What are Texas’ Laws on Improper Photography and Invasive Visual Recording?

Do you or a family member face a charge of improper photography or invasive visual recording?

If so, you should know the Texas laws for such offenses — and seek an experienced Houston defense lawyer to protect your legal rights.

But first, under Texas law, what exactly is improper recording?

What is improper photography and recording?

According to the Texas Penal Code (Section 21.15), certain photography is a crime if it’s done without the subject’s consent. An offense is committed if a person:

• Photographs, videotapes or uses some other electronic means to record, broadcast or transmit a visual image of another person without their consent with the intent to arouse or gratify the sexual desire of any person
• Photographs, videotapes or uses some other electronic means to record, broadcast or transmit a visual image of another person in a bathroom or private dressing room without their consent with intent to invade the privacy of the other person or arouse or gratify the sexual desire of any person.

“Other electronic means” can include videotaping or capturing images via a cell phone or other such device.

Simply put, this law means that you cannot take a photo or video of someone’s intimate areas when the person has a reasonable expectation that they are not subject to public view. This would include a public bathroom stall or a changing room in a store.

Also, you cannot “promote” such images if you manufacture, sell, issue, provide, give, loan, deliver, transmit, transfer, mail, publish, distribute, circulate or otherwise disseminate them.

In addition, if you receive a photo or video featuring sexually explicit material and then forward it to another person, that could be a legal offense if you know that the subject of the photo or video didn’t give their consent to being photographed or videotaped.

Additional charges related to improper photography

Violations of Texas invasive visual recording law can lead to other related charges as well.

If the subject is a minor (under 18 years old in Texas), the offense could be considered child pornography, for which penalties are extremely severe and range up to first degree felonies. Under Texas Penal Code (Title 9, Section 43), the offense of possession or promotion of lewd visual material depicting a child is a state jail felony.

In fact, in Texas you could go to prison for “sexting,” or sending lewd images by texts, if that involves a minor.

Also, Texas Penal Code (Section 21.16) makes “voyeurism,” or live observations as opposed to recordings, illegal when the observations are for sexual gratification.

Today, many “spy cams” are installed and used for legitimate security purposes. But keep in mind that, in public places, posting signs to warn people that they are being videotaped doesn’t mean that you’ve received their consent. Without an individual’s verbal consent to having images taken of him or her, such recordings may be considered illegal.

New Texas law on improper photography

With today’s vast opportunities to take photos or record video and spread them via email or social media, the nature of what is considered a criminal act has expanded in recent years. Texas lawmakers have taken a tough approach on such offenses to stem the tide of photos or images which invade other persons’ privacy.

For example, state lawmakers took action in 2015 by writing a new Texas law on improper photography: Section 21.15 of the Texas Penal Code.

In 2014, an overly broad Texas law on improper photography was found by the Texas Court of Criminal Appeals to be unconstitutional under the First Amendment to the Constitution of the United States, which protects the right of free speech.

To replace it, the new Texas law on improper photography prohibits invasive visual recordings of persons’ intimate areas without their consent and with the intent to invade their privacy.

Texas penalties for improper photography and invasive visual recording

In Texas, the penalties for improper photography and invasive visual recording can be severe. Criminal punishments for a state jail felony can include:

• Serving 180 days (6 months) to 2 years in prison
• Paying a fine of up to $10,000
• Home detention or probation
• Sex offender registration and counseling

Defenses against a charge of improper photography

You may need a skilled and experienced sex crime attorney or improper photography defense lawyer to plan your legal strategy and fight for your legal rights when facing such a charge. At the Neal Davis Law Firm, we can use various defenses against a charge of improper photography.

One of the strongest possible defenses against such a charge is to establish that the subject did, in fact, consent to being photographed. The very nature of the photos, videos or recordings may indicate that the subject was an active and willing participant.

Your defense lawyer may also argue that the images don’t display a person’s intimate areas. That would depend on the precise circumstances of the alleged offense. Under Texas law, intimate areas include naked or clothed genitals, the pubic area, the anus, the buttocks or a woman’s breasts below the top of the areola. Clothed genitals can include an illegal photo up a woman’s skirt, even if she is wearing undergarments.

Your defense lawyer could also argue that you didn’t intend to invade a person’s privacy or use images of them for any sexual gratification. However, under the new law enacted in 2015, a prosecutor doesn’t have to prove the intent of the person who made the recording.

Another possible defense against a charge of improper photography could be mistaken identity. You may not be the person who actually took the photographs or recordings.

Lastly, were search warrants involved in procuring evidence? If so, were the search warrants proper and legal? If not, any evidence illegally obtained by police may be dismissed from your case.

Overall, your defense lawyer can fight to show that there is reasonable doubt that you committed a crime. The prosecutor has the burden of proving beyond a reasonable doubt that the crime was committed by you.

You may not even have to go to trial. In fact, the subject of such images may be reluctant to proceed with a public trial in which their identity and images may be revealed. This means that a plea bargain agreement may be possible to reduce or even dismiss the charge and avoid a trial.

Also, mitigating factors may reduce your charge or sentence. If you, as the defendant, have no previous criminal history, that can help in your defense.

Hire a skilled Houston defense lawyer for improper photography charges

If you need a defense lawyer to face your charge of improper photography, you’ve come to the right place. The award-winning Neal Davis Law Firm can fight for your legal rights in this or related cases, as we have done for so many past clients.

Individuals charged with a crime in Houston, Harris County, Montgomery County or Fort Bend County should contact us immediately for a confidential legal review of their case.

Don’t be railroaded by Texas laws on improper photography and invasive recordings. Consult an experienced defense lawyer in the Houston area, and protect your legal rights today.