Section 21.16 is Texas's "revenge porn" statute. It was enacted in 2015, survived a significant constitutional challenge in amended form, and is prosecuted regularly in Harris County — most often after a breakup, and most often based on messages and images the accused sent themselves.
What the Statute Prohibits
The core offense, under subsection (b), is committed when a person discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct, and:
- the material was obtained by the actor or created under circumstances in which the depicted person had a reasonable expectation that it would remain private;
- the disclosure causes harm to the depicted person; and
- the disclosure reveals identifying information of the depicted person — including a name, physical characteristics, or information from the material itself or from accompanying content.
Related subsections reach promoting such material, and operating or managing a website or other forum that publishes it.
"Intimate parts" is defined as the naked genitals, pubic area, anus, buttocks, or female nipple. "Promote" is defined broadly and includes transmitting, distributing, circulating, exhibiting, and offering to do so.
Penalty
Unlawful disclosure under subsection (b) is a Class A misdemeanor — up to one year in county jail and a fine of up to $4,000. Where the material depicts a child, entirely different and far more serious statutes apply, including Section 43.26.
The Constitutional Question
In Ex parte Jones, the Texas Court of Criminal Appeals held that the original version of subsection (b) was an unconstitutionally overbroad content-based restriction on speech, because it did not require the discloser to know the circumstances under which the image was created. The Legislature subsequently amended the statute to address that defect. The constitutional posture of these prosecutions remains an active area, and a pretrial writ challenging the statute as applied is often worth filing.
Defenses
Consent. Effective consent to the disclosure defeats the charge. Prior course of conduct between the parties is frequently relevant.
No reasonable expectation of privacy. Material the depicted person had already published or circulated widely may not satisfy the element.
Knowledge. The State must prove the actor knew or had reason to know the circumstances of creation. Forwarding material received from someone else, with no knowledge of its origin, is a common and meaningful defense.
Identity. Shared devices and accounts, hacked accounts, and spoofed profiles mean the person charged is not always the person who posted.
No harm or no identifying information. Both are statutory elements the State must prove.
Statutory exceptions. The statute does not apply to disclosures made in the course of lawful and common practices of law enforcement, legal proceedings, medical treatment, or to material involving voluntary exposure in a public or commercial setting.
Related
- Section 21.19 — Unlawful Electronic Transmission of Sexually Explicit Visual Material
- Section 42.07 — Harassment · Stalking
- Protective orders
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.