By: Hinojosa of Hidalgo, et al. S.B. No. 442     (Fairly)           A BILL TO BE ENTITLED   AN ACT   relating to the prosecution and punishment of the offense of   unlawful production or distribution of certain sexually explicit   media; increasing a criminal penalty.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  The heading to Section 21.165, Penal Code, is   amended to read as follows:          Sec. 21.165.  UNLAWFUL PRODUCTION OR DISTRIBUTION OF CERTAIN   SEXUALLY EXPLICIT MEDIA [VIDEOS].          SECTION 2.  Section 21.165(a), Penal Code, is amended by   amending Subdivision (1) and adding Subdivision (3) to read as   follows:                (1)  "Deep fake media [video]" means a visual depiction   [a video,] created or altered through [with] the use of software,   machine learning, artificial intelligence, or any other   computer-generated or technological means, including by adapting,   modifying, manipulating, or altering an authentic visual depiction   manually or through an automated process [intent to deceive], that   appears to a reasonable person to depict a real person,   indistinguishable from an authentic visual depiction of the real   person, performing an action that did not occur in reality.                (3)  "Visual depiction" means a photograph, motion   picture film, videotape, digital image or video, or other visual   recording.          SECTION 3.  Section 21.165, Penal Code, is amended by   amending Subsections (b) and (c) and adding Subsections (b-1),   (c-1), and (c-2) to read as follows:          (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   media [video] that appears to depict the person:                (1)  with visible computer-generated intimate parts or   with the visible intimate parts of another human being as the   intimate parts of the person; or                (2)  engaging in sexual conduct in which the person did   not engage [with the person's intimate parts exposed or engaged in   sexual conduct].          (b-1)  Consent required by Subsection (b) is valid only if   the person appearing to be depicted knowingly and voluntarily   signed a written agreement that was drafted in plain language.  The   agreement must include:                (1)  a general description of the deep fake media; and                (2)  if applicable, the audiovisual work into which the   deep fake media will be incorporated.          (c)  An offense under this section is a Class A misdemeanor,   except that the offense is a felony of the third degree if it is   shown on the trial of the offense that the defendant has been   previously convicted of an offense under this section.          (c-1)  It is not a defense to prosecution under this section   that the deep fake media:                (1)  contains a disclaimer stating that the media was   unauthorized or that the person appearing to be depicted did not   participate in the creation or development of the deep fake media;   or                (2)  indicates, through a label or otherwise, that the   depiction is not authentic.          (c-2)  It is an affirmative defense to prosecution under this   section that the production or distribution of the deep fake media   occurs in the course of:                (1)  lawful and common practices of law enforcement or   medical treatment;                (2)  reporting unlawful activity; or                (3)  a legal proceeding, if the production or   distribution is permitted or required by law.          SECTION 4.  The changes in law made by this Act apply only to   an offense committed on or after the effective date of this Act. An   offense committed before the effective date of this Act is governed   by the law in effect on the date the offense was committed, and the   former law is continued in effect for that purpose. For purposes of   this section, an offense was committed before the effective date of   this Act if any element of the offense occurred before that date.          SECTION 5.  This Act takes effect September 1, 2025.