Knowingly possessing an illegal depiction of a minor in Texas is a serious crime. Those charged with it face life-altering charges over material they might not even realize was illegal.
The crime we’re really talking about here is Possession or Promotion of Child Pornography, as designated under Texas Penal Code § 43.26.¹
Today, I want to walk through what exactly Texas and Federal laws mean in relation to child pornography or sexual depictions of minors.
Under Texas law, “visual material” covers a lot, so know the definitions.
Under Texas law, “visual material” is defined broadly and can include both physical media, like photographs and film, or digital media like a hard drive or a file saved on a phone or computer.¹
The exception here would be for those who possess the material for medical or law enforcement purposes, or employees of places like museums or public libraries who encounter the material during their work.
Accessing illegal material may be considered equivalent to possessing it.
The key here is that a person “knowingly or intentionally accesses with intent to view” such material.¹
Legally, there is no difference between possessing material that contains an illegal depiction of a minor and visiting a website with it. That means clicking a link is illegal, even if one never hits save.
Depictions of minors must be sexual in nature to be criminal, but what does that mean, exactly?
Not every photo of a minor is illegal. To cross the line into a criminal offense, the material must depict anyone under 18 years old in a state of nudity or engaged in actual sexual conduct or simulated sexual conduct.
Sexual conduct is straightforward, so let’s zoom in on what the State considers “nudity” in this circumstance.
If it is determined that a piece of media constitutes “lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola,” that would meet the standard for illegal depiction of a minor.¹
Let me be extra clear about this: No nudity is allowed.
“Art” is not a valid defense for cases involving minors.
If we’re talking about adult-oriented content, then yes, artistic merit can sometimes protect from obscenity charges.
The reader might have heard of the Miller Test established by the Supreme Court to judge whether content is obscene. Forget about that. It doesn’t apply when a minor is involved.
Under Texas law, there are no artistic exceptions for lewd images involving minors.
Charges escalate based on the quantity of images, videos, or depictions in one’s possession.
In Texas, the quantity of material is a significant factor in the severity of the charge. Below, I’ll use “images” as a catch-all term for photographs, videos, and other media.
- 1 – 99 Images: Third-degree felony punishable by 2 to 10 years in prison.
- 100 – 499 Images: Second-degree felony punishable by 2 to 20 years in prison.
- 500 or more Images: First-degree felony punishable by 5 to 99 years or life in prison.
So, if we look at those simplified “tiers,” we need to know that other factors are going to contribute to charges, as well. For example, if the child in the images appears to be under the age of 10, or if the individual has a prior conviction, charges are likely to be more severe.
Beyond prison time, a conviction in Texas carries mandatory lifetime sex offender registration.
Let’s clear up some misconceptions about illegal depiction of a minor charges in Texas.
Several myths lead people to believe they are legally in the clear when actually, they’re at real risk.
So, keep the following three facts in mind.
1. It’s not enough to think a person is 18 years or older.
A person who possesses or accesses a lewd image is responsible for knowing the depicted person’s age, end of story.
A district attorney does not have to prove that an individual knew the person was a minor. That’s the case even if the minor lied about their age, just like it's the case when an individual engages in sexual misconduct with a minor.
2. Deleting images is not a defense and will lead to additional charges.
This content is illegal to knowingly possess or access for any amount of time. Deleting it or clearing a browser history doesn’t “undo” the law being broken.
Keep in mind, law enforcement has plenty of tools to restore hard drives that have been erased, so “deleting” an image isn’t as final as many people understand.
3. Consent does not matter.
Even if the images were sent voluntarily between two people in a relationship, if one of those people is under 18, those images are child pornography.
The one exception here is for consensual sharing of images between minors who are close in age. But for an adult, possessing such an image is a serious felony.
In some cases, federal charges may also be in play.
The reality is that individuals may be facing two different legal cases at once.
In 2026, it’s highly likely that federal charges will follow state charges. That’s because child pornography cases tend to rely on the internet, and the internet inherently involves interstate commerce.
Though we do see federal prosecutors defer to the state, it’s also possible to face a trial in state court and a federal indictment later.
Federal convictions can carry a mandatory minimum.
Most of the time, the federal government charges individuals with “receipt” of child pornography, which is different from “possession.” It carries a five-year mandatory minimum, with a maximum of 20 years in prison.
Many people plead down from receipt to possession, which does not have a mandatory minimum. But it still comes with a potential 20 years in prison. Note that, unlike Texas, sentencing isn’t determined by the quantity of images.²
It’s difficult to emphasize enough how serious federal and state charges are for individuals accused.
The potential combination of federal and state charges makes for a high-stakes situation. According to the United States Sentencing Commission:
“The average sentence for individuals sentenced for child pornography [federally] was 115 months. 99.5% were sentenced to prison.”³
The federal government rarely loses.
Qualified legal representation is critical in these types of cases.
Possession of child pornography cases rely heavily on intent and physical evidence.
If either of these things doesn’t add up, an attorney can successfully challenge the prosecution’s narrative.
Defense may challenge whether an individual “knowingly” accessed materials.
We all know that computers and phones can get overrun with pop-ups, viruses, and malware, all of which can unknowingly cause a file to download.
If a device was used by someone else, or if files were deposited via a virus, the “knowing” element of the crime disappears.
We’re going to look up and down for procedural errors.
Digital evidence is usually gathered through search warrants. Let’s say the police search a laptop without a warrant: That evidence needs to be suppressed, and a quality lawyer will fight to do so.
The issue gets complicated when an individual is dealing with a third party, like a computer technician who was given a device and believes they found illegal content.
It’s thorny questions like this that require an attorney who knows how to win cases and get evidence suppressed.
Contact Gold Legal for effective counsel.
Possession of Child Pornography charges, whether at the state or federal level, calls for immediate and aggressive action. We’re not talking about a stint in county jail here. A conviction could mean a lengthy prison sentence, lifetime registration as a sex offender, and the loss of reputation and career.
Gold Legal will fight tirelessly to get charges dismissed or secure an acquittal at trial. We don’t wait for the prosecution to build its case; we immediately work to challenge the evidence and protect our clients' rights.
If you or someone you know is under investigation for possessing or accessing an illegal depiction of a minor, don’t wait. Contact Gold Legal, PLLC today.
— Kandi Gilder, Attorney at Law
References
- Texas Penal Code § 43.26 (2025).
- Certain activities relating to material involving the sexual exploitation of minors, 18 U.S.C. § 2252 (2026).
- United States Sentencing Commission. FY24 quick facts on child pornography offenses. Washington (DC): USSC. Available from: https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Child_Pornography_FY24.pdf
