Texas: Sex with 17-year-old legal but sexting is a crime

Posted Jun 4, 2016 by Arthur Weinreb
A 51-year-old Texas tutor is accused of having consensual sex with a 17-year-old student. That is not a crime but authorities say sexually explicit pictures of the girl found on his phone constitutes child pornography.
Aldo Leiva  51
Aldo Leiva, 51
Harris County Sheriff's Office
An investigation began when the mother of the unidentified teen found a picture of her daughter on her phone kissing a much older man. The girl told investigators she was dating the man and had been since the summer of 2015. The man was identified as Aldo Leiva, 51. Leiva is a math tutor at Sharpstown High School in Houston where the girl is a student.
Leiva denied he had a sexual relationship with the girl and said they were just friends.
According to the charging document, Leiva provided the password to unlock his cellphone to police. They found a conversation in which the girl tells him she is taking a bath and he asks her to send him pictures. They also found two pictures of the girl topless.
Under the Texas Penal Code, Section 22.011 provides sex with a child constitutes sexual assault. A "child" is defined as someone under the age of 17 years. However Section 46.23 defines "child pornography" as visual material that depicts a child who is younger than 18 and includes material that shows the child engaging in sex or a "lewd exhibition." Leiva was caught by the one year gap in the law.
As the girl is 17 and was at the time the alleged relationship began, Leiva has not been charged with any sexual activity he may have engaged in. But because she is under 18, he faces two child pornography charges. Harris County prosecutors charged him with felony possession of child pornography for the pictures found on his phone. He was also charged with sexual performance by a child for asking the teen to send him pictures while she was in the bath.
Courthouse News Service reports Leiva was arraigned on May 25 and released on a $20,000 bond. A condition of his release is he must have no contact with the girl but his lawyer plans to try to set that term aside as the two want to continue to see each other.
The Houston Chronicle reports prosecutors say the case is important because of the relationship of educator/student and the fact that relationship was violated. But Leiva cannot be prosecuted for the actual relationship he had with the girl.
Leiva is due back in court on July 1. If convicted, he faces up to 20 years in prison.