What the Law Says

The law, itself, is relatively short and refers to other parts of the Texas Penal Code for explicit detail. The rest of it outlines the specifics of this particular amendment.

• A person commits an offense if the person knowingly transmits by electronic means visual material that depicts sexual conduct with exposed intimate parts or even covered parts that are sexually explicit.
• The material is not sent at the request of or with the express consent of the recipient.
• The offense is a Class C misdemeanor with a maximum fine of $500.

The prohibition includes sending such material via text, email, social media, and dating apps. The idea for the legislation came from representatives of Bumble, a majority female-owned mobile dating application based in Austin, TX. Whitney Wolfe-Herd, the company’s CEO, testified in support of the legislation in front of the state senate in May.  

The law has also been lauded by attorneys and others who represent victims of sexual violence and online harassment. 

Notably, this is a different law from one Texas attempted to enact four years ago that made so-called revenge porn illegal.

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Why the Law Was Introduced and Passed

A study from YouGov shows that around 40% of women in the United States have reported receiving sexually explicit images without consent. 

One of them, a Dallas resident, testified before the senate that, after matching with a “seemingly nice” man and exchanging phone numbers, she received an unrequested nude photo of the man on her phone while she was at work. 

The Bumble CEO supporting the legislation related to lawmakers the results of a survey of the app’s female users and found that at least one-third of them had received unrequested explicit images. Bumble runs as a platform that allows women to make the first move in determining whom to meet. It bans nudity, misogynistic language, “tacky” mirror selfies, and images that include guns.

Wolfe-Herd stated, “Lately, it feels like men and women are being told that this increasingly common problem is really no big deal. Women, in particular, are expected to laugh this sort of thing off, but there’s nothing funny about it.”

The author of the bill, Representative Morgan Meyer (R-Dallas), stated that he wanted to prevent a form of sexual harassment that had not been addressed before, likening it to the crime of indecent exposure in person.

Potential Legal Pitfalls

An attorney based in Austin who specializes in First Amendment rights thinks it could be problematic if the person accused of sending the unlawful images claims not to have done so. In this era of hacking and electronic misdeeds, this is a legitimate concern. 

Just last year, Texas Senator Charles Schwertner defended himself against an accusation of sending sexually explicit messages to a graduate student at U.T. Austin. The university investigation found it “plausible” that a third party had sent the messages. 

The same attorney suggested the law could apply to something like emailing a physician a picture for medical purposes or even posting a photo of breast-feeding. He believes the law, as written, is vague and overly broad.

Similar challenges sank a precious Texas law prohibiting “revenge porn.” It was declared unconstitutional by a state appeals court that ruled the law infringed upon free speech. It is currently awaiting a ruling from the Texas Court of Criminal Appeals, and the Texas legislature is adding specifics to the underlying statute.

The question, according to David Anderson, a former U.T. Austin law professor, is if the new law ever reaches the stage of being challenged. “Who are they going to prosecute?”

Since the bill became law just a few weeks ago, no cases have yet emerged.

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Get Help from an Attorney

With unsettled law behind the first attempt by Texas to outlaw electronic harassment (revenge porn law), the new law is, as yet, untested. It is considered a Class C Misdemeanor with a maximum fine of $500. While not a large sum, being found guilty can still harm your reputation and potentially limit your welcome in dating apps, social media, and other online activities. You may feel it’s worth it to challenge the law.

On the other hand, legal representation in a court of law can be an expensive way to protect yourself. Until the legalities are settled, you may wish to be cautious if you are considering sending an image to an acquaintance that could be construed to fit the Texas Penal Code’s definition of sexual content. While it’s unlikely a physician would lodge a complaint about a legitimate image meant for diagnostic purposes, the potential is there for problems caused by something you thought was relatively innocuous. 

HB 2789 was crafted and signed into law with the best of intentions. However, it has been viewed as potentially too broadly worded or vague. In law, the details matter. We are still finding our way in the digital world, for all that we have laws about other forms of sexual harassment and violence. 

Consult an experienced criminal attorney any time you are uncertain about the meaning of the law or if you are charged with a crime supported by the law prohibiting the electronic transmission of unsolicited sexual content. A Class C misdemeanor sounds minor, but it could still have severe ramifications to your life.