Texas Revenge Porn Law: Unlawful Disclosure of Intimate Visual Material

These cases usually begin with a relationship ending badly, a screenshot, and a report made days or weeks later. They are charged more often than people expect, and they are also charged in situations the statute does not actually reach, because the offense has more moving parts than its nickname suggests. Peter M. Barrett has defended Dallas County cases since 1994, across more than 150 jury trials, including the full range of sexual offense allegations, and the case review is free and confidential. This guide works through what §21.16 and §21.165 require as written.

Three separate offenses in one section

Under §21.16(g) all three carry the same grade: a state jail felony, 180 days to 2 years in a state jail facility and a fine of up to $10,000. §21.16(h) allows prosecution under this section, another law, or both.

The four elements of the disclosure offense

This is where most §21.16(b) cases are won or lost, because the State has to prove all four:

1. Disclosure without effective consent, with intent to harm that person. The material must depict another person with intimate parts exposed or engaged in sexual conduct.
2. Knowledge about how the material arose. At the time of disclosure, the person knows or has reason to believe the material was obtained or created under circumstances in which the depicted person had a reasonable expectation that it would remain private.
3. The disclosure causes harm to the depicted person. Not intent to harm, which is element one, but harm in fact.
4. The disclosure reveals the identity of the depicted person in any manner. §21.16(b)(4) expressly includes identification through accompanying or subsequent information, and through information supplied by a third party in response to the disclosure.

Elements three and four are the ones prosecutions most often cannot establish. An image sent to one person who already knew the sender, or posted with no name, face or other identifier attached and nothing added later, may not satisfy element four. An allegation stated in terms of embarrassment that is not developed into evidence of harm may not satisfy element three. These are evidentiary questions with records behind them, not technicalities.

What is expressly not a defense

§21.16(e) closes the two arguments people most often raise. It is not a defense that the depicted person:

• created or consented to the creation of the visual material; or
• voluntarily transmitted the visual material to the actor.

In other words, "she sent it to me" is not an answer to the charge. Consent to the making of an image is legally distinct from consent to its disclosure, and the statute separates them deliberately.

The affirmative defenses that do exist

§21.16(f) provides affirmative defenses to the disclosure and promotion offenses:

• The disclosure was made in the course of lawful and common practices of law enforcement or medical treatment, in reporting unlawful activity, or in a legal proceeding where permitted or required by law.
• The material depicts, in a public or commercial setting, only a person's voluntary exposure of intimate parts or voluntary sexual conduct.
• The actor is an interactive computer service as defined by 47 U.S.C. §230 and the material was provided by another person.

Note the second one. Material recorded at a public event or in a commercial production, where the exposure was voluntary in that setting, is treated differently from material created in private.

The 2025 change to "visual material"

S.B. 1621, effective 1 September 2025, amended §21.16(a)(5) to put beyond argument that visual material includes "a file in any digital format" that allows an image to be displayed on a computer or other video screen. The definition already covered physical media, disks and transmitted images; the amendment removes any gap around a file as such. The penalty was not changed by that bill.

Deep fake sexual media under §21.165

This is a newer and faster moving offense. It was added in 2023 and substantially expanded by S.B. 441 with effect from 1 September 2025.

Deep fake media is defined in §21.165(a)(1) as a visual depiction created or altered through software, machine learning, artificial intelligence or any other computer-generated or technological means, that appears to a reasonable person to depict a real person, indistinguishable from an authentic depiction, performing an action that did not occur in reality.

Three features of the 2025 version matter in practice:

• Consent has to be in writing. §21.165(b-2) makes consent valid only where the person appearing to be depicted knowingly and voluntarily signed a written agreement drafted in plain language, giving a general description of the media and, where applicable, the work it will be incorporated into. Verbal agreement does not satisfy the statute.
• Disclaimers do not help. §21.165(c-2) says it is not a defense that the media carries a disclaimer, or is labelled as unauthorised or not authentic.
• Restitution is mandatory. §21.165(e) says the court shall order a convicted defendant to make restitution for any psychological, financial or reputational harm to the victim.

§21.165 also carries defenses in (c-3) for law enforcement, reporting unlawful activity and legal proceedings; in (c-4) for service providers acting solely in a technical, automatic or intermediate capacity; and in (c-5) a detailed defense for artificial intelligence providers who both prohibited the conduct in their terms and took specified technological steps, including training the model to identify such media, providing reporting tools, and filtering both outputs and training data.

Why the real image is graded above the fake one

It looks backwards at first. Disclosing a genuine intimate image under §21.16 is a state jail felony. Producing or distributing a sexual deep fake of an adult under §21.165(b) is a Class A misdemeanor unless an enhancement applies. The distinction tracks the privacy interest the two statutes protect: §21.16 turns on material created in circumstances of actual privacy, while §21.165 reaches a fabricated depiction. Where the person depicted is under 18, the deep fake offense becomes a third degree felony and the gap closes. Conduct can also fall under both sections, and under §21.165(d) the State may proceed under either.

Registration, and a common misunderstanding

Because these offenses sit in Penal Code Chapter 21 alongside indecency with a child and invasive visual recording, people reasonably assume a conviction means registering as a sex offender. It does not. The reportable conviction list in art. 62.001(5) of the Code of Criminal Procedure names the offenses that trigger registration, and neither §21.16 nor §21.165 is on it. By contrast, invasive visual recording under §21.15 is on that list, as are indecency with a child under §21.11 and possession or promotion of child pornography under §43.26.

That is a meaningful difference in consequence, and it is a reason to be careful about which section a case is actually charged under. Where material depicts a person under 18, charges under other statutes come into play and the registration analysis changes entirely.

Charges that often arrive alongside

• Harassment and stalking, where there was a course of conduct rather than a single disclosure.
• Online impersonation under §33.07, where an account was created or used in the other person's name, which is a third degree felony and therefore graded above §21.16.
• Violating a protective order, where one was already in place.
• Extortion-type allegations, where a §21.16(c) threat was made to obtain money or some other benefit.

Because §21.16(h) permits prosecution under this section, another law, or both, these are frequently stacked rather than charged in the alternative.

If a complaint has been made

Two practical points. First, deleting messages, accounts or images after learning of a complaint creates a separate problem and does not remove the material from the other person's device or from a provider's records. Second, an explanation offered to an investigator that begins with the image having been sent voluntarily concedes a disclosure while raising something §21.16(e) says is not a defense. The sequence of what was sent, to whom, and what identifying information travelled with it is the material that matters, and it is worth reviewing with a lawyer before it is characterised to anyone else.

This page is general legal information about Texas law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed Texas criminal defense attorney about your specific facts. Request a free, confidential case review.