HB4911 - Relating to prosecution and punishment of certain criminal offenses prohibiting sexually explicit visual material involving depictions of children, computer-generated children, or other persons; creating criminal offenses; increasing criminal penalties.

  89R5261 JRR-F     By: Fairly H.B. No. 4911       A BILL TO BE ENTITLED   AN ACT   relating to prosecution and punishment of certain criminal offenses   prohibiting sexually explicit visual material involving depictions   of children, computer-generated children, or other persons;   creating criminal offenses; increasing criminal penalties.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 43.26, Penal Code, is amended by   amending Subsections (a), (e), (g), and (h) and adding Subsections   (a-1), (a-2), (c-1), (c-2), (c-3), (c-4), (e-1), (f), (g-1), (h-1),   and (h-2) to read as follows:          (a)   In this section:                 (1)     "Depiction of a child" means, with respect to an   image of a child contained in visual material:                       (A)     a depiction of a child who was younger than 18   years of age at the time the image of the child was made; or                       (B)  a depiction of a child:                             (i)     who is recognizable as an actual person   by the person's face, likeness, or other distinguishing   characteristic, such as a unique birthmark or other recognizable   feature; and                             (ii)     whose image as a child younger than 18   years of age was used in creating, adapting, or modifying the visual   material, including computer-generated visual material that was   created, adapted, or modified using an artificial intelligence   application or other computer software.                 (2)     "Depiction of a computer-generated child" means,   with respect to an image of a child contained in visual material, a   depiction:                       (A)     appearing to be a child younger than 18 years   of age;                       (B)     created using an artificial intelligence   application or other computer software; and                       (C)     that to a reasonable person is virtually   indistinguishable from an actual child younger than 18 years of   age.                 (3)     "Promote" and "sexual conduct" have the meanings   assigned by Section 43.25.                 (4)     "School library" means a library of a public or   private primary or secondary school.                 (5)  "Visual material" means:                       (A)     any film, photograph, videotape, negative,   or slide or any photographic reproduction that contains or   incorporates in any manner any film, photograph, videotape,   negative, or slide; or                       (B)     any disk, diskette, or other physical medium,   or a file in any digital format, that allows an image to be   displayed on a computer or other video screen and any image   transmitted to a computer or other video screen by telephone line,   cable, satellite transmission, or other method.           (a-1)   A person commits an offense if:                (1)  the person intentionally or knowingly [ or   intentionally ] possesses, or [ knowingly or ] intentionally or   knowingly accesses with intent to view, visual material that   contains a visual depiction of [ visually depicts ] a child [ younger   than 18 years of age at the time the image of the child was made who   is ] engaging in sexual conduct, including a depiction of a child   engaging [ who engages ] in sexual conduct as a victim of an offense   under Section 20A.02(a)(5), (6), (7), or (8); and                (2)  the person knows or should have known that the   depiction [ material depicts the child as ] described by Subdivision   (1) is of a child younger than 18 years of age at the time the image   of the child was made .           (a-2)  A person commits an offense if the person:                 (1)     intentionally or knowingly possesses, or   intentionally or knowingly accesses with intent to view, visual   material that contains a visual depiction of a computer-generated   child engaging in sexual conduct; and                 (2)  either:                       (A)     knows or should have known that the depiction   described by Subdivision (1) appears to be of a child younger than   18 years of age; or                         (B)     believes that the depiction is of an actual   child younger than 18 years of age at the time the image of the child   was made.           (c-1)     An offense under Subsection (a-1) is a felony of the   third degree, except that the offense is:                 (1)     a felony of the second degree if it is shown on the   trial of the offense that the actor:                       (A)     has been previously convicted one time of an   offense:                             (i)  under this chapter; or                             (ii)     described by Article 62.001(5), Code   of Criminal Procedure; or                       (B)     possesses visual material that contains 10 or   more visual depictions of a child engaging in sexual conduct as   described by Subsection (a-1)(1) but fewer than 50 such depictions;                 (2)     a felony of the first degree if it is shown on the   trial of the offense that the actor:                       (A)     has been previously convicted two or more   times of an offense, or any combination of offenses:                             (i)  under this chapter; or                             (ii)     described by Article 62.001(5), Code   of Criminal Procedure; or                       (B)  possesses visual material that contains:                             (i)     50 or more visual depictions of a child   engaging in sexual conduct as described by Subsection (a-1)(1); or                             (ii)     a videotape or film that visually   depicts conduct constituting an offense under Section   22.011(a)(2); or                 (3)     a felony of the first degree punishable by   imprisonment in the Texas Department of Criminal Justice for life   or for any term of not more than 99 years or less than 25 years if it   is shown on the trial of the offense that:                       (A)  at the time of the offense, the actor was:                             (i)     an employee at a child-care facility or   a residential child-care facility, as those terms are defined by   Section 42.002, Human Resources Code;                             (ii)     an employee at a residential treatment   facility established under Section 221.056, Human Resources Code;                             (iii)     an employee at a shelter or facility   that serves youth and that receives state funds; or                             (iv)     receiving state funds for the care of a   child depicted by the visual material; or                       (B)     the actor displayed the visual material or   caused the visual material to be displayed in a school library.           (c-2)     If it is shown on the trial of an offense under   Subsection (a-1) that the visual material contained a depiction of   a child younger than 10 years of age at the time the image of the   child was made engaging in sexual conduct as described by Section   (a-1)(1):                 (1)     an offense punishable under Subsection (c-1) as a   felony of the second or third degree is increased to the next higher   category of offense; or                 (2)     the minimum term of confinement for an offense   described for purposes of punishment by Subsection (c-1)(2) is   increased to 15 years.           (c-3)     An offense under Subsection (a-2) is a state jail   felony, except that the offense is:                 (1)     a felony of the third degree if it is shown on the   trial of the offense that the actor:                       (A)     has been previously convicted one time of an   offense:                             (i)  under this chapter; or                             (ii)     described by Article 62.001(5), Code   of Criminal Procedure; or                       (B)     possesses visual material that contains 10 or   more visual depictions of a computer-generated child engaging in   sexual conduct as described by Subsection (a-2)(1) but fewer than   50 such depictions;                 (2)     a felony of the second degree if it is shown on the   trial of the offense that the actor:                       (A)     has been previously convicted two or more   times of an offense, or any combination of offenses:                             (i)  under this chapter; or                             (ii)     described by Article 62.001(5), Code   of Criminal Procedure; or                       (B [Text truncated for display. 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