Section 43.24 governs the sale, distribution, and display of sexually explicit material to minors. Its definition of "harmful material" is demanding, and the First Amendment does substantial work in these cases.
The Definition
"Harmful material" means material whose dominant theme taken as a whole:
- appeals to the prurient interest of a minor in sex, nudity, or excretion;
- 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.
All three prongs must be met. A "minor" is an individual younger than 18.
What the Statute Prohibits
A person commits an offense if, knowing that the material is harmful:
- and knowing the person is a minor, he sells, distributes, exhibits, or possesses for sale, distribution, or exhibition to a minor harmful material;
- he displays harmful material and is reckless about whether a minor is present who will be offended or alarmed by the display; or
- he hires, employs, or uses a minor to do or accomplish or assist in doing or accomplishing any of the prohibited acts.
Penalties
Generally a Class A misdemeanor — up to one year in county jail and a fine of up to $4,000. Where a person hires, employs, or uses a minor to commit the acts, the offense is a third-degree felony (2 to 10 years).
Defenses
The material is not "harmful material." This is the principal defense and it is constitutional in nature. The "utterly without redeeming social value for minors" prong is exacting — literary, artistic, scientific, educational, or political value defeats it. Mainstream films, art, health and sex-education materials, and literature do not qualify merely because they contain nudity or sexual content.
Dominant theme, taken as a whole. Isolated passages or images cannot be extracted from a larger work. The work is judged in its entirety.
Knowledge. Two knowledge elements must be proven for theory (1): knowledge of the material's character and knowledge that the person was a minor. Clerks and employees frequently lack both.
Age and identification. The statute provides an affirmative defense where the person had reasonable cause to believe the minor was 18 or older, including reliance on apparently valid identification.
Legitimate purpose. The statute recognizes defenses for persons acting in a scientific, educational, governmental, or other justified capacity — which reaches teachers, librarians, medical providers, and researchers.
Recklessness (theory 2). The display theory requires recklessness about a minor's presence and about whether the minor would be offended or alarmed. Ordinary retail display behind a counter or barrier, or in an adults-only area, is not reckless.
Related
- Section 43.25 — sexual performance by a child
- Section 43.251 — employment harmful to children
- Section 21.19 — unlawful electronic transmission of sexually explicit visual material
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.