A Harris County prosecution involving AI-generated child pornography is raising new questions about Texas law after a federal appeals court ruled that the First Amendment protects the private, in-home possession of certain wholly computer-generated sexual images of children when no actual child is depicted.
On Aug. 21, Harris County Precinct 1 deputies arrested 29-year-old Alexander Bigelow of Humble after investigators said they found thousands of AI-generated sexual images depicting children on electronic devices in his home.
According to Harris County court records reviewed by the Houston Chronicle, Bigelow faces three second-degree felony charges of possession with intent to promote computer-generated child pornography. The images allegedly depicted children who appeared to be younger than 10. He also faces a separate invasive visual recording charge after investigators accused him of using a camera disguised as a charger to secretly record a relative changing.
The Chronicle reported that Bigelow’s case is believed to be the first Harris County prosecution under Texas’ newly expanded laws targeting computer-generated sexual depictions of children.
Four days after his arrest, a federal appeals court issued a decision that raises a difficult constitutional question for laws targeting wholly artificial images.
On Aug. 25, the 7th U.S. Circuit Court of Appeals upheld the dismissal of a federal possession charge against Wisconsin software engineer Steven Anderegg. The court found that a federal law prohibiting possession of obscene virtual child sexual abuse material was unconstitutional as applied to Anderegg’s private possession of the material inside his home.
The ruling does not invalidate Texas law. The 7th Circuit covers Illinois, Indiana and Wisconsin, while Texas falls within the 5th Circuit. More importantly, the court ruled only on the particular possession charge before it.
Still, the decision presents a constitutional question that could eventually become relevant in Texas. State lawmakers recently wrote laws broad enough to criminalize certain wholly computer-generated sexual depictions of children even when no actual child was used to create the image. Texas law enforcement agencies have already begun using those statutes.
The facts surrounding United States v. Anderegg involved considerably more than private possession.
According to the 7th Circuit’s opinion, prosecutors accused Anderegg of using Stable Diffusion, a generative AI program, to produce hyper-realistic sexual images appearing to depict prepubescent children.
Authorities traced him after Meta reported that an Instagram account associated with Anderegg had sent AI-generated material to a minor. Investigators later searched his home and devices and reported finding hundreds of similar images.
Anderegg was charged with producing and distributing the material, possessing it and transferring obscene material to a minor younger than 16.
His First Amendment challenge concerned only the possession charge.
A federal district judge dismissed that count but allowed the remaining charges to proceed. The federal government appealed, asking the 7th Circuit to decide whether Anderegg could be prosecuted for privately possessing obscene virtual material in his home when the images did not depict actual children.
The appeals court affirmed the dismissal, finding that existing Supreme Court precedent controlled the case.
The decision rested largely on two Supreme Court cases decided decades before modern generative AI existed.
In the 1969 case Stanley v. Georgia, the Supreme Court held that the government could not criminalize the mere private possession of obscene material inside a person’s home.
The Supreme Court later allowed states to prohibit child pornography involving actual children because producing those images requires the sexual exploitation of real victims.
Then came Ashcroft v. Free Speech Coalition in 2002. The Supreme Court struck down portions of the federal Child Pornography Prevention Act that extended prohibitions to images that appeared to depict minors but were created without using actual children, including computer-generated images.
The distinction between an image created through the abuse of an actual child and an entirely virtual image became central to the Anderegg decision.
Because the government conceded that the images at issue in his possession charge did not depict or identify actual children, the 7th Circuit concluded that Stanley and Ashcroft prevented the federal government from prosecuting his possession of them in his home.
His production, distribution and transfer-to-a-minor charges remain.
The judges also acknowledged how much technology has changed since Ashcroft was decided.
Judge John Lee, joined by Judge Joshua Kolar, wrote separately that advances in computer-generated imagery have created a need for additional Supreme Court guidance on the First Amendment and virtual child sexual abuse material.
Nearly 25 years after Ashcroft, AI programs can produce images that appear virtually indistinguishable from images involving real children. The appeals court nevertheless said that lower courts remain bound by Supreme Court precedent unless the Supreme Court changes it.
Texas Rewrote Its Laws for AI
Texas lawmakers spent much of 2025 trying to close what they saw as a growing gap in state law.
Two laws that took effect Sept. 1, 2025, expanded the state’s ability to prosecute sexual material depicting children when artificial intelligence or other computer software is involved.
Senate Bill 20 created Texas Penal Code Section 43.235, which makes it a crime to knowingly possess, access with intent to view or promote certain obscene visual material appearing to depict a child younger than 18 engaged in sexual conduct.
The statute expressly applies regardless of whether the depiction is of an actual child, a cartoon or animation, or an image created using AI or other computer software.
In its analysis of SB 20, the Texas Legislature explained that AI and other digital technologies had created sexual depictions that might involve no real children but could be difficult to distinguish from material involving actual children. Lawmakers said the existing framework created a legal gap that limited law enforcement’s ability to address that material.
Houston state Sen. Joan Huffman authored another measure, Senate Bill 1621, which rewrote portions of Texas’ existing child pornography law to account for AI and deepfake technology.
The law created a definition for a “depiction of a computer-generated child”: an image created using AI or other computer software that appears to show someone younger than 18 and is virtually indistinguishable to a reasonable person from an actual child.
It also created specific criminal offenses involving possession and promotion of computer-generated child pornography, with penalties that can increase based on factors including the number of images and whether the depicted child appears to be younger than 10.
The Legislature’s analysis of Huffman’s bill specifically cited the growth of deepfake and AI technology and said predators were taking advantage of statutes that did not clearly address artificial sexually explicit material involving children.
Those are the laws now beginning to appear in Texas criminal cases.
There is an important difference between Bigelow’s current prosecution and the possession count dismissed in Anderegg. Court records show that Bigelow is charged with possession with intent to promote computer-generated material.
The 7th Circuit addressed private possession inside the home and specifically left Anderegg’s production and distribution charges intact.
Bigelow’s current charges therefore do not present exactly the same issue the federal appeals court decided. Texas law, however, also criminalizes certain forms of possession without an intent-to-promote element, which means the constitutional question raised in Anderegg could become relevant to a future Texas case.
The Humble investigation is also part of a broader pattern already reaching the Houston area.
Earlier this year, a Baytown investigation led to a federal prosecution involving allegations that AI was used to create sexual images from photographs of children the defendant knew.
According to the Baytown Police Department, officers responded to a home in November 2025 after concerning material was discovered on a cellphone. Investigators said the phone contained AI-generated images depicting known minors.
A Baytown Crimes Against Children detective referred the investigation to the FBI. Police said investigators later determined that 34-year-old Kane Kellum had allegedly used AI applications to create exploitative images using photographs of a child he personally knew.
A federal grand jury subsequently indicted Kellum on charges related to the sexual exploitation of a child.
That allegation presents a different issue from the wholly artificial images at the center of the Anderegg possession ruling.
The distinction between wholly synthetic material and images involving an identifiable real child has been important in First Amendment law for years. In Ashcroft v. Free Speech Coalition, the Supreme Court distinguished virtual material created without exploiting a child from forms of pornography produced through the abuse of an actual minor.
AI has now created another way for real children to become involved. Someone can take an ordinary photograph of a child from social media, a school page or another source and use software to manufacture an explicit image that the child never created.
Texas law was written to address that conduct as well as wholly computer-generated depictions.
A case announced by the Texas Department of Public Safety in May illustrates how quickly that technology has already reached children in the state.
DPS announced the arrest of 31-year-old Adan Covarrubias of Carrizo Springs after investigators reported finding more than 900 images and videos containing AI-generated sexual depictions of children.
Investigators said Covarrubias had taken photographs from publicly available pages affiliated with South Texas schools and used AI tools to manipulate the photographs into sexual images.
Authorities had identified approximately 30 child victims at the time DPS announced the arrest.
Agents also reported finding non-AI-generated child sexual abuse material among the digital evidence. Covarrubias was arrested May 19 and charged with possession of computer-generated child pornography, which DPS said was a first-degree felony in his case.
The allegations against Covarrubias and Kellum show how an AI-generated image can still involve a real victim. A photograph of an actual child can be taken from an otherwise ordinary source and transformed into sexual material without the child’s knowledge or consent.
The constitutional issue becomes more difficult when the depicted child is entirely synthetic and no identifiable person was used to create the image.
That is the issue the 7th Circuit confronted in Anderegg, and it is also conduct Texas lawmakers deliberately chose to include within the state’s new statutes.
A Constitutional Question Texas May Eventually Face
For now, the Anderegg decision does not prevent Texas prosecutors from enforcing the state’s new laws.
It does, however, expose a conflict that may eventually have to be resolved by higher courts.
Texas lawmakers deliberately expanded state law to reach certain AI-generated sexual depictions even when no actual child was used to make them. The official analysis of SB 20 makes that intent explicit: lawmakers wanted the statute to cover AI-generated images, cartoons, animations and other computer-generated material regardless of whether the depiction involved an actual child.
Harris County and other Texas law enforcement agencies are now putting those laws into practice.
At nearly the same moment, the 7th Circuit concluded that existing Supreme Court precedent protects a narrow category of wholly virtual material from prosecution when the conduct at issue is private possession in the home and no actual child is depicted.
Even judges who agreed with that result questioned whether Supreme Court precedent developed before modern AI can adequately address what the technology is capable of producing today.
The 7th Circuit ultimately said the Supreme Court should provide further guidance.
Texas law now allows prosecutors to bring charges involving wholly computer-generated sexual depictions of children. Whether those provisions will hold up when they are challenged over private possession is undetermined.
While the Seventh Circuit’s ruling does not control Texas courts, it does offer a critical warning of the First Amendment argument they will eventually have to consider.
Feature photo by HEY ERRY from Pexels
