"Unlawful Production or Distribution of Certain Sexually Explicit Videos" is the statute under the Texas Penal Code that criminalizes making "deep fake" nude and pornographic videos. This offense is categorized under the portion of the Texas Penal Code dealing with Offenses Against the Person (Title 5) and is further categorized as a Sexual Offense under Chapter 21. With the ever-increasing use of artificial intelligence, new criminal frontiers were born. Enter Tex. Penal Code §21.165, which addresses the phenomenon of using AI to generate nude or pornographic videos that seemingly depict actual people.
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"Deepfake" is a portmanteau of "deep learning" and "fake." This term describes images and videos made by harnessing machine learning's ability to synthesize hyper-realistic images after being fed various existing inputs. AI's immense power to make realistic videos of (essentially) anything you can think of has been used to create, of all things...porn. (Illegal) deepfake nudes and sex videos can be created from G-rated images of anyone. That freaks people out, and it freaked the Texas legislature out so much that they codified §21.165, Unlawful Production or Distribution of Certain Sexually Explicit Videos, in 2023.
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Part of the impetus for criminalizing the production of sexually-explicit deepfakes is that deepfake videos can be remarkably true-to-life. As artificial intelligence grows "smarter," it gets better at making hyper-realistic depictions that have fewer dead giveaways. Early on, AI was making some pretty good-looking images that only became creepy when you noticed that the people depicted had far too many teeth and fingers. But now, machine learning has largely smoothed itself out and is capable of making porn out of little more than a couple stray Facebook photos.
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If you've been charged with an offense under §21.165, Unlawful Production or Distribution of Certain Sexually Explicit Videos, you need an aggressive, strategic, and powerful Texas criminal defense attorney. Diablita Criminal Defense, PLLC will handle your case professionally and efficiently, crafting your strongest defense and fighting for you. Every day that your case sits without representation is a day that law enforcement officers, investigators, and prosecutors are building their case against you. Be proactive -- an early defense is a strong defense. Schedule your FREE case evaluation today and speak with the Devil. Don't wait! Get Texas’s top defense with Atty. Madolyn García Falone.
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Texas Penal Code §21.165, Unlawful Production or Distribution of Certain Sexually Explicit Videos, is defined as follows:
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(b) A person commits an offense if, without the effective consent of the person appearing to be depicted, the person knowingly produces or distributes by electronic means a deep fake video that appears to depict the person with the person's intimate parts exposed or engaged in sexual conduct.
​​​​Don't delay! CALL DIABLITA TODAY for a free case evaluation– always complimentary, always confidential. ​
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This statute defines "Intimate Parts" as:
"the naked genitals, pubic area, anus, buttocks, or female nipple of a person." ​
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This statute defines "Sexual Conduct" as:
"sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse."​
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This statute defines "Deep Fake Video" as:
“a video, created with the intent to deceive, that appears to depict a real person performing an action that did not occur in reality."
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The "statute of limitations" is a time limit set by law that tells the government how long they have to charge someone with a crime. Charges filed after the statute of limitations has passed are generally subject to dismissal.
The limitations period for Tex. Penal Code §21.165, Unlawful Production or Distribution of Certain Sexually Explicit Videos, is 2 years.
Unlawful Production or Distribution of Certain Sexually Explicit Videos is classified in Texas as a Class A Misdemeanor.
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Unlawful Production or Distribution of Certain Sexually Explicit Videos, like other Class A Misdemeanors, is punishable by up to one year in Texas state jail, as well as a fine of up to $4,000.
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Probation may be granted to individuals who plead guilty or no contest to Unlawful Production or Distribution of Certain Sexually Explicit Videos under Tex. Penal Code §21.165. Additionally, judges may accept plea deals for deferred adjudication in these cases.
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AN IMPORTANT NOTE ABOUT COMMUNITY SUPERVISION
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Texas law uses the term "community supervision" to describe standard probation as well as deferred adjudication.
Neither probation nor deferred adjudication "community supervision" is on the table for suspended sentences of over 10 years, regardless of what the offense is. Additionally, community supervision cannot be granted to any Defendant if it is shown that: (1) a deadly weapon was used or exhibited during the commission of the felony or immediate flight thereafter and (2) the Defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.a deadly weapon would be used o
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Currently Tex. Penal Code §21.165, Unlawful Production or Distribution of Certain Sexually Explicit Videos, is not a registrable offense. However, the Texas legislature can add this offense to the list of registrable offenses at any time, and a person who pled guilty, was found guilty, or received deferred adjudication (even if later dismissed) for this offense would be required to register as a sex offender, even if the offense did not require registration at the time they were convicted.
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​CLICK HERE TO LEARN MORE ABOUT SEX OFFENDER REGISTRATION IN TEXAS.
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About la Diablita
Texas Criminal Defense Attorney Madolyn García Falone
Madolyn García Falone is a Texas criminal defense attorney and the Sole Managing Partner of Diablita Criminal Defense, PLLC. The principal office of Diablita Criminal Defense, PLLC is in Austin, TX.
Atty. García Falone practices in the Austin metro area (ATX) as well as the Dallas-Fort Worth metro (DFW). She practices in counties throughout Texas, including Travis County, Williamson County, Bastrop County, Hays County, Caldwell County, Blanco County, Burnet County, Bell County, McLennan County, Hill County, Ellis County, Tarrant County, Dallas County, Kaufman County, Denton County, and Collin County.
Atty. García Falone takes criminal cases throughout Central and North Texas, including Austin, Westlake, Lakeway, Cedar Park, Leander, Pflugerville, Round Rock, Georgetown, Belton, Temple, Waco, Dallas, Fort Worth, Arlington, Plano, Irving, and Denton.
