Call Now  (713) 227-4444 Email Us Hablamos
Español

Neal Davis Blog

  • About
    • Neal Davis
    • Tyler Brock
    • Andrew Jordan
    • Hiring An Attorney
  • Expertise
    • Criminal Defense
    • Sex Crime Defense
    • Child Pornography
    • Child Solicitation
    • Drug Possession
    • White Collar Crimes
    • Shoplifing/Theft
    • DWI
    • Murder Defense
    • Assault & Family Violence
    • Title IX Defense
  • Results
  • Reviews
  • Press
  • Resources
    • Blog
    • Criminal Defense Guides
    • Scholarships
Home / Child Pornography & Online Solicitation / Neal Davis Gets Texas Erotica Law Declared Unconstitutional

Neal Davis Gets Texas Erotica Law Declared Unconstitutional

October 28, 2021

Texas erotica law

The Neal Davis Law Firm won a huge victory on Tuesday, Oct. 26, 2021, by getting Texas’ child erotica statute declared unconstitutional by the Court of Appeals for the First District of Texas, located at the Harris County Courthouse in Houston.

Arguing for his client, who was charged with possessing child erotica under Section 43.262 of the Texas Penal Code, Neal Davis steadfastly maintained that the law was unconstitutional.

“We challenged the statute for violating the First Amendment,” Davis said after the decision. “A unanimous panel of the Court of Appeals agreed.”

The court held that the Texas erotica law “is facially unconstitutional, overbroad, and void for vagueness. We reverse and remand.”

Child porn charges were also dismissed for Davis’ client due to insufficient evidence.

Charges led to an unconstitutional claim

After an investigation by law enforcement authorities in Montgomery County and elsewhere, the appellant was charged on March 1, 2019, with possession of child pornography. Then, on July 11, 2019, the appellant was charged with possession of lewd visual material of a child, all based on images reportedly found on his phone.

The arrested appellant filed an application for a pretrial writ of habeas corpus, meaning he wanted his case to be brought before a judge to determine if he was being held in jail illegally.

The trial court denied the appellant’s request for a pretrial writ of habeas corpus, so Davis then took the case before the Court of Appeals.

Arguing for his client before the Court of Appeals for the First District of Texas, Davis asserted that the Texas erotica law regulated a substantial amount of protected speech (that is, speech which is neither obscene nor child pornography) and that it was unconstitutionally vague. He also argued that the law outlaws speech which is neither child pornography nor obscene.

For example, he asserted, the overly broad and vague law in effect makes criminals of most Instagram “social influencers” under the age of 18 — people who, in reality, do nothing more than post provocative, but clothed, pictures of themselves online for their millions of followers.

As Section 43.262 states, anyone who possesses or even accesses these images would be guilty under the Section 43.262 statute.

“That is just one of the many examples of its overly-broad sweep,” Davis said of the Texas erotica law.

For this and other reasons, Davis argued that Section 43.262 of the law, under which his client had been charged, was unconstitutional on its face and violated the First and Fourteenth Amendments to the U.S. Constitution.

Appeals court’s decision favors Davis’ client

The appeals court agreed, holding that Section 43.262 does not prohibit obscenity or child pornography. Instead, the statute applies to a person who knowingly possesses visual material depicting the lewd exhibition of the pubic area of a clothed child, otherwise known as child erotica, that previously was not prohibited and is not recognized as unprotected speech.

“We hold that the portion of Section 43.262 at issue in this habeas appeal is an unconstitutional restriction on speech protected by the First Amendment and that the State has failed to rebut the presumption of the statute’s invalidity.”

Speaking for the court’s panel of judges, Chief Justice Sherry Radack wrote in their opinion:

“We reverse the trial court’s order denying appellant’s requested habeas corpus relief and remand the case to the trial court to dismiss the indictment.”

Court decision was “extremely rare”

“It is extremely rare for a court to strike down a criminal law,” Davis said. “That is because courts defer to legislatures, which are the voice of the people, and unless a criminal law is fatally unconstitutional, it will be upheld.”

In addition, Davis noted that “the collateral effect of this opinion is that it will also benefit Netflix, which was charged under the same statute.”

In a pending case in Tyler County, Texas, a grand jury indicted Netflix for promotion of lewd visual material depicting children.

The appeals court held that the prosecution of Netflix showed that Section 43.262 is overbroad when applied to the 2020 French coming-of-age film “Cuties,” which depicts an 11-year-old Senegalese immigrant who joins a dance group.

The court wrote in its decision

“As currently written, the statute could apply not only to Netflix, but to those persons who viewed the offending visual material.”

That would mean any person who had viewed the Netflix film also would be subject to a criminal charge under the child erotica law.

In this context, the court wrote:

“We conclude that the criminal prohibition in Section 43.262 is of ‘alarming breadth’ that is ‘real’ and ‘substantial.’ ”

Davis savors hard-fought victory

Getting the law declared unconstitutional “was a hard-fought victory for our client, who now can get back to his normal life,” Davis said.

Americans who face an unjust child pornography charge or other sex crime charge can contact the experienced defense lawyers at the Neal Davis Law Firm for a confidential consultation.

Related Resources

  • Neal Davis Again Named Among Best Lawyers in America
    Neal Davis Again Named Among Best Lawyers in America
  • Ex-Texas Police Chief Convicted of Bribery, Mail Fraud
    Ex-Texas Police Chief Convicted of Bribery, Mail Fraud
  • Ticket Broker Gets Prison Sentence For Wire Fraud
    Ticket Broker Gets Prison Sentence For Wire Fraud

Learn More About Sex Crime Defense


Overview of Sex Crime Defense
Child Sex Offenses
Child Pornography Possession Defenses
Online Solicitation of a Child
Texas Sex Crime Law
Indecency with a Child by Contact
Indecency with a Child by Exposure
Aggravated Child Sex Abuse
Child Molestation Defense
Continuous Sexual Abuse of a Child
Improper Teacher / Student Relationships
Hiring a Sexual Assault Defense Lawyer
Sexual Assault of a Child (Statutory Rape)
Title IX Defense & Campus Sexual Assault
5-star review image
He got me through a very tough time
Fraud  |  Houston
Client's white collar fraud case was dismissed
2014-06-02
"I had a previous lawyer who I felt was not doing enough for my case. The first time ..."
K.M. (case expunged), Verified Customer
5-star review image
He doesn't give up, no matter what you're up against
Sex Crimes  |  Houston
Client's child sex abuse case was dismissed
2015-06-29
"This man saved my life from false imprisonment. Neal's belief in 'liberty and justice for all' as laid ..."
M.F., Verified Customer
5-star review image
Forever grateful
Criminal Defense  |  Beaumont
Client's federal charges declined
2020-06-25
"Neal, I have been waiting a long time to send this to you! If it weren't for you, ..."
A.C., Verified Customer

Categories

  • Child Pornography & Online Solicitation
  • Community
  • Criminal Defense
  • Drug Crimes
  • Federal Crimes
  • Firm News
  • Intoxication Offenses
  • Sex Crimes
  • Violent Crimes
  • White Collar Crime

Search

Possession of Child Pornography: Texas Criminal Defense

FREE E-BOOK

Learn all about the legal process and your legal rights.

Get Your Free Copy Now

Board Certified, Criminal Law – Texas Board of Legal Specialization (2009-2021), AV Rated by Martindale Hubbell (2015), and listed as a Best Lawyer in America (2015-2022)

He doesn't give up, no matter what you're up against
M.F.
5-star review image
Got my life back
K.W.
5-star review image
Muy satisfechos con su trabajo
Tia de J.C.
5-star review image

Read All Reviews

    Contact Our Law Firm




    We respect your privacy. The use of this form does not establish an attorney-client relationship.

    Address
    Neal Davis Law Firm
    The Heights Boulevard Law Building
    1545 Heights Blvd., Suite 700
    Houston, TX 77008

    Map

    Call 24/7
    (713) 227-4444

    Office Hours
    Monday - Saturday
    8:00 AM to 6:00 PM

    Sunday: Closed


    Experienced Criminal Defense Law Firm in Texas

    While based in Houston, our law firm provides knowledgeable representation and comprehensive legal services for individuals throughout Texas, including:


    Location

    Harris County:

    Houston, Pasadena, Baytown

    Montgomery County:

    Conroe, The WoodlandsWillis, Pinehurst

    Fort Bend County:

    Sugar Land, Richmond, Needville, Cinco Ranch


    Your Houston Criminal Defense Lawyer: Neal Davis


    A principle of the American criminal justice system is that all defendants are "innocent until proven guilty." Houston criminal defense attorney Neal Davis and his skilled legal team represent individuals accused of committing crimes. For over 20 years, Neal Davis has successfully defended clients in Texas and federal courts in all types of criminal matters at all phases, from state misdemeanors to complex federal matters. Often, he has favorably resolved criminal cases quickly and quietly, without the need for trial.


    The Neal Davis Law Firm defends the rights of individuals charged with all types of state crimes, including drug offenses , child sex crimes, online solicitation of a minor , child pornography, DWI and intoxication manslaughter, fraud and theft, assault and family violence, and murder and homicide, as well as all types of federal crimes.


    Board Certified, Criminal Law – Texas Board of Legal Specialization. Serving all of counties and federal courts across Texas, including Harris County (Houston), Montgomery County (Conroe), Galveston County and Fort Bend County (Richmond). Enjuris Texas personal injury guide

    © 2023 Neal Davis Law Firm, PLLC. All rights reserved. Law Firm Online Marketing by SEO Advantage, Inc.


    Legal Information

    The information and materials on this website are provided for general informational purposes only, and are not intended to be legal advice. We attempt to provide quality information, but the law changes frequently, and varies from place to place. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance. An attorney and client relationship should not be implied. Nothing on this website is intended to substitute for the advice of an attorney; therefore, if you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction. Every case is different and individual results may vary depending on the facts of a case.