In Texas there are two grades of child pornography offenses related to the degree of involvement with sexually explicit materials that involve children. Both are offenses which trigger sex offender registration, and while possession of child pornography constitutes a third degree felony, promotion or dissemination of child pornography is a second degree felony.
Under Texas law, a person commits the offense of promotion of child pornography if:
(1) the person knowingly or intentionally promotes or possesses with intent to promote any visual material (e.g. film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide) that 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; and
(2) the person knows that the material depicts the child.
For purposes of this section, "promote" means to procure, 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 any of the above.
There are also circumstances in which mere possession can elevate into promotion. The Texas statute contains an important presumption:
A person who possesses visual material that contains six or more identical visual depictions of a child is presumed to possess the material with the intent to promote the material.
The intent of the statute is to create enhanced penalties for those that profit from the endeavor to a greater degree than those that view illegal material. The presumption allows to police to intervene and halt the dissemination of illegal goods without having to expend additional resources and risks associated with tracking the actual distribution or delivery. As with any presumption in the law, it is rebuttable. For example, a situation in which an email enclosure was repeatedly saved in the same Temporary Internet Folder because of repeated spam messages would probably be sufficient to rebut the presumption. A police raid uncovered hundreds of DVDs packaged and ready for mailing – probably not.
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