When Is It a Crime to Take a Video or a Photograph?

Generally, you should avoid photographing or videoing someone without their consent. There are times, however, when it is unavoidable. For instance, if you take a group photo at a theme park, you are bound to capture background bystanders.

This brings up an important question. When, exactly, is it illegal to capture someone’s image without their knowledge or consent? The answer all depends on the situation.

For instance, in Texas, it is a crime to record or photograph someone's intimate areas without their consent, or to record them in a place where they reasonably expect privacy. The offense is called "invasive visual recording," and it appears in Texas Penal Code §21.15. The Bexar County District Attorney's Office takes these accusations very seriously — and as of September 1, 2025, the consequences of a conviction are considerably more severe than they used to be.

It takes time to build an invasive photography case, and these crimes rarely result in an immediate arrest. Therefore, people often have warrants for invasive photography without knowing it.

Here is a broad overview of invasive photography in Texas along with steps you should take if you are ever accused of this crime.

What Are the Elements of Invasive Visual Recording?

Texas Penal Code §21.15 makes it illegal to take certain videos and photographs, but only under certain conditions. The Texas Legislature broadened this statute in 2025, so the rules are wider now than most people assume.

To qualify as a crime, the recording must take place without the other person's consent, and in most situations the State must also prove intent to invade that person's privacy. Consensual photography of this nature is not a crime.

The statute covers three basic situations:

• Photographing or recording someone in a bathroom or changing room without their consent.
• Photographing or recording someone's intimate area without consent, when that area is not subject to public view. "Intimate area" means the naked or clothed genitals, pubic area, anus, buttocks, or female breast of another person — with the female breast defined as the portion below the top of the areola. This is the provision that covers "upskirt" photos.
• Photographing or recording someone anywhere they have a reasonable expectation of privacy, without consent and with intent to invade their privacy.

That third category is new. Before September 1, 2025, the statute was aimed primarily at bathrooms and changing rooms. House Bill 1465 added a definition at §21.15(a)(3-a) describing a place where a person has a reasonable expectation of privacy as one where a reasonable person would believe they could undress without being photographed or recorded, or without the images being broadcast or transmitted. In practical terms, conduct that would not have been chargeable a few years ago may be chargeable today.

What Is the Punishment for Invasive Visual Recording in Texas?

Invasive visual recording is a state jail felony, punishable by 180 days to two years in a state jail facility and a fine of up to $10,000.

The most important change is not the sentence — it is registration. Effective September 1, 2025, the Legislature amended Article 62.001(5)(A) of the Texas Code of Criminal Procedure to add invasive visual recording to the list of reportable convictions. For offenses committed on or after that date, a conviction or adjudication triggers sex offender registration.

This is a fundamental shift. Registration reaches into housing, employment, where you are permitted to live, and how you are perceived by everyone who runs a search on your name — for years after any jail term ends. If you are facing this charge for conduct on or after September 1, 2025, the stakes are not comparable to what they were under the old law, and any advice you received or read before that date may no longer reflect your actual exposure.

Deferred adjudication and community supervision may still be possible depending on the facts, your record, and the court. Those options are worth discussing with an attorney early.

How Can a Lawyer Help if You Are Charged with Invasive Visual Recording?

There are three primary defenses to the charge of Invasive Visual Recording

1. The person consented to the photograph or video. Therefore, it is not an offense.
2. The accused did not knowingly take a picture of the intimate area. This defense is called a “lack of intent.”
3. You can argue that you possess the item but did not create or distribute it. To commit a crime, someone must take the picture, or they must broadcast or transmit the photograph, such as posting it on the internet.

What Should I Do if I Am Accused of Invasive Visual Recording?

Do not consent to a search of your phone without a warrant. You are not required to unlock your device or hand it over voluntarily, and doing so rarely helps you.

Do not transmit, share, forward, or post any images that are in question. Distribution can expose you to additional charges beyond the original allegation.

Do not delete anything, and do not let anyone else delete anything on your behalf. This is counterintuitive, and it is the single most common mistake we see. Under Texas Penal Code §37.09, altering, destroying, or concealing a record or thing — knowing an investigation is pending, or knowing an offense has been committed — with intent to impair its availability as evidence is tampering with physical evidence, a third-degree felony punishable by two to ten years in prison. People have turned a state jail felony into a more serious charge by clearing their camera roll after a police contact. Preserve your device as-is and let your attorney advise you on what happens next.

What Should I Do if I Take a Picture of Someone, and They Called the Police?

You need to hire a lawyer. In most invasive visual recording cases, an officer will not arrest you on the spot. Texas law limits when police may arrest without a warrant — Chapter 14 of the Code of Criminal Procedure allows it for offenses committed in the officer's presence or view, and in several other defined circumstances. These cases usually do not fit those categories, because the alleged conduct is reported after the fact rather than witnessed by an officer.

That does not mean you are in the clear. It means the case is likely to proceed by investigation and warrant, which is a slower and quieter process. Officers can and do obtain arrest warrants for conduct they never personally observed.

The authorities will probably open an investigation and attempt to contact you. Do not make a statement. It can take months or years for police to issue a warrant. In the meantime, you need to hire an attorney to tell your side of the story. Anything you say can and will be used against you.

The Locke Law Group is here to help defend you against invasive photography allegations. For a free consultation, contact our office by calling (210) 361-3113 or filling out our online contact form.

Originally published July 14, 2023. Updated September 4, 2026 to reflect amendments to Texas Penal Code §21.15 and Code of Criminal Procedure Article 62.001(5)(A) effective September 1, 2025.