SECTION 43.262: WHAT IS LEWD VISUAL MATERIAL?

By John Floyd on June 19, 2025

Enacted in 2017 by the Texas Legislature and which became effective on September 1 of that year, the Texas Penal Code, Section 43.262, made the “possession or promotion of lewd visual material depicting a child” a crime.

Before this statute, the State of Texas criminalized the possession or promotion of child pornography.

Section 43.262 provides:

(a) In this section:

(1) “Promote” and “sexual conduct” have the meanings assigned by Section 43.25.

(2) “Visual material” has the meaning assigned by Section 43.26.

(b) A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that:

(1) depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created;

(2) appeals to the prurient interest in sex; and

(3) has no serious literary, artistic, political, or scientific value.

(1) a felony of the third degree if it is shown on the trial of the offense that the person has been previously convicted one time of an offense under this section or Section 43.26; and

(2) a felony of the second degree if it is shown on the trial of the offense that the person has been previously convicted two or more times of an offense under this section or Section 43.26.

(d) It is not a defense to prosecution under this section that the depicted child consented to the creation of the visual material.

The Texas legislature amended Section 43.262 in 2023 to include subsection (b-1), making the prohibitions in the statute that apply to images of natural persons also apply to computer- or AI-created images. Subsections (b)(1)-(3) remain unchanged. The amendments to Section 43.262 became effective on September 1, 2023, and explicitly did not apply to offenses allegedly committed before that date.

The punishments involved for violating Section 43.262 are:

First offense: This is considered a state jail felony, punishable by confinement in a state jail for a term of not less than 180 days and not more than 2 years.
Second offense: If previously convicted of possession or promotion of child pornography, the offense would be considered a third-degree felony. Punishment would be confinement in the Texas Department of Criminal Justice for a term of no less than 2 years and no more than 10 years.
Third offense: If previously convicted of possession or promotion of child pornography twice, the offense would be considered a second-degree felony. Punishment would be confinement in the Texas Department of Criminal Justice for a term of no less than 2 years and no more than 20 years.

In 2021, the Court of Appeals of Texas, Houston (1st Dist.) in Ex parte Michael Lowry reversed a trial court order that denied a defendant’s pretrial request for a writ of habeas corpus. The defendant’s habeas challenge was that the original Section 43.262 was unconstitutional and violated the First Amendment. The appeals court ruled that the statute was indeed void on its face because it failed strict scrutiny and violated the First Amendment. The court articulated the First Amendment violation this way:

“‘… the State did not present any evidence or studies to show that the prohibited visual material in section 43.262, which neither encompasses obscenity, nor child pornography, has a direct causal link to the State’s compelling interest of preventing the sexual abuse or sexual exploitation of children. [T]he State’s proffer of no evidence to show how child erotica images cause sexual exploitation and sexual abuse of children does not rebut the presumption of the statute’s invalidity and thus, the relevant language of the statute at issue here does not meet strict scrutiny … We hold that the portion of section 43.262 at issue in this habeas appeal is an unconstitutional restriction on speech protected by the First Amendment and that the State has failed to rebut the presumption of the statute’s invalidity.”

That persuasive decision remained in place for nearly three years before the Texas Court of Criminal Appeals (CCA) overturned it on July 31, 2024. The CCA held Section 43.262(b) only regulates child pornography, which is not First Amendment-protected speech. The Court went on to find the statute constitutional and not overbroad and, in fact, found that the defendant’s attorney had not properly preserved the overbreadth issue for appellate review.

On May 29, 2025, the First Court of Appeals issued its new remand ruling. This time, the appeals court concluded, after extensive analysis, that the statute was not vague and thus was, in fact, constitutional:

“… the State specifically charged Lowry with knowingly possessing a photograph that depicts the lewd exhibition of the pubic area of a clothed child that appeals to the prurient interest in sex and has no serious literary, artistic, political, or scientific value, so our analysis is limited to this part of section 43.262(b).

“Lowry contends section 43.262(b) is facially vague because it does not give people of ordinary intelligence fair notice of what the law demands of them, which will chill speech, causing citizens to remain silent rather than express themselves due to the unclear boundaries of the statutory prohibition. Lowry questions ‘what would make a picture of a fully dressed 17-year-old lewd?‘ He asks what might be considered lewd for purposes of section 43.262(b) in photographs of girls in bikinis on the beach, a gymnast doing a split jump, or models in clothing advertisements, or in films intended to protest the oversexualization of children by exposing examples of the same.

“The undefined term ‘lewd‘ is not the sole descriptor of visual material prohibited by section 43.262 but one of several descriptive elements. A statute is not unconstitutionally vague merely when words are not specifically defined because words must be read in the context in which they are used. In relevant part, section 43.262(b) specifically refers to visual material that ‘(1) depicts the lewd exhibition of the . . . pubic area of [a] . . . clothed child who is younger than 18 years of age at the time the visual material was created; (2) appeals to the prurient interest in sex; and (3) has no serious literary, artistic, political, or scientific value.‘ ‘Lewd,‘ a common word meaning ‘obscene, vulgar‘ or ‘sexually unchaste or licentious,‘ describes the type of exhibition of a clothed child’s pubic area that the prohibited visual material must depict, which also must appeal to the prurient interest in sex and have no serious literary, artistic, political, or scientific value. Thus, in the context of the statute, ‘lewd‘ is not vague but an integral part of several descriptors that, combined, significantly narrow and clarify the type of visual material that is prohibited...”

“We conclude that section 43.262(b) of the Texas Penal Code is not facially vague and affirm the trial court’s order denying Lowry’s application for writ of habeas corpus.”

Regardless of the court decisions that say otherwise, Section 43.262 is overly broad, poorly crafted, and utterly vague. The statute forces juries into being moral arbiters trying to figure out what kind of visual material is pure from the impure kind. This task is so preposterous that the lawmakers who crafted the statute could not even find the right, precise words in the English language to define the difference.

As the law is currently written, some juries could find that a father (or mother) taking a photo their child wearing a swimsuit in a swimming pool (or bathtub) is somehow lewd because the statute does not provide a rational, much less logical definition of what is lewd, how to identify it, and/or how to determine whether the photo is taken for prurient sexual arousal. The statute dangerously leaves juries to decide moral and legal boundaries without clear guidance.

The 2023 amendment to Section 43.262 adds to the original text of the statute that “visual material” includes a depiction of a child “(1) 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 (2) 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 artificial intelligence application or other computer software.”

Social media has become a marketplace where certain human behaviors are, and should be, criminalized. However, lawmakers should not consider this a constitutional license to invent or fabricate behavior they deem lewd (prurient) simply because they can make political points.

Texas Penal Code § 43.262 addresses some genuine harms associated with exploitative imagery of children. The law has survived constitutional scrutiny largely because its prohibitions are narrowly defined to target material lacking legitimate value and intended to appeal to prurient interests. Yet ongoing vigilance by defense lawyers is necessary to ensure that enforcement does not encroach upon protected speech or criminalize innocent conduct. As technology advances, so too must the law’s precision in drawing these critical lines.

If you or a loved one has been charged under Texas Penal Code § 43.262, contact John T Floyd, a trusted Houston criminal defense attorney, for immediate help.

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