Attorneys of Hoelscher Gebbia Cepeda PLLC walking

What are the Penalties for Possessing Child Pornography?


Child pornography is a very serious criminal offense. Indeed, it is one of the most severe charges that a person could face without allegations of direct violence against another person. Every person accused of this crime and any other sex-based offense is presumed innocent until proven guilty. All people have a right to defend themselves in court. Here, our San Antonio internet sex crimes defense lawyer provides an overview of the penalties for child pornography in Texas.

Know the Law: Tex. Pen. Code § 43.26

Under Texas law (Tex. Pen. Code § 43.26), the possession of child pornography is a felony. A person can be convicted of the crime of having child pornography if he or she:

  • Knowingly or intentionally possess or access;
  • Visually material of an underage person (under 18) engaged in sexual conduct; and
  • The defendant knows that the person is underage.

A key point to understand is that “access” is defined broadly. Possession of child porn can be based on web images that were viewed for sexual gratification but were not actually downloaded.

Possession of Child Pornography is Also a Federal Crime

A person who has possession of child pornography may also face federal criminal charges. Under 18 U.S.C. § 2252, possession of pornographic images of an underage person is a federal felony criminal offense. For federal prosecutors to have jurisdiction over a child pornography case, the defendant must have engaged in some form of “interstate” conduct. Notably, using the internet qualifies.

The Penalties for Having Child Pornography in Texas

Possession of child pornography in Texas is a felony offense. However, the penalties for this crime can vary based on the specific situation. A person may be charged with three different classifications of felony. The primary determining factors are the amount of images the defendant had and their prior history or lack thereof. Here is an overview of the penalties:

  • Third-Degree Felony: As a baseline, having child pornography in Texas is a third-degree felony offense carrying between two years and ten years in prison and a $10,000 fine.
  • Second-Degree Felony: Possession of child pornography is upgraded to a more serious second-degree felony offense in some cases. If a defendant has a prior conviction for this crime, he or she will face a second-degree felony. Further, if he or she has more than 10 images, the case can be prosecuted as a second-degree felony carrying up to 20 years.
  • First-Degree Felony: In Texas, child porn possession is a first-degree felony carrying 5 to 99 years in prison if the defendant has two prior convictions on his or her record or he or she had at least 50 total images. In some cases, a first-degree felony conviction could lead to life in prison.

All categories of child sex crimes in Texas require mandatory sexual offender registration.

Contact Our San Antonio Child Pornography Defense Lawyer Today

At Hoelscher Gebbia Cepeda, PLLC, our San Antonio internet sex crimes defense attorneys have the experience to handle the full range of cases, including child pornography charges. If you or your loved one was arrested and charged with a child pornography-related offense, we are here as a legal resource. Contact our San Antonio office today for a strictly confidential initial consultation.