an image or video.
The new standard is that if an AI-generated image or video appears to a reasonable person to be a person under 18 engaging in sexual conduct, it’s treated the same as “traditional” child pornography.
The law covers:
- Deepfakes where a minor’s face is swapped onto another body and vice versa.
- Use of AI to create an entirely new person.
- Stylized art, if it meets the “obscene” threshold.⁴
SB 20 does not apply to adults.
It is still legal to use AI to create sexual content featuring fictional adults. Use the likenesses of real people, though, and individuals have crossed the threshold.
The penalties for violating SB 20 last a lifetime.
The penalties for AI-generated material under SB 20 are severe.
- A first-time offense is typically a State Jail Felony, carrying up to two years in prison and a $10,000 fine.
- For repeat offenders, the charge can escalate to a second-degree felony, which carries up to 20 years in prison.
- If there are aggravating factors, such as if the AI image appears to depict a child under the age of 10, the penalties are enhanced significantly, often carrying mandatory minimum sentences.
Just like traditional possession cases, a conviction for AI-generated material triggers lifetime sex offender registration.
Individuals may also be charged with a Federal crime.
Some people think they can’t be prosecuted for the same crime at the federal and state levels. Because of the dual sovereignty doctrine, that’s not the case.
Federal law severely punishes the creation of sexual deepfakes, even if the state is already prosecuting individuals. The TAKE IT DOWN Act allows the Department of Justice to bring separate charges that often carry long mandatory minimum sentences.
A high-performing criminal defense lawyer can defend against AI and deepfake charges.
SB 1361 and SB 20 are new laws, so there are gray areas in terms of how they operate. Some individuals who don’t understand how these laws work or how they are monitored can be swept up by them.
Intent matters.
We’re seeing cases where individuals stumble on AI-generated content through pop-ups, malware, or shared folders without realizing what they’re looking at.
In Texas, the state must prove that individuals knowingly possessed or accessed the material. If an individual's phone or laptop was compromised, whether through a virus or use by another person, the knowing element disappears.
Artistic merit can be a viable defense strategy, as long as the deepfake does not depict a minor.
If individuals have been charged under SB 1361 for a deepfake featuring an adult, they may be able to argue that the work is artistic and not meant to be obscene. If a work has artistic merit, it’s not illegal.
But let’s get it straight here: 'art' is not a valid defense once the depiction of a minor is involved. For more information on sex crimes involving minors, see our resource guide.
Call Gold Legal, PLLC today.
If you are being investigated or have been charged with a crime involving AI deepfakes in Texas, you need an attorney who understands both the law and the technology.
Contact Gold Legal today. We will fight to protect your rights with every resource at our disposal.
— Kandi Gilder, Attorney at Law
References
1. U.S. Government Accountability Office. Science & Tech Spotlight: Deepfakes. Washington (DC): U.S. Government Accountability Office; 2019 Nov. (GAO-20-379SP). Available from: https://www.gao.gov/assets/gao-20-379sp.pdf
2. Texas. Texas Penal Code. § 21.165, Unlawful Disclosure or Promotion of Intimate Visual Material (2025).
3. Texas Responsible AI Governance Act, Tex. H.B. 149, 89th Leg., R.S. (2025).
4. Office of the Texas Lieutenant Governor. Lt. Gov. Dan Patrick: Statement on the Unanimous Passage of Senate Bill 20. Austin (TX): Office of the Texas Lieutenant Governor; 2025 Mar 12. Available from: https://www.ltgov.texas.gov/2025/03/12/lt-gov-dan-patrick-statement-on-the-unanimous-passage-of-senate-bill-20-stopping-ai-generated-child-pornography/
