The Herald Banner, Greenville, TX


June 26, 2012

New drug, ‘sexting’ laws now enforceable

In this and next week’s installments of “Ask an Attorney” we will be discussing new laws passed last year that recently became effective. For more detailed answers, you should consult an attorney.

Two separate bills were introduced last year — one in the Texas Senate and one in the House — that added certain compounds to a list of controlled substances. Both were passed and signed by the governor and have recently become enforceable.

The first, Senate Bill 331, outlawed chemicals commonly used to create “K-2” or synthetic marijuana. The penalties included vary by weight of the material a defendant is charged to possess. Up to two ounces can bring 180 days in jail. If a defendant has more than 2,000 pounds of the pure form of the chemicals, they will face up to 99 years in jail. 

House Bill 2118 criminalizes the chemicals in “bath salts.” “Bath salts” include synthetic alkaloids that sell for about $300/ounce. They have been increasingly featured in news stories that show why making them illegal was necessary — people who take them have suffered psychosis and engaged in bizarre acts of murder and cannibalism.

The “bath salts” bill makes possession of the now-illegal alkaloids punishable based on the weight of the material, and can result in up to 99 years in prison.

New “Sexting” Law — Senate Bill 407

Last year, Senate Bill 407 was introduced by Texas Senator Kirk Watson, the former mayor of Austin. The Bill covers “sexting” between minors 17 and under, and adds several new sections to the Texas Penal Code.  Basically, a person commits a crime if they intentionally or knowingly “promote” visual material depicting a minor, including the actor, engaging in sexual conduct. “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.”

It is also now a crime under this law for a minor to possess pictures or video depicting another minor engaging in sexual conduct.

The bill makes a violation either a Class A, B or C misdemeanor. It is a no-jail, fine-only Class C misdemeanor if the minor has never been convicted of “sexting” before.

If there has been one previous conviction, it becomes a Class B misdemeanor, which is subject to a potential $2,000 fine and 180 days in jail. It also becomes a Class B charge if the defendant committed the acts to “harass, annoy, alarm, abuse, torment, embarrass, or offend another.”

If the minor has been convicted of two previous “sexting” crimes, or one Class B “sexting” crime, it becomes a Class A misdemeanor, which is subject to a potential $4,000 fine and a year in jail.

The Bill also includes “affirmative defenses.” Minors cannot be properly prosecuted if they (1) did not produce the visual material, (2) possessed the visual material only after receiving the material from another minor, and (3) destroyed the visual material within a reasonable amount of time. All three of these sections must be true for a minor to avoid prosecution.

It is also a defense if the person who made or received the images was married to or dating the person depicted, and was within two years of that persona’s age. For this defense to apply, the images may not have been sent to anyone other than those involved.  

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