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texas penal code chapter 43.

SUBCHAPTER B. OBSCENITY



§ 43.21. DEFINITIONS.  (a) In this subchapter:                             
  (1)  "Obscene" means material or a performance that:                         
  (A)  the average person, applying contemporary
community standards, would find that taken as a whole appeals to the
prurient interest in sex;
  (B)  depicts or describes:                                                 
    (i)  patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, actual
or simulated, including sexual intercourse, sodomy, and sexual
bestiality;  or
    (ii)  patently offensive representations or
descriptions of masturbation, excretory functions, sadism,
masochism, lewd exhibition of the genitals, the male or female
genitals in a state of sexual stimulation or arousal, covered male
genitals in a discernibly turgid state or a device designed and
marketed as useful primarily for stimulation of the human genital
organs;  and
  ©  taken as a whole, lacks serious literary,
artistic, political, and scientific value.
  (2)  "Material" means anything tangible that is capable
of being used or adapted to arouse interest, whether through the
medium of reading, observation, sound, or in any other manner, but
does not include an actual three dimensional obscene device.
  (3)  "Performance" means a play, motion picture, dance,
or other exhibition performed before an audience.
  (4)  "Patently offensive" means so offensive on its
face as to affront current community standards of decency.
  (5)  "Promote" means to manufacture, issue, sell, give,
provide, lend, mail, deliver, transfer, transmit, publish,
distribute, circulate, disseminate, present, exhibit, or
advertise, or to offer or agree to do the same.
  (6)  "Wholesale promote" means to manufacture, issue,
sell, provide, mail, deliver, transfer, transmit, publish,
distribute, circulate, disseminate, or to offer or agree to do the
same for purpose of resale.
  (7)  "Obscene device" means a device including a dildo
or artificial vagina, designed or marketed as useful primarily for
the stimulation of human genital organs.
(b)  If any of the depictions or descriptions of sexual
conduct described in this section are declared by a court of
competent jurisdiction to be unlawfully included herein, this
declaration shall not invalidate this section as to other patently
offensive sexual conduct included herein.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. 
Amended by Acts 1975, 64th Leg., p. 372, ch. 163, § 1, eff. Sept.
1, 1975;  Acts 1979, 66th Leg., p. 1974, ch. 778, § 1, eff. Sept.
1, 1979;  Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.


§ 43.22. OBSCENE DISPLAY OR DISTRIBUTION.  (a)  A person
commits an offense if he intentionally or knowingly displays or
distributes an obscene photograph, drawing, or similar visual
representation or other obscene material and is reckless about
whether a person is present who will be offended or alarmed by the
display or distribution.
(b)  An offense under this section is a Class C misdemeanor.                 

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. 
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.


§ 43.23. OBSCENITY.  (a)  A person commits an offense if,
knowing its content and character, he wholesale promotes or
possesses with intent to wholesale promote any obscene material or
obscene device.
(b)  Except as provided by Subsection (h), an offense under
Subsection (a) is a state jail felony.
©  A person commits an offense if, knowing its content and
character, he: 
  (1)  promotes or possesses with intent to promote any
obscene material or obscene device;  or
  (2)  produces, presents, or directs an obscene
performance or participates in a portion thereof that is obscene or
that contributes to its obscenity.
(d)  Except as provided by Subsection (h), an offense under
Subsection © is a Class A misdemeanor.
(e)  A person who promotes or wholesale promotes obscene
material or an obscene device or possesses the same with intent to
promote or wholesale promote it in the course of his business is
presumed to do so with knowledge of its content and character.
(f)  A person who possesses six or more obscene devices or
identical or similar obscene articles is presumed to possess them
with intent to promote the same.
(g)  It is an affirmative defense to prosecution under this
section that the person who possesses or promotes material or a
device proscribed by this section does so for a bona fide medical,
psychiatric, judicial, legislative, or law enforcement purpose.
(h)  The punishment for an offense under Subsection (a) is
increased to the punishment for a felony of the third degree and the
punishment for an offense under Subsection © is increased to the
punishment for a state jail felony if it is shown on the trial of the
offense that obscene material that is the subject of the offense
visually depicts activities described by Section 43.21(a)(1)(B)
engaged in by:
  (1)  a child younger than 18 years of age at the time
the image of the child was made;
  (2)  an image that to a reasonable person would be
virtually indistinguishable from the image of a child younger than
18 years of age; or
  (3)  an image created, adapted, or modified to be the
image of an identifiable child.
(i)  In this section, "identifiable child" means a person,
recognizable as an actual person by the person's face, likeness, or
other distinguishing characteristic, such as a unique birthmark or
other recognizable feature:
  (1)  who was younger than 18 years of age at the time
the visual depiction was created, adapted, or modified;  or
  (2)  whose image as a person younger than 18 years of
age was used in creating, adapting, or modifying the visual
depiction.
(j)  An attorney representing the state who seeks an increase
in punishment under Subsection (h)(3) is not required to prove the
actual identity of an identifiable child.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. 
Amended by Acts 1979, 66th Leg., p. 1975, ch. 778, § 2, eff.
Sept. 1, 1979;  Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept.
1, 1994;  Acts 2003, 78th Leg., ch. 1005, § 1, eff. Sept. 1, 2003.


§ 43.24. SALE, DISTRIBUTION, OR DISPLAY OF HARMFUL
MATERIAL TO MINOR.  (a) For purposes of this section:
  (1)  "Minor" means an individual younger than 18 years.                     
  (2)  "Harmful material" means material whose dominant
theme taken as a whole:
  (A)  appeals to the prurient interest of a minor,
in sex, nudity, or excretion;
  (B)  is patently offensive to prevailing
standards in the adult community as a whole with respect to what is
suitable for minors;  and
  ©  is utterly without redeeming social value for
minors.               
(b)  A person commits an offense if, knowing that the
material is harmful: 
  (1)  and knowing the person is a minor, he sells,
distributes, exhibits, or possesses for sale, distribution, or
exhibition to a minor harmful material;
  (2)  he displays harmful material and is reckless about
whether a minor is present who will be offended or alarmed by the
display;  or
  (3)  he hires, employs, or uses a minor to do or
accomplish or assist in doing or accomplishing any of the acts
prohibited in Subsection (b)(1) or (b)(2).
©  It is a defense to prosecution under this section that:                 
  (1)  the sale, distribution, or exhibition was by a
person having scientific, educational, governmental, or other
similar justification;  or
  (2)  the sale, distribution, or exhibition was to a
minor who was accompanied by a consenting parent, guardian, or
spouse.
(d)  An offense under this section is a Class A misdemeanor
unless it is committed under Subsection (b)(3) in which event it is
a felony of the third degree.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. 
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.