Sec. 43.28. CERTAIN SEXUALLY ORIENTED PERFORMANCES PROHIBITED. (a) In this section:
(1) "Sexual conduct" means:
(A) the exhibition or representation, actual or simulated, of sexual acts, including vaginal sex, anal sex, and masturbation;
(B) the exhibition or representation, actual or simulated, of male or female genitals in a lewd state, including a state of sexual stimulation or arousal;
(C) the exhibition of a device designed and marketed as useful primarily for the sexual stimulation of male or female genitals;
(D) actual contact or simulated contact occurring between one person and the buttocks, breast, or any part of the genitals of another person; or
(E) the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.
(2) "Sexually oriented performance" means a visual performance that:
(A) features:
(i) a performer who is nude, as defined by Section 102.051, Business & Commerce Code; or
(ii) any other performer who engages in sexual conduct; and
(B) appeals to the prurient interest in sex.
(b) A person commits an offense if, regardless of whether compensation for the performance is expected or received, the person engages in a sexually oriented performance:
(1) on public property at a time, in a place, and in a manner that could reasonably be expected to be viewed by a child; or
(2) in the presence of an individual younger than 18 years of age.
(c) An offense under this section is a Class A misdemeanor.
Added by Acts 2023, 88th Leg., R.S., Ch. 931 (S.B. 12), Sec. 3, eff. September 1, 2023.
Notes of Decisions
Cited in
3
cases (
3 in the last 5 years), 2023–2026 · leading case:
Woodlands Pride v. Paxton, 157 F.4th 775 (5th Cir. 2025).
Woodlands Pride v. Paxton, 157 F.4th 775 (5th Cir. 2025).
· cites it 15× “0031; Tex. Penal Code Ann. § 43.28 . A “sexually oriented performance” is “a visual performance” that (1) features a performer who “is nude” or “engages in sexual conduct,” and (2) “appeals to the prurient interest in sex.”
Woodlands Pride v. Paxton (5th Cir. 2026).
· cites it 7× “0031; Tex. Penal Code Ann. § 43.28 . A “sexually oriented performance” is “a visual performance” that (1) features a performer who “is nude” or “engages in sexual conduct,” and (2) “appeals to the prurient interest in sex.”
Tex. Penal Code § 43.28(a)(1)(E): 1 case
Woodlands Pride v. Paxton, 157 F.4th 775 (5th Cir. 2025).
“0031; Tex. Penal Code Ann. § 43.28 . A “sexually oriented performance” is “a visual performance” that (1) features a performer who “is nude” or “engages in sexual conduct,” and (2) “appeals to the prurient interest in sex.”
Tex. Penal Code § 43.28(a)(2): 1 case
Woodlands Pride v. Paxton, 157 F.4th 775 (5th Cir. 2025).
“0031; Tex. Penal Code Ann. § 43.28 . A “sexually oriented performance” is “a visual performance” that (1) features a performer who “is nude” or “engages in sexual conduct,” and (2) “appeals to the prurient interest in sex.”
Tex. Penal Code § 43.28(b): 1 case
Woodlands Pride v. Paxton, 157 F.4th 775 (5th Cir. 2025).
“0031; Tex. Penal Code Ann. § 43.28 . A “sexually oriented performance” is “a visual performance” that (1) features a performer who “is nude” or “engages in sexual conduct,” and (2) “appeals to the prurient interest in sex.”
Tex. Penal Code § 43.28(b)(1): 1 case
Woodlands Pride v. Paxton, 157 F.4th 775 (5th Cir. 2025).
“0031; Tex. Penal Code Ann. § 43.28 . A “sexually oriented performance” is “a visual performance” that (1) features a performer who “is nude” or “engages in sexual conduct,” and (2) “appeals to the prurient interest in sex.”
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