Corrections & Parole
POST-CONVICTION SEMINAR SEMINAR INFORMATION Date Location Course Directors Total CLE Hours
October 29-30, 2020 Livestream Event Bill Habern and David O’Neil 13.25 Ethics: 1.0
Thursday, October 29, 2020 Time
CLE
8:00 am
Daily CLE Hours: 6.50 Topic
Speaker
Opening Remarks
Bill Habern and David O’Neil
8:15 am
.75
State Appeals
Kristen Jernigan
9:00 am
.75
State Writs
Gary Udashen
9:45 am
Ethics: 1.0
Break
10:00 am
.75
Federal Writs
Nicole DeBorde Hochglaube
10:45 am
.75
Federal Appeals
Judy Madewell
11:30 am 1:00 pm
2:00 pm
Lunch on Your Own 1.0
Q&A: Things to Know about Dealing with TDCJ and the Texas Board of Pardons & Paroles
1.0 Ethics and Prisoner Grievances Ethics
3:00 pm
Board Chair, Board Member, Tim McDonnell with Bill Habern and Allen Place Moderating Robert Hinton
Break
3:15 pm
.75
Immigration Law and Prison Inmates
Rick Prinz and Hon. Jimmie Lee Benton
4:00 pm
.75
Deregistration of Sex Offenders
Scott Smith
4:45 pm
Adjourn
TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
POST-CONVICTION SEMINAR SEMINAR INFORMATION Date Location Course Directors Total CLE Hours
October 29-30, 2020 Livestream Event Bill Habern and David O’Neil 13.25 Ethics: 1.0
Friday, October 30, 2020 Time
CLE
7:45 am
Daily CLE Hours: 6.75 Topic
Speaker
Opening Remarks
Bill Habern & David O’Neil
8:00 am
1.0
What Defense Attorneys Should Know About Parole & Related Administrative Post-Conviction Matters
David O’Neil
9:00 am
1.25
Parole Revocation Case Law
Bill Habern
10:15 am
Break
10:30 am
.75
How to Present a Parole Revocation Case
Alan Bennett
11:15 am
.75
What Criminal Defense Lawyers Need to Know About 42 USC 1983
Scott Medlock
12:00 pm
Lunch on Your Own
1:15 pm
1.0
What Is a Sex Offense Under SORNA: Consequences Under Federal & State Law
Richard Gladden
2:15 pm
.75
Expunctions & Nondisclosures
Dorian Cotlar
3:00 pm
Break
3:15 pm
.50
Family Assistance for the Convicted Sex Offender
Mary Sue Molnar
3:45 pm
.75
Civil Commitment of Sexually Violent Predators
William Marshall
4:30 pm
Ethics: 0
Adjourn
TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Post-Conviction Seminar Table of Contents
Speaker
Topic Thursday and Friday, October 29-30, 2020
Kristen Jernigan Gary Udashen Nicole Deborde-Hochglaube Judy Madewell Robert Hinton Rick Prinz Hon. Jimmie Lee Benton Scott Smith David O’Neil Bill Habern Alan Bennett Scott Medlock Richard Gladden Dorian Cotlar Mary Sue Molnar William Marshall
State Appeals State Writs Federal Writs Federal Appeals Ethics and Prisoner Grievances Immigration Law and Prison Inmates Deregistration of Sex Offenders What Defense Attorneys Should Know About Parole & Related Administrative PostConviction Matters Parole Revocation Case Law How to Present a Parole Revocation Case What Criminal Defense Lawyers Need to Know About 42 USC 1983 What is a Sex Offense Under SORNA: Consequences Under Federal & State Law Expunctions & Nondisclosures Family Assistance for the Convicted Sex Offender Civil Commitment of Sexually Violent Predators
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Post-Conviction Seminar Table of Contents
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
STATE APPLICATIONS FOR WRITS OF HABEAS CORPUS
Paper and Presentation by: Gary A. Udashen Udashen | Anton 2311 Cedar Springs Road, Suite 250 Dallas, Texas 75201 214-468-8100 214-468-8104 fax gau@udashenanton.com www.udashenanton.com
TABLE OF CONTENTS Page I.
General Requirements ........................................................................................................ 1
II.
District Court’s Duties ........................................................................................................ 2
III.
Facts That Bar Relief .......................................................................................................... 3
IV.
Decision by Court of Criminal Appeals ............................................................................. 5
V.
Decision on Whether Live Evidentiary Hearing is Necessary ........................................... 6
VI.
Typical Issues Raised in Writ Applications ....................................................................... 7 a.
Ineffective Assistance of Counsel .......................................................................... 7 Introduction ............................................................................................................ 7 The Legal Standard ................................................................................................. 8 Exceptions to Strickland ......................................................................................... 9 Raising Ineffective Assistance .............................................................................. 10 Burden of Proof .................................................................................................... 11 Conclusion ............................................................................................................ 13 Examples of Ineffectiveness ................................................................................. 14 Examples of “Effectiveness” ................................................................................ 15
b.
Suppression of Exculpatory Evidence .................................................................. 17 Supreme Court Law .............................................................................................. 17 Knowledge of Officers Imputed to Prosecution ................................................... 22 Ongoing Duty to Disclose Exculpatory Evidence ................................................ 22 Court of Criminal Appeals ................................................................................... 23 Jailhouse Snitches ................................................................................................. 24 Defendant Aware of Information ......................................................................... 25 i
Preserving Error .................................................................................................... 25 Work Product Privilege ........................................................................................ 25 Specific Cases ....................................................................................................... 25 Supreme Court Cases ............................................................................................ 26 Texas Cass ............................................................................................................ 28 Federal Cases ........................................................................................................ 30 Timing of Disclosure ............................................................................................ 35 Requesting Exculpatory Evidence ........................................................................ 36 c.
New Evidence Establishing Actual Innocence ..................................................... 36 A.
Introduction: Herrera and Schlup Claims ............................................... 36
B.
Texas Cases .............................................................................................. 38
C.
Summaries of Texas Cases ....................................................................... 41 Relief Granted on Writ of Habeas Corpus, Conviction Overturned on Actual Innocence Grounds ........................................................................ 41 Relief Granted and Remanded for a New Trial ........................................ 46
d.
DNA....................................................................................................................... 47 Exonerated by the Texas Court of Criminal Appeals on Writ of Habeas Corpus ......................................................................................... 47 Pardoned Based on DNA Exoneration ................................................................. 53
e.
New Scientific Evidence ...................................................................................... 54 New Statute Concerning Writs Based on New Scientific Evidence .................... 54
f.
Presentation of False Testimony................................................................................
g.
Involuntary Plea .........................................................................................................
h.
Denial of Counsel ...................................................................................................... ii
i.
Right to Appeal and Discretionary Review ...............................................................
j.
Illegal Sentence..........................................................................................................
k.
Denial of Interpreter ..................................................................................................
iii
APPLICATIONS FOR WRIT OF HABEAS CORPUS I.
General Requirements Art. 11.07 governs writ applications on non-death penalty cases. Art. 11.071 applies to writs
on death penalty cases. In order to obtain relief on an Application for Writ of Habeas Corpus, the following requirements must be met: a.
Non-Death Cases: The Application must seek relief from a felony judgment imposing a penalty other than death. 11.07, Sec. 1. Death Cases: Entitled to competent court appointed counsel. Counsel appointed immediately after conviction. 11.071, Sec. 1. Writ application must be filed within 180 days from appointment of counsel or not later than the 45th day after the date the state’s brief is filed on direct appeal, whichever date is later. May receive one 90 day extension. 11.071, Sec. 4(a) and (b).
b.
The underlying case must be a final conviction (not probation and not on appeal), 11.07, Sec. 3, Ex parte Johnson, 12 S.W.3d 472 (Tex. Crim. App. 2000).
c.
Must raise constitutional or fundamental errors. Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002). Relief not available by way of habeas corpus for violations of procedural statutes. Ex parte McCain, 67 S.W.3d 204 (Tex. Crim. App. 2002).
d.
Must challenge the applicant’s conviction or sentence and not conditions of confinement. Ex parte Reyes, 209 S.W.3d 126 (Tex. Crim. App. 2006); Cannot be used to seek relief from violations of procedural statutes. McCain v. State, 67 S.W.3d 204 (Tex. Crim. App. 2002).
e.
Must allege some form of confinement. “Confinement means confinement for any offense or any collateral consequences resulting from the conviction that is the basis 1
of the instant habeas corpus.” 11.07, Sec. 3(c). Parole is considered restraint that allows habeas writ. Ex parte Elliot, 746 S.W.2d 762 (Tex. Crim. App. 1988). f.
Application must be filed with the District Clerk of the county of conviction. Art. 11.07, Sec. 3(b); 11.071, Sec. 4(a).
g.
An applicant must plead and prove facts which entitle him to relief and must prove his claim by a preponderance of the evidence. Ex parte Rains, 555 S.W.2d 478 (Tex. Crim. App. 1976).
h.
Must use the form prepared by the Court of Criminal Appeals in an 11.07 writ. Must set out clams on the form. Attaching memorandum with claims set out is insufficient. Ex parte Blacklock, 191 S.W.3d 718 (Tex. Crim. App. 2006).
II.
District Court’s Duties a.
State has 15 days after service of Application to file answer. 11.07, Sec. 3(b). On death penalty case, the state has 120 days to file an answer. 11.071, Sec. 7(a).
b.
“Within 20 days of the expiration of time for state to answer, it shall be duty of the convicting court to decide whether there are controverted, previously unresolved facts material to the legality of the applicant’s confinement.” 11.07, Sec. 3(c); 11.071, Sec. 8(a).
c.
“If convicting court decides there are controverted, previously unresolved facts which are material to the legality of the applicant’s confinement, it shall enter an order within 20 days of the expiration of the time allowed for the state to reply, designating the issues to be resolved.” 11.07, Sec. 3(d). 11.071, Sec. 8(a), 9(a). Once this order is entered, the trial court should resolve the issues. McCree v. Hampton, 824 S.W.2d 578 (Tex. Crim. App. 1992). The designation of issues suspends the time limits set 2
out in 11.07. McCree, supra. There is no particular form for this order. It is sufficient if the Court simply states “The Court finds there are controverted, previously unresolved facts material to the legality of applicant’s confinement, i.e., whether he received ineffective assistance of counsel. These issues shall be resolved by affidavits and an evidentiary hearing.” In a death penalty case, there are time limits for the court to hold a hearing and resolve the issues. 11.071, Sec. 9. d.
“To resolve those issues, the court may order affidavits, depositions, interrogatories, additional forensic testing, and hearings, as well as using personal recollection. 11.07, Sec. 3(d); 11.071, Sec. 9(a).
e.
“If convicting court decides there are no such issues, the clerk shall immediately transmit to the Court of Criminal Appeals a copy of the application, any answers filed, and a certificate reciting the date upon which that finding was made. 11.07, Sec. 3(c); in death penalty case if court determines there are no controverted issues, the parties shall file proposed findings on a date not later than 30 days. District court must enter findings within 15 days of the date of filing proposed findings. 11.071, Sec. 8(b) and (c).
f.
District court issues Findings of Fact and Conclusions of Law which are transmitted to the Court of Criminal Appeals. 11.07, Sec. 3(d); 11.071, Sec. 8.
III.
Facts that Bar Relief a.
If issue could have been raised on direct appeal, relief will not be granted on a habeas application. Ex parte Cruzata, 220 S.W.3d 518 (Tex. Crim. App. 2007).
b.
Normally, an application for writ of habeas corpus should not raise matters that have been decided on direct appeal. Ex parte Schuessler, 846 S.W.2d 850 (Tex. Crim. 3
App. 1993). c.
Subsequent Writs. Court cannot consider merits or grant relief if a subsequent writ is filed after final disposition of an initial application challenging the same conviction unless the application contains sufficient specific facts establishing that: 1.
the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application. 11.07, Sec. 4(a)(1). See, Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009) (Due process claim, as asserted in subsequent application for writ of habeas corpus, that murder conviction was based on a foundation of perjury by state’s chief witness was not procedurally barred, where, at time of first application, neither the DNA testing that purportedly established falsity of witness’s testimony nor the statute authorizing a motion by a convicted person for forensic DNA testing was available).
2.
by a preponderance of the evidence, but for a violation of the U. S. Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt. 11.07, Sec. 4(a)(2). See generally, Ex parte Santana, 227 S.W.3d 700 (Tex. Crim. App. 2007).
d.
If ineffective assistance of counsel raised and rejected on direct appeal because record is not adequately developed, it may be relitigated on habeas corpus. Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).
e.
Fourth Amendment violations are generally not cognizable on a writ. In Ex parte 4
Kirby, 492 S.W.2d 579 (Tex. Crim. App. 1973), the court held that the failure to raise the question of sufficiency of an affidavit for a search warrant on direct appeal was tantamount to an abandonment of that claim and would not be considered for the first time on a writ. An applicant can still raise ineffective assistance of counsel based on the failure of the attorney to challenge an illegal search. f.
The Court of Criminal Appeals has ruled that a claim of insufficiency of the evidence cannot be raised on a writ of habeas corpus. Ex parte Easter, 615 S.W.2d 719 (Tex. Crim. App. 1981). This is the type of claim that can be raised on direct appeal. A claim of no evidence can be raised on a writ application. Ex parte Perales, 215 S.W.3d 418 (Tex. Crim. App. 2007).
IV.
Decision By Court of Criminal Appeals a.
Court of Criminal Appeals may grant or deny relief based on findings and conclusions of trial court. 11.07, Sec. 5; 11.071, Sec. 11. The trial court cannot grant or deny relief. Rather, the trial court makes factual findings and recommends to the Court of Criminal Appeals that the application be granted or denied. Ex parte Williams, 561 S.W.2d 1 (Tex. Crim. App. 1978). Trial judge is original factfinder but Court of Criminal Appeals is ultimate factfinder. Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008)
b.
The Court of Criminal Appeals is not bound by the findings, conclusions or recommendations of a trial court. However, because the trial court is in a better position to make determinations of credibility, the Court of Criminal Appeals should defer to those findings if they are supported by the record. Ex parte Thompson, 153 S.W.3d 416 (Tex. Crim. App. 2005); Ex parte Bates, 640 S.W.2d 894, 898 (Tex. 5
Crim. App. 1982); Ex parte Turner, 545 S.W.2d 470, 473 (Tex. Crim. App. 1977). c.
The Court of Criminal Appeals defers to the factual findings of the trial judge even when those findings are based on affidavits rather than live testimony. Manzi v. State, 88 S.W.3d 240 (Tex. Crim. App. 2002).
V.
Decision on Whether Live Evidentiary Hearing is Necessary 11.07 gives the trial court leeway on how evidence is gathered on a writ application. On
some issues, affidavits may be sufficient. However, on issues that involve a judgment concerning credibility, a live evidentiary hearing is preferable. On some occasions, the Court of Criminal Appeals will order the trial court to conduct a live hearing. See, Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006) (Court of Criminal Appeals remanded for a live hearing). A good example of the necessity for a hearing is Ex parte Thompson, 153 S.W.3d 416 (Tex. Crim. App. 2005). In Thompson, the trial court heard testimony from the alleged victim of a sexual assault recanting the testimony she gave as a child. The trial court heard the testimony and concluded that the recantation was credible and the Court of Criminal Appeals deferred to this fact finding. Claims of ineffective assistance of counsel frequently require an evidentiary hearing. Where there is a dispute between the client and attorney over what occurred, the trial court is required to make a credibility determination that can best be made after a live hearing. Gallego v. United States, 174 F.3d 1196 (11th Cir. 1999) is particularly instructive on the question of judging credibility when counsel and the client disagree on factual questions. The issue in Gallego whether the defendant’s counsel rendered ineffective assistance of counsel. In Gallego, the Court stated: It is perfectly legitimate for the district court to find, based on all the evidence in the record, that a defendant’s testimony about his participation in a drug scheme is not credible. The magistrate judge here, however, based the decision on the fact that the defendant’s allegations were unsubstantiated and incorrectly found as a matter of law 6
that defendant could not carry his burden without presenting some evidence in addition to his own word, which is contrary to that of counsel’s. The magistrate says nothing about the internal consistency of the defendant’s testimony, or his candor or demeanor on the stand. Indeed, the magistrate does not even state simply why the defendant’s lawyer is the more credible witness in this case. There is nothing in the report to indicate the magistrate weighed defendant’s credibility. Compare United States v. Camacho, 49 F.3d 349 (11th Cir. 1994) (court made specific findings of fact after an evidentiary hearing regarding defendant’s credibility), cert. denied, 514 U.S. 1090, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995). The fact that defendant’s testimony is uncorroborated is not enough standing alone to support a credibility finding. Counsel’s testimony was also unsubstantiated by other evidence. While we appreciate the concerns enunciated in Underwood, we cannot adopt a per se “credit counsel in case of conflict rule,” which allows that in any case where the issues comes down to the “bare bones testimony” of the defendant against the contradictory testimony of counsel, defendant is going to lose every time. We therefore remand for a new evidentiary hearing. Id. at 1198-99. VI.
Typical Issues Raised in Writ Applications The most common issues raised in writ applications are ineffective assistance of
counsel, suppression of exculpatory evidence, false testimony and new evidence establishing actual innocence. The vast majority of meritorious writs will fall within one of these categories. a.
Ineffective Assistance of Counsel
Introduction The right to be represented by counsel is by far the most important of a defendant’s constitutional rights because it affects the ability of a defendant to assert a myriad of other rights. As Justice Sutherland explained in Powell v. Alabama, 287 U.S. 45, 68-69 (1932): The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with a crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against 7
him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense. Id., at 68-69, 53 S.Ct., at 63-64. The right to the assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Texas Constitution. This right to the assistance of counsel has long been understood to include a “right to the effective assistance of counsel.” See McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970). The integrity of our criminal justice system and the fairness of the adversary criminal process is assured only if an accused is represented by an effective attorney. See United States v. Morrison, 449 U.S. 361, 364 (1981). Absent the effective assistance of counsel, “a serious risk of injustice infects the trial itself.” Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). Thus, a defendant is constitutionally entitled to have effective counsel acting in the role of an advocate. See Anders v. California, 386 U.S. 738, 743 (1967). The Legal Standard The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) established the federal standard for determining whether an attorney rendered reasonably effective assistance of counsel. The Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) adopted the Strickland test as the proper test under state law to gauge the effectiveness of counsel. Pursuant to that test . . . the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 8
Strickland v. Washington, 466 U.S. at 687. The purpose of the Strickland two part test is to judge whether counsel’s conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999) (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992)); Ex parte Scott, 190 S.W.3d 672, 677 n. 3 (Tex. Crim. App. 2006) (reasonable probability of a different outcome means it is sufficient to undermine confidence in the result). The Strickland test applies to appointed and retained counsel alike. See Cuyler v. Sullivan, supra at 344. It also applies to all stages of a criminal trial. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (Strickland applies to claim of deficient attorney performance at noncapital sentencing proceeding). It applies when evaluating an attorney’s performance in connection with a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (prejudice prong of Strickland requires defendant to show that but for counsel’s errors he would not have entered a guilty plea). In assessing deficient performance, courts “must determine whether there is a gap between what counsel actually did and what a reasonable attorney would have done under the circumstances.” Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en banc). Defense counsel must investigate the case or make a reasonable decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 690-691; Wiggins v. Smith, 539 U.S. 510, 521-22 (2003). See McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). In Ex parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App. 1983), the court stated: It is fundamental that an attorney must have a firm command of the facts of the case as well as the law before he can render reasonably effective assistance of counsel. . . . A natural consequence of this notion is that counsel also has a responsibility to seek out and interview 9
potential witnesses and failure to do so is to be ineffective, if not incompetent, where the result is that any viable defense available to the accused is not advanced. It has been held that, even if an attorney’s manner of conducting a trial was trial strategy, it can be so ill-chosen as to render a trial fundamentally unfair. United States v. Rusmisel, 716 F.2d 301, 310 (5th Cir. 1983). Any trial “strategy” that flows “from lack of diligence in preparation and investigation is not protected by the presumption in favor of counsel.” Kenley v. Armontrout, 937 F.2d 1198, 1304 (8th Cir.), cert. denied, 502 U.S. 964 (1991); Ex parte Amezquita, 223 S.W.3d 363, 367-68 (Tex. Crim. App. 2006) (failure to investigate evidence that someone else committed the crime); Wiggins v. Smith, 539 U.S. 510, 521 (2003) (failure to conduct reasonable investigation is ineffective assistance); Ex parte Briggs, 187 S.W.3d 458, 467-69 (Tex. Crim. App. 2005) (attorney ineffective for failure to investigate medical evidence).
Moreover, the courts have
repeatedly found that the failure to make proper evidentiary objections because of a misunderstanding or ignorance of the rules satisfies the first prong of the Strickland test. United States v. Williams, 358 F.3d 956, 964-65 (D.C. Cir. 2004); Gochicoa v. Johnson, 118 F.3d 440, 447 (5th Cir. 1997); Westley v. Johnson, 83 F.3d 714, 723 (5th Cir. 1996); Crockett v. McCotter, 796 F.2d 787, 792 (5th Cir. 1986). No professional norms justify an inadequately researched objection. See Wiggins v. Smith, 539 U.S. 510, 526 (2003) (finding counsel's conduct unreasonable when it "resulted from inattention, not reasoned strategic judgment"). In Baldwin v. State, 668 S.W.2d 762, 764 (Tex. App. - Houston [14th Dist.] 1984, no pet.), the court found ineffective assistance of counsel when the attorney permitted the eliciting of inadmissible and incriminating hearsay. The court in Lyons v. McCotter, 770 F.2d 529 (5th Cir. 1985), held that passing over admission of prejudicial and arguably inadmissible evidence may be a strategic decision by trial counsel, while passing over admission of prejudicial and clearly inadmissible evidence has no strategic value and may constitute ineffective assistance. Also, in Strickland v. State, 747 S.W.2d 10
59, 60-61 (Tex. App. - Texarkana 1988, no pet.), the court found ineffective assistance for counsel’s failure to object to four inadmissible extraneous offenses. See also Mares v. State, 52 S.W.3d 886 (Tex. App. - San Antonio 2001, pet. ref’d) (holding failure to make objection in this case cannot be considered reasonable trial strategy); Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999); Proffitt v. Waldron, 831 F.2d 1245, 1248 (5th Cir. 1987) (holding tactical decisions that give no advantage to a defendant are not reasonable and the court will not engage in presumption of reasonableness under these circumstances); Welborn v. State, 785 S.W.2d 391, 396 (Tex. Crim. App. 1990) (failure to object to inadmissible evidence). Although counsel's effectiveness is normally judged by the totality of the representation, a single egregious error can constitute ineffective assistance of counsel.
Ex parte Felton, 815
S.W.2d 733, 736 (Tex. Crim. App. 1991); Ex parte Raborn, 658 S.W.2d 602, 605 (Tex. Crim. App. 1983). A single error of counsel may support a claim of ineffective assistance if the error was of such magnitude that it rendered the trial fundamentally unfair. See Ex parte Varelas, 45 S.W.3d 627, 630 (Tex. Crim. App. 2001) (failure to request limiting instruction and an instruction that extraneous offense must be proven beyond a reasonable doubt is ineffective); Nelson v. Estelle, 642 F.2d 903, 907 (5th Cir. 1981); Tress v. Maggio, 731 F.2d 288, 292-94 (5th Cir. 1984) (failure to seek severance); Summit v. Blackburn, 795 F.2d 1237, 1244-45 (5th Cir. 1986) (failure to object to proving corpus delicti solely by defendant’s confession); Ex parte Zepeda, 819 S.W.2d 874, 886-87 (Tex. Crim. App. 1991) (failure to request accomplice witness instruction); Cooke v. State, 735 S.W.2d 928, 930 (Tex. App. - Houston [14th Dist.] 1987, pet. ref’d) (failure to object to tainted identification after illegal arrest and to proffer of bolstering testimony when entire strategy was mistaken identity); Sanders v. State, 715 S.W.2d 771, 776 (Tex. App. - Tyler 1986, no pet.) (failure to raise involuntariness of confession). Therefore, if counsel intended to object, but simply failed to
11
do so because of the lack of awareness of the legal requirements for a proper objection or proffer, his deficiency prejudiced the defense and requires relief. Ineffective Assistance on Appeal Strickland also applies to an attorney’s performance in handling an appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985) (due process requires that defendant have effective assistance of counsel on his first appeal); Ex parte Flores, 387 S.W.3d 626, 639 (Tex. Crim. App. 2012) (to obtain new appeal based on ineffective assistance applicant must show that 1) counsel's decision not to raise a particular issue was objectively unreasonable and 2) there is a reasonable probability that, but for counsel's failure to raise that issue, he would have prevailed on appeal). Although appellate counsel is not required to raise every non-frivolous claim and may be selective in inclusion of issues in order to maximize success, counsel has an obligation to raise determinative issues. See Smith v. Robbins, 528 U.S. 259, 287-88 (2000). In this regard, several federal circuits have held that appellate counsel is ineffective if counsel fails to raise a claim that qualifies as a “dead bang” winner. See Upchurch v. Bruce, 333 F.3d 1158, 1163-64 (10th Cir. 2003); Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003); Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir. 1991). These note that the failure to raise a substantial claim can be indicative only of oversight or ineptitude. See Fagan, 942 F.2d at 1157. See also Evans v. Clarke, 680 F. Supp. 1351, 1359-60 (D. Neb. 1985) (denial of effective assistance of appellate counsel warranted habeas relief where claims not presented on direct appeal had at least arguable merit and counsel affirmatively argued against client’s case). In Stallings v. United States, 536 F.3d 624, 627 (7th Cir. 2008), the court stated that where a petitioner alleges ineffective assistance of appellate counsel the appellate court first examines the record to see whether counsel omitted significant and obvious issues and, if so, the court then compares the neglected issues to those actually raised. If the ignored issues are clearly stronger than 12
those raised, appellate counsel was deficient. See also Passmore v. Estelle, 594 F.2d 115, 118 (5th Cir. 1979) (finding appellate counsel ineffective). Ineffective Assistance on Motion for New Trial The right to effective assistance of counsel applies at the motion for new trial. Cooks v. State, 240 S.W.3d 906, 908 (Tex. Crim. App. 2007). In Griffith v. State, 507 S.W.3d 720, 721-22 (Tex. Crim. App. 2016), Judge Hervey concurring, the following was stated concerning ineffectiveness on a motion for new trial: To prove harm, the defendant must present at least one "facially plausible" claim to the court of appeals that could have been argued in a motion for new trial but was not due to ineffective assistance of counsel. Cooks, 240 S.W.3d at 912; Bearman v. State, 425 S.W.3d 328 (Tex. App. - Houston [1st Dist.] 2010, no pet.) (abating the appeal for the appellant to file an out-oftime motion for new trial because he presented a "facially plausible" claim that trial counsel was ineffective). To make a "facially plausible" claim, a defendant is not required to marshal all evidence germane to potential ineffective-assistance-of-counsel claims, but he has to do more than just listing things trial counsel may have possibly done (or not done) that could possibly constitute ineffective assistance of counsel. See Cooks, 240 S.W.3d at 911-12. In Rogers v. State, No. 14-09-00665-CR, 2011 WL 7290492,at *4 (Tex. App. - Houston [14th Dist.] 2011, no pet.) (not designated for publication), the court discussed the meaning of a facially plausible claim. The state had argued that the record demonstrated that the defendant would not prevail at a hearing on the motion for new trial. The Rogers court responded as follows: Further, the State has cited no authority for the argument that we should consider record evidence in determining whether a claim is "facially plausible." To the contrary, courts seem to resolve this issue by looking to the allegations alone without considering any contradictory record evidence. See State v. Webb, 244 S.W.3d 543, 549 (Tex. App. - Houston [1st Dist.] 2007, no pet.) (defense counsel was deficient in failing to assert as a ground for new trial the illegality of defendant's plea agreement); Barnett v. State, 338 S.W.3d 680, 685 (Tex. App. - Texarkana 2011) (motion for new trial was facially sufficient to warrant a hearing to determine if failure to subpoena witness or offer mitigating evidence constituted ineffective assistance); Monakino v. State, 535 13
S.W.3d 559, 566-67 (Tex. App. - Houston [1st Dist.] 2016, no pet.) (defendant entitled to file out of time motion for new trial since he specifically listed several issues he would raise in a motion for new trial). Exceptions to Strickland These are some errors that “are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified” thus making it unnecessary to establish the prejudice prong of Strickland. United States v. Cronic, 466 U.S. 648, 658 (1984). Prejudice is presumed in situations where the likelihood of counsel having provided effective assistance is extremely small such as where counsel failed completely to subject the prosecution’s case to “meaningful adversarial testing.” Id. at 660 (citing in illustration Powell v. Alabama, 287 U.S. 45 (1932)). According to the Court of Criminal Appeals, it is unnecessary for a defendant to meet the prejudice requirement of Strickland if he was actually or constructively denied the assistance of counsel altogether, if counsel was prevented from assisting the accused at a critical stage of the proceedings because of some type of state interference, or if counsel was burdened by an actual conflict of interest which adversely affected counsel’s performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999); Cannon v. State, 252 S.W.3d 342, 349 (Tex Crim. App. 2008) (reversal for ineffective assistance where counsel declined to perform basic defense functions). “Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.” United States v. Cronic, supra at 659 n. 26. In other words, in order for the presumption of prejudice to apply, the attorney must completely fail to challenge the prosecution’s entire case, not just elements of it. Haynes v. Cain, 298 F.3d 375, 380-382 (5th Cir. 2002); also see Bell v. Cone, 535 U.S. 685, 697 (2002) (noting that difference between situations addressed by Strickland and Cronic is “not of degree but of kind”). 14
Raising Ineffective Assistance Rule 33.1(a) of the Texas Rules of Appellate Procedure generally requires that a complaint be presented to the trial court “by a timely request, objection, or motion” as a prerequisite to raising the complaint on direct appeal. TEX. R. APP. P. 33.1(a). There are, however, many practical difficulties with requiring a defendant to raise the issue of ineffective assistance of counsel at the time of trial or even in a motion for new trial. See Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000). The biggest difficulty is that there is generally no real opportunity to adequately develop the record for appeal at this time. Id. This creates a usually insurmountable hurdle to raising an ineffective assistance claim on direct appeal. “Rarely will a reviewing court be provided with the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the [ineffective assistance] claim . . .” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Rylander v. State, 101 S.W.3d 107, 109 (Tex. Crim. App. 2003) (issue not decided on direct appeal because defense counsel should explain actions). Thus, for most ineffective assistance claims, a writ of habeas corpus is the preferred method for raising the issue. Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). For a multitude of reasons, ineffective assistance claims are excepted from the general rule of error preservation set forth in Rule 33.1(a) and may be raised in an application for a writ of habeas corpus even if not raised first in the trial court. Robinson v. State, supra at 812-13; Massaro v. United States, 538 U.S. 500 (2003) (ineffective assistance of counsel should be raised in collateral proceeding). This is not to say that an ineffective assistance claim may not be raised in the trial court or on direct appeal. It can in some circumstances. For example, such a claim may be raised in a motion for new trial. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). The difficulty in attempting this, however, is the short time frame in which evidence must be gathered to support the claim and the fact that the trial transcript is usually not available within the time period for filing a 15
motion for new trial. In Ex parte Garcia, 486 S.W.3d 565 (Tex. Crim. App. 2016), various members of the court discussed the problems with indigent pro se defendants pursuing ineffective assistance claims. Judge Alcala has suggested counsel be appointed in these cases, but the court has not followed her suggestion. Burden of Proof The burden of proving ineffective assistance of counsel rests on the convicted defendant by a preponderance of the evidence. Haynes v. State, 790 S.W.2d 824, 827 (Tex. Crim. App. 1990). In order to determine whether the defendant has met this burden, the reviewing court looks to the totality of the representation and the particular circumstances of the case in evaluating the reasonableness of an attorney’s conduct. See Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). The review conducted of defense counsel’s representation is “highly deferential and presumes that counsel’s actions fell within a wide range of reasonable assistance.” Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (citing Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)). It is the defendant’s burden to overcome this presumption by proving his ineffective assistance of counsel claim by a preponderance of the evidence. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); see also, United States v. Cronic, supra at 658 (the burden rests on the accused to demonstrate a constitutional violation). The Court of Criminal Appeals emphasized in Thompson v. State, supra that a claim of ineffective assistance of counsel must be supported by a record containing direct evidence as to why counsel took the actions or made the omissions relied upon as the basis for the claim. Id. at 813-14.; accord, Busby v. State, 990 S.W.2d 263, 268-69 (Tex. Crim. App. 1999) (ordinarily the strong presumption that an attorney’s decisions were acceptable trial strategy cannot be overcome without evidence in the record as to the attorney’s reasons for the decisions). However, in Ex parte 16
Bowman, 533 S.W.3d 337, 350-351 (Tex. Crim. App. 2017), even though the applicant obtained testimony from the defense lawyer, the court held that ineffective assistance was not proven based on failure of trial counsel to remember whether he had obtained and reviewed relevant records. While there may be some actions that unquestionably fall outside the spectrum of objectively reasonable trial strategy, generally, the Court of Criminal Appeals requires a defendant to offer evidence from his attorney explaining his actions in order to overcome the presumption that counsel acted pursuant to a reasonable trial strategy. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (court will not conclude challenged conduct constituted deficient performance unless conduct was so outrageous that no competent attorney would have engaged in it), but see Menefee v. State, 175 S.W.3d 500 (Tex. App. - Beaumont 2005, no pet.) (ineffectiveness found on direct appeal because no possible trial strategy in allowing defendant to plead true to invalid enhancement paragraph). In Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002), the court stated, “Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. His counsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent.” See also Thompson v. State, supra at 816 (Meyers, J., dissenting) (inconceivable that defense counsel could have had a reason for failing to object to certain hearsay that would fall within the range of objectively reasonable trial strategy). The most common reason counsel’s conduct is found insufficient to obtain relief is a finding that counsel had a trial strategy reason for his actions. It should be kept in mind, however, that simply labeling an attorney’s actions “trial strategy” does not insulate the attorney from a finding of ineffective assistance of counsel. An attorney’s strategy can be so ill-chosen as to render a trial fundamentally unfair. See United States v. Rusmisel, 716 F.2d 301, 310 (5th Cir. 1983). As
17
the Supreme Court explained in Strickland, strategy decisions should be judged by an objective standard of reasonableness. Strickland v. Washington, supra, 466 U.S. 687-88 (emphasis added). Once a convicted defendant establishes that his attorney’s actions were objectively unreasonable, he must still prove that he was prejudiced by his attorney’s actions. To establish prejudice, he “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. at 694. The focus of the prejudice component is whether counsel’s deficient performance renders the result of the trial unreliable or fundamentally unfair. Id. at 687. It is not enough to argue that the attorney’s errors had some conceivable effect on the outcome of the proceeding, rather the convicted defendant must establish a “reasonable probability” of actual prejudice. Id. at 693. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694; Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009). While a convicted defendant must establish actual prejudice from his attorney’s conduct, the State cannot avoid the consequences of a finding of ineffective assistance by arguing that the prejudice is de minimus. For example, any amount of additional time in prison constitutes prejudice. Glover v. United States, 531 U.S. 198, 203 (2001). Additional Thoughts In Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005), the court stated, “To the uninitiated, the sheer number of allegations of ineffective assistance of counsel made against this nation’s criminal defense lawyers might well lead one to the conclusion that our law schools are entirely incapable of producing competent defense lawyers. A March 18, 2005, Westlaw search of federal and state decisions addressing ineffective assistance of counsel claims during the past fifteen months alone totals 9,467 cases (http://web2.westlaw.com/search/all cases & query “ineffective assistance of counsel” & date after 12/31/2003). According to Westlaw, 734 criminal 18
cases in Texas appellate courts discussed claims of ineffective assistance of counsel during that same period.
That number, however, does not include the hundreds, perhaps thousands, of
ineffective assistance claims filed in post-conviction habeas applications with this court every year for which we do not write a published opinion. But these ineffective assistance claims are easy to make, and it may be a natural reaction for a criminal defendant to blame his lawyer when he is found guilty of a crime. As the Supreme Court pointedly noted in Strickland, ‘the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system.
The purpose is simply to ensure that criminal
defendants receive a fair trial.’ 466 U.S. at 689.” Nevertheless, the State often argues in response to ineffective assistance of counsel claims that the attorney was effective because, in effect, he was there. The presence of an attorney, however, even one who asks a few questions and makes some sort of argument on the defendant’s behalf, is not what the Supreme Court had in mind in Strickland. There the Court said: That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversary system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair. Strickland v. Washington, supra, 466 U.S. at 685. Examples of Ineffectiveness Expert Witnesses Ex parte Overton, 444 S.W.3d 632 (Tex. Crim. App. 2014) Ineffective assistance of counsel established by failure to present testimony of expert physician that refuted state’s case. Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) 19
Attorney ineffective for failure to thoroughly investigate medical evidence before advising client to plead guilty to injury to a child. Ex parte Ard, 2009 WL 618982 (Tex. Crim. App. 2009) Attorney’s failure to adequately present expert testimony to jury. Rylander v. State, 75 S.W.3d 119 (Tex. App. - San Antonio 2002, pet. granted) Attorney’s failure to present qualified medical testimony in support of defendant’s only viable defense when combined with other trial errors undermines confidence in outcome of the trial and amounts to ineffective assistance. Ex parte Clement-Cook, 2017 WL 3379960 (Tex. Crim. App. 2017) Ineffective assistance for failure to consult with medical expert on aggravated assault case. Hinton v. Alabama, 134 S.Ct. 1081 (2014) Defense counsel’s failure to request funds for additional experts was ineffective. Ex parte Napper, 322 S.W.3d 202 (Tex. Crim. App. 2010) Counsel’s failure to consult DNA expert is deficient conduct but harm not shown. Buck v. Davis, 137 S.Ct. 759 (2017) Counsel ineffective for calling expert witness at sentencing phase of capital murder trial who testified that being black created an increased probability of future dangerousness. Wright v. State, 223 S.W.3d 36 (Tex. App. - Houston [14th Dist.] 2016), pet. ref’d Ineffective assistance based on counsel’s failure to consult with an expert concerning sexual abuse and proper methods for interviewing children. Sessums v. State, 129 S.W.3d 242 (Tex. App. - Texarkana 2004), pet. ref’d Failure of counsel to object to expert testimony regarding the factors for determining the alleged victim’s truthfulness. Draughon v. Dretke, 427 F.3d 286 (5th Cir. 2005) Failure to obtain forensic examination of path of bullet was ineffective. Failure to Investigate Ex parte Amezquita, 223 S.W.3d 363 (Tex. Crim. App. 2006) Attorney’s failure to investigate information that someone else committed the crime. Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986) Attorney’s failure to investigate evidence that someone other than defendant was the robber was ineffective. State v. Thomas, 768 S.W.2d 335, 336 (Tex. App. - Houston [14th Dist.] 1989, no pet.) Counsel’s failure to interview and call witnesses was ineffective. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990) 20
Defense counsel’s failure to interview witnesses constitutes ineffective assistance. Melton v. State, 987 S.W.2d 72 (Tex. App. - Dallas 1998, no pet.) Attorney found ineffective for failing to investigate facts of robbery case, telling his client that a videotape existed of him committing the offense when no such tape existed, thereby causing defendant to plead guilty to robbery even though he had no memory of committing the offense because he suffered from alcoholic blackouts. Wiggins v. Smith, 539 U.S. 510 (2003) Failure to fully investigate petitioner’s life for mitigating evidence is ineffective assistance. Richards v. Quarterman, 566 F.3d 553 (5th Cir. 2009) Ineffective assistance based on failure to conduct adequate pre-trial investigation. Decision by counsel cannot be said to be reasonable or strategic absent a thorough investigation. Ignorance of the Law Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998) Defense counsel’s misunderstanding of the law on probation constituted ineffective assistance. Ex parte Lewis, 537 S.W.3d 917 (Tex. Crim. App. 2017) Ineffective assistance based on lack of knowledge of law on controlled substance charge. Ex parte Kolhoff, 2020 WL 241620 (Tex. Crim. App. 2020) Trial counsel ineffective based on failure to realize that client was not required to register as a sex offender and advising him to plead guilty to failure to register. Failure to Present Evidence Ex parte Gonzales, 204 S.W.3d 391 (Tex. Crim. App. 2006) Attorney’s failure to investigate and present mitigating evidence in capital murder case of defendant being abused as a child. Butler v. State, 716 S.W.2d 48 (Tex. Crim. App. 1986) Failure to interview and present alibi witnesses is ineffective assistance. Smith v. Dretke, 417 F.3d 438 (5th Cir. 2005) Defense counsel deficient for not calling witnesses to testify as to alleged victim’s character for violence. Tenny v. Dretke, 416 F.3d 404 (5th Cir. 2005) Ineffective assistance for failure to adequately investigate and present evidence of self defense. Davis v. State, 413 S.W.3d 816 (Tex. App. - Austin 2013, pet. ref’d) Trial counsel’s failure to present evidence of alternative perpetrator was ineffective assistance in murder case. 21
McCoy v. Louisiana, 138 S.Ct. 1500 (2018) Supreme Court holding that it was ineffective assistance for counsel to admit defendant’s guilt as part of strategy to mitigate punishment. Structural error with no requirement to show prejudice. Kimmelman v. Morrison, 477 U.S. 365, 385 (1986) Counsel’s failure to conduct any pretrial discovery and file timely suppression motion was prejudicial because counsel was ignorant of the law and acting below professional norms. Failure to Object to Inadmissible Evidence Perkins v. State, 812 S.W.2d 326, 329 (Tex. Crim. App. 1991) Failure to object to arrest outside officer’s jurisdiction is ineffective. Alvarado v. State, 775 S.W.2d 851, 857 (Tex. App. - San Antonio 1989, pet. ref’d) Failure to object to inadmissible hearsay is ineffective. Fuller v. State, 224 S.W.3d 823 (Tex. App. - Texarkana 2007, no pet.) Defense counsel’s failure to object to opinion testimony that victim was credible and a truthful person is ineffective. Davis v. State, 413 S.W.3d 816 (Tex. App. - Austin 2013, pet. ref’d.) Trial counsel’s failure to object to defendant’s former girlfriend’s testimony about her abusive relationship with defendant was ineffective. Presenting Evidence Harmful to Defense Ex parte Walker, 777 S.W.2d 427, 431 (Tex. Crim. App. 1989) Eliciting testimony about extraneous offenses during cross-examination of police officer. White v. Thaler, 610 F.3d 890 (5th Cir. 2010) Opening door to cross examination of defendant regarding his post-arrest silence is ineffective. Impeachment of Witnesses Ex parte Saenz, 491 S.W.3d 819 (Tex. Crim. App. 2016) Trial counsel's failure to impeach witness with his inconsistent statements, made when he told police that he saw shooter's face but could not make it out, constituted deficient performance. Beltran v. Cockrell, 294 F.3d 730 (5th Cir. 2002) Ineffective assistance based on failure of defense counsel to impeach eyewitness testimony that defendant was only person whom they had picked from photo lineup with their prior, tentative identification of someone else. Misstatement of Law 22
Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005) Failure to correct prosecutor’s misstatement of law regarding whether defendant’s sentences could be cumulated, leaving jury with false impression that defendant could serve no more than 20 years when, in fact, the defendant could have received a sentence as long as 80 years was ineffective. Jury Instructions Ex parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001) Defense counsel’s failure to request limiting instructions with respect to extraneous acts evidence offered during guilt phase of capital murder prosecution, and to request that jury be required to find defendant committed the extraneous acts beyond a reasonable doubt before using them in assessing guilt amounted to ineffective assistance of counsel, where counsel stated by affidavit that his failure to request such instructions was an oversight and was not product of trial strategy; where defendant’s pattern of abusing victim was essential to state’s case, and trial court would have been required to give instructions if requested. Ex parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991) Counsel ineffective in failing to object to indictment and charge both of which were based on invalid felony murder theory. Banks v. State, 819 S.W.2d 676 (Tex. App. - San Antonio 1991), pet. ref’d Defense counsel ineffective for failure to object to erroneous jury instruction that defendant was guilty of injury to a child if he intentionally and knowingly engaged in conduct, which law clearly established that injury to a child required proof that defendant intended result. Waddell v. State, 918 S.W.2d 91 (Tex. App. - Austin 1996) Defense counsel’s failure to request lesser included offense instruction on criminal trespass in a prosecution for burglary of a building constituted ineffective assistance of counsel. Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992) Finding defense counsel ineffective because failure to request instruction on necessity. Ex parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991) Counsel ineffective in failing to request accomplice witness instruction in case based entirely on accomplice witness testimony. Failure to File Application for Probation Ex parte Welch, 981 S.W.2d 183 (Tex. Crim. App. 1998) Counsel ineffective for failing to file application for probation for defendant who was eligible for probation. Evidence and Witness Issues Ex parte Hill, 863 S.W.2d 488 (Tex. Crim. App. 1993) 23
Ineffective assistance found where defense counsel called alibi witnesses who had pleaded guilty to same offense two days earlier and thus “los[t] the case for his client.” Ex parte Bryant, 448 S.W.3d 29 (Tex. Crim. App. 2014) Failure to object to evidence of polygraph test administered to witness found to be ineffective. Ex parte Bible, 2017 WL 4675536 (Tex. Crim. App. 2017) Ineffective assistance based on failure to object to introduction of written statement of accomplice witness. Soffar v. Dretke, 368 F.3d 441 (5th Cir. 2004) Ineffective assistance established when counsel did not call witnesses who could have refuted confession. Ex parte Lane, 303 S.W.3d 702 (Tex. Crim. App. 2009) Ineffectiveness based on failure to object during punishment phase to testimony by DEA agent of societal costs of methamphetamine and prosecutors closing argument about “people” bringing in the drugs to “poison” the country’s children. Walker v. State, 195 S.W.3d 250 (Tex. App. - San Antonio 2006, no pet.) Ineffective assistance for failure to object to inadmissible extraneous offense. Garcia v. State, 308 S.W.3d 62 (Tex. App. - San Antonio 2009, no pet.) Ineffective assistance when counsel opened the door to defendant’s prior sex assault by asking him if he had ever sexually assaulted any one or been accused of it. Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006) Trial counsels’ eliciting of testimony from defendant at the guilt phase of trial that he was already incarcerated on two convictions was ineffective. Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim. App. 2012) Failure to object to witness testimony at punishment accusing defendant of uncharged brutal rape even though attorney knew that DNA testing and defendant’s electronic monitoring showed that he could not have committed the crime. Frangias v. State, 392 S.W.3d 642, 655-56 (Tex. Crim. App. 2013) Failure to secure testimony of critical witness. Where key witness was unable to appear at trial due to medical condition, the attorney’s choice to attempt to introduce witness’s testimony over the phone (rather than by deposition) rendered him ineffective. Sleeping Lawyer Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) Counsel ineffective where he periodically slept during the trial. Lawyer Not Participating in Trial 24
Cannon v. State, 252 S.W.3d 342 (Tex. Crim. App. 2008) Counsel ineffective where he failed to participate in trial after motion for continuance was denied. Statute of Limitations Compton v. State, 202 S.W.3d 414 (Tex. App. - Tyler 2006) Counsel ineffective for not objecting that the indictment was barred by statute of limitations. Jury Selection Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006) Counsel’s failure to use challenge to remove biased jurors during voir dire was ineffective assistance because counsel had no rational reason for such action. Venue Brown v. Butler, 811 F.2d 938 (5th Cir. 1987) Failure to advise defendant that he had a venue defense is ineffective. Prior Convictions Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010) Failure of counsel to determine that a prior conviction alleged to enhance misdemenaor DWI to felony did not belong to the defendant. Requesting Interpreter Ex parte Cockrell, 424 S.W.3d 543 (Tex. Crim. App. 2014) Counsel ineffective for failing to request an interpreter for the defendant who was deaf. Failure of State’s Proof Summit v. Blackburn, 795 F.2d 1237, 1244-45 (5th Cir. 1986) Ineffective assistance by failure to object to proving corpus delecti solely by defendant’s confession. Identification Evidence Cooke v. State, 735 S.W.2d 928, 930 (Tex. App. - Houston [14th Dist.] 1987, pet. ref’d) Ineffective assistance by failure to object to tainted identification after illegal arrest and to proffer of bolstering testimony where entire strategy was mistaken identity. Confessions Sanders v. State, 715 S.W.2d 771, 776 (Tex. App. - Tyler 1986, no pet.) Ineffectiveness for failure to challenge voluntariness of confession. 25
Guilty Pleas and Plea Bargaining Lafler v. Cooper, 132 S.Ct. 1376 (2012); Missouri v. Frye, 132 S.Ct. 1399 (2012) Strickland test applies to plea bargaining stage of trial. Deficient advise concerning plea bargain constitutes ineffective assistance. Defendant must show that he would have accepted the offer, the state would not have withdrawn it and the trial court would have accepted it. Ex parte Knelsen, 2017 WL 2462329 (Tex. Crim. App. 2017) Failure of applicant to allege that, but for the ineffective assistance of counsel, she would have pled not guilty and insisted on a trial, insufficient pleading for ineffective assistance claim. Ex parte Lewis, 537 S.W.3d 917 (Tex. Crim. App. 2017) Trial counsel ineffective for failure to advise Applicant of what the state was required to prove on a fraudulent prescription case when the evidence did not show that the state could prove the case, and had applicant received correct information, he would not have pled guilty. Ex parte Kolhoff, 2020 WL 241620 (Tex. Crim. App. 2020) Trial counsel ineffective based on failure to realize that client was not required to register as a sex offender and advising him to plead guilty to failure to register. Ex parte Lemke, 13 S.W.3d 791 (Tex. Crim. App. 2000) Failure to inform client of plea offer is ineffective assistance. Melton v. State, 987 S.W.2d 72 (Tex. App. - Dallas, no pet.) Attorney found ineffective for failing to investigate facts of robbery case, telling client videotape existed showing him committing robbery when no such tape existed, thereby causing him to plead guilty even though he had no memory of committing the offense because of alcohol blackout. Rodriguez v. State, 470 S.W.3d 823 (Tex. Crim. App. 2015) Ineffective assistance of counsel found based on counsel’s advice that defendant decline favorable plea offer. Ex parte Moody, 991 S.W.2d 856 (Tex. Crim. App. 1999) Counsel ineffective for failure to properly advise defendant who was entering guilty plea whether state sentence would run concurrent with his federal sentence. Ex parte Nacoste, WR-86,964-01 and WR,86-964-02, 2017 WL 3166462 (Tex. Crim. App. 2018) Ineffective assistance based on defense counsel failing to advise applicant that the evidence did not support his guilt before advising him to plead guilty. Laboratory report refuted state’s case in drug case. Miller v. State, No. 548 S.W.3d 497 (Tex. Crim. App. 2018) Prejudice established on ineffective assistance of counsel by demonstrating that applicant would have opted for a jury if his attorney had correctly advised him that he was ineligible for 26
probation from the trial court. Applicant does not need to show that the likely outcome of the jury trial would have been more favorable. United States v. Shepherd, 880 F.3d 734 (5th Cir. 2018) Ineffective assistance based on counsel’s failure to fully investigate the means of complying with sex offender registration law before advising client to plead guilty. State v. Diaz-Bonilla, 495 S.W.3d 45 (Tex. App. - Houston [14th Dist.] 2016, pet. ref’d) Failure to advise defendant prior to defendant’s entry of guilty plea that he had a viable legal defense that he did not perform an overt act needed to support his conviction constitutes ineffective assistance. Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013) To establish prejudice on a claim of ineffective assistance in which the defendant is not made aware of a plea bargain offer, or rejects an offer because of bad advice, defendant must show a reasonable probability that he would have accepted earlier offer if he had not been given ineffective assistance, prosecution would not have withdrawn his offer and trial court would not have refused to accept plea bargain. Turner v. State, 49 S.W.3d 461 (Tex. App. - Fort Worth 2001) Failure to inform defendant of deadline for accepting plea offer is ineffective. Randle v. State, 847 S.W.2d 576, 579-580 (Tex. Crim. App. 1993) Failure to communicate defendant’s acceptance of plea offer in a timely manner was ineffective. Hart v. State, 314 S.W.3d 37 (Tex. App. - Texarkana 2010, no pet.) Advising defendant to plead guilty in the hope of receiving probation when the charge to which the defendant pled made him ineligible for probation. Filing Notice of Appeal and Notifying Defendant of Right to File Petition for Discretionary Review Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005) Counsel must inform client of right to file a petition for discretionary review. Ex parte Axel, 757 S.W.3d 369 (Tex. Crim. App. 1988) Failure to file timely notice of appeal is ineffective assistance. Roe v. Flores-Ortega, 528 U.S. 47 (2000) Counsel’s failure to file notice of appeal depriving defendant of appellate proceeding altogether was presumably prejudicial. Punishment Phase Rompilla v. Beard, 545 U.S. 374 (2005) Failure to obtain and review prosecutor’s punishment phase evidence and failure to develop mitigating evidence on capital case is ineffective. 27
Ex parte Medina, 540 S.W.3d 593 (Tex. Crim. App. 2017) New punishment hearing ordered in death penalty case based on counsel’s deficient performance in failing to present any punishment phase case. Ex parte Armstrong, No. WR-78,106-01, 2017 WL 5483404 (Tex. Crim. App. 2017) Ineffective assistance at punishment phase of capital murder case based on failure to present adequate evidence regarding applicant’s mental health at time of offense. Milburn v. State, 15 S.W.3d 267 (Tex. App. - Houston [14th Dist.] 2000, pet. ref’d) Ineffective assistance established for punishment phase when counsel failed to contact 20 potentially favorable character witnesses. Lampkin v. State, 470 S.W.3d 876 (Tex. App. - Texarkana 2015, pet. ref’d) Trial counsel’s failure to investigate defendant’s mental health history to uncover mitigating evidence at penalty phase of trial constituted ineffective assistance. Buck v. Davis, 137 S.Ct. 759 (2017) Counsel ineffective for calling expert witness at sentencing phase of capital murder trial who testified that being black created an increased probability of future dangerousness. Ex parte Lane, 303 S.W.3d 702 (Tex. Crim. App. 2009) Failure to object during punishment phase to testimony by DEA agent on dangers and societal costs caused by methamphetamine was ineffective assistance. Ex parte Rogers, 369 S.W.3d 858 (Tex. Crim. App. 2012) Failure of counsel to discover evidence showing that the defendant was not at the scene of a crime that was used at punishment phase as extraneous offense constitutes ineffective assistance of counsel. Ex parte Austin, 746 S.W.2d 228 (Tex. Crim. App. 1988) Counsel ineffective for advising client he was eligible for shock probation when he was not. Ex parte Walker, 794 S.W.2d 36 (Tex. Crim. App. 1998) Not timely filing election for jury to set punishment is ineffective assistance. Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005) Defense counsel was ineffective for failure to present treating physician’s testimony regarding defendant’s mental and psychological problems during trial. Incorrect Advise on Parole Eligibility Ex parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012) Counsel’s misinformation to defendant as to his parole eligibility constituted deficient performance. Ex parte Hutton, No. WR-87,094-01, 2017 WL 4021197 (Tex. Crim. App. 2017) 28
Ineffective assistance based on erroneous advice regarding parole eligibility. Ex parte Boyken, No. WR-87,091-01, 2017 WL 8573682 (Tex. Crim. App. 2017) Trial counsel deficient by failure to advise applicant that she would not be eligible for parole until she served one half of her sentence. Insanity Defense Ex parte Imoudu, 284 S.W.3d 866 (Tex. Crim. App. 2009) Failure to investigate possibility of an insanity defense. Ex parte Howard, 425 S.W.3d 323 (Tex. Crim. App. 2014) Counsel ineffective for failing to present evidence at punishment phase of insanity caused by voluntary intoxication. Immigration Consequences Padilla v. Kentucky, 559 U.S. 356 (2010) Failure to advise defendant of deportation consequences of conviction is ineffective assistance. Lee v. United States, 137 S.Ct. 1958 (2017) Defendant demonstrates reasonable probability that he would not have pled guilty if he had known that it would lead to mandatory deportation, thus ineffective assistance shown. Ex parte Aguilar, 537 S.W.3d 122 (Tex. Crim. App. 2017) Ineffective assistance based on counsel giving applicant incorrect immigration advice. Ex parte Torres, 483 S.W.3d 35 (Tex. Crim. App. 2016) Deficient performance from counsel in failing to adequately warn defendant that his guilty plea made him subject to automatic deportation. However, defendant failed to establish prejudice because he did not show that he would have rejected the plea bargain and pursued a trial or would otherwise have received a more favorable outcome. Conflict of Interest Ex parte Knelsen, 2017 WL 2462329 (Tex. Crim. App. 2017) On conflict of interest claim must show a viable defensive strategy was not pursued as a result of the alleged conflict of interest. Cuyler v. Sullivan, 446 U.S. 335 (1980) Defendant can demonstrate conflict of interest by showing (1) counsel was actively representing conflicting interests and (2) the conflict had an adverse effect on specific aspects of counsel’s performance. Mickens v. Taylor, 535 U.S. 162, 172-74 (2002) Trial court’s failure to inquire into known potential conflict of interest did not merit reversal because defendant did not show that conflict adversely affected counsel’s performance. 29
Acosta v. State, 233 S.W.3d 349 (Tex. Crim. App. 2007) To show ineffective assistance based on a conflict of interest defendant must show counsel had actual conflict of interest and that the conflict colored his actions during trial. Ex parte McFarland, 163 S.W.3d 743 (Tex. Crim. App. 2005) No actual conflict existed due to defense counsel’s alleged prior representation of defendant’s alleged accomplice. Egregious Conduct By Counsel Ex parte Sanchez, No. WR-84,238-01, 2017 WL 3380147 (Tex. Crim. App. 2017) Ineffective assistance found when defense counsel carried on a coercive sexual relationship with the defendant. Aldrich v. State, 296 S.W.3d 225 (Tex. App. - Fort Worth 2009, pet. ref’d) Defense counsel’s conduct resulted in counsel being held in contempt and was ineffective assistance. Ineffective Assistance Not Proven Ex parte Scott, 541 S.W.3d 104 (Tex. Crim. App. 2017) No ineffective assistance based on not calling an expert to testify that applicant was candidate for rehabilitation program in child pornography case. State v. Gutierrez, 541 S.W.3d 91 (Tex. Crim. App. 2017) No ineffective assistance based on failure to move for a mistrial rather than be tried by 11 jurors. Knowles v. Mirzayance, 129 S.Ct. 1411, 1421 (2009) Counsel reasonably concluded that proposed defense was almost certain to fail so not ineffective in not presenting the defense. Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002) Counsel not ineffective for allowing defendant to wear at start of voir dire a shirt like the one worn by robber. No reasonable probability that the result of the trial would have been different if jury panel had not seen defendant in that shirt. Mathis v. State, 67 S.W.3d 918 (Tex. Crim. App. 2002) Defense counsel’s failure to object to prosecutor’s comments during final argument concerning capital murder defendant’s non-testimonial courtroom demeanor was not ineffective assistance of counsel absent proof defendant was prejudiced by counsel’s conduct. Craig v. State, 82 S.W.3d 541 (Tex. App. - Austin 2002, no pet.) Even if defendant’s attorney did not adequately prepare for trial by failing to interview defendant, complaining witness, and defendant’s original attorney, defendant failed to show 30
how lack of preparation had any negative impact on outcome of trial and thus failed to prove counsel was ineffective. Ramirez v. State, 76 S.W.3d 121 (Tex. App. - Houston [14th Dist.] 2002, pet. ref’d) Trial counsel’s failure to request an instruction on legality of murder defendant’s confession did not constitute ineffective assistance of counsel where record contained no evidence of reasoning behind trial counsel’s actions in failing to request a jury instruction on issue of whether to disregard confession on ground it was obtained in violation of law. Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001) Defendant failed to establish that his counsel’s failure to move to withdraw his guilty plea after he testified at plea hearing that some of his actions were not intentional fell below an objective standard of reasonableness where record was silent as to counsel’s motivation for failing to move to withdraw plea. Ex parte Lozada-Mendoza, 45 S.W.3d 107 (Tex. Crim. App. 2001) Counsel not ineffective for failing to inform defendant of right to file a petition for discretionary review after his case was affirmed on direct appeal when he had informed defendant of such right in his initial appointment letter. Smith v. State, 40 S.W.3d 147 (Tex. App. - Texarkana 2001, no pet.) Counsel not ineffective for failing to object to outcry testimony in child abuse case even though state conceded notice was deficient and untimely when record did not reflect reasons for counsel’s failure to object or show that counsel was surprised by testimony. Nix. v. Whiteside, 475 U.S. 157 (1986) Counsel provided effective assistance by preventing defendant from committing perjury. Blount v. State, 64 S.W.3d 451 (Tex. App. - Texarkana 2001, no pet.) Counsel not ineffective in aggravated sexual assault of child case for eliciting from child’s mother a comment she made before child’s outcry to the effect that “there was a molester in the neighborhood” referring to defendant and in which she said she heard defendant had “did something to somebody else’s kid.” There was a plausible strategic basis for eliciting comment to discredit mother by showing her poor supervision of child by allowing child to have contact with defendant. Ex parte Okere, 56 S.W.3d 846 (Tex. App. - Fort Worth 2001, pet. ref’d) Defendant testified at hearing an application for writ of habeas corpus that he gave attorney names of witnesses and important facts that attorney did not investigate. Defendant did not subpoena attorney to testify at hearing and offered no explanation from attorney about his conduct. Defendant did not overcome presumption that attorney exercised reasonable professional judgment. Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998) Counsel not ineffective for failing to file motion to suppress absent evidence that motion would have been granted had it been filed. 31
Rodriguez v. State, 446 S.W.3d 520 (Tex. App. - San Antonio 2014, no pet.) Failure to object to inadmissible hearsay was strategic decision. McNeil v. State, 452 S.W.3d 408 (Tex. App - Houston [1st Dist.] 2014, pet. ref’d.) Trial counsel’s decision to not request burden of proof instruction and limiting instruction concerning extraneous offenses found to be reasonable trial strategy. Ex parte Torres, 483 S.W.3d 35 (Tex. Crim. App. 2016) Defendant failed to demonstrate that but for counsel’s errors in failing to advise him of mandatory deportation consequences of pleading guilty he would have rejected the plea bargain and gone to trial. Ex parte Hudgins, No. PD-0163-17, 2018 WL 525716 (Tex. Crim. App. 2018) Ineffective assistance not proven when expert testified as to how an assault might cause PTSD but failed to testify as to how this affected applicant. Weaver v. Massachusetts, 137 S.Ct. 1899 (2017) Defendant not prejudiced by counsel’s failure to object to courtroom closure. Rosales v. State, 841 S.W.2d 368, 376-78 (Tex. Crim. App. 1992) Limited use of character witnesses upheld as reasonable tactical choice.
b.
Suppression of Exculpatory Evidence
The failure of prosecutors to reveal exculpatory evidence to defendants and their attorneys is an appropriate ground for an application for writ of habeas corpus. Ex parte Lewis, 587 S.W.2d 697, 701 (Tex. Crim. App. 1979). Supreme Court Law The seminal case concerning exculpatory evidence is Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady was charged with murder and tried separately from his codefendant. At Brady’s trial, he admitted participation in the crime but contended that his codefendant had done the actual killing. Prior to trial, Brady’s counsel requested access to the statements made by the codefendant. He was shown some statements but the prosecution withheld a statement where the codefendant admitted the killing. After Brady’s direct appeal, he gained access to this exculpatory statement and brought a post conviction challenge to his conviction 32
alleging a violation of due process based on the prosecutor withholding this favorable evidence. In Brady, the Supreme Court stated the following: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court further explored the question of suppression of exculpatory evidence and stated that “when the prosecutor receives a specific and relevant request (for exculpatory evidence) the failure to make any response is seldom, if ever, excusable.” The Agurs court also noted that, “if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request is made.” Specifically, the Court in Agurs distinguished three situations in which a Brady claim might arise: first, where previously
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undisclosed evidence revealed that the prosecution introduced trial testimony that it knew or should have known was perjured, 427 U.S. at 103-104, 96 S.Ct. at 2397-2398. In this situation, the Court said that “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” 1 Agurs, 427 U.S. at 103 (see also, United States v. San Filippo, 564 F.2d 176, 178 (5th Cir. 1977) (“due process is violated when the prosecutor although not
1
In Ramirez v. State, 2002 WL 1723751 (Tex. App. - Austin), the Court reversed a case based on the prosecution’s failure to correct false testimony from a State’s witness that she was not looking for money based on being a victim of the crime alleged even though she had hired a lawyer to pursue a lawsuit. The Court in Ramirez summarized the law as follows: “In Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Court acknowledged that since Mooney, it has been clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with ‘the rudimentary demands of justice.’ See Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214 (1942). And in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the Court concluded that the same result obtains when the prosecution, ‘although not soliciting false evidence, allows it to go uncorrected when it appears.’ Id. at 269, 79 S.Ct. 763. When the reliability of a given witness may well be determinative of the guilt or innocence of an accused, nondisclosure of evidence affecting credibility falls within the general rule discussed. Giglio, 405 U.S. at 154, 92 S.Ct. 763. This line of cases has sometimes been referred to as the Mooney-Pyle-Napue line of decisions. See 42 George E. Dix & Robert O. Dawson Texas Practice: Criminal Practice and Procedure §22.51 (2d ed.2002) (hereinafter Dix); see also generally Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Ex parte Castellano, 863 S.W.2d 476 (Tex. Crim. App. 1993); Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989); Davis v. State, 831 S.W.2d 426 (Tex. App. - Austin 1992, no pet.). Although Brady relied upon Mooney, see Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), and there have been suggestions that the Mooney line of cases were incorporated in the later Brady rule, the two lines of decision are distinctive. See United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). It has been stated: Although Brady v. Maryland and its progeny suggest the due process to disclose may have superseded and replaced the prohibition against the use of perjured testimony, this is not the case. The prohibition against the use of perjured testimony remains available to defendants as an alternative to Brady arguments. Mooney contentions are sometimes more attractive to defendants because the criterion for determining the materiality of improperly used perjured testimony is more lenient than that for determining the materiality of improperly suppressed exculpatory evidence under Brady. The difference between the two due process rules is not entirely clear. Some situations will present viable arguments that both were violated. If a defendant is able to establish both that the State knowingly used perjured testimony and that it failed to disclose evidence showing the falsity of the testimony, the defendant is entitled to relief if he or she can show the testimony used is material under the perjured testimony line of decisions and its more relaxed materiality standard. Dix §22.5 (citations omitted)
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soliciting false evidence from a government witness, allows it to stand uncorrected when it appears”); second, where the Government failed to accede to a defense request for disclosure of some specific kind of exculpatory evidence, id. at 104-107, 96 S.Ct. at 2398-2399; and third, where the Government failed to volunteer exculpatory evidence never requested, or requested only in a general way. The Court found a duty on the part of the Government even in this last situation, though only when suppression of the evidence would be “of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Id. at 108, 96 S.Ct. at 2400. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), clarified the standard of review when exculpatory evidence is suppressed. First, the Bagley court rejected a distinction between cases when there was a specific request for exculpatory evidence and no request. Bagley set out a three part test for obtaining relief based on suppression of exculpatory evidence. (1) The prosecution withheld or suppressed evidence. (2) The evidence was favorable to the defense. (3) The evidence was material to either guilt or punishment. See also, Ex parte Kimes, 872 S.W.2d 700, 702-03 (Tex. Crim. App. 1993). Under Bagley the materiality test is met and a new trial required if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. This reasonable probability is defined as “a probability sufficient to undermine confidence in the outcome”. 473 U.S. at 682, 105 S.Ct. at 3383; see also, Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) (Texas has adopted the Bagley test for materiality determinations when exculpatory evidence is suppressed). The Bagley court also held that the prosecution has a duty to disclose evidence that could be used to impeach the prosecution’s witnesses. In Bagley, the prosecution had not disclosed incentives which had been While appellant relies upon both due process rules, we conclude it is necessary to examine only the Mooney-Pyle-Napue line of decisions to reach the proper disposition of appellant’s contention. We review the record to determine if the State ‘used’ the testimony, whether the testimony was ‘false,’ whether the testimony was ‘knowingly used,’ and if these questions are affirmatively answered, whether there is a reasonable likelihood that the false testimony could have affected the judgment of the jury.”
35
offered witnesses contingent on the government’s satisfaction with their testimony. In Bagley, the Court expressed concern with “any adverse effect that the prosecutor’s failure to respond (with exculpatory evidence) might have had on the preparation of the defendant’s case.” 473 U.S. at 683, 105 S.Ct. at 3384. See also, Derden v. McNeel, 938 F.2d 605, 617 (5th Cir. 1991) (a reviewing court may consider any adverse effects the prosecutor’s failure to release information might have had on the defendant’s preparation and presentation of the case). In Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the Court discussed the showing necessary to obtain a new trial when the prosecution withholds exculpatory evidence. Under Kyles, this showing does not require a demonstration that the disclosure of this evidence would have resulted in an acquittal. Rather, as the Court stated, the question is “not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence, he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” 514 U.S. at 434, 115 S.Ct. at 1566. The Kyles court restated the materiality test as a determination as to whether there is a “reasonable probability” that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” The Court emphasized that this was not a sufficiency of the evidence test and did not require a showing that disclosure of the suppressed evidence would have resulted in the defendant’s acquittal. The Court in Kyles found reversible error in the prosecutions suppression of the following evidence in a Louisiana murder case: 1) contemporaneous eyewitness statement taken by the police following the murder that were favorable to Kyles; 2) various inconsistent statements by a police informant who had implicated Kyles and 3) a computer printout of license numbers of car parked at the crime scene on the night of the murder, which did not list Kyles’ car.
36
In Strickler v. Greene, 527 U.S. 263 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court reiterated the standard of review for determining Brady claims. However, Strickler demonstrated the heavy burden the Courts place on defendants to demonstrate prejudice when the prosecution withholds exculpatory evidence. In Strickler, the court found that the prosecution withheld exculpatory evidence but concluded that the defendant did not show prejudice because there was strong evidence in the record that the defendant in that capital murder case would have been convicted and sentenced to death even if the prosecution had revealed the suppressed exculpatory evidence. Specifically in Strickler the prosecutor failed to disclose exculpatory materials in the police files, consisting of notes taken by a detective during interviews with an eyewitness and letters written to the detective by the eyewitness, that cast serious doubt on significant portions of her testimony. However, there was additional strong physical evidence and witness testimony that the court found to provide sufficient support for the conclusion that the defendant would have been convicted and sentenced to death even if the witness had been severely impeached or her testimony excluded entirely. In Wearry v. Cain, 136 S.Ct. 1002 (2016), the court stated that evidence qualifies as material when there is “any reasonable reasonable likelihood” it could have “affected the judgment of the jury.” To prevail on a Brady claim, the applicant need not show that he “more likely than not” would have been acquitted had the new evidence been admitted. He must show only that the new evidence is sufficient to “undermine confidence” in the verdict. In United States v. Ruiz, 122 S.Ct. 2450 (2002), the Supreme Court held that the Constitution does not require the government to disclose material impeachment evidence prior to entering into a plea agreement.
37
Knowledge of Officers Imputed to Prosecution Knowledge of government agents, such as police officers, of exculpatory evidence is imputed to the prosecution. Williams v. Whitley, 940 F.2d 132 (5th Cir. 1991); U. S. v. Auten, 632 F.2d 478 (5th Cir. 1980). Therefore, if a police officer has exculpatory evidence, this is the same as a prosecutor having it, and it must be turned over to the defense. See Kyles, 115 S.Ct. at 1566, (“the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”); United States v. Brooks, 966 F.2d 1500 (D.C. Cir. 1992) (discussing duty of prosecutor to search files of other agencies); O’Rarden v. State, 777 S.W.2d 455 (Tex. App. - Dallas 1989, pet. ref’d) (prosecution team includes investigators); Carey v. Duckworth, 738 F.2d 875 (7th Cir. 1984) (prosecution cannot evade Brady requirements by keeping itself ignorant of information). See also, Jones v. Chicago, 856 F.2d 985 (7th Cir. 1988) (criticizing police for withholding information from prosecutor in order to circumvent Brady rule). In United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), the court held that when the government is confronted with a request by a defendant for the personnel files of testifying officers the government has a duty to examine those files and must disclose information favorable to the defense that meets the materiality standard. The court held that if the government is uncertain about its materiality the evidence should be submitted to the court. Ongoing Duty to Disclose Exculpatory Evidence Additionally, the duty to disclose exculpatory evidence is ongoing and the State must disclose it whenever it is discovered. Flores v. State, 940 S.W.2d 189, 191 (Tex. App. - San Antonio, 1996, no pet.); Pena v. State, 353 S.W.3d 798 (Tex. Crim. App. 2011); Art. 39.14, Tex. Code Crim. Proc. (Michael Morton Act) (requiring state to disclose exculpatory evidence found after trial).
38
Court of Criminal Appeals Texas courts have reversed cases based on the suppression of exculpatory evidence by the prosecution. The Texas courts essentially follow the same reasoning as the Supreme Court in analyzing these cases. In Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992), the defense filed a motion requesting exculpatory evidence. The prosecutor responded in the usual way and said the state had no exculpatory evidence. At the trial, the State’s witnesses testified that they saw the defendant drag the deceased behind an apartment building and shoot him. The State suppressed the following exculpatory evidence: A different witness named Walker was interviewed by the police several days after the shooting and the prosecutor personally interviewed Walker about one month after the shooting. The prosecutor and the prosecutor’s investigator also interviewed Walker in the courtroom the first day of trial. After that interview, Walker disappeared and was not available to testify at trial. In all of his interviews, Walker told the State officials that he arrived at the apartment and went upstairs to watch a movie. When he arrived, he saw the defendant in front of the apartments. While Walker was upstairs, he heard arguing and gunshots in the back of the apartments. He ran downstairs and saw the defendant in the front of the apartments. He said that the defendant could not have gotten from the back of the apartments when the shooting occurred to the front that fast because Walker ran down the stairs in a few seconds, and therefore the defendant did not do the shooting. After trial, the defense learned of this evidence and Walker’s testimony was presented at a motion for new trial. Both the trial court and Court of Appeals refused to order a new trial. However, the Court of Criminal Appeals reversed and held that there was a reasonable probability that the result of the proceeding would have been different with Walker’s testimony. 39
In Ex parte Richardson, 70 S.W.3d 865 (Tex. Crim. App. 2002), the prosecution failed to disclose the existence of a diary kept by a police officer with the Lubbock Police Department that contained substantial information that could have been used to impeach the State’s star witness. This diary was written while the officer was guarding the witness during a period of protective custody. The officer who maintained the diary testified at the post-conviction writ hearing that she kept the diary to protect herself and other officers from false accusations by the witness. The diary contained information about false accusations and statements made by the witness about the officers. At the writ hearing, the officer who wrote the diary as well as five other officers testified the witness was not a truthful person. None of this information had been revealed to the defense. Based on this evidence, the Court of Criminal Appeals found that the three part test for obtaining relief under Brady was met. The Court specifically found that the State failed to disclose the existence of this exculpatory evidence, that the withheld evidence was favorable to the accused and that the evidence was material, that is, that there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Jailhouse Snitches Deals with jailhouse informants are also Brady material. In Napue v. Illinois, 360 U.S. 264 (1959), the court held that when reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of immunity deal violates due process; Lacaze v. Warden, 645 F.3d 728 (5th Cir. 2010) stated “Supreme Court has never limited a Brady violation to cases where the facts demonstrate that the state and the witness have reached a bona fide, enforceable deal.”; see also, Wearry v. Cain, 136 S.Ct. 1002 (2016)(State failed to disclose that, contrary to the prosecution’s assertions at trial, Brown had twice sought a deal to reduce his existing sentence in exchange for testifying against Wearry. The police had told Brown that they would 40
“talk to the D.A. if he told the truth.”); Duggan v. State, 778 S.W.2d 465 (Tex. Crim. App. 1989) held that, Brady applies to agreement “which are merely implied, suggested, insinuated or inferred.” The Duggan court stated: Question is whether there exists “some understanding for leniency.” The court further stated that, “It makes no difference whether the understanding is consummated by a wink, a nod and a handshake, or by a signed and notarized formal document ceremoniously impressed with a wax seal. A deal is a deal.” In recent years, the Texas Court of Criminal Appeals has granted writ relief on several cases based on false testimony from jailhouse informants. See Ex Parte Dennis Lee Allen, No. WR56,666-03, 2018 WL 344332 (Tex. Crim. App. 2018); Ex Parte Stanley Orson Mozee, No. WR57,958-01, 2018 WL 345057 (Tex. Crim. App. 2018); Ex Parte John Nolley, No. WR-46,177-30, 2018 WL 2126318 (Tex. Crim. App. 2018); Ex Parte George Powell, No. WR-80,713-02, 2019 WL 2607170 (Tex. Crim. App. 2019). In these cases, the court recognized the materiality of evidence from jailhouse informants and granted writ relief when it was shown that there informants presented false evidence. It is also noteworthy that, according to the Innocence Project, jailhouse informant testimony is one of the leading contributing factors of wrongful convictions, nationally playing a role in nearly one of five of the 367 DNA-based exoneration cases.
See,
inoncenceproject.org, The Causes of Wrongful Convictions. Defendant Aware of Information The Court of Criminal Appeals has also held that the Brady rule did not apply when the accused was already aware of the information. Hayes v. State, 85 S.W.3d 809 (Tex. Crim. App. 2002); Harvard v. State, 800 S.W.2d 195, 204 (Tex. Crim. App. 1989). Preserving Error
41
If the defendant discovers previously withheld evidence during trial, or close to trial, it is necessary to request a continuance in order to preserve error for appeal. Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982); Williams v. State, 995 S.W.2d 754, 762 (Tex. App. - San Antonio 1999, no pet.); Gutierrez v. State, 85 S.W.2d 446 (Tex. App. - Austin 2002). Work Product Privilege In Ex parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2012), the court stated that the privilege derived from the work-product doctrine is not absolute, and the duty to reveal material exculpatory evidence as dictated by Brady overrides the work-product privilege. Specific Cases Reversals of convictions for suppression of exculpatory evidence arise in a variety of circumstances. A sampling of such cases follows: Supreme Court Cases Smith v. Cain, 132 S.Ct. 627 (2012). Previous statement from eyewitness that he could not identify the perpetrator is exculpatory evidence when eyewitness identifies defendant in court. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972): Government failed to disclose impeachment evidence of a promise of immunity in exchange for testimony. Kyles v. Whitley, supra: State suppressed the following evidence in murder case: contemporaneous eyewitness statements taken by the police which would have undermined the state’s eyewitness testimony, various inconsistent statements made to the police by an informant and a list of cars at the crime scene.
42
Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967): Habeas granted where prosecution knowingly misrepresented paint-stained shorts as blood-stained, and failed to disclose the true nature of the stains. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959): “When reliability of a given witness may well be determinative of guilt or innocence,” nondisclosure of immunity deal with witness violates Due Process. Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987): Defendant entitled to any exculpatory evidence in child welfare agencies files. Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). The failure of the state to disclose that it had rehearsed the testimony of two witnesses used in both the guilt and penalty stage of a capital prosecution, especially when the witnesses denied any prior conversations with the prosecution, together with a false denial that one of the witnesses was an informant who received both money and accommodations from the state, constituted a violation of due process under Brady v. Maryland. In remanding the case for further consideration by a federal court considering habeas relief, the Court emphasized that “materiality” for the purpose of the Brady doctrine does not require a demonstration that, with the undisclosed evidence the defendant would have prevailed, but only a showing of reasonable probability that, with the evidence the outcome would have been different. Youngblood v. West Virginia, 547 U.S. 867, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006). Brady requires the government to disclose evidence which relates to impeachment as well as exculpatory evidence. It also applies to evidence known only to the police and not the prosecutors. In Youngblood, the police evidently knew of a handwritten statement of two alleged victims of a sexual
43
assault which substantially impeached their testimony that their conduct with the petitioner was not consensual. United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). In offering a defendant a “fast track plea bargain,” the government was not obligated, under either the Fifth or Sixth Amendments, to disclose impeachment information relating to informants and witnesses. “Exculpatory evidence includes evidence affecting witness credibility, where the witness’ reliability is likely determinative of guilt or innocence.” However, a unanimous Court found this principle which requires disclosure prior to trial is inapplicable at the plea stage, at least with regard to information which might be useful for impeachment purposes: “It is particularly difficult to characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may or may not help a particular defendant.” Texas Cases Ball v. State, 631 S.W.2d 809 (Tex. App. - Eastland 1982, pet ref’d): Error not to disclose picture of defendant with black eye at time of arrest when self defense claimed. Collins v. State, 642 S.W.2d 80 (Tex. App. - Fort Worth 1982): State did not tell defense material witnesses name or location. Cook v. State, 940 S.W.2d 623 (Tex. Crim. App. 1996): Withheld evidence that the defendant knew victim and had been to her apartment and failed to disclose material inconsistent statements of a key witness to the Grand Jury. Crutcher v. State, 481 S.W.2d 113 (Tex. Crim. App. 1972): Witnesses inconsistent statements.
44
Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989): Crime victims prior inconsistent statement. Ex parte Brandley, 781 S.W.2d 886 (Tex. Crim. App. 1989): Inconsistent statement by witnesses. Ex parte Lewis, 587 S.W.2d 697 (Tex. Crim. App. 1979): Existence of doctors letter stating defendant was insane. Ex parte Turner, 545 S.W.2d 470 (Tex. Crim. App. 1977): Fact that police officer aided in obtaining release of main witness. Flores v. State, 940 S.W.2d 189, 191 (Tex. App. - San Antonio 1996, no pet.): Witness statement that was material in corroborating defendant’s argument that victim shot herself. Granger v. State, 653 S.W.2d 868 (Tex. App. 13 Dist. 1983), aff’d, 683 S.W.2d 387 (Tex. 1984), cert. denied, 472 U.S. 1012 (1985): Failure to disclose existence of a deal that changed witness’s sentence from death to life. Ham v. State, 760 S.W.2d 55 (Tex. App. - Amarillo 1988, no pet.): Prosecution withheld doctors report which supported defense position and refuted prosecution. Jones v. State, 850 S.W.2d 223 (Tex. App. - Fort Worth 1993): Prosecution failed to disclose in a timely manner exculpatory information in a victim impact statement which negated the evidence of defendant’s intent to shoot the victim. O’Rarden v. State, 777 S.W.2d 455 (Tex. App. - Dallas 1989, pet. ref’d): Failure to provide defense copy of Dept. of Human Resources report which indicated no sexual abuse occurred. Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992): Witness statement to police that defendant was not in a physical position to have been able to commit the offense.
45
Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007) (double jeopardy barred a third trial of a defendant whose mistrial motions were necessitated primarily by state’s intentional failure to disclose exculpatory evidence under Brady with the specific intent to avoid the possibility of an acquittal). Harm v. State, 183 S.W.3d 403 (Tex. Crim. App. 2006). Child Protective Services was not acting as a State agent, and thus knowledge of records from CPS that allegedly indicated that, in the past, victim had made unfounded allegations of sexual abuse and had engaged in inappropriate sexual behavior, could not be imputed to State as a basis for asserting that failure to disclose such information constituted a Brady violation in prosecution for indecency with a child; records were created in the course of an non-criminal investigation that was unrelated to defendant, but within the duties of CPS to protect the welfare and safety of the children, and the records significantly predated the allegations against defendant. Keeter v. State, 175 S.W.3d 756 (Tex. Crim. App. 2005). Defendant did not preserve Brady claim for review when he moved for new trial on ground that evidence establishing innocence was withheld by material prosecution witness; the evidence allegedly showing preservation was relevant to claim of actual innocence, the defendant did not mention Brady in his motion or during the hearing on the motion and did not include any Brady-related cases in his post-hearing submission, and neither the state nor the trial court understood that the defendant was raising a Brady claim. Federal Cases Ballinger v. Kirby, 3 F.3d 1371 (10th Cir. 1993): Exculpatory photograph. Banks v. Reynolds, 54 F.3d 1508 (10th Cir. 1995): Fact that another person had been arrested for the same crime.
46
Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976): Prosecutor did not disclose deal with accomplice/witness for leniency. Bowen v. Maynard, 799 F.2d 593 (8th Cir. 1986): Evidence that former police officer was initial suspect in the murder for which defendant was convicted. Brown v. Borg, 951 F.2d 1011 (9th Cir. 1991): Knowledge by prosecutor that her theory of the case was wrong. Carter v. Rafferty, 826 F.2d 1299 (3rd Cir. 1987): Reports of polygraph test given to important prosecution witness, but see Wood v. Bartholomew, 516 U.S. 1, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995) (because polygraphs are inadmissable even for impeachment they are not subject to Brady). Chaney v. Brown, 730 F.2d 1334 (10th Cir. 1984): Conviction affirmed but death sentence reversed where withheld evidence contradicted prosecution’s theory of the murder and placed defendant 110 miles from the scene. Derden v. McNeel, 932 F.2d 605 (5th Cir. 1991): Radio log that would have impeached State’s witnesses. DuBose v. Lefevre, 619 F.2d 973 (2nd Cir. 1980): State’s encouragement to witness to believe that favorable testimony would result in leniency toward the witness. Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996): Information showing police intimidation of witness and failure to disclose evidence regarding who was seen carrying the murder weapon shortly after the shooting. Hudson v. Whitley, 979 F.2d 1058 (5th Cir. 1992): Evidence that the State’s only eyewitness had initially identified someone else, and that person had been arrested.
47
Hughes v. Bowers, 711 F.Supp. 1574 (N. D. Ga. 1989), aff’d, 896 F.2d 558 (11th Cir. 1990): Evidence that the State’s eyewitness to the murder stood to benefit from the life insurance policy of the victim if the defendant was convicted. Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968): Racial misidentification case, where prosecutor failed to reveal prior identification problem. Jacobs v. Singletary, 952 F.2d 1282 (11th Cir. 1992): Failure to disclose statements of witness to polygraph examiner which contradicted trial testimony. Jean v. Rice, 945 F.2d 82 (4th Cir. 1991): State under duty to disclose information concerning hypnosis session that enabled witness to identify the defendant. Jones v. Jago, 575 F.2d 1164 (6th Cir. 1978): State withheld, despite defense request, a statement from coindictee who, prior to trial, had been declared material witness for prosecution, and against whom all charges were then dropped. Lindsey v. King, 769 F.2d 1034 (5th Cir. 1985). Suppression of initial statement of eyewitness to police in which he said he could not identify the murderer because he never saw the murderer’s face. McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1988): Witness’s initial statement that attacker was white when the defendant was black. Miller v. Angliker, 848 F.2d 1312 (2nd Cir. 1988): Evidence which showed that another person committed the crimes with which defendant was charged. Norris v. Slayton, 540 F.2d 1241 (4th Cir. 1976): Failure to furnish to rape defendant’s counsel copy of lab report showing no hair or fiber evidence in defendant’s undershorts or in victim’s bed.
48
Orndorff v. Lockhart, 707 F.Supp. 1062 (E.D. Ark. 1988), aff’d in part, vacated in part, 906 F.2d 1230 (8th Cir. 1990): Failure to disclose that witness’s memory was hypnotically refreshed during pretrial investigation. Ouimette v. Moran, 942 F.2d 1 (lst Cir. 1991): Information about extensive criminal record of State’s witness and the existence of a deal with state’s witness. Reutter v. Solem, 888 F.2d 578 (8th Cir. 1989): Withholding of fact that key witness had applied for commutation and been scheduled to appear before parole board a few days after his testimony. Sellers v. Estelle, 651 F.2d 1074 (5th Cir. 1981): Police reports containing admissions by other persons of involvement in the offense. Simms v. Cupp, 354 F.Supp. 698 (D. Ore. 1972): Suppression of original description by witness which differed from her trial testimony. Spicer v. Roxbury Correctional Institution, 194 F.3d 547 (4th Cir. 1999): Inconsistent statement by government witness as to whether he was really an eyewitness to the crime. Troedel v. Wainwright, 667 F.Supp. 1456 (S.D. Fla. 1986): State failed to disclose instances of codefendant’s propensity for violence when this supported defense theory. United States v. Beasley, 576 F.2d 626 (5th Cir. 1978): Failure of government to timely produce statement of prosecution witness when the statement at issue differed from witness’ trial testimony. United States v. Boyd, 55 F.3d 239 (7th Cir. 1995): Prosecutor failed to reveal to defense drug use by prisoner witnesses during trial and “continuous stream of unlawful” favors prosecution gave those witnesses.
49
United States v. Brumel-Alvarez, 976 F.2d 1235 (9th Cir. 1992): Memorandum by government agent containing information about credibility of informant. United States v. Butler, 567 F.2d 885 (9th Cir. 1978): Government failed to disclose that the witness had been promised a dismissal of the charges against him. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984): Names and addresses of eyewitnesses to offense that State does not intend to call to testify. United States v. Cuffie, 80 F.3d 514 (D.C. Cir. 1996): Evidence that prosecution witness had previously lied under oath in proceeding involving same conspiracy. United States ex. rel. Smith v. Fairman, 769 F.2d 386 (7th Cir. 1985): Police ballistics report showing gun defendant allegedly used to fire at police was inoperable. United States v. Fisher, 106 F.3d 622 (5th Cir. 1991): Government report reflecting on credibility of key government witness. United States v. Foster, 874 F.2d 491 (8th Cir. 1988): Failure by prosecutor to correct false testimony. United States v. Gerard, 491 F.2d 1300 (9th Cir. 1974): Defendants deprived of evidence of promise of leniency by prosecutor, and failure to disclose that witness was in other trouble, thereby giving him even greater incentive to lie. United States v. Herberman, 583 F.2d 222 (5th Cir. 1978): Testimony presented to grand jury that contradicted testimony of government witnesses. United States v. Minsky, 963 F.2d 870 (6th Cir. 1992): Withholding from defense fact that witness lied to Grand Jury.
50
United States v. Pope, 529 F.2d 112 (9th Cir. 1976): Prosecution failed to disclose plea bargain with witness in exchange for testimony and argued to the jury that the witness had no reason to lie. United States v. Sheehan, 442 F.Supp. 1003 (D. Mass. 1977): Only eyewitness to see the robber’s faces unmasked during a bank robbery was not called to testify because he hesitated in his identification of the defendant. United States v. Spagnoulo, 960 F.2d 990 (11th Cir. 1992): Government failed to turn over a psychiatric report which indicated that the defendant may have been able to assert an insanity defense. United States v. Sutton, 542 F.2d 1239 (4th Cir. 1976): Prosecutor withheld evidence that witness was coerced into testifying against defendant. United States v. Udechukwu, 11 F.3d 1101 (lst Cir. 1993): Evidence to support defendant’s theory that she had been coerced into being a drug courier. United States v. Weintraub, 871 F.2d 1257 (5th Cir. 1989): Government withheld statement from a presentence report from witness indicating that the defendant was responsible for much smaller amount of drugs than claimed. Walter v. Lockhart, 763 F.2d 942 (8th Cir. 1985): For over twenty years, the State withheld a transcript of a conversation supporting the defendant’s claim that the officer shot at him first. Tassin v. Cain, 517 F.3d 770 (5th Cir. 2008). State’s failure to disclose in murder trial the understanding or agreement between witness and state, under which witness expected to gain beneficial treatment in sentencing for related crimes provided that she testified at trial consistently with her prior statements inculpating defendant, constituted Fourteenth Amendment violation under
51
Giglio, even though witness had not received a firm promise of leniency from the judge or prosecutor. Mahler v. Kylo, 537 F.3d 494 (5th Cir. 2008). Brady violation based on witness statements not disclosed by prosecution to defendant consisting of pretrial statements contradicting witnesses’ testimony at trial that altercation had ceased and that victim was in process of moving away from defendant’s relative at time that he fired the fatal shot. Graves v. Dretke, 442 F.3d 334 (5th Cir. 2006). Witness’s out-of-court statement that witness’s wife was active participant in charged murders was exculpatory, for purpose of defendant’s claim that state’s suppression of statement violated Brady. Timing of Disclosure The ability to effectively utilize exculpatory evidence is largely dependent on the defendant’s obtaining timely disclosure. In United States v. Hart, 760 F.Supp. 653 (E.D. Mich. 1991), the Court held that it was the court’s responsibility to fix the timing for disclosure of exculpatory evidence. Other courts have issued opinions stating that disclosure must be made in time for effective use at trial. United States v. Higgs, 713 F.2d 39, 44 (3rd Cir. 1983); United States v. Starusko, 729 F.2d 256, 261 (3rd Cir. 1984). Requesting Exculpatory Evidence The prosecution has a duty to reveal exculpatory evidence even without a specific request from the defense and regardless of the good faith or bad faith of the prosecution. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992). c.
New Evidence Establishing Actual Innocence
Federal Due Process 52
A.
Introduction: Herrera and Schlup Claims Assertions of actual innocence are categorized either as Herrera-type claims or Schlup-type
claims. Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). See Elizondo, 947 S.W.2d at 208; Ex Parte Franklin, 72 S.W.3d 671 (Tex.Crim.App. 2002). A Herrera-type claim involves a substantive claim in which the applicant asserts a bare claim of innocence based solely on newly discovered evidence. Schlup, 513 U.S. at 314, 115 S.Ct. 851. See also Elizondo, 947 S.W.2d at 208. A Schlup-type claim, on the other hand, is a procedural claim in which the applicant's claim of innocence does not alone provide a basis for relief but is tied to a showing of constitutional error at trial. Schlup, 513 U.S. at 314, 115 S.Ct. 851. The Herrera decision serves as sound precedent for recognition of habeas relief when an actual innocence claim alone is raised. In Herrera, six members of the Court suggested execution of the innocent was antithetical to our constitutional system. Justice O’Connor, joined by Justice Kennedy, stated that "the execution of a legally and factually innocent person would be a constitutionally intolerable event." 506 U.S. at 420. Justice O’Connor then concluded that the existence of federal relief for such a person need not be addressed in the case before the Court. Id. Justice White stated that "a persuasive showing of actual innocence made after trial . . . would render unconstitutional the execution of the petitioner in this case." Id. at 429. He also declined to finally decide the issue on the record before the Court. Justice Blackmun, joined in dissent by Justices Souter and Stevens, stated that executing an innocent person is the "ultimate arbitrary imposition"
53
and unquestionably violates both the Eighth and Fourteenth Amendments.2 Id. at 437. The Court of Criminal Appeals agreed with the “sound and fundamental principle of jurisprudence” that the execution of an innocent person “would surely constitute a violation of a constitutional or fundamental right.” Holmes v. Honorable Court of Appeals for the Third Dist, 885 S.W.2d 389, 397 (Tex.Crim.App. 1994). In Elizondo, this Court extended its holding, verifying that the Due Process Clause of the Fourteenth Amendment forbids the incarceration of an innocent person. 947 S.W.2d at 204. This principle is essential in a constitutional system. “After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent.” Herrera, 506 U.S. at 399. See United States v. Nobles, 422 U.S. 225, 230, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). Further, in this context, no legally cognizable distinction exists between a prisoner sentenced to death and one sentenced to a term of imprisonment. “It would be a rather strange jurisprudence . . . which held that under our Constitution [the actually innocent] could not be executed, but that he could spend the rest of his life in prison.” Herrera, 506 U.S. at 405. Conceptually, relief for the actually innocent arises under the Due Process Clause of the Fourteenth Amendment. In fact, both procedural and substantive due process demand habeas relief under these circumstances. B.
Texas Cases The actual innocence jurisprudence of the State of Texas has developed primarily in the area
of recantations on sexual assault and indecency with a child cases. DNA exonerations are an
2
Justices Scalia and Thomas, concurring in the judgment of the Court, indicated execution of the innocent would not transgress the Constitution. 506 U.S. at 427-430. The majority of the Court simply assumed violation, without deciding the issue.
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additional area where new evidence establishing actual innocence has resulted in relief being granted based on actual innocence. See, Ex parte Waller, 2008 WL 4356811 (Tex. Crim. App. 2008). Ex Parte Chatman, 2008 WL 217860 (Tex. Crim. App. 2008) (Court of Criminal Appeals held that judgment of conviction would be set aside, where no rational jury would have convicted applicant in light of new DNA evidence indicating that he was excluded from being the perpetrator.) In Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996), the court held that bare claims of actual innocence are cognizable in a habeas hearing. To merit relief, the applicant bears the burden of showing that the newly discovered evidence unquestionably establishes his innocence. The court reviewing the habeas claim must examine the new evidence in light of the evidence presented at trial. In order to grant relief, the reviewing court must believe that no rational juror would have convicted the applicant in light of the newly discovered evidence. In Elizondo, the trial evidence was perfunctory testimony by a 10 year old child that his mother and applicant made him and his younger brother watch sexually explicit videotapes and that both adults sexually molested the boys. Both children recanted 13 years after the trial when they were full-grown adults, saying their natural father “relentlessly manipulated and threatened them into making such allegations against the applicant in order to retaliate against the natural mother.” They denied that any abuse occurred. The trial court found the recantation credible and the Court of Criminal Appeals granted relief. In Ex parte Thompson, 153 S.W.3d 416 (Tex. Crim. App. 2005), the court granted relief based on the recantation by the applicant’s 20 year old daughter of the allegation of sexual assault that was alleged to have occurred when she was 5 years old. In Thompson, Judge Cochran, concurring, stated that courts:
55
“fail in [their] primary duty of protecting the innocent and punishing the guilty if [the courts] intentionally slam the courthouse door against one who is, in fact, innocent of wrongdoing. I believe that if the criminal justice system-even when its procedures were fairly followed-reaches a patently inaccurate result which has caused an innocent person to be wrongly imprisoned for a crime he did not commit, the judicial system has an obligation to set things straight.” See Id. (concurring opinion) at 42123. Other cases where relief was granted have had similar fact patterns. Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002) (defendant’s guilty plea did not bar relief); Ex parte Harmon, 116 S.W.3d 778 (Tex. Crim. App. 2003); Ex Parte Patrick Logan Montgomery, 2009 WL 1165499 (Tex. Crim. App. 2009) (recantation by alleged victims found credible). In Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006), the court stated that establishing a bare claim of actual innocence in a post-conviction application for writ of habeas corpus is a “Herculean” task. In Brown, the court stated that to succeed on a habeas claim of actual innocence based on newly discovered evidence the applicant must show by clear and convincing evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror could have found him guilty in light of the new evidence. This showing must overcome the presumption that the conviction is valid and must unquestionably establish applicant’s innocence. The evidence relied upon must be newly discovered or newly available. In Brown, the court denied relief because the evidence was not newly discovered. The evidence was the same as that attached to the applicant’s motion for new trial two years earlier. In Ex parte Calderon, 309 S.W.3d 64 (Tex. Crim. App. 2010), the court stated that the evidence of innocence must be either newly discovered or newly available. Evidence can be newly available if it was previously known, but was not available for the defendant to use for some reason outside his control.
56
An example of a Schlup actual innocence claim, where the actual innocence is used as a gateway to raise another constitutional violation in a subsequent writ, is Ex Parte Billy Frederick Allen, 2009 WL 282739 (Tex. Crim. App. 2009). In Allen, the defendant, who was convicted of murder, was entitled to a new trial on application for writ of habeas corpus, though he made previous applications for habeas relief that were denied, as defendant asserted Schlup-type actual innocence claim based on newly discovered evidence intertwined with ineffective assistance claim; trial counsel failed to ask for continuance when he was surprised by officer’s testimony that officer heard victim identify defendant as his attacker, counsel failed to raise in motion for new trial newly discovered evidence that ambulance paramedic heard victim tell officer five or six times that attacker had a different middle name than defendant, counsel failed to conduct an investigation that would have revealed that such other person had an actual motive to kill victim, and it was more likely than not that no reasonable juror would have convicted defendant in the light of new evidence. In reviewing a claim of actual innocence based on a recantation, the most important job of the trial court is to assess the credibility of the recantation. If the trial judge hears testimony from the alleged victim who recants her prior testimony and finds it credible, the Court of Criminal Appeals will likely accept that fact finding. Likewise, if the trial court finds the recantation not credible, the Court of Criminal Appeals will almost certainly deny relief. C.
Summaries of Texas Cases
Relief Granted on Writ of Habeas Corpus, Conviction Overturned on Actual Innocence Grounds Ex Parte Blair, 2008 WL 2514174 (Tex. Crim. App. 2008) Michael Nawee Blair was convicted of capital murder of a four-year-old girl in 1994 based on eyewitness misidentification and invalid forensic science. Eyewitnesses told police they had seen
57
Blair at the park where the victim disappeared, though no one said they saw Blair and the victim together. Microscopic hair and fiber comparisons were central to the case. Post conviction DNA results from skin cells found under the victim’s fingernails as well as other DNA evidence discovered on the victim’s clothes excluded Blair. No reasonable juror would have convicted, relief was granted in 2008 and the judgment was set aside. Ex Parte Byars, 176 S.W.3d 841 (Tex. Crim. App. 2005) Barry Sheen Byars was convicted of first degree felony offense of injury to a child. Following conviction and sentencing the complainant recanted and trial court found recantation credible and that by clear and convincing evidence that no reasonable jury would convict in light of newly discovered evidence. Actual innocence claim established and the judgment vacated. Ex Parte Cacy, 2016 WL 6525721 (Tex. Crim. App. 2016) Sonia Cacy was convicted of an arson murder based on a false lab report that claimed there was gasoline on her uncle’s clothing. The state’s expert incorrectly, or falsely interpreted a lab test as showing gasoline on the uncle’s clothing, which was the evidence the state relied on to argue that Cacy doused her uncle in gasoline and set him on fire. Multiple experts later reviewed the evidence and said there was no gasoline on the uncle’s clothes. In fact, the fire was an accident and there was no murder. Ex Parte Calderon, 309 S.W.3d 64 (Tex. Crim. 2010) Domingo Calderon pled no contest to indecency with a child (his sister) at the request of his mother and was sentenced to ten years in prison. His sister later recanted saying that she lied out of fear of her step-father and the court found her recantation credible. In light of newly discovered evidence, habeas corpus was granted on actual innocence and verdict set aside. Ex Parte Chaney, 563 S.W.3d 239 (Tex. Crim. App. 2018)
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Steven Mark Chaney was convicted of murder. He was found actually innocent based on newly discovered evidence, including evolution of the body of science of bitemark comparisons that contradicted the state’s bitemark trial testimony, undisclosed Brady material and postconviction DNA testing of evidence that excluded Chaney as the contributor. Ex Parte Chatman, 2008 WL 217860 (Tex. Crim. App. 2008) Charles Chatman was convicted in Dallas of a 1981 rape after he was misidentified in a photo lineup. He served nearly 27 years before DNA testing proved his innocence in 2007, leading to his release on January 3, 2008. Original testing showed that seminal fluid and sperm cells came from a type O secretor. Upon later Y-STR testing, Chatman was proven not to be a contributor. No rational jury would have convicted, judgment is set aside. Case dismissed by District Attorney. Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) Joe Rene Elizondo was convicted of aggravated sexual assault, based on the main witness’s testimony. The witness later recanted, saying that he gave the false testimony because of manipulation and threats of their natural father and Elizondo filed a writ alleging that newly available evidence shows him to be innocent. There is clear and convincing evidence that no rational jury would convict in light of the new evidence, habeas corpus granted. Ex Parte Evans, 2009 WL 3368699 (Tex. Crim. App. 2009) Jerry Evans was convicted of sexual assault in 1987 when police encouraged the victim to pick Evans out of a photo line-up. Jerry contended that post-conviction DNA testing, which was not available at the time of trial, reflects that he is actually innocent. DNA testing would later prove his innocence and he was exonerated in 2009. Ex Parte Giles, 2007 WL 1776009 (Tex. Crim. App. 2007)
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James Giles was convicted in 1983 for allegedly raping a victim with two other men. He was released on parole in 1993 but continued to pursue legal action to prove his innocence. The Innocence Project began investigating his case in 2000 and DNA evidence proved that Giles was innocent. He was finally exonerated in 2007. Ex Parte Good, 2004 WL 3259016 (Tex. Crim. App. 2004) Donald Wayne Good was convicted in 1984 of committing a 1983 rape and burglary. He was sentenced to life in prison. He was paroled in 1993, but his parole was revoked in 2002 (for a minor property crime); he is still serving a five-year sentence for the property crime. In 2004, DNA testing proved that Good could not have been the man who committed the 1983 crimes, and the Texas Court of Criminal Appeals exonerated him in 2004. Ex Parte Gossett, 2007 WL 841121 (Tex. Crim. App. 2007) Andrew Gossett was convicted of aggravated sexual assault in 2001; rape examination after incident was consistent with forced entry, but forensic DNA analyst could not make determination as to the identity of assailant. In 2007 DNA testing excluded Gossett as a possible contributor to the male DNA and Gossett raised claims of actual innocence. Habeas corpus granted, applicant entitled to relief on actual innocence claim based on newly discovered DNA. Ex Parte Harbin, 297 S.W.3d 283 (Tex. Crim. App. 2009) Phillip Harbin was convicted of child sexual offenses and incarcerated in California. Upon release he moved to Texas and attempted to, but failed to register as a sex offender and was then arrested for failing to report as a sex offender. Relief was granted, Harbin was not required to register for his offenses, failure to register as a sex offender vacated since applicant was actually innocent. Ex Parte Harmon, 116 S.W.3d 778 (Tex. Crim. App. 2003) 60
Ricky Dale Harmon was convicted of aggravated sexual assault based on complainants testimony. Complainant recanted testimony in an affidavit saying that the false testimony was prompted by her natural father’s sister and saying that Harmon never sexually assaulted her. Trial court conducted a hearing and found recantation credible. Writ filed, relief was granted and judgment set aside. Ex Parte Henton, 2006 WL 362331 (Tex. Crim. App. 2006) Eugene Ivory Henton pled guilty and was convicted of a felony offense of sexual assault. Subsequent DNA testing excluded Henton as a possible contributor and he filed a writ claiming actual innocence based on new evidence not available at the time of the trial. Relief was granted, no jury would convict in light of new evidence. Ex Parte Mack, 2006 WL 475777 (Tex. Crim. App. 2006) Norman Ervin Mack plead guilty of possession of a controlled substance thought to be cocaine and was convicted. Lab results later showed that the substance was chlorpromazine and Mack filed a writ of habeas corpus claiming actual innocence. No reasonable juror would convict, relief was granted and the judgment was set aside upon actual innocence. Ex Parte Mallet, 602 S.W.3d 922 (Tex. Crim. App. 2020) Otis Mallet found guilty of possession of drugs based strictly on the testimony of Gerald Goins, a since discredited Houston police officer. Since Goins was found to be unworthy of belief, a conviction based on his testimony was invalid and Mallet was found to be actually innocent. Ex Parte Mayhugh, 512 S.W.3d 285 (Tex. Crim. App. 2016) (San Antonio Four case) Kristine Mayhugh, Elizabeth Ramirez, Cassandra Rivera and Anna Vasquez were found guilty of sexual assault of two young girls. One of the girls, now an adult, recanted the allegation. Also, a child abuse pediatrician who testified that there were signs of sexual abuse on one of the 61
girls recanted her testimony based on new science. Court of Criminal Appeals found all defendants actually innocent Ex Parte McGowan, 2008 WL 2390986 (Tex. Crim. App. 2008) Thomas Clifford McGowan was convicted of aggravated sexual assault and burglary of a habitation in 1987 largely because of eyewitness misidentification. Post-conviction DNA testing and investigation exclude McGowan from being the perpetrator and he contends that he is actually innocent and entitled to relief. Habeas corpus granted based on DNA evidence and actual innocence. Ex Parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2012) Richard Miles was convicted of murder and ultimately found actually innocent by the Court of Criminal Appeals. The newly discovered evidence that supported the actual innocence claim was: an eyewitness, who was the only witness to identify Miles, recanted his identification of Miles as the shooter, two undisclosed police reports identified other possible suspects for the murder, an individual was identified as the source of a previously unidentified fingerprint at the crime scene, and a gunshot residue expert stated that she would find Miles’s test as negative now, rather than positive as she had testified to at trial. Ex Parte Montgomery, 2009 WL 1165499 (Tex. Crim. App. 2009) Patrick Logan Montgomery was convicted of two offenses of indecency with a child based upon complainant’s testimony. Complainants in the cases later provided him with affidavits recanting their trial testimony saying that they were encouraged by their mother and other authoritative persons to falsely testify about abuse which never occurred. The trial judge found no rational jury would have convicted and recantations were credible; relief granted on actual innocence, judgment set aside. Ex Parte Phillips, 2008 WL 4417288 (Tex. Crim. App. 2008)
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In two separate trials, Steven Phillips was convicted of burglary in 1982 and rape in 1983. Phillips began to seek post-conviction DNA testing in 2002, but his requests were initially denied. With the help of the Innocence Project, DNA testing was finally conducted in 2006 and proved that Phillips was actually innocent of the rape. In 2008 Phillips was officially exonerated through a writ of habeas corpus from the Texas Court of Criminal Appeals. Ex Parte Rachell, 2009 WL 81471 (Tex. Crim. App. 2009) Ricardo Rachell was convicted of aggravated sexual assault of a minor based on the victim’s testimony and his friend who were both eight years old. Rachell offered and provided DNA evidence for testing to prove his innocence prior to trial, but it was never tested because the defense did not ask for it. After conviction, DNA testing provided newly discovered evidence and indicated that Rachell did not commit the crime and was entitled to relief. The Texas Court of Criminal Appeals exonerated him in 2009. Ex Parte Rodriguez, 2005 WL 2087750 (Tex. Crim. App. 2005) George Rodriguez was convicted of aggravated sexual assault of a child and aggravated kidnapping in 1987 based on eyewitness misidentification and improper forensic science. Despite the confession of one of the perpetrators and his identifying an accomplice, the police put Rodriguez in a line-up where he was identified by the fourteen-year-old victim. A hair found in the victim’s underwear was said to be microscopically similar to Rodriguez and the testing of semen could not exclude Rodriguez. Mitochondrial testing of the hair would later indicate that Rodriguez could not have been the perpetrator. In 2005 his conviction was vacated and in September 2005 the DA moved to dismiss all charges. Ex Parte Smith, 2006 WL 3691244 (Tex. Crim. App. 2006)
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Billy James Smith was convicted of aggravated rape, during trial motion for forensic DNA testing was filed accompanied by affidavit by Smith stating actual innocence. Court denied motion which was confirmed by court of appeals. Later DNA testing would exclude Smith as a contributor and by clear and convincing evidence no reasonable juror would have convicted. Previous judgment set aside, relief granted in light of favorable DNA results. Ex Parte Thompson, 153 S.W.3d 416 (Tex. Crim. App. 2005) Stephen Craig Thompson was charged and convicted of aggravated sexual assault of a child (his daughter), evidence at trial was a torn dress, testimony of wife and child and testimony of examining physician who found no evidence of an assault. At habeas hearing, witnesses described a custody dispute, the daughter testified that she had not been assaulted and her mother had coached her to lie and that dress had been torn when she fell off a school bus, and bus driver witnessed girl fall while getting off bus where she tore her dress. Complainant provided an affidavit recanting her testimony and stating that sexual abuse never happened and that her mother had pressured her into making allegations. Habeas corpus granted and conviction set aside; court weighed the newly discovered evidence against the evidence adduced at trial. Ex Parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002) Facts: Defendant charged with aggravated sexual assault, jury was deadlocked and defendant plead guilty since he could not afford to retain counsel, was unable to make bail and had already spent ten months in jail and was addicted to drugs. Complainant recanted her allegations before the trial and applicant submitted affidavits and filed a writ under actual innocence. Trial court found recantation credible and habeas corpus was granted; actual innocence claims are not barred because the conviction was the result of a guilty plea. Ex Parte Waller, 2008 WL 4356811 (Tex. Crim. App. 2008) 64
Patrick Leondos Waller was convicted of aggravated robbery and pled guilty to aggravated kidnapping. DNA testing showing that another man committed the sexual assault in addition to a confession by another man allowed defendant to raise actual innocence in a writ of habeas, which the court granted. Ex Parte Wallis, 2007 WL 57969 (Tex. Crim. App. 2007) Gregory Wallis was convicted in 1989 of burglary of a habitation with intent to commit sexual assault in 1988. He was sentenced to 50 years in prison and served 18 years. He was released in March 2006 and officially exonerated in 2007. At trial, the victim testified that she knew for a fact Wallis was the man who raped her. He was convicted and sentenced to 50 years. In December 2005, results of a first round of DNA testing could not entirely exclude Wallis. He was offered his freedom if he would agree to be a life-time registered sex offender. He declined. In 2006, another (more advanced) DNA test was conducted and the results proved that Wallis was not the perpetrator. He was released from prison in March 2006, and in January 2007, the Texas Court of Criminal Appeals granted his writ of habeas corpus, officially exonerating him. Relief Granted and Remanded for a New Trial Ex Parte Zapata, 235 S.W.3d 794 (Tex. Crim. App. 2007) Mark Anthony Zapata was charged and convicted of aggravated sexual assault of a child (his daughters), pled guilty and offered testimony of committing various offenses against his daughters. His daughters recanted after the plea but before sentencing and defendant testified that he had fabricated the admission and entered a guilty plea to get a more lenient sentencing. The court found the recantations credible and habeas corpus was granted; applicant’s plea was not knowingly and voluntarily entered. Writ asserts involuntary guilty plea and an actual innocence claim based on
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recantations from daughters; court granted based on involuntary guilty plea, innocence discussed in dissent. Ex Parte Allen, 2009 WL 282739 (Tex. Crim. App. 2009) Billy Frederick Allen was convicted of two charges of murder, filed numerous writs (1984actual innocence, 1993-ineffective trial counsel, 1995-another application challenging conviction as a subsequent application, 2005- ) Relief granted based on ineffective assistance; actual innocence discussed, remanded for a new trial. Case dismissed by District Attorney. Ex Parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) Brandy Del Briggs was convicted of injury to a child for causing her child’s death. Two month old was brought into hospital after lack of oxygen to the brain, emergency room personnel mistakenly inserted an oxygen tube into his stomach instead of lungs. Counsel did not fully investigate medical records or consult experts until fees were paid. Relief granted and judgment vacated based on ineffective counsel and actual innocence, there is sufficient probability that but for the counsel’s errors, the defendant would not have plead guilty and to undermine the confidence that the death was the result of a criminal act. Previous judgment vacated and remanded for a new trial. Case dismissed by District Attorney. Ex Parte Mowbray, 943 S.W.2d 461 (Tex. Crim. App. 1996) Freda S. Mowbray was convicted of murder and contended that State knowingly used false testimony and State’s expert witness knowingly gave false and misleading testimony. Relief granted; applicant’s due process rights were violated, actual innocence discussed, remanded for new trial. Ex Parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006) David Allen Rich plead guilty to driving while intoxicated and pleaded true to two enhancements alleging prior convictions for two felony offenses. Sentenced as a habitual offender, 66
he later discovered that one of the priors had been reduced to a misdemeanor. The court found that the sentence was illegal because the prior conviction was reduced and vacated the judgment, allowing Rich to withdraw his plea of guilty and ordered a new trial. d.
New Scientific Evidence
New Statute Concerning Writs Based on New Scientific Evidence Art. 11.073. Procedure Related to Certain Scientific Evidence. (a)
This article applies to relevant scientific evidence that: (1)
was not available to be offered by a convicted person at the convicted
person’s trial; or (2) (b)
contradicts scientific evidence relied on by the state at trial.
A court may grant a convicted person relief on an application for a writ of habeas
corpus if: (1)
the convicted person files an application, in the manner provided by Article
11.07, 11.071, or 11.072, containing specific facts indicating that: (A)
relevant scientific evidence is currently available and was not
available at the time of the convicted person’s trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person’s trial; and (B)
the scientific evidence would be admissible under the Texas Rules of
Evidence at a trial held on the date of the application; and (2)
the court makes the findings described by Subdivisions (1)(A) and (B) and
also finds that, had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted.
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(c)
For purposes of Section 4(a)(1), Article 11.07, Section 5(a)(1), Article 11.071, and
Section 9(a), Article 11.072, a claim or issue could not have been presented previously in an original application or in a previously considered application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the exercise of reasonable diligence by the convicted person on or before the date on which the original application or a previously considered application, as applicable, was filed. (d)
In making a finding as to whether relevant scientific evidence was not ascertainable
through the exercise of reasonable diligence on or before a specific date, the court shall consider whether the field of scientific knowledge, a testifying expert’s scientific knowledge, or a scientific method on which the relevant scientific evidence is based has changed since: (1)
the applicable trial date or dates, for a determination made with respect to an
original application; or (2)
the date on which the original application or a previously considered
application, as applicable, was filed, for a determination made with respect to a subsequent application. SECTION 2. The change in law made by this Act applies only to an application for a writ of habeas corpus filed on or after the effective date of this Act. An application for a writ of habeas corpus filed before the effective date of this Act is governed by the law in effect at the time the application was filed, and the former law is continued in effect for that purpose. SECTION 3. This Act takes effect September 1, 2013. Ex parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011, cert. denied May 14, 2012) The Robbins case was the first, and still the most thorough analysis of 11.073.
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Facts: Tristen Rivet and her mother, Barbara Ann Hope, lived with Robbins at the home of his mother. On the day of Tristen’s death, Ms. Hope left Tristen in Robbins’s care. At 2:00 p.m., an independent witness observed Tristen playing and eating a snack while in Robbins’s care. Ms. Hope returned and relieved Robbins around 4:00 p.m. Ms. Hope went to wake Tristen around 6:00 p.m. She found Tristen unconscious in her crib with her face, including her nose and mouth, partially covered by her bedding. Ms. Hope rushed Tristen to the living room and began breathing into Tristen’s mouth. She then took Tristen outside where Robbins’s mother and a neighbor began performing vigorous, adult CPR on Tristen on the ground. Another neighbor came outside to investigate and, drawing on her experience as a medical technician, told the others to stop performing adult CPR because they were compressing Tristen’s chest too forcefully and warned that these efforts could actually kill Tristen. Moments later, the paramedics arrived. Tristen was pronounced dead at 6:53 p.m. shortly after arriving at the hospital. Robbins was subsequently indicted for capital murder for allegedly causing Tristen’s death. The medical examiner, Dr. Patricia Moore, testified that Tristen died from asphyxia due to compression of the chest and abdomen and ruled Tristen’s death a homicide.
Dr. Moore’s
testimony was the only direct evidence at trial that a crime had occurred. Dr. Robert Bux, the deputy chief medical examiner of Bexar County, Texas, gave contrary testimony. However, the jury found Robbins guilty of capital murder, and the trial court sentenced him to life in prison. Robbins’s Habeas Proceedings Following Robbins’s conviction, four additional experts were contacted to re-evaluate Dr. Moore’s autopsy findings and trial testimony.
Each expert, as well as Dr. Moore herself,
concluded that Dr. Moore’s original findings and testimony had been incorrect. 69
Dr. Dwayne Wolf, the deputy chief medical examiner for Harris County, re-evaluated the autopsy findings in March 2007 and concluded that the evidence did not support a finding that the death resulted from asphyxiation by compression or from any other specific cause. Dr. Joye Carter, the former Harris County Medical Examiner and Dr. Moore’s supervisor at the time of Mr. Robbins’s trial, agreed that the autopsy findings and facts of the case did not show that a homicide occurred, or indicate Tristen’s particular cause of death. Dr. Moore also admitted that her own original findings and testimony were erroneous. In a May 2007 letter sent to the Montgomery County District Attorney, Dr. Moore stated that given her “review of all the material from the case file and having had more experience in the field of forensic pathology,” she felt that “an opinion for a cause and manner of death of . . undetermined is best for this case.” Robbins filed an application for a writ of habeas corpus in June 2007 with the 410th Judicial District Court in Montgomery County, Texas, asserting that in light of this newly discovered evidence, “no rational juror would find [Mr. Robbins] guilty beyond a reasonable doubt of the offense.” Robbins also explained that his “right to a fair trial by a fair and impartial jury . . . was violated because his conviction was based on testimony material to the State’s case that has now been determined to be false.” In its initial response, the State recommended that Robbins be granted a new trial because “the jury was led to believe and credit facts that were not true.” Rather than accept the State’s recommendations, the trial court appointed Dr. Thomas Wheeler, the Chairman of the Department of Pathology at Baylor College of Medicine in Houston, to determine, if possible, the means and manner of Tristen’s death.
After conducting an independent examination, Dr. Wheeler also
concluded that Dr. Moore’s trial testimony was “not justified by the objective facts and
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pathological findings” and that there were no physical findings to support the conclusion that a homicide had occurred. In August 2008, Robbins and the State, again, recommended to the trial court that Robbins be granted a new trial. Yet again, rather than agree to the joint recommendations from the parties, the trial court ordered that the parties engage in discovery. Dr. Wheeler and Dr. Wolf were subsequently deposed and each reaffirmed their findings that the evidence did not support a finding that a homicide had occurred. In Dr. Moore’s deposition, she confirmed that her trial testimony was not justified by the objective facts and pathological findings. Around this same time, Justice of the Peace Edith Connelly reopened the inquest into Tristen’s death and appointed Dr. Linda Norton to examine the evidence.
Dr. Norton also
disagreed with Dr. Moore’s trial testimony. Dr. Norton stated that the cause of death was asphyxia by suffocation and placed the estimated time of death between 2:30 p.m. and 5:00 p.m. Dr. Norton ultimately concluded that she believed Tristen had been killed, but determined that she could not conclude beyond a reasonable doubt that Robbins was in any way responsible. Dr. Norton was the only expert of the six pathologists consulted by the habeas court to conclude that Tristen died from a homicide. On January 15, 2010, the State, for the first time, urged that relief be denied to Robbins. The trial court, however, found that Robbins was entitled to a new trial because the verdict against him was “not obtained by fair and competent evidence, but by admittedly false testimony that was unsupported by objective facts and pathological findings and not based on sufficient expertise or scientific validity.” Court’s Holding: The Texas Court of Criminal Appeals in a 5-4 decision, rejected the trial court’s recommendations and denied relief.
The five-judge majority concluded that because
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Robbins “failed to prove that the new evidence unquestionably establishes his innocence,” he was not entitled to relief on his claim of actual innocence of the crime for which he was convicted. The majority then departed from the trial court’s findings and held that false testimony had not been used to convict Mr. Robbins. Notwithstanding the agreement, among the consulted experts that Dr. Moore’s findings and testimony were incorrect, the majority refused relief because none of the experts affirmatively proved the negative proposition that “Tristen could not have been intentionally asphyxiated.” Thus, the majority concluded Robbins did not “have a due process right to have a jury hear Moore’s re-evaluation.” In a dissent joined by two other judges, Judge Cochran identified her “extremely serious concern” about the increased “disconnect between the worlds of science and of law” that allows a conviction to remain in force when the scientific basis for that conviction has since been rejected by the scientific community.
Adding to this concern was the dissent’s observation that this
disconnect “has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased.” As a result, the dissent argued that “[f]inality of judgment is essential in criminal cases, but so is accuracy of the result - an accurate result that will stand the test of time and changes in scientific knowledge.” Looking at the facts of Robbins’s conviction, the dissent believed this case created an appropriate opportunity to address this growing concern. Because Dr. Moore’s findings and trial testimony have been uniformly rejected, including by Dr. Moore herself, the dissent urged that Robbins “did not receive a fundamentally fair trial based upon reliable scientific evidence.” Indeed, Judge Cochran explained that she “suspect[ed] that the [United States] Supreme Court will one day hold that a conviction later found to be based upon unreliable scientific evidence deprives the defendant of a fundamentally fair trial and violates the Due Process Clause 72
of the Fourteenth Amendment because it raises an intolerable risk of an inaccurate verdict and undermines the integrity of our criminal justice system.” Judge Alcala dissented separately, concluding that Robbins “is entitled to relief on his application for a writ of habeas corpus on the ground that he was denied due process of law by the State’s use of false testimony to obtain his conviction.” On November 26, 2014, the Court of Criminal Appeals reconsidered the Robbins case, this time under the recently enacted Art. 11.073. Ex Parte Robbins, 2014 WL 6751684 (Tex. Crim. App. 2014). Applying 11.073, the majority concluded that the medical examiner’s post-trial reconsideration of her initial conclusion from the autopsy that the cause of child victim’s death was asphyxia by strangulation and that manner of death was homicide, following which she concluded that cause and manner of death were “undetermined,” was new scientific evidence that contradicted scientific evidence relied upon by State at trial which was not available at time of original application. The majority opinion further explained that since the revised opinion was based on a review of medical evidence and more experience in the field, it was new scientific evidence based on change of scientific knowledge that was not available at time of original habeas application. Judge Cochran, in her concurring opinion, traced the history of Art. 11.073, noting that, "By 2009, the Texas Legislature, at the urging of the Innocence Project of Texas, began reacting to the problems of prior convictions based on bad scientific evidence." As noted by Judge Cochran, these efforts ultimately resulted in the enactment of Art. 11.073. Finally, in finding relief appropriate in the Robbins case, Judge Cochran stated, "Regardless of whether a conviction is based on an unreliable field of science or unreliable scientific testimony, the result is the same: an unreliable verdict that cannot stand the test of time. It is built upon the shifting sands of "junk" science or 73
a "junk" scientist, and it is the purpose of Article 11.073 to provide a statutory mechanism for relief and a retrial based upon 'good' science and 'good' scientific testimony." Judge Johnson's concurring opinion noted the following: "The various positions on statutory interpretation seem to agree that the legislative history indicates that the intent of this statute is to provide relief to those who were convicted on science or scientific methodology that is now known to be unsound." Judge Johnson also recognized that Art. 11.073 would apply to various other scientific fields by stating: "As has been noted, some examples of 'contradicted scientific evidence relied on by the state at trial' include arson, infant trauma, bullet-lead analysis, bite marks, some ballistics tests, blood-spatter patterns, and scent line-ups. Some such evidence has involved misinterpretation based on out-dated knowledge, some are simply junk science that has never been subjected to any kind of scientific investigation. Whether 'debunked' or 'refined' for increased accuracy, changes in scientific knowledge in general, and therefore changes in scientific testimony by individuals, must be acknowledge and addressed." Dissenting opinions by Presiding Judge Keller, joined by Judge Hervey, and by Judge Keasler, disputed whether 11.073 applied to the Robbins case, but recognized its broad applicability in other situations. For instance, in analyzing the legislative history, Judge Keasler stated, "The Senate Research Center's Bill Analysis summarized the bill's intent as 'amend[ing] the Code of Criminal Procedure relating to applications for writs of habeas corpus relief based on relevant scientific evidence of false and discredited forensic testimony. . . . Recent examples of such evidence include dog-scent lineups, misinterpreted indicators of arson, and infant trauma." Judge Keasler further stated: "In support of H.B. 967, an identical companion bill to S.B. 344, Representative Turner was more detailed in his explanation of the bill's intended purpose. He began by stating that when an individual is 'convicted based on junk science or critical forensic testimony that is disproved by later scientific advancements, the courts cannot presently agree whether or not the existing law provides a basis for relief. As examples of disproved science, he specifically identified discredited dog scent line-ups, misinterpreted indicators of arson, and mistaken assumptions about infant trauma. . . . From Representative Turner's express intent and the comments 74
and questions from the committee members and witnesses alike, it is clear that, while this particular bill was left pending in committee, the proposed legislation targeted past scientific evidence undermined by subsequent advances in the particular field." The state’s rehearing motion was subsequently granted and on January 7, 2016, the court denied the rehearing motion. Ex parte Robbins, 560 S.W.3d 130 (Tex. Crim. App. 2016). Ex Parte Henderson, 246 S.W.3d 690 (Tex. Crim. App. 2007), 384 S.W.3d 833 (Tex. Crim. App. 2012) The Henderson case pre-dated enactment of 11.073. Facts: Henderson was convicted of capital murder and sentenced to death. The allegation was that she caused the death of a child, Brandon Baugh. Henderson’s defense was that Brandon’s death was the result of an accidental fall. At the time of trial, Dr. Roberto Bayardo, the medical examiner for Travis County, testified that it was impossible for Brandon’s extensive brain injuries to have occurred in the way Henderson stated. In his opinion, Brandon’s injuries had to have resulted from a blow intentionally struck by Henderson. He testified that, “I would say the baby was caught up with the hands by the arms along the body and then swung and slammed very hard against a flat surface.” In a subsequent writ, Henderson submitted affidavits and reports that indicated that recent advances in the area of biomechanics and physics suggest that it is possible that Brandon’s head injuries could have been caused by an accidental short-distance fall. Additionally, Dr. Bayardo submitted an affidavit which recanted his trial testimony. His affidavit stated: “Since 1995, when I testified at Cathy Henderson’s trial, the medical profession has gained a greater understanding of pediatric head trauma and the extent of injuries that can occur in infants as a result of relatively short distance falls, based in part on the application of principles of physics and biomechanics. Specifically, and as shown in the reports that I have read, even a fall of a relatively short distance onto a hard surface can cause the degree of injury that Brandon Baugh experienced. If this new scientific information had been available to me in 1995, I would have taken it into account before attempting to formulate an opinion about the circumstances leading to the injury.” 75
The Court of Criminal Appeals majority held that Dr. Bayardo’s re-evaluation of his 1995 opinion is a material exculpatory fact and ordered the trial court to further develop the evidence. Judge Price concurred, and stated that, “Under these circumstances, it is at least arguable that the evidence is not even legally sufficient to sustain a conviction; that is, a rational jury could not convict the applicant of capital murder. In any event, it is evident that the applicant has presented a plausible claim that no reasonable juror would have found her guilty of a capital homicide - at least not to a level of confidence beyond a reasonable doubt.” The dissenting Judges argued that the new scientific evidence did not establish any recognized claim for relief under Chapter 11 of the Code of Criminal Procedure. On December 5, 2012, the Court of Criminal Appeals issued a decision granting habeas relief and ordering a new trial in the Henderson case. Ex Parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012), 2012 WL 6027455. In the Court’s per curiam opinion, the Court accepted the trial court’s findings of fact that new scientific evidence that a short distance fall could have caused the head injury in this case proves that no reasonable juror would have convicted her in light of this new evidence. The Court of Criminal Appeals found that this new scientific evidence did not establish that Henderson was actually innocent but that it did establish a due process violation. Judge Price filed a concurring opinion and stated that relief was being granted on the basis of the inadvertent use of false evidence to convict Henderson. Judge Price stated that Henderson had proven that her conviction was based, in critical part, upon an opinion from the medical examiner that he has now disavowed because it has been shown by subsequent scientific developments to be highly questionable. The distinction between Henderson and Ex Parte Robbins that Judge Price drew is that Henderson is based on new scientific developments that show the head injury can be caused by a short distance fall and, in Robbins, the medical examiner simply changed her mind. 76
Judge Cochran also filed concurring opinion, joined by Judges Womack, Johnson and Alcala. Judge Cochran reviewed the evidence from the writ hearing and stated, “In sum, all but one of these ten medical and scientific experts agreed that Dr. Bayardo’s trial testimony was now known to be scientifically inaccurate: Brandon’s autopsy results did not establish that his death was the product of an intentional homicide. Indeed, all but one of these experts basically admitted that science cannot answer the question of whether Brandon’s death was the result of an intentional homicide. It could have been an intentional homicide; it could have been an accident.” Judge Cochran agreed that Henderson did not receive a fundamentally fair trial based upon reliable scientific evidence. Judge Alcala also filed a separate concurrence.
Judges Keller, Keasler and Hervey
dissented. Ex Parte Overton, 2012 WL 1521978 (Tex. Crim. App. 2012) Overton was convicted of capital murder based on allegedly intentionally causing a child to ingest acute levels of sodium or by failing to seek medical care. A writ was filed alleging actual innocence, suppression of exculpatory evidence and ineffective assistance of counsel. The Court of Criminal Appeals remanded the case to the trial court to resolve the contested issues. Notably, Judge Cochran, joind by Judges Price and Johnson, filed a statement concurring in the remand order stating: “I agree that this application for a writ of habeas corpus should be remanded to the trial court for further development on the claims set out in the remand order. I think that we should give more explicit guidance to the trial court, however, as this appears to be a capital-murder conviction that depends, in many respects, upon the scientific validity and accuracy of the medical testimony offered into evidence at the original trial. The judiciary must be ever vigilant to ensure that verdicts in criminal cases are based solely upon reliable, relevant scientific evidence-scientific evidence that will hold up under later scrutiny. I have previously expressed my concern about ‘the fundamental disconnect between the worlds of science and of law.’ Ex Parte Robbins, No. AP-76464, ___ S.W.3d ___, 2011 WL 2555665 at *19 (Tex. Crim. App. June 29, 2011) (Cochran, J., dissenting) 77
This disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased. The potential problem of relying on today’s science in a criminal trial (especially to determine an essential element such as criminal causation or the identity of the perpetrator) is that tomorrow’s science sometimes changes and, based upon that changed science, the former verdict may look inaccurate, if not downright ludicrous. But the convicted person is still imprisoned. Given the facts viewed in the fullness of time, today’s public may reasonably perceive that the criminal justice system is sometimes unjust and inaccurate. Finality of judgment is essential in criminal cases, but so is accuracy of the result - an accurate result that will stand the test of time and changes in scientific knowledge. Id. The problem in this case, as in Robbins, is not that the science itself has evolved, but that it is alleged that the scientific testimony at the original trial was not fully informed and did not take into account all of the scientific evidence now available. Following the evidentiary hearing, the Overton case made its way back to the Court of Criminal Appeals. In Ex Parte Overton, 444 S.W.3d 632 (Tex. Crim. App. 2014), the court granted relief based on ineffective assistance of counsel because of the defense team’s failure to present physician’s expert testimony regarding sodium intoxication. Ex Parte Chaney, 563 S.W.3d 239 (Tex. Crim. App. 2018) Chaney convicted of murder largely on the basis of testimony that claimed that a bitemark on the victim came from Chaney. Habeas relief granted under 11.073 based on a change in the body of scientific knowledge concerning bitemark comparisons.
78
The state’s trial expert’s
testimony that human bitemarks were unique and an individual could be identified as the source of a bitemark was discredited by new science. Ex Parte Kussmaul, 548 S.W.3d 606 (Tex. Crim. App. 2018) Relief granted under 11.073 to four defendants, three who pled guilty to sexual assault, and one who was convicted of capital murder. Y-STR DNA testing results were exculpatory as to all four defendants and constitute new scientific evidence. Even though this evidence did not reach the level of actual innocence, it did call for relief under 11.073. e.
Presentation of False Testimony
A defendant’s due process rights are violated by the state’s unknowing presentation of perjured testimony. Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009) (Defendant’s due process rights were violated by state’s unknowing presentation of perjured testimony in murder prosecution, where postconviction DNA testing conclusively showed that accomplice witness perjured himself by denying that he had sexually assaulted victim, his testimony provided the only direct evidence that defendant sexually assaulted and killed victim, state acknowledged that it predicated its trial theory on accomplice witness’s testimony, and DNA evidence refuted not only his testimony but also that of another witness who characterized accomplice witness as a nonviolent person who would never hurt a woman.); Estrada v. State, 313 S.W.3d 274 (Tex. Crim. App. 2010) (new punishment hearing for capital murder was required where state’s expert witness unintentionally presented false testimony concerning inmates eligibility for less restrictive prison classification). In Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011), the court held that the state’s knowing use of false testimony violates due process when there is a reasonable likelihood that the false testimony affected the outcome. The court also stated that the standard that state’s knowing
79
use of false testimony violates due process when there is a “reasonable likelihood” that the false testimony affected the outcome is more stringent, i.e., more likely to result in a finding of error, than the standard applied to Brady claims of suppressed evidence, which requires the defendant to show a “reasonable probability” that the suppression of evidence affected the outcome. In Ex parte Chaney, 563 S.W.3d at 263-64 (Tex. Crim. App. 2018), the court found testimony from the state’s forensic odontologist about matching a bitemark on a murder victim to the defendant to be false testimony. f.
Involuntary Plea
Generally, a claim of an involuntary guilty plea is raised as part of an ineffective assistance of counsel claim. However, an involuntary plea claim can be a separate habeas claim. A guilty plea that is entered without full awareness of the consequences of the plea may be involuntary. Ex parte Morrow, 952 S.W.3d 530 (Tex. Crim. App. 1977). In Brady v. United States, 397 U.S. 742 (1969), the court stated, “Waivers of constitutional rights not only must be voluntary but must also be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” In Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014), the court found a plea involuntary when drug testing done after the plea showed there were no drugs. g.
Double Jeopardy
Under some circumstances, a double jeopardy claim can be raised on a writ, even if the applicant failed to raise the issue in the trial court. When the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of the usual rules of procedural default would serve no legitimate state interest, this claim can be considered on a writ. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2002); Ex parte 80
Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006); Ex parte Diaz, 959 S.W.2d 213 (Tex. Crim. App. 1998); Ex parte Knipps, 236 S.W.3d 214 (Tex. Crim. App. 2007). h.
Denial of Counsel
Relief by way of habeas corpus is available if a defendant was denied the right to counsel at any critical stage of the proceedings. Ex parte Sanders, 588 S.W.2d 383, 385 (Tex. Crim. App. 1979). i.
Right to Appeal and Discretionary Review
A convicted defendant is entitled to effective assistance of counsel on direct appeal as of right. Evitts v. Lucey, 469 U.S. 387, 402-03 (1985). A defendant who is denied this right is entitled to an out of time appeal. Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988). The failure of an attorney to notify client of the right to file a Petition for Discretionary Review with the Court of Criminal Appeals entitles him to file an out of time Petition. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). j.
Illegal Sentence
A claim of an illegal sentence can be raised on an application for writ of habeas corpus. Ex parte Rich, 194 S.W.3d 508, 512 (Tex. Crim. App. 2006). k.
Denial of Interpreter
If the applicant did not understand English and was denied an interpreter, habeas relief is appropriate. Ex parte Nanes, 558 S.W.2d 893, 894 (Tex. Crim. App. 1977).
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Texas Criminal Defense Lawyers Association
Post-Convictions Seminar October 29-30, 2020 Livestream
Topic: State Writs Speaker:
Gary Udashen 2311 Cedar Springs Rd Suite 250 Dallas, TX 75201-7845 214-468-8100 Phone 214-468-8104 Fax gau@udashenanton.com www.udashenanton.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Post-Convictions Seminar October 29-30, 2020 Livestream
Topic: Federal Writs Speaker:
Nicole Deborde-Hochglaube 3515 Fannin St. Houston, TX 77004 713-526-6300 Phone 713-808-9444 Fax
Nicole@HoustonCriminalDefense.com www.debordelawfirm.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
FEDERAL HABEAS Nicole DeBorde Hochglaube 2020 Including updates to paper originally presented by Jani Maselli Wood
Federal Habeas Practice Habeas Corpus is “an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 1833, 36 L. Ed. 2d 439 (1973). A person does not have to be in the physical custody or prison in order to attack a conviction but must have an ongoing restraint to be considered in custody for writ purposes. The right to habeas comes from Article I, Section 9 of the United States Constitution. This clause, commonly referred to as the Habeas Corpus Suspension Clause, provides that: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it.” U.S. CONST. art. I, § 9. The Supreme Court has held that Congress may not totally “suspend” the federal habeas corpus remedy except for the reasons set forth in the text of the Constitution. Smith v. Bennett, 365 U.S. 708, 713, 81 S. Ct. 895, 898, 6 L. Ed. 2d 39 (1961). However, Congress may impose reasonable restrictions on the scope of the remedy such as denying a prisoner the opportunity to file multiple habeas corpus actions without showing good cause for doing so. Felker v. Turpin, 518 U.S. 651, 663-64 (1996). The federal statutes regulating habeas relief grounds and procedures are 28 U.S.C. §§ 2241-2255 and, for capital cases, 28 U.S.C. §§ 2261-2266. 1
The federal writ of habeas corpus is a viable remedy for federal constitutional violations in certain cases. See, e.g., Miller-El v. Dretke, 545 U.S. 231 (2005); Banks v. Dretke, 540 U.S. 668 (2004); Wiggins v. Smith, 539 U.S. 510 (2003); Penry v. Johnson, 532 U.S. 782 (2001). The most common habeas claims are on issues typically discovered only well after sentencing, rather than issues that could have been raised on direct review. Examples of such claims include ineffective assistance of counsel claims, prosecutorial and police misconduct claims, and claims based on fundamentally new interpretations of the substantive law. See, e.g., Bailey v. U.S., 516 U.S. 137 (1995). There are three types of habeas claims, each with their own statutory provision and venue rules. First, 28 U.S.C. § 2254 provides a potential remedy for individuals convicted in state court who is illegally restrained. Section 2254 permits a defendant convicted in state court to challenge his conviction and/or sentence in federal court after unsuccessfully litigating his constitutional claims through the state court system via direct appeal and/or state habeas corpus review. For the habeas petition to be successful, the applicant’s imprisonment must be in violation of the Constitution, the laws, or the treaties of the United States. 28 U.S.C.A. § 2254(a). A federal court’s review of whether the state court decision was “contrary to, or involved an unreasonable application of, clearly established federal law” under § 2254(d)(1) is limited to the record before the state court, meaning that evidence introduced in 2
federal court “has no bearing on § 2254(d)(1) review.” Cullen v. Pinholster, 563 U.S. 170, 185, 131 S. Ct. 1388, 1398 (2011). A state defendant may bring a § 2254 action in either the district of incarceration or the district where the defendant was convicted. 28 U.S.C.A. § 2241(d) (West 2020); Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000). However, a court in the district of incarceration is empowered to transfer the case to the district of conviction if it is more convenient for the parties and witnesses. Id.; see, e.g., Pracht v. Beard, No. 04-2861, 2004 U.S. Dist. LEXIS 19621, *3-4 (E.D. Pa. Sept. 23, 2004). Some federal districts have local rules requiring the petition to be litigated in the district of conviction. See, e.g., E.D. Cal. L.R. 81-191(g). Second, 28 U.S.C. § 2255 provides a mechanism for attacking federal convictions. 28 U.S.C.A. § 2255; U.S. v. Hayman, 342 U.S. 205, 206-07 (1952). A person convicted in federal court must bring a § 2255 action in the district of conviction, and the case ordinarily is assigned to the judge who sentenced the defendant. See, e.g., id. Lastly, 28 U.S.C. § 2241 permits a post-conviction challenge by individuals alleging a defect in the “execution” of his sentence as opposed to a constitutional defect in the underlying conviction or sentence. Gomori v. Arnold, 533 F.2d 871, 874-75 (3d Cir. 1976). An example of viable grounds for relief under this section include the loss of “good-time credit” for invalid reasons or a wrongful revocation 3
of parole. U.S. v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992). With the exception of “original” writs filed directly with the United States Supreme Court, a person may bring a § 2241 action only in the federal district where he is in custody. Rumsfeld v. Padilla, 542 U.S. 426, 442-51 (2004).
Exhaustion Requirement Regardless of the type of habeas claim, all other available remedies must be exhausted prior to filing for habeas relief. For relief from state convictions, § 2254 requires that “the applicant has exhausted the remedies available in the courts of the state; or there is an absence of available state corrective process; or circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C.A. § 2254(b)(1)). Failure to exhaust all other remedies is an affirmative defense and is automatically raised unless explicitly waived by the state. Id. This means that if there are any remedies that the state has not had the opportunity to use to grant relief, the federal government will not overstep the state’s sovereignty and the defendant must utilize the state’s available processes first. In addition to the statutory requirements, case law has expanded the instances where a federal court will not consider a writ through the Younger Abstention Doctrine. Federal courts will not consider a writ when: (1) there is a state judicial proceeding still pending; (2) state proceedings involve an important state interest; or (3) the state proceedings afford adequate opportunity to raise the constitutional issue. 4
Younger v. Harris, 401 U.S. 37 (1971). However, certain exceptions to the Younger Abstention Doctrine exist, and federal courts will address state court issues when: (1) there is evidence of state proceedings motivated by bad faith; (2) irreparable injury would occur; or (3) there was no adequate alternative state forum where the constitutional issues can be raised. See id. While § 2255 does not have the same statutory exhaustion requirement, the courts have long held that an applicant must still exhaust all other possible remedies prior to seeking habeas relief. Wall v. U.S., 619 F.3d 152, 154 (2d Cir. 2010) (per curiam); U.S. v. LaFromboise, 427 F.3d 680, 686 (9th Cir. 2005), order amended, 2005 WL 3312694 (9th Cir. 2005). This means that, generally, the district court “will not review a section 2255 motion until the direct appeal is resolved.” U.S. v. Pirro, 104 F.3d 297, 298 (9th Cir. 1997); accord Oakes v. U.S., 400 F.3d 92, 95 (1st Cir. 2005) (district court should not review merits of § 2255 motion while direct appeal is pending); see also Kapral v. U.S., 166 F.3d 565, 570 (3d Cir. 1999). The one exception that has been recognized is when there are “extraordinary circumstances.” 28 U.S.C. § 2255, Rule 5 Advisory Committee Notes; see also U.S. v. Prows, 448 F.3d 1223, 1228–29 (10th Cir. 2006); U.S. v. Barger, 178 F.3d 844, 848 (7th Cir. 1999); U.S. v. Diaz-Martinez, 71 F.3d 946, 953 (1st Cir. 1995); U.S. v. Cook, 997 F.2d 1312, 1319 (10th Cir. 1993); U.S. v. Khoury, 901 F.2d 975, 976 (11th Cir. 1990); Womack v. U.S., 395 F.2d 630, 631 (D.C. Cir. 1968). The use of 5
extraordinary circumstances exception is extremely limited in part because of the likelihood of interfering with an active appeal. Prows, 448 F.3d at 1228. Courts will generally only allow a special circumstances exception if the issues are clearly distinct from those on direct appeal, or “when the motion raises a substantial question about the integrity of the government’s prosecution.” U.S. v. Rangel, 519 F.3d 1258, 1265 (10th Cir. 2008). Finally, for a writ under § 2241 the exhaustion of other available remedies is also required. Braden v. 30th Jud. Cir. Ct., 410 U.S. 484, 489–91, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973) (habeas relief for a speedy trial); Thomas v. Crosby, 371 F.3d 782, 812 (11th Cir. 2004) (Tjoflat, J., concurring); Knox v. State of Wyo., 959 F.2d 866, 868, 22 Fed. R. Serv. 3d 787 (10th Cir. 1992); Dickerson v. State of La., 816 F.2d 220, 225 (5th Cir. 1987); Benson v. Sup. Ct. Dep’t of Trial Ct., 663 F.2d 355, 358 (1st Cir. 1981); Carden v. State of Mont., 626 F.2d 82, 83 (9th Cir. 1980); Moore v. DeYoung, 515 F.2d 437, 442 (3d Cir. 1975).
Deadlines and Defaults—Procedural Bars to Relief Under 28 U.S.C. §§ 2244(d)(1) & 2255, state and federal defendants ordinarily have one year from the date that their convictions became “final” to file a habeas corpus petition. A conviction is final on the date that the United States Supreme Court denies certiorari on direct appeal or, if no certiorari petition was filed, the point when a defendant ceases pursuing discretionary appeals on direct review. 6
Clay v. U.S., 537 U.S. 522, 525 (2003). However, if no appeal was filed after the defendant was sentenced, the one-year clock starts to run from the date on which the notice of appeal was due. See, e.g., Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). Alternatively, the one year statute of limitation starts from the latest of: (1) the date that an “impediment to filing” caused by governmental action was removed; (2) the date on which a “new rule” relied on by a petitioner was announced by the Supreme Court “if the right has been . . . made retroactively applicable to cases on collateral review;” or (3) the date on which the factual predicate of the claim raised by the petitioner “could have been discovered through the exercise of due diligence.” 28 U.S.C.A. §§ 2244(d), 2255(f). In addition to the aforementioned time bars, if the defense failed to object to a violation of the defendant’s rights in the trial court or failed to raise a claim on direct appeal the defendant’s claim will be “procedurally defaulted” or “procedurally barred” on federal habeas corpus review. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Frady v. U.S., 456 U.S. 152, 167-68 (1982); Bousley v. U.S., 523 U.S. 614, 622 (1998). If a claim is procedurally barred or defaulted, unless one of the exceptions apply, a federal court may not grant habeas corpus relief, even if the claim has merit. See Bousley, 523 U.S. at 621. Procedural default is an affirmative defense, and the prosecution waives the right to invoke a procedural bar on federal habeas corpus review if it does not 7
actively raise the bar in a timely manner in federal district court. Gray v. Netherland, 518 U.S. 152, 165-66 (1996). The federal courts of appeals have unanimously held that courts may use their discretion in certain circumstances to raise a procedural default defense sua sponte, but the Supreme Court has not yet directly ruled on the issue. Day v. McDonough, 547 U.S. 198, 206-07 (2006); see also Jeffrey C. Metzcar, Raising the Defense of Procedural Default Sua Sponte: Who Will Enforce the Great Writ of Liberty?, 50 CASE W. RES. L. REV. 869 (Summer 2000). In Day, the Court approached the issue very closely, holding that a federal court may raise an AEDPA limitations issue sua sponte because such issues address the same concerns as procedural default and should be treated in the same way. 547 U.S. at 210. The Court went further to state that it would be “an abuse of discretion” for a court to “override a State’s deliberate waiver of a limitations defense.” Id. at 202; accord Greenlaw v. U.S., 554 U.S. 237, 243-44 (2008) (holding that a federal court does not have carte blanche to depart from the principle of party presentation). There are two primary exceptions to the application of an otherwise valid procedural bar. First, a federal court must address the merits of the otherwise defaulted claim, if the habeas petitioner shows both “cause” for the procedural default and that the application of the procedural bar will result in “prejudice.” See Coleman v. Thompson, 501 U.S. 722, 730 (1991), partially abrogated on other grounds by Martinez v. Ryan, 566 U.S. 1, 9 (2012). 8
“Cause” usually means some objective factor external to the defense which prevented compliance with the state procedural rule. Amadeo v. Zant, 486 U.S. 214 (1988) (concluding that the belated discovery of relevant evidence by the defense resulting from the prosecution’s intentional suppression of such evidence was “cause”; or a showing of ineffective assistance of counsel within the meaning of Strickland v. Washington, 466 U.S. 668 (1984)); see Murray v. Carrier, 477 U.S. 478, 488 (1986). The fact that it would have been “futile” to raise a particular claim in the face of adverse appellate precedent at the time of default is not sufficient “cause.” Engle v. Isaac, 456 U.S. 107, 130 (1982). It is arguable, however, that failure to raise an issue in a lower court that has been clearly ruled on by a higher court’s precedent could constitute sufficient cause. See Brent E. Newton, An Argument for Reviving the Actual Futility Exception to the Supreme Court’s Procedural Default Doctrine, 4 J. APP. PROC. & PROCESS 521 (2002) (discussing conflicting decisions in the Supreme Court’s jurisprudence regarding the futility of objecting in view of a higher court’s precedent). Conversely, if a claim were truly “novel” at the time of the default, meaning that no existing precedent reasonably supported the claim and no reasonable lawyer would have thought to raise the claim, then such novelty does constitute sufficient “cause.” Reed v. Ross, 468 U.S. 1, 9 (1984). However, if the claim lost its novelty only after the defendant’s conviction became final on direct appeal, then Teague v. 9
Lane, 489 U.S. 288 (1989), would likely preclude habeas corpus relief on the ground that the claim relied on a “new rule of law.” The Teague doctrine is discussed in the next section. “Prejudice” means not merely the possibility of prejudice, but that the error “worked to [the defendant’s] actual and substantial disadvantage, infecting his entire trial [or sentencing] with an error of constitutional dimensions.” Frady v. U.S., 456 U.S. 152, 170 (1982). The purpose of the cause-prejudice analysis is to prevent a fundamental miscarriage of justice while also respecting the need for finality in criminal cases. As an extra precaution, the Supreme Court has said, “[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397 (1986). This additional weight given to the prejudice prong creates a second exception to procedural bars. It allows a federal habeas petition to circumvent a procedural bar by showing “actual innocence” by a preponderance of the evidence—namely that, but for the unpreserved constitutional error, the defendant would not have been found guilty of the offense of conviction. Schlup v. Delo, 513 U.S. 298 (1995); Harris v. Reed, 489 U.S. 255, 257, 109 S. Ct. 1038, 1040, 103 L. Ed. 2d 308 (1989). After the passage of AEDPA, McQuiggin v. Perkins held that “actual innocence, if 10
proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration of the AEDPA statute of limitations.” 569 U.S. 383, 386 (2013). Before AEDPA, Sawyer v. Whitley held that the “actual innocence” gateway extended to sentencing in capital cases when a defendant demonstrated by clear and convincing evidence that, but for the unpreserved constitutional error, no rational judge or jury would have found him eligible for the death penalty. 505 U.S. 333, 336 (1992). However, some lower courts have held that “this ‘judge-fashioned’ exception in Sawyer did not survive Congressional enactment of AEDPA.” In re Richardson, 802 F. App’x 750, 758 (4th Cir. 2020) (citing Hope v. U.S., 108 F.3d 119, 120 (7th Cir. 1997); see also Bowles v. Sec., 935 F.3d 1176, 1182 (11th Cir. 2019) (“AEDPA forecloses the Sawyer exception in all circumstances, including § 2254 challenges to state death sentences.”). The lower courts are divided over whether Sawyer extends to procedural bars related to constitutional challenges to non-capital sentences. Dretke v. Haley, 541 U.S. 386, 391-94 (2004) (noting the division among the lower federal courts on this issue but declining to resolve the split in that case); see, e.g., U.S. v. Jones, 758 F.3d 579, 584 (4th Cir. 2014) (refusing to extend the reasoning of McQuiggin, supra, to sentencing decisions). In addition to these primary exceptions, in a § 2254 case, if the State does not make a “plain statement” that the claim for relief was procedurally barred, then the 11
federal court must address the merits of a federal constitutional claim when presented to it for review. Harris v. Reed, 489 U.S. 255, 261-65 (1989). Without a plain statement neither the prosecution nor the federal courts may rely on the petitioner’s failure to comply with the state procedural rule. Id.; see also Lewis v. Sternes, 390 F.3d 1019, 1029-30 (7th Cir. 2004). A federal court is also not precluded from reviewing the claim if a state’s procedural bar is not an “independent and adequate state law ground.” See Catherine T. Struve, Direct and Collateral Federal Court Review of the Adequacy of State Procedural Rules, 103 COLUM. L. REV. 243 (March 2003). A state procedural rule is not “independent” if its operation requires the application of federal constitutional law. See Ake v. Okla., 470 U.S. 68, 75 (1985) (in determining whether error would be addressed on direct appeal notwithstanding defendant’s failure to object in court below, state appellate court sought to determine whether error was of federal constitutional magnitude; Supreme Court held that state court’s procedural bar was thus not “independent”); but cf. Stewart v. Smith, 536 U.S. 856 (2002) (per curiam) (state court’s procedural default rule did not require court to consider the “merits” of a defaulted constitutional claim and, thus, the default was an “independent” state law ground). A state procedural bar is not “adequate” if the state court has not “consistently and regularly” applied the procedural rule to similarly situated defendants. Dugger 12
v. Adams, 489 U.S. 401, 410 n.6 (1989). Likewise, a novel application of a state procedural rule where there was no fair warning to the defendant of the procedural rule prevents that rule from being “adequate.” Ford v. Ga., 498 U.S. 411, 423 (1991). In addition, if a state inequitably applies a “generally sound” procedural rule in an “exorbitant” manner, then the procedural bar will not be “adequate.” Lee v. Kemna, 534 U.S. 362, 376 (2002).
Teague Non-Retroactivity Doctrine In Teague v. Lane, the Supreme Court held that, with limited exceptions, a state or federal defendant on federal habeas corpus review is not entitled to have a “new rule” of constitutional criminal procedure applied to them unless the rule was logically “dictated” by “precedent existing” at the time that the petitioner’s conviction became “final” on direct appeal. 489 U.S. 288, 301 (1989). If no direct appeal was filed, a conviction became “final” for purposes of Teague when the time for filing a notice of appeal expired. See, e.g., Ferguson v. U.S., 911 F. Supp. 424, 428 (C.D. Cal. 1995) (citing Caspari v. Bohlen, 510 U.S. 383, 390, 114 S. Ct. 948, 953 (1994)). The rule is “motivated by a respect for the states’ strong interest in the finality of criminal convictions, and the recognition that a state should not be penalized for relying on ‘the constitutional standards that prevailed at the time the original
13
proceedings took place.’” Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L.Ed.2d 180 (1993) (quoting Teague, 489 U.S. at 306). The Teague bar ordinarily is raised by the prosecution; if not, a federal court (including a federal appellate court) has discretion to raise the Teague bar of its own accord. Bohlen, 510 U.S. at 389. Teague applies both to situations where a federal habeas corpus petitioner seeks to rely on a “new rule” announced in another case after theirs became final, and to situations where a petitioner raises a claim that itself proposes a “new rule” not yet announced in any prior case. Teague does not bar application of a pre-existing general rule from existing precedent to a novel set of facts when the general rule logically dictates the outcome. See Wright v. West, 505 U.S. 277, 304 (1992) (O’Connor, J., concurring, joined by Blackmun & Stevens, JJ.); id. at 308 (Kennedy, J., concurring); see also Williams v. Taylor, 529 U.S. 362, 382 (2000) (opinion of Stevens, J., joined by Souter, Ginsberg & Breyer, JJ.) (citing Justice Kennedy’s concurring opinion in Wright, supra). Existing precedent for Teague purposes appears to include Supreme Court precedent as well as decisions of the lower courts—at least where there is a consensus or clear majority among the lower courts that addressed the issue when the Supreme Court had not yet done so. See Williams, 529 U.S. at 412 (opinion of O’Connor, J., for a majority of the Court) (stating in dicta that the AEDPA goes 14
further than Teague by “restrict[ing] the source of clearly established law to this Court’s jurisprudence”); see also id. at 380-82 (opinion of Stevens, J., for four members of the Court) (same, in dicta); cf. Caspari v. Bohlen, 510 U.S. 383, 394-95 (1994) (engaging in analysis of whether a “rule” was “new,” the Court examined the decisions of federal circuit courts and state supreme courts); but see Soffar v. Cockrell, 300 F.3d 588, 597-98 (5th Cir. 2002) (en banc) (contending that “existing precedent” for Teague purposes refers only to Supreme Court decisions, not lower federal court decisions). The Supreme Court has recognized two exceptions to Teague’s nonretroactivity doctrine. First, if the new rule is a truly fundamental or “bedrock” rule of criminal procedure, the petitioner is entitled to benefit from the rule, despite its newness. Beard v. Banks, 542 U.S. 406, 416-18 (2004). To date, the Supreme Court is reluctant to hold that any “new rule” announced in the modern era qualifies as a “bedrock” rule and has even suggested that all such rules have already been announced. Id. at 417-18. For example, under the Teague framework the Supreme Court held that the changes made to Confrontation Clause jurisprudence by the Crawford holding were not retroactively applicable. See Danforth v. Minn., 552 U.S. 264, 268-69, 128 S. Ct. 1029, 169 L.Ed.2d 859 (2008); Whorton v. Bockting, 549 U.S. 406, 409, 127 S. Ct. 1173 (2007). In 2004, a lower court decision held that the Supreme Court’s new rule announced in Alabama v. Shelton, 535 U.S. 654 (2002)— 15
which extended the Sixth Amendment right to counsel in misdemeanor prosecutions to cases in which a suspended jail sentence was imposed—fell within Teague’s “bedrock” exception. Howard v. U.S., 374 F.3d 1068, 1080-81 (11th Cir. 2004). Most lower courts also have held that the rule announced in Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62 (1991), concerning an unconstitutional “reasonable doubt” definition—also qualifies as a “bedrock” rule. See Leavitt v. Arave, 371 F.3d 663, 677-78 (9th Cir. 2004) (citing cases). As the Courts have explained, a rule is not “new” if it is based upon “‘unremarkable’ application of settled precedent.” Gomez v. Quarterman, 529 F.3d 322, 335 (5th Cir. 2008) (quoting Thacker v. Dretke, 396 F.3d 607, 618 (5th Cir. 2005)). Second, Teague does not apply to a claim that does not rely on a new rule of criminal procedure but, instead, relies on a new rule of substantive law (e.g., a constitutional prohibition on criminal punishment for certain types of activity or a judicial determination that certain conduct is not in violation of a penal statute). Schriro v. Summerlin, 542 U.S. 348, 351-52 n.4, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004). This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s 16
power to punish. Such rules apply retroactively because they “necessarily carry a significant risk that a defendant stands convicted of ‘an act that the law does not make criminal’” or faces a punishment that the law cannot impose upon him. Id. at 351-52 (internal citations omitted); see Bousley v. U.S., 523 U.S. 614, 620-21, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998); see Saffle v. Parks, 494 U.S. 484, 49495, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990). Finally, at least one federal court of appeals has recognized a third exception. Teague will not apply when the claim asserted could not have been raised on direct appeal and, instead, could only have been raised for the first time on collateral review. See Jackson v. Johnson, 217 F.3d 360, 363-64 (5th Cir. 2000).
Law of The Case Doctrine The “law of the case” doctrine is “the doctrine holding that a decision rendered in a former appeal of a case is binding in a later appeal.” Law of the Case, BLACK’S LAW DICTIONARY 456 (5th pocket ed. 2016). The Supreme Court has said that the law of the case doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 740, 56 L. Ed. 1152 (1912). The law of the case doctrine is therefore not an absolute bar to habeas relief, but instead is a hurdle that requires surmounting before relief will be granted on grounds previously raised on 17
appeal. The law of the case will not be changed “unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.” White v. Murtha, 377 F.2d 428, 432 (5th Cir. 1967); see White v. U.S., 371 F.3d 900, 902 (7th Cir. 2004) (“Invoking the doctrine of law of the case, the courts . . . forbid a prisoner to relitigate in a collateral proceeding an issue that was decided on his direct appeal.”) (collecting cases from the Fourth, Seventh, and Eighth Circuits); see also Thomas v. U.S., 572 F.3d 1300, 1303-04 (11th Cir. 2009) (Claims raised on direct appeal are barred from relitigation in a subsequent § 2255 motion, but issues not raised on appeal may be litigated.). Therefore, even if the defendant raised an issue on appeal and it was ruled on, it is still possible to get relief on those grounds.
Full and Fair Review Bar Some issues are not available for habeas petitions even if they were not raised during trial or on appeal. The Supreme Court held that Fourth Amendment “exclusionary rule” claims based on an illegal search or seizure are not cognizable on federal habeas corpus review so long as the habeas petitioner had a “full and fair” opportunity to litigate the claim both at trial and on direct appeal—whether or not the claim was raised in the state courts. Stone v. Powell, 428 U.S. 465, 494 n.37
18
(1976); see also U.S. v. Ishmael, 343 F.3d 741, 742-43 (5th Cir. 2003) (noting that the lower federal courts have applied Stone in § 2255 cases). The Supreme Court has never clarified precisely what constitutes a “full and fair opportunity,” and the federal courts of appeals take divergent approaches to the meaning of the phrase. Luckily, relief can still come through an ineffective assistance of counsel claim. The Supreme Court has held that a Sixth Amendment claim of ineffective assistance of counsel, based on prior counsel’s failure to raise a Fourth Amendment claim in the trial court or on appeal, is a valid ground for federal habeas corpus review. Kimmelman v. Morrison, 477 U.S. 365, 382-83 (1986).
Harmless Error and Brecht Habeas review involves a higher burden to overcome trial errors than a direct appeal. An appellate court on direct review generally must determine whether the trial or sentencing error was “harmless beyond a reasonable doubt.” Chapman v. Cal., 386 U.S. 18, 24 (1967). This standard requires the prosecution to prove “beyond a reasonable doubt” that the error did not “affect” or “contribute to” the guilty verdict or sentence. O’Neal v. McAninch, 513 U.S. 432, 438 (1995). However, on federal habeas corpus review, a habeas petitioner faces a considerably less favorable “harmless-error” standard than that of Chapman. See Brecht v. Abrahamson, 507 U.S. 619 (1993); see also O’Neal, 513 U.S. 432 (1995). Thus, the Brecht standard places a lower burden on the prosecution to show that the error did 19
not have a “substantial and injurious effect” on the verdict or sentence. O’Neal, 513 U.S. at 438. Under AEDPA, which slightly modified the Chapman standard, a habeas application may only be granted with respect to a claim adjudicated in state court on the merits unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C.A. § 2254(d); see Perkins v. Herbert, 596 F.3d 161, 175-76 (2d Cir. 2010) (citing Chapman, supra). According to the Court in Mitchell v. Esparza, a habeas petition may not be granted “if the state court simply erred in concluding that the State’s errors were harmless; rather, habeas relief is appropriate only if the [state court of appeals] applied harmless error review in an ‘objectively reasonable’ manner.” 540 U.S. 12, 18 (2003). The reasoning behind the lower burden in Brecht is the same as the reasoning behind the Teague doctrine; the case is already final, and both the state and federal judicial systems have a strong interest to keep it that way. Brecht, 507 U.S. at 634. Habeas relief is an extreme remedy, reserved for “persons whom society has 20
grievously wronged and for whom belated liberation is little enough compensation.” See Fay v. Noia, 372 U.S. 391, 440–41, 83 S. Ct. 822, 844, 9 L. Ed. 2d 837 (1963), overruled in part on other grounds by Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), and Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992), and abrogated on other grounds by Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). Without this lighter burden for the prosecution habeas proceedings could potentially undermine the trial process and the finality of judgments. See Engle v. Isaac, 456 U.S. 107, 127 (1982). However, despite this lesser burden, the Supreme Court has held that “when a habeas court is in grave doubt as to the harmlessness of an error that affects substantial rights, it should grant relief.” O’Neal v. McAninch, 513 U.S. 432, 445 (1995). In other words, if the error being reviewed involves the Constitutional rights of the petitioner, and the court is unsure about the effect of the error on the verdict or sentence, they need to side with the petitioner and grant relief. This rule “both protects individuals from unconstitutional convictions and helps to guarantee the integrity of the criminal process by assuring that trials are fundamentally fair.” Id. at 442.
The Remedies Available
21
The court granting relief has wide discretion in determining the appropriate remedy. The only restriction comes from 28 U.S.C. § 2243, which says that a court, after determining the relevant facts and law for the case shall “dispose of the matter as law and justice require.” 28 U.S.C.A. § 2243). This applies to all types of habeas relief claims by state and federal prisoners regardless if it is under § 2241 or § 2254. For state defendants seeking relief in federal court, the court may grant relief, but “it cannot revise the state court judgment; it can act only on the body of the petitioner.” Noia, 372 U.S. at 431. While the federal court can grant habeas relief to the state court defendant, this limitation leaves the determination of the precise remedy to the state. “It goes without saying that a federal court should not become involved in the judicial administration of the state court system if any reasonable alternative exists by which adequate relief can be afforded.” Bastida v. Braniff, 444 F.2d 396, 398 (5th Cir. 1971). Generally, once the federal court has granted relief, they will remand the case back to the state court to correct the issues and/or determine what specific relief will be granted. When habeas relief is granted under § 2255, “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C.A. § 2255. This still grants wide discretion to the court granting relief. However, generally the relief
22
granted for a ยง 2255 writ of habeas corpus will be the resentencing of the defendant. U.S. v. Hillary, 106 F.3d 1170, 1172 (4th Cir. 1997).
23
Texas Criminal Defense Lawyers Association
Post-Convictions Seminar October 29-30, 2020 Livestream
Topic: Federal Appeals Speaker:
Judy Madewell 727 E Cesar E Chavez Blvd Rm B207 San Antonio, TX 78206-1278 210-472-6700 Phone 210-472-4454 Fax judy.madewell@fd.org
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
PRESERVING ERROR IN FEDERAL COURT: Making Sure You Get Your Second Chance on Appeal TCDLA Post-Conviction Seminar October 29, 2020
Tim Crooks Former Supervisory Assistant Federal Public Defender Southern District of Texas Houston, Division Judy Fulmer Madewell First Assistant Federal Public Defender Western District of Texas 727 E. Cesar E. Chavez Blvd, B-207 San Antonio, TX 78206 (210) 472-6700 (210) 281-2060 judy_madewell@fd.org
This paper was written by Tim Crooks, former Supervisory Assistant Federal Public Defender for the Southern District of Texas, Houston Division. I updated it for this seminar.
TABLE OF CONTENTS Introduction ..................................................................................................................................... 1 Pretrial Motions .............................................................................................................................. 1 Proffer, Proffer, Proffer................................................................................................................... 7 The Contemporaneous-Objection Rule......................................................................................... 11 Jury Instructions ............................................................................................................................ 14 Other Trial Problems..................................................................................................................... 16 Guilty Pleas ................................................................................................................................... 22 Sentencing ..................................................................................................................................... 24 Consequences of Failure to Preserve Error ................................................................................... 30 Conclusion .................................................................................................................................... 33
Introduction As an attorney who now works exclusively on appeals, I am frustrated when good points of error have not been properly preserved below. Yet, having also been a trial attorney, I realize that, in the rush to judgment in criminal cases, it is all too easy to slip up! Many times I have heard attorneys speak dismissively of seminars on preservation of error for appeal—for example: “All they’re going to do is tell us that we need to object at trial, and I already know that.” But the truth is that, in today’s increasingly complex federal criminal practice, often much more than just a simple objection is needed. This paper is designed to give some basic information on preserving error to make sure that your clients get the full benefit of their “second chance” on appeal. Pretrial Motions Under Federal Rule of Criminal Procedure 12(b)(3), certain motions must be raised before trial “if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits: (1)
Motions alleging defects in the institution of the prosecution, including improper venue, preindictment delay, speedy trial
1
violation, selective or vindictive prosecution, and an error in the grand-jury proceedings or preliminary hearing;1 (2)
Motions alleging a defect in the indictment or information, including
duplicity, multiplicity, lack of specificity, improper joinder, and failure to state an offense;2 (3)
Motions to suppress evidence;3
(4)
Motions to sever charges or defendants under Fed. R. Crim. P. 14.4
(5)
Motions for discovery under Fed. R. Crim. P. 16.5
Additionally, the district court “may, at the arraignment or as soon afterward as practicable, set a deadline for the parties to make pretrial motions and may also schedule a motion hearing.” 6 However, a motion claiming that the court lacks jurisdiction “may be made at any time while the case is pending.”7
1
See Fed. R. Crim. P. 12(b)(3)(A).
2
See Fed. R. Crim. P. 12(b)(3)(B).
3
See Fed. R. Crim. P. 12(b)(3)(C).
4
See Fed. R. Crim. P. 12(b)(3)(D).
5
See Fed. R. Crim. P. 12(b)(3)(E).
6
Fed. R. Crim. P. 12(c).
7
Fed. R. Crim. P. 12(b)(2). 2
What happens if the defendant fails to timely file a required pretrial motion? Rule 12 was amended in 2014 to clarify the situation. Before the amendment, the rule stated that a party “waives” a defense not timely raised. Fed. R. Crim. P. 12(e) (2002). The Fifth Circuit had held, based on this language, that the failure to timely raise a pretrial motion barred appellate review.8 After the 2014 amendment, the failure to meet the deadline under Rule 12(b)(3), means that “the motion is untimely.” Fed. R. Crim. P. 12(c)(3). “But a court may consider the defense, objection, or request if the party shows good cause.” Fed. R. Crim. P. 12(c)(3). Now the Fifth Circuit has held that an untimely pretrial motion is reviewed on appeal for plain error.9 What constitutes “good cause” will, of course, vary from case to case. The Fifth Circuit held that there was good cause for not moving to suppress evidence obtained as a result of a search when the defense attorney was not aware of the facts raising the suppression issue until the agent testified at trial.10 If you file a pretrial motion late, it is very important to include facts and argument to support “good cause” for the late filing.
8
See, e.g., United States v. Chavez-Valencia, 116 F.3d 127, 129–33 (5th Cir. 1997) (suppression issue). 9
10
United States v. Vasquez, 899 F.3d 363 (5th Cir. 2018). United States v. Tello, 924 F.3d 782 (5th Cir. 2019). 3
Also, you should make sure to include as many specific facts (or factual allegations) as possible in your pretrial motions because, if you do not, you cannot count on getting an evidentiary hearing to flesh out your record.11 An evidentiary hearing is required—and hence a district court perforce abuses its discretion in denying a hearing—“only when the defendant alleges sufficient facts which, if proven, would justify relief.”12 The motion will allege sufficient facts to justify an evidentiary hearing only when it is “sufficiently definite, specific, detailed, and nonconjectural,” to enable the court to conclude that a substantial claim is presented or to establish a contested issue of fact. 13
“General or conclusory assertions,
founded upon mere suspicion or conjecture will not suffice.”14 Thus, if your motion is not sufficiently detailed, your motion may be summarily denied without ever
11
I recognize that trial attorneys will often want to file as “bare-bones” a motion as possible, to avoid tipping their hand in advance of the evidentiary hearing. There is certainly merit in this approach, because it can prevent adverse witnesses from tailoring their testimony to defeat the particular allegations in the motion. The problem is that, if you do not allege a claim with sufficient specificity, you may never get an evidentiary hearing. How much detail to put in suppression motions is thus a judgment call that depends in large measure on the predilections of the judge before whom you are appearing. If that judge is going to give you an evidentiary hearing regardless of the particularity of your motion, then you have little to lose and everything to gain by filing only a “bare-bones” motion. 12
United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983) (emphasis added); cf. United States v. Powell, 354 F.3d 362, 370–71 (5th Cir. 2003) (motion to withdraw guilty plea). 13
Harrelson, 705 F.3d at 733; United States v. Dean, 100 F.3d 19, 21 (5th Cir. 1996).
14
Id. 4
having an evidentiary hearing, and, in the absence of a sufficiently detailed record, it will be virtually impossible to get any appellate relief.15 Additionally, especially with motions to suppress, you should be careful to allege all possible grounds for suppression: a motion to suppress evidence based on one theory will not preserve for an appeal the claim that the same evidence should be suppressed on another theory.16 Another pitfall for the unwary with respect to pretrial motions is the motion in limine. Motions in limine are excellent devices to try to get pretrial rulings on the admissibility vel non of certain evidence. Furthermore, the Federal Rules of Evidence provide that “[o]nce the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”17 However, the Fifth Circuit has held that, when the judge has not made a definitive ruling, a pretrial motion in limine will not, by itself,
15
United States v. Smith-Bowman, 76 F.3d 634, 637–38 (5th Cir. 1996) (district court did not abuse its discretion in denying motion to transfer venue for excessive pretrial publicity without an evidentiary hearing, where, among other things, defendant did not allege with specificity that the community had been saturated with negative media coverage of the charges against her, nor did she include with her motion any copies of, or excerpts from, specific newspaper stories or television reports that focused on her, the charges against her, or the pending trial). 16
See, e.g., United States v. Maldonado, 42 F.3d 906, 909–13 (5th Cir. 1995); United States v. Burgos-Coronado, 970 F.3d 613, 619–20 (5th Cir. 2020) (Fifth Circuit will limit its review to the defense attorney’s claims of a constitutional violation). 17
Fed. R. Evid.103(b); see United States v. Lewis, 796 F.3d 543, 545 n.6 (5th Cir. 2015). 5
preserve error for appeal: “to preserve error for appeal, an objection or offer of proof as to the subject presented by a motion in limine must be made at trial.”18 It is probably a good idea (although it is not necessary) to apply the same principle to unsuccessful motions to suppress: i.e., you should renew your objection to the allegedly suppressible evidence at trial. Special considerations arise when the government proposes, under Federal Rule of Evidence 609, to use prior convictions to impeach your client if he or she testifies.
Where the district court rules that these prior convictions will be
admissible under Rule 609 to impeach your client, and your client decides not to testify in light of that ruling, any error in the Rule 609 ruling is extinguished; in other words, to preserve any Rule 609 error for appeal, your client must “run the gauntlet” by testifying and then being impeached by the prior convictions.19 In a similar vein, if a defendant, faced with an unfavorable pretrial Rule 609 ruling from the district court, decides to try to “remove the sting” of the prior convictions by preemptively
18
United States v. Graves, 5 F.3d 1546, 1552 n.6 (5th Cir. 1993); see also id. at 1551–52; United States v. Powell, 732 F.3d 361, 378 n.16 (5th Cir. 2013). 19
See Luce v. United States, 469 U.S. 38, 43 (1984) (“We hold that to raise and preserve for review a claim of improper impeachment with a prior conviction, a defendant must testify.”). 6
bringing them out herself during her direct testimony, she also loses the right to contest the propriety of the Rule 609 ruling on appeal.20 Proffer, Proffer, Proffer “A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of a party and: . . . if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.” 21 The Fifth Circuit requires that, not only the substance of the evidence, but also the relevancy of the evidence to the defense and the ground(s) for admissibility of the evidence, be made known to the court. 22 “Although a formal offer of proof is not required to preserve error, the party must at least inform the trial court ‘what counsel intends to show by the evidence and why it should be admitted.’” 23 Thus, in making a proffer, the prudent practitioner is
20
See Ohler v. United States, 529 U.S. 753, 760 (2000) (“a defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error”). 21
Fed. R. Evid. 103(a) & (2); see, e.g., United States v. Scott, 48 F.3d 1389, 1397 (5th Cir. 1995) (holding that defendant did not preserve for appeal the issue of improper restriction on crossexamination/impeachment of government witness, where defendant failed to make an offer of proof to the district court as to which portions of the criminal record of the government’s witness should have entered into evidence). 22 23
United States v. Clements, 73 F.3d 1330, 1336 (5th Cir. 1996).
Clements, 73 F.3d at 1336 (emphasis omitted) (quoting United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir. 1994)). In Clements, the Fifth Circuit applied this rule to hold that the district court did not abuse its discretion in excluding evidence of defendant’s poor CheckFax credit rating 7
well-advised to give (1) a detailed summary of the substance of the excluded evidence; (2) all the things you expect to show or prove by that evidence; and (3) all the grounds on which the evidence should be admitted. While a general description of the excluded evidence, or a global proffer of mass prior testimony or evidence, is generally not sufficient to preserve error, it may be sufficient where the trial court chills or restricts the party’s ability to make a more detailed proffer.24 Thus, in Ballis, the Fifth Circuit found that a global proffer of the entire record of a previous motion to dismiss hearing was adequate to preserve error where the trial judge warned that he did not need to be “spoon fed” about every possible nuance of the question, and where the judge expressed an intimate familiarity with the testimony offered and in fact accepted the global proffer as sufficient.25 The same principles apply where the error complained of is not one pertaining to the exclusion of evidence per se, but is one pertaining to the trial process leading to the discovery, production, and introduction of evidence.26 For example, where a
as hearsay, where “[d]efense counsel . . . made no attempt to inform the district court that [defendant’s] testimony about his CheckFax rating was being sought to prove something other than the truth of his rating.” Id. 24
See Ballis, 28 F.3d at 1406–07.
25
Id.
26
See, e.g., United States v. Stever, 603 F.3d 747, 752–53 (9th Cir. 2009) (denial of 8
defendant moves for continuance on the basis of the unavailability of a witness, it is incumbent upon the defendant to show the court that “due diligence has been exercised to obtain the attendance of the witness, that substantial favorable evidence would be tendered by the witness, that the witness is available and willing to testify, and that the denial of the continuance would materially prejudice the defendant.”27 Likewise, if the district court denies you the opportunity to present surrebuttal at trial, you must proffer the substance of your surrebuttal; failure to do so will doom your chances on appeal.28 Courts of appeals have upheld a district court’s denial of a defense request for appointment of an investigator under the Criminal Justice Act (18 U.S.C. § 3006A(e)(1)) when the request failed to provide an explanation specifying why an investigator was necessary and why defense counsel could not perform the
discovery materials required reversal because defendant demonstrated information was in the U.S. Attorney’s possession and was relevant to defense). 27
Scott, 48 F.3d at 1394 (internal quotation marks and citations omitted) (rejecting defendant’s claim that continuance was necessary to secure the services of a voice expert for analysis of evidentiary tapes, on the basis that defendant had not demonstrated due diligence in obtaining such an expert, availability and willingness of such an expert to testify, or that the testimony would be favorable if secured); see also United States v. Dailey, 868 F.3d 322, 328 (5th Cir. 2017). 28
See, e.g., United States v. Wright, 86 F.3d 64, 65 (5th Cir. 1996) (denial of surrebuttal was not an abuse of discretion “because Wright ‘failed to proffer to the district court the substance of his surrebuttal testimony’”) (quoting United States v. Alford, 999 F.2d 818, 821 (5th Cir. 1993)). 9
investigation.29 On the same principle, where the judge refuses to issue a subpoena, you should proffer, as specifically as you can, what you expect the witness’s testimony will be to nail down your record on appeal. The rule is simple: whenever the judge keeps out evidence that you need for your case, you should state on the record (or file a written submission into the record, if the judge will not let you make an oral proffer) (1) a detailed summary of the evidence; (2) why the evidence is necessary to your case; and (3) why it is admissible. Doing this in every case will ensure that the appellate court will review your claims of erroneous exclusion on the merits rather than “punting” by finding that there was an insufficient proffer to permit appellate review.
29
See, e.g., United States v. Gadison, 8 F.3d 186, 191 (5th Cir. 1993); United States v. Arthur, 432 F. App’x 414, 428–29 (5th Cir. 2011). 10
The Contemporaneous-Objection Rule30 The contemporaneous-objection rule is codified at Federal Rule of Criminal Procedure 51(b) 31 and Federal Rule of Evidence 103(a)& (1). 32 You should be aware of one general and two specific exceptions to the contemporaneous objection rule. First, “[i]f the party does not have an opportunity to object to a ruling or order,
30
An excellent compendium of some of the most common trial objections is found in the following law review article: Craig Lee Montz, Trial Objections from Beginning to End: The Handbook for Civil and Criminal Trials, 29 Pepp. L. Rev. 243 (2002). 31
This rule is entitled “Preserving a Claim of Error,” and states as follows:
A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection. If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party. A ruling or order that admits or excludes evidence is governed by Federal Rule of Evidence 103. Fed. R. Crim. P. 51(b). 32
Under this rule, “[a] party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1)
if the ruling admits evidence, a party, on the record: (A)
timely objects or moves to strike; and
(B)
states the specific ground, unless it was apparent from the context; .
.
.
Fed. R. Evid. 103(a) & (1). 11
.
the absence of an objection does not later prejudice that party.” 33 Second, no objection is required when the judge presiding at the trial testifies in the trial as a witness.34 Third, when the judge calls or examines witnesses, the objection may be deferred until “the next opportunity when the jury is not present.”35 It bears repeating that, unless the judge renders a “definitive” pretrial ruling on the motion, as allowed under Fed. R. Evid. 103(b), a pretrial motion in limine will not obviate the need for a contemporaneous objection at trial. It is counsel’s duty to determine whether the court’s ruling was definitive. Fed. R. Evid. 103, advisory committee notes (2000). Even if the court’s pretrial ruling is definitive, nothing in Rule 103(b) prohibits the court from revisiting its decision when the evidence is actually offered at trial. Id. So, “to preserve error for appeal, an objection or offer of proof as to the subject presented by a motion in limine must be made at trial.”36 33
Fed. R. Crim. P. 51(b).
34
See Fed. R. Evid. 605. Rule 605 provides that “[t]he presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.” 35
Fed. R. Evid. 614(c). Note, however, that an objection is required to preserve this type of error on appeal, as opposed to the “automatic objection” rule contained in Rule 605. See Advisory Committee Notes to Rule 614(c). Failure to object either contemporaneously or at the first opportunity when the jury is not present will subject your claims of excessive questioning by the court to review only for plain error. See, e.g., United States v. Wright, 86 F.3d 64, 65 (5th Cir. 1996). 36
Graves, 5 F.3d at 1552 n.6. 12
This does not mean, however, that pretrial motions in limine are useless. First of all, you may actually win them, get what you asked for, and never need to appeal. But second, even if you do not prevail on the merits of your motions in limine before trial, they often provide a convenient shorthand for making an objection during trial: for example, “Objection, Your Honor, for all the reasons, and on all the grounds, stated in defendant’s motion in limine.” An objection of this type is quickly made and quickly disposed of, preserving error and preserving the good will of the judge at the same time. The key to any type of objection is specificity. You must be specific about what you’re objecting to and the basis for your objection, or you run the risk of forfeiting your objection and subjecting it to only plain-error review on appeal.37 However, an objection that does not cite “chapter and verse” may still be sufficient, provided that it got the gist of your complaint across to the district court. 38 That is because one of the purposes of the contemporaneous objection rule is to allow the
37
See, e.g., United States v. Burton, 126 F.3d 666, 671–73 (5th Cir. 1997) (given that Fed. R. Evid. 801(d)(2)(E) contains at least four possible bases for an objection to proffered coconspirators’ testimony, defendant’s objection to evidence “under 801.d2e” did not preserve for appeal the contention that the statements objected to were not “in furtherance of the conspiracy”); United States v. Andaverde-Tinoco, 741 F.3d 509, 515–16 (5th Cir. 2013) (holding that defendant’s objection to the district court giving an Allen charge, (Allen v. United States, 164 U.S. 492 (1896)), did not preserve for appeal argument as to the specific language of the charge given). 38
See, e.g., United States v. Neal, 578 F.3d 270, 272-73 (5th Cir. 2009); United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000). 13
district court the opportunity to rule on the objection in the first instance, thus conserving judicial resources.39 Jury Instructions Any objections to the jury instructions the district court proposes to give, as well as any objections to the district court’s failure to give requested instructions, “must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate.”40 Failure to comply with this requirement will mean that instructional errors will be reviewed for plain error.41 Fed. R. Crim. P. 30(d). A party “may [and is well-advised to] request in writing that the court instruct the jury on the law as specified in the request. The request must be made at the close of the evidence or at any earlier time that the court reasonably sets. When the request is made, the requesting party must furnish a copy to every other party.”42
39
See United States v. Bilecki, 876 F.2d 1128, 1131 (5th Cir. 1989).
40
Fed. R. Crim. P. 30(d) (emphasis added).
41
See also Jones v. United States, 527 U.S. 373, 388 (1999) (failure to object to jury instructions before jury retired rendered objection untimely and subject to plain-error review). 42
Fed. R. Crim. P. 30(a). 14
However, a defendant need not submit a requested jury instruction in order to preserve instructional error for appeal; rather, under Rule 30, all that is required is a timely (i.e., before the jury retires to deliberate) and sufficiently specific objection to the charge actually given by the trial court.43 Oral requests have been held to be sufficient if the record indicates that the district court was adequately informed of the point involved.44 The better practice, however, is to submit your request or objection in writing as the Fifth Circuit routinely finds objections to be insufficient and applies plain-error review. The defendant is entitled to a specific instruction on his theory of the case. 45 However, the request must be timely, the instruction must correctly state the law, and the evidence must support the instruction. 46
In determining whether the
evidence supports the instruction, it is construed in the light most favorable to the
43
See, e.g., United States v. Eiland, 741 F.2d 738, 742 (5th Cir. 1984) (“[Defendant’s] objection to the omission of this charge had the same effect as a valid request for the instruction.”) (footnote omitted). 44
See United States v. Mallen, 843 F.2d 1096, 1101–02 (8th Cir. 1988); United States v. Jones, 403 F.3d 817, 821 (6th Cir. 2005). 45
United States v. Bradshaw, 580 F.3d 1129, 1135 (10th Cir. 2009) (“It is axiomatic (and important) that a defendant is entitled to an instruction stating the law on his theory of the case”); United States v. Hatcher, 323 F.3d 666, 672 (8th Cir. 2003). 46
Hatcher, 323 F.3d at 672. 15
requesting party. 47 In making this determination, the district court “is forbidden from weighing the evidence, making credibility determinations, or resolving evidentiary conflicts.”48 Other Trial Problems The United States Supreme Court, in 2000, held that any error in a district court’s refusal to strike a juror for cause is extinguished if the defendant uses a peremptory challenge to remove the objectionable juror.49 (The Court “reject[ed] the Government’s contention that under federal law, a defendant is obliged to use a peremptory challenge to cure the judge’s error.” 50 )
After Martinez-Salazar,
therefore, it appears that a defendant may have to elect between letting an objectionable juror sit, thereby preserving the ruling for appeal, or using a peremptory to remove that juror from the jury.51
47
United States v. Powers, 702 F.3d 1, 8–9 (1st Cir. 2012).
48
Id.
49
See United States v. Martinez-Salazar, 528 U.S. 304, 307 & 315–17 (2000).
50
Id. at 307; see also id. at 314–15.
51
The Court in Martinez-Salazar left open the possibility that reversal might be required where “the trial court deliberately misapplied the law in order to force the defendants to use a peremptory challenge to correct the court’s error.” Id. at 316 (citation omitted). The Court also noted that reversal would be required if a juror who should have been dismissed for cause actually sat on the jury. See id. 16
Another possible problem is a party’s use of peremptory challenges on the impermissible basis of race or gender, in violation of Batson v. Kentucky52 and its progeny.53 First of all, to be timely, a Batson challenge must be made before the venire is dismissed and before the trial commences; it is not sufficient that challenge be made prior to the jury’s being sworn.54 Second, to require the opposing party to explain its strikes, the challenging party must make out a prima facie case that the strikes were exercised for an impermissible reason.55 At this point, the burden shifts to the striking party to explain its strikes.56 Then, however, to preserve the Batson issue for appeal, the challenging party must object to/dispute the explanations, explain why those explanations are a pretext for impermissible discrimination on the basis of race or gender, and request the court to make a ruling; otherwise the claim is waived.57
52
476 U.S. 79 (1986).
53
The Supreme Court has held that, under the reasoning of Batson, it likewise violates the Equal Protection Clause to exclude potential jurors solely on the basis of their gender. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994). 54
See United States v. Maseratti, 1 F.3d 330, 335 (5th Cir. 1993) (citation omitted) (Batson claim waived because not made prior to dismissal of the venire). 55
See Batson, 476 U.S. at 93–97.
56
See id. at 97–98.
57
See United States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (where defense did not dispute or contest the prosecutor's explanation for exercise of peremptory challenge against 17
Defense counsel should move for judgment of acquittal (1) at the close of the government’s evidence; and (2) at the close of all the evidence.58 One benefit of a pre-verdict motion for judgment of acquittal is that if the district court grants it then double jeopardy bars a government appeal and a retrial. 59 Whereas, if the jury convicts the defendant, and the district court grants a post-verdict judgment of acquittal, there is no double jeopardy bar to a government appeal because it will merely result in restatement of the jury’s guilty verdict.60 Failure move for judgment of acquittal will forfeit the usual standard of review for claims of insufficiency of the evidence, and any such claims will be reviewed only for a “manifest miscarriage of justice.”61 Such a miscarriage exists only if the record lacks any “evidence of the defendant’s guilt or the evidence on a key element
Hispanic venireman, Batson challenge to peremptory challenge was waived). 58
See Fed. R. Crim. P. 29(a).
59
Evans v. Michigan, 568 U.S. 313 (2013).
60
United States v. Wilson, 420 U.S. 332 (1975).
61
E.g., United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir. 1991) (reviewing for manifest miscarriage of justice); United States v. Walden, 625 F.3d 961, 967–68 (6th Cir. 2010) (same); United States v. Fries, 725 F.3d 1286, 1291 n.5 (11th Cir. 2013) (same). But see United States v. Borders, 829 F.3d 558, 564 (8th Cir. 2016) (reviewing for plain error); United States v. Calhoun, 721 F.3d 596, 599–600 (8th Cir. 2013) (reviewing for plain error, which requires manifest miscarriage of justice); United States v. King, 735 F.3d 1098, 1106–07 (9th Cir. 2013) (reviewing for plain error). 18
of the offense was so tenuous that a conviction would be shocking.”62 A narrow exception to this rule exists where the defendant moves for judgment of acquittal after the government’s case, and then immediately rests without putting on any evidence; in such a case, the sufficiency of the evidence is reviewed under the usual standard of review.63 Likewise, the failure to move for judgment of acquittal does not constitute waiver when the trial court’s action renders the motion for acquittal “an empty ritual.”64 But even if you have forgotten to move for judgment of acquittal at the close of the government’s case-in-chief and/or at the close of all the evidence, you may still preserve a claim of insufficient evidence by filing a post-verdict motion under Federal Rule of Criminal Procedure 29(c).65 Under this rule, “[a] defendant may
62
Calhoun, 721 F.3d at 600; United States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988).
63
See, e.g., United States v. Jaras, 86 F.3d 383, 388 n.5 (5th Cir. 1996) (citing United States v. Resio-Trejo, 45 F.3d 907, 910 n.6 (5th Cir. 1995)). 64
E.g., United States v. Pennington, 20 F.3d 593, 597 n.2 (5th Cir. 1994) (citing United States v. Gonzalez, 700 F.2d 196, 204 n.6 (5th Cir. 1983)). 65
See, e.g., United States v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003) (where defendant moved for judgment of acquittal at close of government’s case-in-chief, but did not renew motion at the close of all the evidence, question of the sufficiency of the evidence was nevertheless preserved by defendant’s timely post-verdict motion for judgment of acquittal); see also Fed. R. Crim. P. 29(c)(3). 19
move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.”66 A general motion for judgment of acquittal (i.e., a general assertion that the evidence was insufficient to sustain a conviction) is sufficient to preserve a claim of insufficient evidence, and it is not necessary that the grounds of such a motion be more specifically stated.67 However, the Fifth Circuit has held that if the defendant asserts specific grounds for a Rule 29 motion, then all grounds not specified are forfeited.68 This means that, whenever you assert specific grounds for acquittal, you may be forfeiting the right to assert on appeal any other grounds for finding the evidence insufficient. If you are going to assert specific grounds for acquittal, therefore, you should make sure to include all the possible grounds for acquittal. If you fear that you may miss some of these grounds, you may be able to avoid this forfeiture rule by first making a general motion for judgment of acquittal, and then
66
Fed. R. Crim. P. 29(c)(1).
67
See, e.g., Huff v. United States, 273 F.2d 56, 60 (5th Cir. 1959); United States v. Hammoude, 51 F.3d 288, 291 (D.C. Cir. 1995); United States v. Marston, 694 F.3d 131, 134 (1st Cir. 2012). But see United States v. Clarke, 564 F.3d 949, 953–54 (8th Cir. 2009) (held general motion for judgment of acquittal as to methamphetamine conviction did not preserve specific argument on appeal that only “usable” amount of methamphetamine in biphase liquid could be counted toward weight). 68
United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc). 20
adding your particular arguments.69 If you have little or no hope that the judge will grant the motion, it may be best just to stick with a general motion for judgment of acquittal. Challenging venue issues can present special considerations.
The Fifth
Circuit has held that a defendant waives appellate review of venue defects not raised pretrial if the indictment lacks sufficient venue allegations or the defendant was on notice of a defect in venue. 70
However, if the indictment contains a proper
allegation of venue so that the defendant has no notice of a defect until the government rests its case, the objection is timely if made at the close of evidence.71 In light of these authorities, it seems that the safest course is to attack improper venue in a pretrial motion either when (1) the indictment on its face establishes that venue is lacking or (2) the defense is on notice of a possible defect in venue.72 Also,
69
You might, for example, say, “Mr. Defendant hereby moves for judgment of acquittal on every count, on the ground that the government has failed to carry its burden of proving every element of those counts beyond a reasonable doubt. Furthermore, without waiving our general claim of insufficiency, we would particularly point out that the government has failed to prove that the banks allegedly robbed had their deposits insured by the FDIC.” 70
United States v. Carreon-Palacio, 267 F.3d 381, 392–93 (5th Cir. 2001); United States v. Delgado-Nunez, 295 F.3d 494, 496–97 (5th Cir. 2002); see also United States v. Haley, 500 F.2d 302, 305 (8th Cir. 1974); United States v. Grenoble, 413 F.3d 569, 573 (6th Cir. 2005). 71
Carreon-Palacio, 267 F.3d at 392–93; United States v. Black Cloud, 590 F.2d 270, 272 (8th Cir. 1979); United States v. Daniels, 5 F.3d 495, 496 (11th Cir. 1993). 72
Cf. Fed. R. Crim. P. 12(b)(1) (“A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits”). 21
even when venue is a trial (as opposed to a pretrial) issue, it is an exception to the rule that a general motion for judgment of acquittal preserves all grounds for claiming insufficiency of the evidence.
In other words, a general motion for
judgment of acquittal will not preserve for appeal defects in venue; you must specifically point out to the court in a timely fashion why venue is improper.73 Guilty Pleas A claim that a district court failed to comply with Federal Rule of Criminal Procedure 11 (dealing with the conduct of guilty plea proceedings in federal court) will be subject to plain-error review if the Rule 11 error was not objected to in the district court. 74 Furthermore, “a reviewing court may consult the whole record when considering the effect of any error on substantial rights,”75 and is not limited
73
See, e.g., United States v. Kiekow, 872 F.3d 236, 243 n.3 (5th Cir. 2017); United States v. Knox, 540 F.3d 708, 714–16 (7th Cir. 2008); United States v. Rommy, 506 F.3d 108, 119 (2d Cir. 2007). But see United States v. Zidell, 323 F.3d 412, 421 (6th Cir. 2003) (general rule 29 motion preserved challenge to venue). 74
See United States v. Vonn, 535 U.S. 55, 59 (2002). Note, however, that even where there is not a contemporaneous objection to the Rule 11 error at the plea colloquy, error may be preserved by a subsequent motion to withdraw the guilty plea on the basis of the Rule 11 error. See, e.g., United States v. Powell, 354 F.3d 362, 366–67 (5th Cir. 2003) (reviewing defendant’s claim of Rule 11 error for harmful error, not plain error, where, although defendant made no contemporaneous objection to the district court’s noncompliance with Rule 11 at the guilty plea proceeding, defendant raised the issue in a timely pre-sentencing motion to withdraw her guilty plea). 75
Vonn, 535 U.S. at 59. 22
merely to the transcript of the plea colloquy.76 To prevail on an unpreserved Rule 11 claim on appeal, a defendant “must show a reasonable probability that, but for the error, he would not have entered the plea.”77 If your client decides to plead guilty, be sure that he is not waiving issues he wants raised on appeal. An unconditional guilty plea waives all non-jurisdictional defects and defenses. 78
However, the Supreme Court recently held that an
unconditional guilty plea does not waive the right to challenge the constitutionality of the statute of conviction on appeal. Class v. United States, 138 S. Ct. 798 (2018). To preserve the right to appeal a ruling on a pretrial motion, the defendant must enter into a conditional guilty plea. Fed. R. Crim. P. 11(a)(2). Conditional pleas must be in writing and approved by the court and the government. A conditional guilty plea reserves only “the right to have an appellate court review an adverse determination of a specified pretrial motion.”79
76
See id. at 74–75.
77
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
78
United States v. Jennings, 891 F.2d 93, 95 (5th Cir. 1989) (a valid guilty plea—knowing and voluntary—waives all non-jurisdictional defects); United States v. Olson, 849 F.3d 230, 231 (5th Cir. 2017) (per curiam) (guilty plea waived right to appeal denial of motion to suppress). 79
United States v. Ortiz, 687 F.3d 660, 662 n.2 (5th Cir. 2012) (conditional plea reserved right to appeal denial of speedy trial motion but not pretrial determination of probable cause); but see United States v. Yater, 756 F.2d 1058, 1063 (5th Cir. 1985) (holding that “entrapment is not an issue susceptible to pretrial motion and disposition and so not covered by Rule 11(a)(2)). 23
If your client pleads guilty pursuant to a plea agreement be aware that these frequently include an appeal-waiver provision. A guilty plea pursuant to a plea agreement with an appeal waiver will waive all issues covered by the terms of the waiver.80 Be aware that a broad appeal waiver can encompass unanticipated issues with respect to conditions of supervised release, fines, restitution, and restitution.81 Sentencing The key to preserving error at sentencing is to make comprehensive written objections to the presentence report (PSR) and any addenda thereto, and to renew those objections orally at the sentencing hearing (assuming, of course, that they are not resolved in your favor prior to sentencing). This is especially true with respect to the factual determinations underlying the selection of the Guidelines offense level, for example, drug quantity, amount of loss, and role in the offense. Until recently, the Fifth Circuit had held that questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.82 This
80
United States v. Higgins, 739 F.3d 733, 736–39 (5th Cir. 2014) (defendant, who pleaded guilty pursuant to a plea agreement with an appeal waiver provision, waived the right to appeal a conflict between the oral and written pronouncements of his condition of supervised release). 81
United States v. Keele, 755 F.3d 752, 754–56 (5th Cir. 2014) (defendant who knowingly agrees to waive right to appeal his sentence has generally waived his right to appeal restitution). 82
See, e.g., United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991) (“Questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute 24
year, however, the Supreme Court overruled that Fifth Circuit precedent. Davis v. United States, 140 S. Ct. 1060 (2020). It is still important to raise your factual challenges before the district court so that the court might rule in your favor or, at least, to preserve for appeal and not be subject to plain-error review. A written objection is particularly important because “once a party raises an objection in writing, if he subsequently fails to lodge an oral on-the-record objection, the error is nevertheless preserved for appeal.”83 The objection must raise all the grounds for challenging a particular Sentencing Guidelines application or other proposed aspect of sentencing; new grounds on appeal will be subject to plain-error review.84 An objection to the presentence report must be made with “specificity and clarity.”85 A specific objection will allow the district court to correct the error and will also preserve the issue for appellate review.86 An imprecise, unexplained, or pro forma objection will not pass muster.87 plain error.” 83
United States v. Medina-Anicacio, 325 F.3d 638, 642 (5th Cir. 2003) (citing Bender v. Brumley, 1 F.3d 271, 277 (5th Cir. 1993)). 84
Medina-Anicacio, 325 F.3d at 642 (“When a defendant objects to his sentence on grounds different from those raised on appeal, we review the new argument raised on appeal for plain error only.”). 85
United States v. Neal, 578 F.3d 270, 272–73 (5th Cir. 2009).
86
Id.; United States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995).
87
See, e.g., Krout, 66 F.3d at 1433-34. Note that appellate courts may sometimes find 25
It is important to remember that the defense carries the burden of proving mitigating factors by a preponderance of relevant and sufficiently reliable evidence.88 Moreover, a party does not carry its burden at sentencing merely by the unsworn assertions of counsel, as these do not constitute a sufficiently reliable basis for sentencing.89 The district court “must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute or determine that a ruling is not necessary” because the matter will not affect sentencing.90 But the Fifth Circuit does not require the sentencing court to make a “catechismic regurgitation of each fact determined”; instead it can make “implicit findings by adopting the presentence report.”91 That is so because a presentence report “generally bears sufficient indicia of reliability,” and the court may rely upon it when the defendant does not present
less-than-perfect sentencing objections sufficient under the circumstances of those cases to preserve error for appeal. See, e.g., United States v. Neal, 578 F.3d 270, 272–73 (5th Cir. 2009); United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000). It is best not to count on such appellate forgiveness, however. 88
See, e.g., United States v. Alfaro, 919 F.2d 962, 965 & n.10 (5th Cir. 1990) (citations in footnote omitted). 89
See, e.g., United States v. Patterson, 962 F.2d 409, 415 (5th Cir. 1992) (citing United States v. Johnson, 823 F.2d 840, 842 (5th Cir. 1987)). 90
Fed. R. Crim. P. 32(i)(3)(B); see also United States v. Piazza, 959 F.3d 33, 36–37 (5th Cir. 1992). 91
United States v. Ramirez-Gonzalez, 840 F.3d 240, 246 (5th Cir. 2016). 26
rebuttal evidence.92 The rule in the Fifth Circuit is that “[i]f the defendant does not submit affidavits or other evidence to rebut the information in the PSR, the district court may adopt its findings without further inquiry or explanation,”93 and “[m]ere objections do not suffice as competent rebuttal evidence.”94 Accordingly, it is best, if you intend to controvert a Guidelines application or fact in the PSR, to present some rebuttal evidence. Other procedural errors—such as, for example, a district court’s failure to adequately explain its sentence—are, if not objected to below, reviewed only for plain error.95 In the particular context of a district court’s reasons (or lack thereof) for the sentence imposed, this means that you must object to the inadequacy of the explanation after sentence is pronounced. As to the substantive reasonableness of the sentence, until recently, the Fifth Circuit held that failure to object to the length of the sentence after the sentence is imposed would result in appellate review post92
United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995).
93
United States v. Mitchell, 166 F.3d 748, 754 (5th Cir. 1999) (footnote with citation omitted). But see United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000) (although a PSR is generally considered to have sufficient indicia of reliability for it to serve as the evidentiary basis for sentencing determinations, “[t]he PSR, however, cannot just include statements in the hope of converting such statements into reliable evidence, without providing any information for the basis of the statements”) (citing United States v. Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993)). 94
United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).
95
See, e.g., United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008); United States v. Churchwell, 807 F.3d 107, 122 (5th Cir. 2015). 27
Booker96 for plain error only.97 However, this year, the Supreme Court overruled that Fifth Circuit precedent. Holguin-Hernandez v. United States, 140 S. Ct. 762 (2020). Prior to Booker rendering the Guidelines advisory, one of the few ways to obtain a below-guideline sentence was through a downward departure. Unless you are very careful to lay the record correctly, however, the district court’s denial of a downward departure would not be reviewable on appeal. Generally speaking, an appellate court has no jurisdiction under 18 U.S.C. § 3742 to hear an appeal of a lawful guidelines sentence where the district court has exercised its discretion not to depart downward; in such cases, the appeal must be dismissed for lack of jurisdiction.98 However, where a district court’s refusal to depart downward is not discretionary, but rather is based upon the court's mistaken belief that it legally does not possess the authority to depart, the resulting sentencing is “in violation of law,” and appellate jurisdiction does therefore lie, under 18 U.S.C. § 3742(a)(1). 99 If
96
United States v. Booker, 543 U.S. 220 (2005).
97
See United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007). All the other circuits had held that such an objection was not necessary to preserve a claim of substantive unreasonableness. See United States v. Autery, 555 F.3d 864, 870–71 (9th Cir. 2009) (disagreeing with Peltier and detailing circuit split on the question). 98
United States v. DiMarco, 46 F.3d 476, 477–78 (5th Cir. 1995).
99
United States v. Burleson, 22 F.3d 93, 95 (5th Cir. 1994) (citation omitted); see also, 28
possible, you should get the sentencing judge to expressly articulate on the record that she would depart if she thought she had the authority to do so. A way to avoid this potential trap for the unwary is to argue a downward departure ground as a basis for a downward variance as well. That way, if the district court denies it, the issue is still reviewable on appeal. The appellate court may “still review to determine whether the district court’s imposition of a guideline sentence instead of a nonguideline sentence was reasonable.”100 You should be especially careful to object to any objectionable noncustodial aspects of the sentence—e.g., punitive fines, costs of incarceration, restitution, and conditions of supervised release. In these cases, there is, of course, the usual consequence that your failure to do so will invoke the plain-error standard on appeal. However, there is also the additional consequence that your failure to make these claims will not later be cognizable as ineffective assistance of counsel in a subsequent motion to vacate or set aside under 28 U.S.C. § 2255, because, the Fifth Circuit has held, (1) a challenge to a fine or restitution order does not meet the “in
DiMarco, 46 F.3d at 478. 100
United States v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007) (footnote omitted). 29
custody” requirement of § 2255 because (2) Congress intended to limit the types of claims cognizable under § 2255 to claims relating to unlawful custody. 101 Finally, make sure you object to illegal/improper conditions of probation and supervised release so that they can be appealed at the time the original judgment is entered. If you do not, it will be extremely difficult, if not impossible, to challenge them later when the defendant’s probation/supervised release is being revoked for failure to comply with those conditions. Consequences of Failure to Preserve Error Failure to preserve error generally results in the application of the stringent “plain-error” test. The plain-error test derives from Federal Rule of Criminal Procedure 52(b), which provides that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”102 For there to be “plain error” warranting reversal, four elements must be satisfied: (1) There must be an “error.” “Deviation from a legal rule is ‘error’ unless the rule has been waived.”103
101
See, e.g., United States v. Gaudet, 81 F.3d 585, 592 (5th Cir. 1996) (citing United States v. Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994)). 102
Fed. R. Crim. P. 52(b).
103
United States v. Olano, 507 U.S. 725, 732-33 (1993); see also United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc). 30
(2) The error must be “plain.” equivalently, ‘obvious.’” 104
“‘Plain’ is synonymous with ‘clear’ or,
More recently, the Court has elaborated that this
requirement means that the error is not “subject to reasonable dispute.”105 The Supreme Court in Olano declined to decide whether the error had to be plain at the time of trial/sentencing, or merely at the time of appeal.106 However, in 1997, the Supreme Court held that “in a case . . . where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.” 107 And, in 2013, the Supreme Court tied up a loose end on this point when it held that “whether a legal question was settled or unsettled at the time of trial, it is enough that an error be plain at the time of appellate consideration” for the second prong of the Olano plain-error test to be satisfied.108
104
Olano, 507 U.S. at 734 (citations omitted); see also Calverley, 37 F.3d at 162–64.
105
Puckett v. United States, 556 U.S. 129, 135 (2009).
106
Olano, 507 U.S. at 734 (“We need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, the Court of Appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.”) 107
Johnson v. United States, 520 U.S. 461, 468 (1997).
108
Henderson v. United States, 133 S. Ct. 1121, 1130–31 (2013) (cleaned up). 31
(3) The plain error must “affect substantial rights,” which normally, although not necessarily always, means that the error prejudiced the defendant. 109 The defendant bears the burden of proving that his substantial rights were affected by the plain error. 110
To make this showing, an appellant normally must show a
reasonable probability of a different outcome but for the error;111 however, “the reasonable-probability standard is not the same as, and should not be confused with, a requirement that the defendant prove by a preponderance of the evidence that but for error things would have been different.”112 (4) Finally, even if all of the first three factors are satisfied, “the Court of Appeals has authority to order correction but is not required to do so.”113 It should 109
Olano, 507 U.S. at 734–35; Calverley, 37 F.3d at 164. In Olano, the Court suggested that “[t]here may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome, but this issue need not be addressed. Nor need we address those errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice.” Olano, 507 U.S. at 735. In United States v. Reyna, 358 F.3d 344, 350–52 (5th Cir. 2004) (en banc), (2004), the Fifth Circuit followed the suggestion of Olano and held that the violation of a defendant’s right to allocute before sentence should be presumed prejudicial when the defendant shows both a violation of the right and an opportunity for such violation to have played a role in the district court’s sentencing decision. 110
See Olano, 507 U.S. at 734; Calverley, 37 F.3d at 164.
111
See United States v. Dominguez Benitez, 542 U.S. 74, 83 & n.9 (2004) (to establish an effect on substantial rights for purposes of plain-error review, defendant must normally show a reasonable probability that, but for the error, the outcome of the proceeding would have been different). 112
Id. at 83 n.9 (citation omitted).
113
Olano, 507 U.S. at 735; see also Calverley, 37 F.3d at 164. 32
exercise its discretion to correct the plain forfeited error if failure to correct the error would result in a “miscarriage of justice” or, put another way, “if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” 114 “Th[is] prong [of plain-error review] is meant to be applied on a case-specific and fact-intensive basis,” 115 because “a ‘per se approach to plain-error review is flawed.’”116 The plain-error standard is quite difficult to meet. Even more alarmingly, it can preclude relief in a number of cases where reversal would result had the error in question been properly preserved. Proper preservation of errors is, therefore, key to effective representation of our clients. Conclusion Since we can’t win all our cases, appeals are unfortunately necessary. We stand a much better chance on appeal when the error in question is preserved, thus avoiding the handicap of plain-error review. Hopefully, the above tips and pointers will help you to preserve errors for appellate review.
114
Olano, 507 U.S. at 736 (citation omitted); see also Calverley, 37 F.3d at 164.
115
Puckett, 556 U.S. at 142.
116
Id. (quoting United States v. Young, 470 U.S. 1, 17 n.14 (1985)). 33
Preservation Tips & Basic Appellate Procedure TCDLA Post-Conviction Seminar October 2020 Prepared by AFPD Kristin Kimmelman – Sept. 14, 2020
Preservation Tips 1. General principles a. Proffer: make sure the evidence that was excluded (or whatever the harm) is in the record; be specific b. Object contemporaneously: goal is to give the district court notice and opportunity to correct the error; be specific c. Make sure evidence and discussions are in the record i. Watch out for those bench and chambers conferences d. Get a clear ruling 2. Pretrial motions a. File motions timely i. Fed. R. Crim. P. 12(b) lists motions that must be filed before trial 1. Untimely motions considered upon showing of good cause, such as learning basis for motion later1 - see Fed. R. Crim. P. 12(b)(3) ii. Local Rule CR-12 (W.D. Tex.) deadline for pretrial motions is within 14 days of arraignment unless court orders otherwise b. Set forth enough facts to get evidentiary hearing to resolve material factual disputes c. Argue all applicable theories 3. Unconditional guilty plea waives all nonjurisdictional issues except for constitutionality of the statute2 a. To preserve those issues, enter conditional plea or go to trial 4. Conditional guilty plea a. Per Federal Rule of Criminal Procedure 11(a)(2), should be in writing, identify specific pretrial ruling for appeal, and have consent of court and government3 5. Bench trial with stipulated facts (to try to get acceptance of responsibility while still preserving issue for appeal)4 a. Make clear, in writing or orally, that: i. government would not consent to conditional plea, ii. stipulations agreed to in order to appeal specific pretrial ruling, and iii. defendant does not admit guilt b. Best practice for stipulated facts to include evidence that should have been suppressed5 6. Trial a. Contemporaneous objection: when evidence is admitted, (1) object timely or move to strike, and (2) state the specific ground6 i. Motions in limine preserves issue (without a later objection) if sufficiently specific, and definitively ruled on pretrial7 ii. Continuing objection can preserve error if court grants it, and it’s clear what the objection covers8
b. To preserve Rule 609 error, cannot take out the sting by fronting conviction9 c. Jury instructions i. Objection must be timely (before jury retires to deliberate), and sufficiently specific ii. Proposed jury instructions insufficient; be sure objections are in the record d. Motion for judgment of acquittal – Fed. R. Crim. P. 29 i. To preserve challenge to the sufficiency of the evidence, move for judgment of acquittal: (1) at close of government’s case, and (2) at close defense case ii. A general motion preserves insufficiency of evidence to support verdict (but not venue) 1. But a specific motion waives all other grounds10 iii. Can preserve with a post-verdict motion for judgment of acquittal within 14 days of verdict – Rule 29(c) (but no double jeopardy bar)11 7. Guilty pleas a. Use Fifth Circuit’s Ander’s checklist to ensure no Rule 11 error 8. Presentence report a. Prep for it: Mitigating issues? Imperfect duress? Health issues? b. Attend the interview c. Review the PSR with the client i. Review Guidelines calculations and all facts (even those that don’t affect the Guidelines; they might affect client’s time in BOP custody or future cases) ii. Review supervised release conditions, restitution, and fines d. Review Guidelines calculations carefully and slowly i. Refer to the Guidelines and case law; do not rely on memory e. Object in writing to Guidelines calculations and factual issues i. If rebutting facts in PSR, must present rebuttal evidence (counsel’s argument not enough) ii. But unreliable statements in PSR insufficient f. Review proposed supervised release conditions i. Object stating basis – e.g., not reasonably related to 3553(a) factors or deprive liberty more than necessary g. Review any fine or restitution h. Consider asking for evidentiary hearing 9. Sentencing a. Identify mitigating factors under 3553(a) in written memo (or at least orally) i. Can also raise disagreement with the guideline as basis for variance12 b. To preserve procedural errors, object at sentencing noting the procedural error (e.g., failing to consider 3553 factors, incorrect Guidelines, sentencing based on clearly erroneous facts, or failing to adequately explain sentence)13 i. If court gives an explanation, say something like “the objection stands” c. To preserve substantive error (unreasonable sentence), argue for a lower sentence 2
i. A formal objection after sentence announced is no longer necessary14
Basic Appellate Procedure 1. Notice of appeal – file within 14 days of entry of judgment, Fed. R. App. P. 4 2. Notice of appearance – file within 14 days of filing notice of appeal 3. Transcripts a. File transcript request form with district court and Fifth Circuit (the second page of the form has instructions) b. Review transcripts for redactions i. Transcript redaction request must be filed within 21 days c. Identify any possible missing transcripts or exhibits d. Consider whether need to seal or redact transcript (which will be public after 90 days) 4. Communicate with client a. Locate client through BOP Find an Inmate or U.S. Marshals b. Opening letter explaining appellate process c. This BOP website with counselor emails can help arrange phone calls i. If still having trouble, reach out to BOP regional counsel for that facility; see pages 53–54 of this March 2019 BOP Legal Resource Guide 5. Briefing notice a. Issued by Fifth Circuit once electronic record on appeal ready b. Sets briefing deadline of 40 days for opening brief c. Includes caption to use for brief and motions 6. Common motions – contact any of the FPD appellate attorneys for samples a. Motion to view (to see documents sealed in district court) b. Motion to seal (to seal Fifth Circuit brief, record excerpts, or entire case if necessary) c. Motion to supplement record (to add to the record, typically an exhibit omitted by the district court) d. Motion to withdraw appeal (if client decides he/she wants to withdraw; must include client’s written request) e. Extension requests – see 5th Cir. R. 31.4.3 i. Letter request for 1–30 day extensions from original deadline (if client’s release date more than 24 months out) ii. Motion required for longer extensions (or if release date soon) f. Contact AUSA paralegals for non-opposition: i. Susan.Oneal@usdoj.gov, Amber.Glascock@usdoj.gov, Norma.Olivas2@usdoj.gov g. Include certificate of compliance (also for briefs) i. See Fed. R. App. P. 32(g), Form 6 7. Opening brief a. Use brief template from “Utilities” function of ECF 3
b. See Fed. R. App. P. 28, 32 8. Anders brief a. Resources: 5C’s Anders Checklist and Anders Guide b. Send client copies of the brief and motion; ideally speak to client as well c. If the client does not read English, explain to client in a language (s)he understands: (1) the substance of the brief; (2) the client’s right to oppose it or seek new counsel; and (3) the likelihood that the brief could result in dismissal of the appeal15 i. Include that information in the certificate of service d. Client typically has 30 days to respond i. During coronatimes, 5C ordered deadlines for pro se filers extended by more than 30 days 9. Oral argument a. Typically tentatively calendared 60 days in advance, and calendared for a specific day 30 days in advance b. Preparation: moot (FPD office can assist), listen to arguments, research panel’s decisions c. Can find out panel a week before argument on website 10. If lose a. Notify client of decision and of: i. Petition for rehearing deadline (and whether you intend to file one) 1. 14 days from entry of judgment – Fed. R. App. P. 40(a)(1) b. Petition for writ of certiorari deadline (and deadline to inform you of client’s desire to file one) i. Typically 90 days from entry of judgment – Sup. Ct. R. 13.1 ii. But during coronatimes, extended to 150 days – Miscellaneous Order, 589 U.S. __ (Mar. 19, 2020) c. If client wants a cert petition but filing one would be futile, file motion suggesting futility asking to be withdrawn i. This allows the client to file WOC on own ii. See Sup. Ct. R. 10; 5th Cir. CJA Plan § 6, ¶ 4 (rev. Apr. 2009) Resources -
Timothy Crooks & Judy Madewell, Preserving Error: Making Sure You Get Your Second Chance on Appeal (Oct. 27, 2020) (copy provided)
-
5C website: http://www.ca5.uscourts.gov/ o 5C Clerk’s Office – (504) 310-7700; contact list o Case Budgeting Attorney Margaret Alverson – 504-310-7799, margaret_alverson@ca5.uscourts.gov, http://www.lb5.uscourts.gov/CJA2/CaseBudgeting/ o 5C Practitioners Guide 4
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Our office – 210-472-6700 (San Antonio) o Mary Perfecto, Secretary to the Defender o Monica Saenz, Legal Assistant o Appellate attorneys: in San Antonio, Judy Madewell (First Assistant & Appellate Chief), Brad Bogan, Kristin Kimmelman, Laura Spindler; in Austin, Kristin Davidson
1
See United States v. Tello, 924 F.3d 782 (5th Cir. 2019) (considering suppression motion filed midtrial).
2
See Class v. United States, 138 S. Ct. 798 (2018); United States v. Coil, 442 F.3d 912, 914 (5th Cir. 2006); United States v. Torres, 740 F. App’x 54, 55 (5th Cir. 2018).
3
But the Fifth Circuit relaxes these requirements if the record is clear that defendant intended to enter a conditional guilty plea and to appeal a particular pretrial ruling, and neither government nor district court opposed such a plea. United States v. Wise, 179 F.3d 199 (5th Cir. 1999).
4
“[A] defendant who proceeds to trial on an admission or a stipulation of the facts necessary for conviction while expressly reserving the right to appeal from an adverse suppression ruling will not be deemed to have waived the suppression issue, nor will the admission or stipulation render the suppression issue harmless, and that defendant remains eligible for an AOR reduction.” United States v. Najera, 915 F.3d 997, 1004 (5th Cir. 2019). But the government can refuse to move for the third point of acceptance of responsibility based on the pretrial litigation being the substantive equivalent of a trial. United States v. Longoria, 958 F.3d 372, 379 (5th Cir. 2020) (finding a Guidelines amendment did not abrogate previous circuit law; recognizing circuit split on this issue).
5
In United States v. Aguilar, the Fifth Circuit considered whether the suppression issue was moot because the stipulated facts at the bench trial did not include the cell phone evidence that Aguilar sought to suppress. __ F.3d __, No. 19-40554, 2020 WL 5229687, at *2 (5th Cir. Sept. 2, 2020). Because the agreement to stipulate was conditioned on appealing the suppression ruling, and the court reassured Aguilar he could appeal the issue, the Fifth Circuit found the issue was not moot. Id.
6
Fed. R. Evid. 103(a)(1)(A); see Fed. R. Crim. P. 51(b).
7
United States v. Lucas, 849 F.3d 638 (5th Cir. 2017).
8
United States v. Sanchez-Hernandez, 507 F.3d 326 (5th Cir. 2007); United States v. Fortenberry, 919 F.2d 923 (5th Cir. 1990).
9
Luce v. United States, 469 U.S. 38 (1984); Ohler v. United States, 529 U.S. 753 (2000).
10
United States v. Herrera, 313 F.3d 882 (5th Cir. 2002) (en banc).
11
United States v. Villarreal, 324 F.3d 319 (5th Cir. 2003).
12
See United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir. 2009) (recognizing district courts can disagree with the Guidelines, citing Kimbrough and Rita).
13
See, e.g., id. at 361 (applying plain error review to procedural challenge on lack of explanation of the sentence because Mondragon only objected to reasonableness of the sentence and did not ask the district court to explain its reason for the sentence).
14
Holguin-Hernandez v. United States, 140 S. Ct. 762 (2020).
15
See United States v. Moreno-Torres, 768 F.3d 439 (5th Cir. 2014).
5
Texas Criminal Defense Lawyers Association
Post-Convictions Seminar October 29-30, 2020 Livestream
Topic: Ethics and Prisoner Grievances Speaker:
Robert Hinton 3300 Oak Lawn Ave, Suite 700 Dallas, TX 75219 (214) 219-9300 (214) 219-9309 hinton.law@airmail.net www.hinton-law.net
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Post-Convictions Seminar October 29-30, 2020 Livestream
Topic: Immigration Law and Prison Inmates Speakers:
Rick Prinz 500 Jefferson St Ste 2040 Houston, TX 77002-7339 713-651-9111 Phone 713-651-9117 Fax rprinz@aol.com
Hon. Jimmie Lee Benton 525 N. Sam Houston Pkwy. East Suite 575 Houston, TX 77060 Office: 832-850-7114 Fax: 866-244-5276 thejudge@bentonlaw.org
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
Post-Convictions Seminar October 29-30, 2020 Livestream
Topic: Deregistration of Sex Offenders Speaker:
Scott Smith 910 West Avenue Suite 10 Austin, TX 78701-2720 512-474-6484 Phone 512-477-3227 Fax scs@defenselawyer.net www.defenselawyer.net
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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It’s not just going to the police department once a year. Affects travel, employment, finding a place to live. Social stigma attaches not just to the offender, but to his/her family, friends, employers and sometimes the victim as well. Exposes the offender and his/her family to harassment and sometime dangerous vigilantes.
D. Myth: Having to register as a sex offender is part of the price a sex offender must pay for his/her crime. Fact: In holding that ex post facto prohibitions do not apply to sex offender registration requirements, the Court of Criminal Appeals has found that sex offender registration is not intended to be an additional punishment of offenders. Its purpose is to promote public safety. Rodriguez v. State, 93 S.W.3d 60, 74 (Tex. Crim. App. 2002). E. Myth: The more sex offenders we register, the safer we will be. Fact: - The preponderance of low risk offenders obscures the high-risk offenders. - The stresses and hardships imposed on low risk offenders and their families are associated with an increased risk for criminality. F. Myth: You can’t “fix” a sex offender (i.e. treatment and counseling are ineffective). Fact: - Competent, professional treatment and counseling can reduce the risk for recidivism by about 50%. - Research has shown that once a sex offender is caught and exposed publicly, these individuals are very unlikely to have a new sexual offense. II. “FORMAL” DE-REGISTRATION Authority Primary statutory source: Tex. Code Crim. Proc. Art. 62.401 Also see Title 22 Texas Administrative Code 810.301 - 810.308 “Hard” eligibility criteria (certainly) Offense must be on DPS’ Tiered Offense Chart (prepared pursuant to Article 62.402), i.e. must be a reportable conviction or adjudication “for which a person must register under this chapter [Article 62 CCP] for a period that exceeds the minimum required registration period under federal law.” Tex. Code Crim. Proc. Art. 62.403(b). DPS responsible for creating and keeping the list. Must have not more than one “reportable adjudication or conviction.” Tex. Code Crim. Proc. Art. 62.403(b). Multiple counts are considered multiple offenses. Must undergo 403 risk assessment evaluation by qualified evaluation specialist. Tex. Code Crim. Proc. Art. 62.404(a).
Must pay for evaluation and costs. Tex. Code Crim. Proc. Art. 62.406. “Soft” eligibility criteria Only convictions or deferred adjudications handed down by Texas courts may be considered. (Judge in sentencing court must order de-registration and decisions from out of state judges not recognized.) CSOT Website. Federal convictions? Though neither the statute, nor the administrative regulations state this, high risk determination on the risk assessment will render an applicant ineligible. The following requirements were previously listed on CSOT’s website but have been removed. Presumably they are no longer requirements. Has not been convicted of any offense for which imprisonment for more than 1 year may be imposed as verified by a current federal and state criminal history. Has not been convicted of any additional sex offense including misdemeanors during the required registration period. Has successfully completed an appropriate sex offender treatment program as defined in Texas Administrative Code, 810. Procedure
a. Apply for with Council on Sex Offender Treatment (CSOT). Tex. Code Crim. Pro. Art. 62.403. See CSOT Web Site for application. Disputes over the list must be addressed with DPS. Undefined process. Inconsistency of results. b. Submit to risk assessment by qualified evaluation specialists. To receive the risk assessment, an application must first be approved by CSOT. Tex. Code Crim. Pro. Art. 62.403. c. File petition in sentencing court and serve the prosecution a copy. The motion must be accompanied by “a certified copy ofa written report detailing the outcome of an individual risk assessment evaluation conducted under 62.403(b)(1).” Tex. Code Crim. Pro. Art. 62.404(b)(2). d. Seek a hearing. Caution: There is no right to a hearing and your petition can be denied without one. III. TEXAS DEPARTMENT OF PUBLIC SAFETY’S ROLE
DPS plays a small, but critical role in the deregistration process. The Texas legislature charged DPS with the duty to “compile and publish a list of reportable convictions or adjudications for which a person must register . . . for a period that exceeds the minimum required registration period under federal law.” Tex. Code Crim. Proc. Art. 62.402. DPS also has a duty to periodically verify the accuracy of the list of reportable convictions or adjudications as described above. Id.
Federal law sets out a structure for setting registration requirements composed of three tiers. The most severe offenses are specifically identified and grouped in Tier III, which requires lifetime registration. The second most severe offenses are specifically identified and grouped in Tier II, which requires 25 years of registration. All remaining sex offenses are placed in Tier I, which requires 10-15 years of registration. To determine which tier each state offense falls within, it is necessary to look at each state offense and determine whether it is “comparable or more severe than” the specifically identified federal offenses listed in the definitions for Tiers III and II. See 34 U.S.C. § 20911. The list that DPS has compiled is often referred to as the “Tiered Offense Chart” because DPS must determine the correct tier in which to place each Texas offense that requires sex offender registration. Unfortunately, DPS has failed to compile this list correctly and the errors contained within it deprive thousands of registrants the ability to seek deregistration. Since CSOT will only approve applications for people whose offenses are contained on the list prepared by DPS under Tex. Code Crim. Proc. Art. 62.403(b), these registrants remain unable to deregister until DPS corrects the chart. IV. TIPS FOR PRACTITIONERS ATTEMPTING DE-REGISTRATION Prosecutorial Responses - Expect opposition - Thoroughly investigate the facts of the underlying offense and obtain the offense report if possible. Any discrepancies between your or your client’s account of what occurred can easily be characterized as a failure to accept responsibility, unreliability of risk assessments, and form a basis for a successful opposition to your petition. - Take the higher moral road, but expect it to be uphill. The Judge’s Perspective Memos - Respond to myths - Inform about the law - Provide individualized reasons why the court should exercise its discretion to grant. o Social stigma o Employment limitations o Residency restrictions o Travel restrictions o Impact on registrant’s family The Hearing - Challenges getting a setting - Testimony o Family o Friends o Treatment Providers
o Risk Assessment Experts Successive attempts - Not limited by statute - Risk assessment reliability limited to two years generally Fees V. ROMEO AND JULIET DE-REGISTRATION Primary statutory source: Tex. Code Crim. Proc. Art. Articles 62.301, 42.017, and 42.12, sect. 5(g) CCP. Requirements - Must have “a single reportable adjudication or conviction” - V must be at least 15 - D must be no more than 4 years older - Charge is based solely on ages of V and D Compare/contrast with formal de-registration - Need not get sex offender evaluation or complete therapy, - Need not apply to CSOT - Much more limited applicability VI. REGISTRATION EXEMPTIONS/REMOVAL FOR JUVENILES Before registration occurs: Tex. Code Crim. Proc. Art. Art. 62.351. - Can exempt or make registration non-public After registration occurs: Tex. Code Crim. Proc. Art. Art. 62.353. - Only two attempts allowed VII. CHALLENGING REQUIREMENT TO REGISTER OUT OF STATE CONVICTIONS Though the de-registration statute does not explicitly prohibit de-registration of persons who must register as a result of out-of-state conviction, SOAH and DPS interpret the statute that way. The duty to register for theses persons usually arises under Tex. Code Crim. Proc. Art. 62.001(G) based on the “substantial similarity” of the out-of-state offense to a Texas offense requiring registration. (A duty to register may also arise under Tex. Code Crim. Proc. Art. 62.052 as an “extrajurisdictional registrant”.) Under Tex. Code Crim. Proc. Art. 62.003, DPS is required to determine whether out-of-state offenses contain “elements that are substantially similar to the elements of an offense under the laws of this state”. My experience is that DPS almost always finds a way to determine that the out-of-state offense is “substantially similar.” However, it is
possible to contest the duty to register under Tex. Code Crim. Proc. Art. 62.003(c) by appealing to a Travis County District courts. When undertaking such an appeal, an attorney should anticipate the need for a subsequent de novo appeal to the Court of Appeals since DPS will likely appeal any favorable determination won at the District Court level. There is a substantial and actively evolving body of case law that examines the meaning of “substantial similarity.” A review of it, however, exceeds the scope of this paper. VIII. EFFECT OF DE-REGISTRATION If a judge grants the de-registration, the duty to register terminates immediately. Once a person’s duty to register ends, DPS must remove the person’s name from the registry and they are no longer required to register in Texas pursuant to Tex. Code Crim. Proc. Art. 62.251. However, if the person wishes to travel outside of Texas or if they were convicted of a Federal Sex Offense, they would be subject to the federal registration requirements set out in SORNA. 18 U.S.C. Section 2250 creates a federal penalty for failure to comply with federal registration requirements which can be triggered by interstate or international travel. The length of that duty is governed by federal law and requires correctly assessing the federal tier level for the state offense as noted above. Though the DPS Tiered Offense Chart purports to set out the length of those duties, as noted above, the chart is not reliable and frequently wrong. A correct assessment of the length of any federal duty to register is determined through the “categorical approach” with a “hybrid analysis” rather than a “circumstance specific approach.” A detailed discussion of this analysis exceeds the scope of this paper. See United States v. Escalante, 933 F.3d 395 (5th Cir. 2019) for a good discussion of the issue. De-registration does not remove the criminal record for the offense. Tex. Gov't Code Section 411.081(e)(1) disallows non-disclosure of any person who has been previously convicted or placed on deferred adjudication for any “offense requiring registration as a sex offender.” Though this language is ambiguous in failing to specify whether it continues to apply after sex offender registration is no longer required, I am not aware of any case law interpreting it or of any court having ever granted such a motion. It should also be noted, that even after de-registration, records of the registration will likely still exist and be disseminated on various non-governmental websites. (This is similar to the problem that clients often encounter after expunctions are granted.) Additional work may need to be done to attempt to remove this information. IX. HELPFUL INTERNET LINKS Council on Sex Offender Treatment Home Page: https://hhs.texas.gov/doing-business-hhs/licensing-credentialing-regulation/professionallicensing-certification-unit/council-sex-offender-treatment/deregistration DPS Tiered Offense Chart: https://records.txdps.state.tx.us/SexOffenderRegistry/sor-public/SORNA.pdf
DOJ Sex Offender Registration and Failure to Register FAQs: https://smart.ojp.gov/faqs SORNA Final Guidelines and Commentary: http://www.ojp.usdoj.gov/smart/pdfs/final_sornaguidelines.pdf Texas Voices For Reason and Justice: a statewide, non-profit, volunteer organization devoted to promoting a more balanced, effective, and rational criminal justice system. TVRJ advocates for common sense, evidence-based laws and policies through education, legislation, litigation, and support for persons required to register for sex related offenses as well as for members of their families. http://www.texasvoices.org/
Budget: ZZ118 Fund: 087 Professional Licensing and Certification Unit Council on Sex Offender Treatment P.O. Box 149347, Mail Code 1982 Austin, Texas 78714 ATTN: CSOT Executive Director Phone (512) 834-4530 ** Fax (512) 834-6677 Email: csot@hhsc.state.tx.us INITIAL ELIGIBILITY CHECKLIST FOR EARLY TERMINATION OF CERTAIN PERSON’S OBLIGATION TO REGISTER (Please Type or Print Clearly) Date: Offender’s Name:
DOB:
Address: City:
Zip Code:
Telephone:
Email:
Attorney if Represented for Offender Deregistration: Address: City:
Zip Code:
Telephone
Fax:
Email:
All Reportable Convictions or Adjudications: Age of the Victim at the time of the Offense: County and Court Number of Sentencing Court: (List of required supporting documentation is continued on next page)
Budget: ZZ118 Fund: 087 In addition to this form, you must also submit the following supporting documentation. Failure to supply the documentation may result in the rejection of your application: Order of Conviction/Deferred Adjudication Order; Charging instrument (Indictment, Information, etc.) If the reportable conviction or adjudication involved a minor, the applicant must provide a copy of one of the following documents which indicates the age of the victim at the time of the offense: a. Offense Report b. Probable Cause Affidavit Finger print based criminal history background checks conducted by both the Texas Department of Public Safety and the Federal Bureau of Investigation. Use the respective links and follow the directions provided by each governmental agency. DPS: http://www.dps.texas.gov/administration/crime_records/pages/applicantfingerprintser vices.htm FBI:
https://www.fbi.gov/services/cjis/identity-history-summary-checks
Cashier’s Check or Money Order in the amount of $50 made payable to “Council on Sex Offender Treatment”. This fee is assessed for the administrative review of an applicant’s file and/or request to early terminate his/her obligation to register as a sex offender in Texas. Please do not include any letters of support or recommendation as they cannot be considered by the Council on Sex Offender Treatment. Failure to provide any of the above required information will delay and may prevent the review of your deregistration application.
Deregistration StepBy-Step Guide Step One Applicant should confirm that he/she has one reportable conviction or adjudication for a sexual offense. If an applicant has more than one reportable conviction or adjudication for a sexual offense, then STOP. The Applicant is ineligible to seek the early termination of his/her obligation to register. •
Examples: An applicant’s Order of Conviction or Deferred Adjudication Order recites two or more separate counts for sexual offenses. That person is ineligible.
•
Only convictions or deferred adjudications handed down by Texas courts may be considered.
•
A Deferred Adjudication Order is treated the same as a conviction pursuant to the Adam Walsh Act or federal law.
IF YOU HAVE ONLY ONE REPORTABLE CONVICTION OR ADJUDICATION, THEN PROCEED TO STEP TWO.
Step Two An applicant should then go to the Texas Department of Public Safety Public Sex Offender Registration website here: https://records.txdps.state.tx.us/SexOffender/PublicSite/Index.aspx. Near the bottom right of the DPS website, under the heading "Additional Resources", is a link to “Texas Offenses Tiered Under the Federal Adam Walsh Act”. This will take you to the list published by the DPS containing reportable convictions and adjudications, by Texas Penal Code citation, that compare minimum registration requirements in Texas and under the federal law for a given offense.
1 Texas Health and Human Services ● hhs.texas.gov
Step Three Locate on the DPS list your particular Texas Penal Code citation relating to your reportable conviction or adjudication. The minimum registration period for your reportable conviction must EXCEED the minimum registration period under the federal law, or Adam Walsh, in order to move on to the next step. An applicant must also meet any other criteria required on the DPS list, including but not limited to, the age of the victim at the time of the offense, the difference in age between the victim and the offender, and specific fact patterns related to the offense where required. Key Point: Only Texas convictions can be considered for deregistration purposes under this statute. No out of state convictions or adjudications are eligible even though the prospective applicant lives in Texas.
If an applicant meets the requirements above, then copies of the following required documents and the fee must be submitted along with the Initial Eligibility Checklist for Deregistration. The link for this form is under the “Deregistration Step-by-Step” drop-down menu. 1) Order of Conviction/Deferred Adjudication Order; 2) If the reportable conviction or adjudication involved a minor, an applicant shall provide a copy of one of the following documents which indicates the age of the victim at the time of the offense: •
Indictment
•
Offense Report
•
Probable Cause Affidavit
3) Current Criminal History Background Checks. Conducted by both the Texas Department of Public Safety and the Federal Bureau of Investigation. Click on the respective link and follow the directions provided by each governmental agency. •
http://www.dps.texas.gov/administration/crime_records/pages/applicantfing erprintservices.htm
•
https://www.fbi.gov/services/cjis/identity-history-summary-checks
4) Cashier’s Check or Money Order in the Amount of $50.00 made payable to: “Texas Council on Sex Offender Treatment”. This fee is assessed for the 2 Texas Health and Human Services ● hhs.texas.gov
administrative review of an applicant’s file and/or request to early terminate his/her obligation to register as a sex offender in Texas. Additional Supporting Documents, but NOT REQUIRED: 5. If an applicant has undergone sex offender treatment and has successfully completed his/her treatment program, a letter from the LSOTP confirming the applicant’s successful completion of treatment. 6. If an applicant successfully discharged community supervision or parole, a copy of the Order discharging applicant successfully from community supervision or parole.
ALL DOCUMENATION AND FEE SHOULD BE SENT TO: Texas Health and Human Services Professional Licensing and Certification Unit Council on Sex Offender Treatment P.O. Box 149347, Mail Code 1982 Austin, Texas 78714 ATTN: CSOT Executive Director After the complete documentation is reviewed by the Council on Sex Offender Treatment, and IF the applicant is approved as eligible to proceed with the deregistration process, the applicant will be provided information on how and where to have a deregistration evaluation conducted, at the applicant’s expense, by one of the Deregistration Specialists.
3 Texas Health and Human Services ● hhs.texas.gov
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Published April 2012 Texas Code of Criminal Procedure Chapter 62, Subchapter I. Early Termination of Certain Persons’ Obligation to Register. Art. 62.402. Determination of Minimum Required Registration Period (a) The department by rule shall determine the minimum required registration period under federal law for each reportable conviction or adjudication under this chapter. (b) After determining the minimum required registration period for each reportable conviction or adjudication under Subsection (a), the department shall compile and publish a list of reportable convictions or adjudications for which a person must register under this chapter for a period that exceeds the minimum required registration period under federal law. (c) To the extent possible, the department shall periodically verify with the United States Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking or another appropriate federal agency or office the accuracy of the list of reportable convictions or adjudications described by Subsection (b).
As of this document’s date of publication, the following is a list of all Texas “reportable conviction or adjudication” applicable to an adult offender, a person 17 years of age or older at the time the offense was committed, where the person must register under Chapter 62 for a period that exceeds the minimum required registration period under federal law, the Sex Offender Registration and Notification Act (“SORNA”). § 20.021 § 20.024 § 20.031 § 20.034 § 20.041 § 20.044 § 20A.02(a)(3)
Unlawful restraint with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Unlawful restraint with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Aggravated kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Aggravated Kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Trafficking of persons
An attempt, conspiracy, or solicitation to commit:
§ 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.022 § 21.025 § 21.026 § 21.08 § 21.11(a)(1) 2 § 21.11(a)(1)3 § 21.11(a)(2)2 § 21.11(a)(2)4 § 21.11(a)(2)2 § 21.11(a)(2)4 § 22.0112 § 22.0212 § 25.022 § 25.027 § 43.05(a)(2) § 43.23(h) § 43.25 § 43.252 § 43.26(a) § 43.26(e)
Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact Indecency with a child by contact Indecency with a child by exposure Indecency with a child by exposure, except an adjudication of delinquent conduct Indecency with a child by exposure, except an adjudication of delinquent conduct Indecency with a child by exposure, except an adjudication of delinquent conduct Sexual assault Aggravated sexual assault Prohibited sexual conduct Prohibited sexual conduct Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography § 20.021 Unlawful restraint with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing § 20.031 Kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing 1 § 20.04 Aggravated kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing 2 § 21.11(a)(1) Indecency with a child by contact § 21.11(a)(2)2 Indecency with a child by exposure § 22.0112 Sexual assault § 22.0212 Aggravated sexual assault § 25.022 Prohibited sexual conduct
§ 43.252
1
Sexual performance by a child
The person is the parent or guardian of the victim The offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) 3 The victim is 13 years of age or older and younger than 18 years of age 4 The person receives or has received another reportable conviction or adjudication, except an adjudication of delinquent conduct 5 The “act of sexual abuse” includes a violation of indecency with a child under Tex. Penal Code § 21.11(a)(1), and victim is at least 13 years of age 6 The “act of sexual abuse” includes two violations of sexual performance by a child under Tex. Penal Code § 43.25, trafficking of persons under Tex. Penal Code § 20A.02(a)(7) or (8), or compelling prostitution under Tex. Penal Code § 43.05(a)(2). 7 The victim does not fall under 18 U.S.C § 2241(c) 2
As of this document’s date of publication, the following is a list of all Texas “reportable conviction or adjudication” applicable to a specific juvenile offender, a person convicted as an adult while being less than 17 years of age at the time the offense was committed, where the person must register under Chapter 62 for a period that exceeds the minimum required registration period under federal law, the Sex Offender Registration and Notification Act (“SORNA”). § 20.021 § 20.031 § 20.041
An attempt, conspiracy, or solicitation to commit:
§ 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.08 § 21.11(a)(1)2 § 21.11(a)(1)3 § 21.11(a)(2)2 § 22.0112 § 22.0212 § 25.022 § 25.024 § 43.05(a)(2) § 43.23(h) § 43.25 § 43.252 § 43.26(a) § 43.26(e)
Unlawful restraint with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing1 Kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing1 Aggravated kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing1 Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Prohibited sexual conduct Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography 1 § 20.02 Unlawful restraint with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing 1 § 20.03 Kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing 1 § 20.04 Aggravated kidnapping with an affirmative finding the victim was younger than 17 years of age:
2
§ 21.11(a)(1) § 21.11(a)(2)2 § 22.0112 § 22.0212 § 25.022 § 43.252 1
under CCP art. 42.015 or in an hearing Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Sexual performance by a child
The person is the parent or guardian of the victim The offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) 3 The victim is 13 years of age or older and younger than 18 years of age 4 The victim does not fall under 18 U.S.C § 2241(c) 2
As of this document’s date of publication, the following is a list of all Texas “reportable conviction or adjudication” applicable to a specific juvenile offender, a person adjudicated delinquent as a juvenile (less than 14 years of age at the time the offense was committed), where this person must register under Chapter 62 for a period that exceeds the minimum required registration period under federal law, the Sex Offender Registration and Notification Act (“SORNA”). § 20.021 § 20.031 § 20.041 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.08 § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 30.02(d)
An attempt, conspira cy, or solicitati on to commit:
§ 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h) § 43.25 § 43.26
Unlawful restraint with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Aggravated kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.02, 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography § 20.02 Unlawful restraint with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing § 20.03 Kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing
§ 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26(a) § 43.26(e) 1
Aggravated kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.02, 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography
The person is the parent or guardian of the victim
As of this document’s date of publication, the following is a list of all Texas “reportable conviction or adjudication” applicable to a specific juvenile offender, a person adjudicated delinquent as a juvenile (14 years of age or older but younger than 17 years of age at the time the offense was committed), where the person must register under Chapter 62 for a period that exceeds the minimum required registration period under federal law, the Sex Offender Registration and Notification Act (“SORNA”). § 20.02 § 20.03 § 20.04 § 20.04(a)(4)1 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.08 § 21.11(a)(1) § 21.11(a)(2) § 22.0111 § 22.0211 § 25.021 § 30.02(d) 1 § 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h) § 43.25 § 43.26
Unlawful restraint with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Aggravated kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.02, 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography
An attempt, conspiracy, or solicitation to commit:
§ 20.02
1
§ 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1) § 21.11(a)(2) § 22.0111 § 22.0211 § 25.021 § 30.02(d) 1 § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Unlawful restraint with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Aggravated kidnapping with an affirmative finding the victim was younger than 17 years of age: under CCP art. 42.015 or in an hearing Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.02, 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
Not comparable to nor more severe than 18 U.S.C.S. § 2241, aggravated sexual abuse
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) October 2012 Texas Code of Criminal Procedure Chapter 62, Subchapter I. Early Termination of Certain Persons’ Obligation to Register. Art. 62.402. Determination of Minimum Required Registration Period (a) The department by rule shall determine the minimum required registration period under federal law for each reportable conviction or adjudication under this chapter. (b) After determining the minimum required registration period for each reportable conviction or adjudication under Subsection (a), the department shall compile and publish a list of reportable convictions or adjudications for which a person must register under this chapter for a period that exceeds the minimum required registration period under federal law. (c) To the extent possible, the department shall periodically verify with the United States Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking or another appropriate federal agency or office the accuracy of the list of reportable convictions or adjudications described by Subsection (b).
Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas Federal § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that 10 years post discharge No Duty to Register the victim was younger than 17 years of age & the offender is the parent or guardian of the victim § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the 10 years post discharge No Duty to Register victim was younger than 17 years of age & the offender is the parent or guardian of the victim
1
§ 20.04
§ 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.021 § 21.022 § 21.08 § 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2)
§ 22.011
§ 22.011 § 22.021
§ 25.02 § 25.02 § 25.02
Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Indecency with a child by contact & the victim is at least 13 years of age Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age
10 years post discharge
No Duty to Register
Lifetime Lifetime Lifetime Lifetime Lifetime Lifetime 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II No duty to Register No Duty to Register
Lifetime
No Duty to Register
Lifetime
25 years, Tier II
10 years post discharge
No Duty to Register
Lifetime
No duty to Register
Lifetime
25 years, Tier II
Lifetime
No Duty to Register
Lifetime Lifetime
15 years, Tier I No duty to Register
Lifetime
25 years, Tier II
2
Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age 1 § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.02 § 43.05(a)(2) Compelling prostitution of a person younger than 18 years of age § 43.23(h) Obscenity § 43.25 Sexual performance by a child § 43.25 Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 43.26(a) Possessing or promoting child pornography § 43.26(e) Possessing or promoting child pornography § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim 2 § 21.02 Continuous sexual abuse of young child or children § 21.11(a)(1) Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 21.11(a)(2) Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 30.02(d)
Lifetime
15 years, Tier I
Lifetime
25 years, Tier II
Lifetime
25 years, Tier II
Lifetime
25 years, Tier II
Lifetime Lifetime Lifetime
25 years, Tier II 25 years, Tier II No Duty to Register
Lifetime Lifetime 10 years post discharge
15 years, Tier I 25 years, Tier II No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
3
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Sexual assault, offense is solely based on the victim’s 10 years post discharge No Duty to Register age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 22.021 Aggravated sexual assault, offense is solely based on 10 years post discharge No Duty to Register the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 25.02 Prohibited sexual conduct & involved consensual 10 years post discharge No duty to Register conducted as defined by 42 U.S.C. § 16911(5)(C) § 43.25 Sexual performance by a child & involved consensual 10 years post discharge No duty to Register conducted as defined by 42 U.S.C. § 16911(5)(C) 1 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)); burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed with consensual conduct as defined by 42 U.S.C § 16911(5)(C) § 22.011
Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas Federal § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that 10 years post discharge 15 years, Tier I the victim was younger than 17 years of age § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the 10 years post discharge Lifetime, Tier III victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative 10 years post discharge Lifetime, Tier III finding that the victim was younger than 17 years of age
4
Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually § 21.021 Continuous sexual abuse of young child or children § 21.11(a)(1) Indecency with a child by contact & the victim is younger than 13 years of age § 21.11(a)(2) Indecency with a child by exposure § 22.011 Sexual assault § 22.011 Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age § 22.021 Aggravated sexual assault § 22.021 Aggravated sexual assault, offense is solely based on the victim’s age § 25.02 Prohibited sexual conduct & the victim is less than 16 years of age § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age § 30.02(d)1 Burglary of a habitation committed or engaged in with the intent to commit 21.02 § 33.021(b) Online solicitation of a minor § 33.021(c) Online solicitation of a minor § 43.05(a)(1) Compelling prostitution § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.04(a)(4)
Lifetime
Lifetime, Tier III
Lifetime Lifetime
Lifetime, Tier III Lifetime, Tier III
10 years post discharge Lifetime Lifetime
15 years, Tier I Lifetime, Tier III Lifetime, Tier III
Lifetime Lifetime
Lifetime, Tier III Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II 15 years, Tier I 15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
5
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.04(a)(4)
§ 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.021 § 21.022 § 21.11(a)(1) § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011
§ 22.011
§ 22.021 § 22.021 § 25.02 § 25.02 § 25.02
Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by contact & the victim is at least 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I Lifetime, Tier III Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III
10 years post discharge 10 years post discharge
15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
6
Burglary of a habitation committed or engaged 10 years post discharge Lifetime, Tier III in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 § 30.02(d) Burglary of a habitation committed or engaged 10 years post discharge 15 years, Tier I in with the intent to commit 21.11(a)(2) § 30.02(d) Burglary of a habitation committed or engaged 10 years post discharge Lifetime, Tier III in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age § 30.02(d) Burglary of a habitation committed or engaged 10 years post discharge 25 years, Tier II in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age 1 § 30.02(d) Burglary of a habitation committed or engaged 10 years post discharge Lifetime, Tier III in with the intent to commit 21.02 § 30.02(d)2 Burglary of a habitation committed or engaged 10 years post discharge 25 years, Tier II in with the intent to commit 21.02 § 43.05(a)(1) Compelling prostitution 10 years post discharge 15 years, Tier I § 43.05(a)(2) Compelling prostitution of a person younger 10 years post discharge 25 years, Tier II than 18 years of age § 43.25 Sexual performance by a child 10 years post discharge 25 years, Tier II § 43.26(a) Possessing or promoting child pornography 10 years post discharge 15 years, Tier I § 43.26(e) Possessing or promoting child pornography 10 years post discharge 25 years, Tier II 1 One act of “sexual abuse,” defined in Texas Penal Code § 21.02(c), is: aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually (§ 20.04(a)(4)); indecency with a child by contact with a child less than 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)); sexual assault (§ 22.011); aggravated sexual assault (§ 22.021); burglary of a habitation committed with the intent to commit one of the previous listed offenses (§ 30.02(d)); or trafficking of persons (§ 20A.02(a)(7) or (8)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)); burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2)) An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 30.02(d)
7
Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that 10 years post discharge No Duty to Register the victim was younger than 17 years of age & the offender is the parent or guardian of the victim § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the 10 years post discharge No Duty to Register victim was younger than 17 years of age & the offender is the parent or guardian of the victim § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative 10 years post discharge No Duty to Register finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim § 21.08 Indecent exposure—second violation, but not if the second 10 years post discharge No Duty to Register violation results in deferred adjudication § 21.11(a)(1) Indecency with a child by contact & involved consensual 10 years post discharge No Duty to Register conducted as defined by 42 U.S.C. § 16911(5)(C) § 21.11(a)(2) Indecency with a child by exposure & involved consensual 10 years post discharge No Duty to Register conducted as defined by 42 U.S.C. § 16911(5)(C) § 22.011 Sexual assault, offense is solely based on the victim’s age & 10 years post discharge No duty to Register involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 22.021 Aggravated sexual assault, offense is solely based on the 10 years post discharge No Duty to Register victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 25.02 Prohibited sexual conduct & involved consensual conducted 10 years post discharge No Duty to Register as defined by 42 U.S.C. § 16911(5)(C) § 43.25 Sexual performance by a child & involved consensual 10 years post discharge No Duty to Register conducted as defined by 42 U.S.C. § 16911(5)(C) 8
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02
§ 20.03
§ 20.04
§ 21.11(a)(1)
§ 21.11(a)(2)
§ 22.011
§ 22.021
§ 25.02 § 43.25
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
9
Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that 10 years post discharge 15 years, Tier I the victim was younger than 17 years of age § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the 10 years post discharge Lifetime, Tier III victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative 10 years post discharge Lifetime, Tier III finding that the victim was younger than 17 years of age § 20.04(a)(4) Aggravated kidnapping committed or engaged in with the 10 years post discharge Lifetime, Tier III intent to violate or abuse the victim sexually § 20A.02(a)(3) Trafficking of persons 10 years post discharge 15 years, Tier I § 20A.02(a)(4) Trafficking of persons 10 years post discharge 15 years, Tier I § 20A.02(a)(7) Trafficking of persons 10 years post discharge 25 years, Tier II § 20A.02(a)(8) Trafficking of persons 10 years post discharge 25 years, Tier II § 21.11(a)(1) Indecency with a child by contact & the victim is at least 13 10 years post discharge 25 years, Tier II years of age § 21.11(a)(1) Indecency with a child by contact & the victim is younger 10 years post discharge Lifetime, Tier III than 13 years of age § 21.11(a)(2) Indecency with a child by exposure 10 years post discharge 15 years, Tier I § 22.011 Sexual assault 10 years post discharge Lifetime, Tier III § 22.011 Sexual assault, offense is solely based on the victim’s age & 10 years post discharge Lifetime, Tier III the victim is less than 16 years of age § 22.011 Sexual assault, offense is solely based on the victim’s age & 10 years post discharge 25 years, Tier II the victim is 16 years of age or older § 22.021 Aggravated sexual assault, offense is solely based on the 10 years post discharge Lifetime, Tier III victim’s age 10
Aggravated sexual assault Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age § 25.02 Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age § 33.021(c) Online solicitation of a minor § 43.05(a)(1) Compelling prostitution § 43.05(a)(2) Compelling prostitution of a person younger than 18 years of age § 43.23(h) Obscenity § 43.25 Sexual performance by a child § 43.26(a) Possessing or promoting child pornography § 43.26(e) Possessing or promoting child pornography § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 22.021 § 25.02 § 25.02
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge
25 years, Tier II 15 years, Tier I 25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
25 years, Tier II 25 years, Tier II 15 years, Tier I 25 years, Tier II 15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
11
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.04(a)(4)
§ 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1) § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011
§ 22.011
§ 22.021 § 22.021 § 25.02 § 25.02 § 25.02
§ 30.02(d)
§ 30.02(d)
Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact & the victim is at least 13 years of age Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2)
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I Lifetime, Tier III Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III
10 years post discharge 10 years post discharge
15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I 12
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 30.02(d)
§ 30.02(d)
§ 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26(a) § 43.26(e)
Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge
25 years, Tier II 15 years, Tier I 25 years, Tier II
Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that 10 years post discharge No Duty to Register the victim was younger than 17 years of age § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the 10 years post discharge No Duty to Register victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative 10 years post discharge No Duty to Register finding that the victim was younger than 17 years of age § 20A.02(a)(3) Trafficking of persons 10 years post discharge No Duty to Register 13
Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication § 21.11(a)(1) Indecency with a child by contact § 21.11(a)(2) Indecency with a child by exposure § 22.011 Sexual assault § 22.021 Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) § 22.021 Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age § 25.02 Prohibited sexual conduct § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.11 § 33.021(c) Online solicitation of a minor § 43.05(a)(1) Compelling prostitution § 43.05(a)(2) Compelling prostitution of a person younger than 18 years of age § 43.23(h) Obscenity § 43.25 Sexual performance by a child § 43.26 Possessing or promoting child pornography § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20A.02(a)(3) Trafficking of persons § 20A.02(a)(4) Trafficking of persons
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.08
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register 14
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021
§ 22.021 § 25.02 § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Trafficking of persons Trafficking of persons Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11 Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA § 20.04(a)(4) Aggravated kidnapping committed or engaged in with the 10 years post discharge Lifetime, Tier III intent to violate or abuse the victim sexually § 22.0111 Sexual assault 10 years post discharge Lifetime, Tier III 15
Aggravated sexual assault 10 years post discharge Lifetime, Tier III Aggravated sexual assault, offense is solely based on the 10 years post discharge Lifetime, Tier III victim’s age & the victim is younger than 12 years of age § 25.02 Prohibited sexual conduct & the victim is at least 12 of age 10 years post discharge Lifetime, Tier III § 30.02(d) Burglary of a habitation committed or engaged in with the 10 years post discharge Lifetime, Tier III intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 § 20.02 Aggravated kidnapping committed or engaged in with 10 years post discharge Lifetime, Tier III the intent to violate or abuse the victim sexually § 22.0111 Sexual assault 10 years post discharge Lifetime, Tier III § 22.021 Aggravated sexual assault 10 years post discharge Lifetime, Tier III § 22.021 Aggravated sexual assault, offense is solely based on the 10 years post discharge Lifetime, Tier III victim’s age & the victim is younger than 12 years of age § 25.02 Prohibited sexual conduct & the victim is at least 12 of 10 years post discharge Lifetime, Tier III age § 30.02(d) Burglary of a habitation committed or engaged in with 10 years post discharge Lifetime, Tier III the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 1 The adjudicated offense is comparable to or more severe than 18 U.S.C.S. § 2241, aggravated sexual abuse, or was an attempt or conspiracy to commit such an offense An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 22.021 § 22.021
16
Registrants who were younger than 14 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that 10 years post discharge No Duty to Register the victim was younger than 17 years of age § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the 10 years post discharge No Duty to Register victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative 10 years post discharge No Duty to Register finding that the victim was younger than 17 years of age § 20.04(a)(4) Aggravated kidnapping committed or engaged in with the 10 years post discharge No Duty to Register intent to violate or abuse the victim sexually § 20A.02(a)(3) Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(4) Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(7) Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(8) Trafficking of persons 10 years post discharge No Duty to Register § 21.08 Indecent exposure—second violation, but not if the second 10 years post discharge No Duty to Register violation results in deferred adjudication § 21.11(a)(1) Indecency with a child by contact 10 years post discharge No Duty to Register § 21.11(a)(2) Indecency with a child by exposure 10 years post discharge No Duty to Register § 22.011 Sexual assault 10 years post discharge No Duty to Register § 22.021 Aggravated sexual assault 10 years post discharge No Duty to Register § 25.02 Prohibited sexual conduct 10 years post discharge No Duty to Register § 30.02(d) Burglary of a habitation committed or engaged in with the 10 years post discharge No Duty to Register intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) § 33.021(c) Online solicitation of a minor 10 years post discharge No Duty to Register § 43.05(a)(1) Compelling prostitution 10 years post discharge No Duty to Register 17
Compelling prostitution of a person younger than 18 years of age § 43.23(h) Obscenity § 43.25 Sexual performance by a child § 43.26 Possessing or promoting child pornography § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04(a)(4) Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually § 20A.02(a)(3) Trafficking of persons § 20A.02(a)(4) Trafficking of persons § 20A.02(a)(7) Trafficking of persons § 20A.02(a)(8) Trafficking of persons § 21.11(a)(1) Indecency with a child by contact § 21.11(a)(2) Indecency with a child by exposure § 22.011 Sexual assault § 22.021 Aggravated sexual assault § 25.02 Prohibited sexual conduct § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) § 43.05(a)(1) Compelling prostitution § 43.05(a)(2) Compelling prostitution of a person younger than 18 years of age § 43.25 Sexual performance by a child § 43.26 Possessing or promoting child pornography An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 43.05(a)(2)
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register 18
19
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) April 2013 Texas Code of Criminal Procedure Chapter 62, Subchapter I. Early Termination of Certain Persons’ Obligation to Register. Art. 62.402. Determination of Minimum Required Registration Period (a) The department by rule shall determine the minimum required registration period under federal law for each reportable conviction or adjudication under this chapter. (b) After determining the minimum required registration period for each reportable conviction or adjudication under Subsection (a), the department shall compile and publish a list of reportable convictions or adjudications for which a person must register under this chapter for a period that exceeds the minimum required registration period under federal law. (c) To the extent possible, the department shall periodically verify with the United States Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking or another appropriate federal agency or office the accuracy of the list of reportable convictions or adjudications described by Subsection (b).
Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas Federal § 20.02 No Duty to Register Unlawful restraint with an Art. 42.015 affirmative finding that 10 years post discharge the victim was younger than 17 years of age & the offender is the parent or guardian of the victim § 20.03 10 years post discharge No Duty to Register Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
1
§ 20.04
§ 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.021 § 21.022 § 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2)
§ 22.011
Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
Lifetime Lifetime Lifetime Lifetime Lifetime Lifetime 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II No duty to Register No Duty to Register
Lifetime
No Duty to Register
Lifetime
25 years, Tier II
10 years post discharge
No Duty to Register
Lifetime
No duty to Register
2
§ 22.011
Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age
Lifetime
25 years, Tier II
Lifetime
No Duty to Register
Lifetime Lifetime
15 years, Tier I No duty to Register
Lifetime
25 years, Tier II
Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age § 30.02(d)1 Burglary of a habitation committed or engaged in with the intent to commit 21.02 § 43.05(a)(2) Compelling prostitution of a person younger than 18 years of age § 43.23(h) Obscenity § 43.25 Sexual performance by a child § 43.25 Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 43.26(a) Possessing or promoting child pornography § 43.26(e) Possessing or promoting child pornography § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or
Lifetime
15 years, Tier I
Lifetime
25 years, Tier II
Lifetime
25 years, Tier II
Lifetime
25 years, Tier II
Lifetime Lifetime Lifetime
25 years, Tier II 25 years, Tier II No Duty to Register
Lifetime Lifetime 10 years post discharge
15 years, Tier I 25 years, Tier II No Duty to Register
10 years post discharge
No Duty to Register
§ 22.021
§ 25.02 § 25.02 § 25.02
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 30.02(d)
3
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
guardian of the victim § 20.04 10 years post discharge No Duty to Register Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim 2 § 21.02 Continuous sexual abuse of young child or 10 years post discharge No Duty to Register children § 21.11(a)(1) 10 years post discharge No Duty to Register Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 21.11(a)(2) 10 years post discharge No Duty to Register Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 22.011 Sexual assault, offense is solely based on the 10 years post discharge No Duty to Register victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 22.021 10 years post discharge No Duty to Register Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 25.02 10 years post discharge No duty to Register Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 43.25 10 years post discharge No duty to Register Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) 1 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)); burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed with consensual conduct as defined by 42 U.S.C § 16911(5)(C)
4
Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas Federal § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that 10 years post discharge 15 years, Tier I the victim was younger than 17 years of age § 20.03 10 years post discharge Lifetime, Tier III Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04 10 years post discharge Lifetime, Tier III Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age
§ 20.04(a)(4) § 21.021 § 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2)
Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Continuous sexual abuse of young child or children Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure
Lifetime
Lifetime, Tier III
Lifetime Lifetime
Lifetime, Tier III Lifetime, Tier III
Lifetime
Lifetime, Tier III
10 years post discharge
15 years, Tier I 5
Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age § 22.021 Aggravated sexual assault § 22.021 Aggravated sexual assault, offense is solely based on the victim’s age § 25.02 Prohibited sexual conduct & the victim is less than 16 years of age § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age § 30.02(d)1 Burglary of a habitation committed or engaged in with the intent to commit 21.02 § 33.021(b) Online solicitation of a minor § 33.021(c) Online solicitation of a minor § 43.05(a)(1) Compelling prostitution § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04(a)(4) Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually § 20A.02(a)(3) Trafficking of persons § 20A.02(a)(4) Trafficking of persons § 20A.02(a)(7) Trafficking of persons An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 22.011 § 22.011
Lifetime Lifetime
Lifetime, Tier III Lifetime, Tier III
Lifetime Lifetime
Lifetime, Tier III Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II 15 years, Tier I 15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 6
§ 20A.02(a)(8) § 21.021
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 21.022 § 21.11(a)(1)
§ 21.11(a)(1)
Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by
10 years post discharge 10 years post discharge
25 years, Tier II Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
7
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011
§ 20A.02(a)(8)
§ 22.021 § 22.021 § 25.02 § 25.02 § 25.02
§ 30.02(d)
§ 30.02(d) § 30.02(d)
threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I Lifetime, Tier III Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III
10 years post discharge 10 years post discharge
15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
8
25 years, Tier II Burglary of a habitation committed or engaged 10 years post discharge in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age 1 § 30.02(d) Lifetime, Tier III Burglary of a habitation committed or engaged 10 years post discharge in with the intent to commit 21.02 § 30.02(d)2 Burglary of a habitation committed or engaged 10 years post discharge 25 years, Tier II in with the intent to commit 21.02 § 43.05(a)(1) Compelling prostitution 10 years post discharge 15 years, Tier I § 43.05(a)(2) 10 years post discharge 25 years, Tier II Compelling prostitution of a person younger than 18 years of age § 43.25 Sexual performance by a child 10 years post discharge 25 years, Tier II § 43.26(a) Possessing or promoting child pornography 10 years post discharge 15 years, Tier I § 43.26(e) Possessing or promoting child pornography 10 years post discharge 25 years, Tier II 1 One act of “sexual abuse,” defined in Texas Penal Code § 21.02(c), is: aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually (§ 20.04(a)(4)); indecency with a child by contact with a child less than 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)); sexual assault (§ 22.011); aggravated sexual assault (§ 22.021); burglary of a habitation committed with the intent to commit one of the previous listed offenses (§ 30.02(d)); or trafficking of persons (§ 20A.02(a)(7) or (8)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)); burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2)) An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 30.02(d)
Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA 9
§ 20.02
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim § 21.08 Indecent exposure—second violation, but not if the second violation results in deferred adjudication § 21.11(a)(1) Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 21.11(a)(2) Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 22.011 Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 22.021 Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 25.02 Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 43.25 Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim § 20.04 Aggravated kidnapping with an Art. 42.015
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register 10
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 21.11(a)(1)
§ 21.11(a)(2)
§ 22.011
§ 22.021
§ 25.02
§ 43.25
affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law 11
§ 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1)
§ 21.11(a)(1)
Texas Offense Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge 15 years, Tier I 10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II
10 years post discharge
Lifetime, Tier III
12
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d)
§ 30.02(d)
kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault, offense is solely based on the victim’s age Aggravated sexual assault Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I Lifetime, Tier III Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
13
§ 33.021(c) § 43.05(a)(1) § 43.05(a)(2)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 43.23(h) § 43.25 § 43.26(a) § 43.26(e)
Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04(a)(4) Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually § 20A.02(a)(3) Trafficking of persons § 20A.02(a)(4) Trafficking of persons § 20A.02(a)(7) Trafficking of persons § 20A.02(a)(8) Trafficking of persons § 21.11(a)(1) Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or
10 years post discharge 10 years post discharge 10 years post discharge
25 years, Tier II 15 years, Tier I 25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
25 years, Tier II 25 years, Tier II 15 years, Tier I 25 years, Tier II 15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II
14
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011
§ 22.011
kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I Lifetime, Tier III Lifetime, Tier III
10 years post discharge
25 years, Tier II 15
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
older § 22.021 § 22.021 § 25.02 § 25.02 § 25.02
§ 30.02(d)
§ 30.02(d) § 30.02(d)
§ 30.02(d)
§ 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26(a) § 43.26(e)
Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography
10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III
10 years post discharge 10 years post discharge
15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge
25 years, Tier II 15 years, Tier I 25 years, Tier II
16
Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that 10 years post discharge No Duty to Register the victim was younger than 17 years of age § 20.03 10 years post discharge No Duty to Register Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative 10 years post discharge No Duty to Register finding that the victim was younger than 17 years of age § 20A.02(a)(3) Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(4) Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(7) Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(8) Trafficking of persons 10 years post discharge No Duty to Register § 21.08 10 years post discharge No Duty to Register Indecent exposure—second violation, but not if the second violation results in deferred adjudication § 21.11(a)(1) Indecency with a child by contact & the victim is at least 16 10 years post discharge No Duty to Register years of age § 21.11(a)(1) Indecency with a child by contact committed where the victim 10 years post discharge No Duty to Register has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that 17
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate § 21.11(a)(2) Indecency with a child by exposure § 22.011 Sexual assault § 22.021 Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) § 22.021 Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age § 25.02 Prohibited sexual conduct § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.11 § 33.021(c) Online solicitation of a minor § 43.05(a)(1) Compelling prostitution § 43.05(a)(2) Compelling prostitution of a person younger than 18 years of age § 43.23(h) Obscenity § 43.25 Sexual performance by a child § 43.26 Possessing or promoting child pornography § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20A.02(a)(3) Trafficking of persons § 20A.02(a)(4) Trafficking of persons § 20A.02(a)(7) Trafficking of persons § 20A.02(a)(8) Trafficking of persons § 21.11(a)(1) Indecency with a child by contact & the victim is at
10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register 18
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021
§ 22.021
§ 25.02 § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
least 16 years of age Indecency with a child by contact committed where the victim has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by exposure Sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11 Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register 19
Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA § 20.04(a)(4) Aggravated kidnapping committed or engaged in with the 10 years post discharge Lifetime, Tier III intent to violate or abuse the victim sexually § 21.11(a)(1) Indecency with a child by contact where the victim has not 10 years post discharge Lifetime, Tier III attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate § 22.0111 Sexual assault 10 years post discharge Lifetime, Tier III § 22.021 Aggravated sexual assault 10 years post discharge Lifetime, Tier III § 22.021 Aggravated sexual assault, offense is solely based on the 10 years post discharge Lifetime, Tier III victim’s age & the victim is younger than 12 years of age § 25.02 Prohibited sexual conduct & the victim is at least 12 of age 10 years post discharge Lifetime, Tier III § 30.02(d) 10 years post discharge Lifetime, Tier III Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 20
10 years post discharge Lifetime, Tier III Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually § 21.11(a)(1) Indecency with a child by contact where the victim 10 years post discharge Lifetime, Tier III has not attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate 1 § 22.011 Sexual assault 10 years post discharge Lifetime, Tier III § 22.021 Aggravated sexual assault 10 years post discharge Lifetime, Tier III § 22.021 Lifetime, Tier III Aggravated sexual assault, offense is solely based on 10 years post discharge the victim’s age & the victim is younger than 12 years of age § 25.02 Prohibited sexual conduct & the victim is at least 12 10 years post discharge Lifetime, Tier III of age § 30.02(d) 10 years post discharge Lifetime, Tier III Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 1 The adjudicated offense is comparable to or more severe than 18 U.S.C.S. § 2241, aggravated sexual abuse, or was an attempt or conspiracy to commit such an offense An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02
21
Registrants who were younger than 14 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that 10 years post discharge No Duty to Register the victim was younger than 17 years of age § 20.03 10 years post discharge No Duty to Register Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative 10 years post discharge No Duty to Register finding that the victim was younger than 17 years of age § 20.04(a)(4) 10 years post discharge No Duty to Register Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually § 20A.02(a)(3) Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(4) Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(7) Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(8) Trafficking of persons 10 years post discharge No Duty to Register § 21.08 10 years post discharge No Duty to Register Indecent exposure—second violation, but not if the second violation results in deferred adjudication § 21.11(a)(1) Indecency with a child by contact 10 years post discharge No Duty to Register § 21.11(a)(2) Indecency with a child by exposure 10 years post discharge No Duty to Register § 22.011 Sexual assault 10 years post discharge No Duty to Register § 22.021 Aggravated sexual assault 10 years post discharge No Duty to Register § 25.02 Prohibited sexual conduct 10 years post discharge No Duty to Register § 30.02(d) Burglary of a habitation committed or engaged in with the 10 years post discharge No Duty to Register intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) § 33.021(c) Online solicitation of a minor 10 years post discharge No Duty to Register § 43.05(a)(1) Compelling prostitution 10 years post discharge No Duty to Register 22
§ 43.05(a)(2)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Compelling prostitution of a person younger than 18 years of age § 43.23(h) Obscenity § 43.25 Sexual performance by a child § 43.26 Possessing or promoting child pornography § 20.02 Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.03 Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04 Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age § 20.04(a)(4) Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually § 20A.02(a)(3) Trafficking of persons § 20A.02(a)(4) Trafficking of persons § 20A.02(a)(7) Trafficking of persons § 20A.02(a)(8) Trafficking of persons § 21.11(a)(1) Indecency with a child by contact § 21.11(a)(2) Indecency with a child by exposure § 22.011 Sexual assault § 22.021 Aggravated sexual assault § 25.02 Prohibited sexual conduct § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) § 43.05(a)(1) Compelling prostitution § 43.05(a)(2) Compelling prostitution of a person younger than 18 years of age § 43.25 Sexual performance by a child § 43.26 Possessing or promoting child pornography
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) November 2014 Texas Code of Criminal Procedure Chapter 62, Subchapter I. Early Termination of Certain Persons’ Obligation to Register. Art. 62.402. Determination of Minimum Required Registration Period (a) The department by rule shall determine the minimum required registration period under federal law for each reportable conviction or adjudication under this chapter. (b) After determining the minimum required registration period for each reportable conviction or adjudication under Subsection (a), the department shall compile and publish a list of reportable convictions or adjudications for which a person must register under this chapter for a period that exceeds the minimum required registration period under federal law. (c) To the extent possible, the department shall periodically verify with the United States Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking or another appropriate federal agency or office the accuracy of the list of reportable convictions or adjudications described by Subsection (b). Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Federal Texas Offense § 20.02
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 20.03
Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 20.04
Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.02¹ § 21.02²
Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children
Lifetime Lifetime Lifetime Lifetime Lifetime Lifetime
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II No duty to Register
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§ 21.08 § 21.11(a)(1)
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Indecent exposure—second violation, but not if the second violation results in 10 years post discharge deferred adjudication Indecency with a child by contact & involved consensual conducted as defined by 42 Lifetime U.S.C. § 16911(5)(C)
No Duty to Register No Duty to Register
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
Lifetime
15 years, Tier I
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
Lifetime
25 years, Tier II
10 years post discharge
No Duty to Register
Lifetime
No duty to Register
Lifetime
25 years, Tier II
Lifetime
No Duty to Register
Lifetime
15 years, Tier I
§ 21.11(a)(2) § 22.011 § 22.011 § 22.021 § 25.02
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct
2 of 22
§ 25.02 § 25.02 § 30.02(d) § 30.02(d)
No duty to Register 25 years, Tier II 15 years, Tier I 25 years, Tier II
§ 30.02(d)¹
Burglary of a habitation committed or engaged in with the intent to commit 21.02
Lifetime
25 years, Tier II
§ 43.05(a)(2) § 43.23(h) § 43.25
Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Possessing or promoting child pornography Possessing or promoting child pornography
Lifetime Lifetime Lifetime
25 years, Tier II 25 years, Tier II 25 years, Tier II
Lifetime
No Duty to Register
Lifetime Lifetime
15 years, Tier I 25 years, Tier II
§ 43.25 § 43.26(a) § 43.26(e) An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. Lifetime § 16911(5)(C) Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 Lifetime years of age Burglary of a habitation committed or engaged in with the intent to commit Lifetime 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit Lifetime 21.11(a)(1) & the victim is at least 13 years of age
§ 20.02
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 20.03
Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 20.04
Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
§ 21.02² § 21.11(a)(1)
Continuous sexual abuse of young child or children Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 43.25
Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No duty to Register
10 years post discharge
No duty to Register
1 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)) burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed with consensual conduct as defined by 42 U.S.C § 16911(5)©
4 of 22
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Federal Texas Offense Unlawful restraint with an Art. 42.015 affirmative finding that the victim was 10 years post discharge 15 years, Tier I § 20.02 younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 10 years post discharge Lifetime, Tier III § 20.03 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was 10 years post discharge Lifetime, Tier III § 20.04 younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse Lifetime Lifetime, Tier III § 20.04(a)(4) the victim sexually § 21.02¹ Continuous sexual abuse of young child or children Lifetime Lifetime, Tier III
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.021 § 22.021 § 25.02
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct & the victim is less than 16 years of age
Lifetime
Lifetime, Tier III
Lifetime 10 years post discharge Lifetime
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime Lifetime Lifetime
Lifetime, Tier III Lifetime, Tier III Lifetime, Tier III
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§ 30.02(d)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 30.02(d)
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Burglary of a habitation committed or engaged in with the intent to commit Lifetime 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit Lifetime 21.11(a)(1) & the victim is younger than 13 years of age
Lifetime, Tier III Lifetime, Tier III
§ 30.02(d)¹
Burglary of a habitation committed or engaged in with the intent to commit 21.02
Lifetime
Lifetime, Tier III
§ 33.021(b) § 33.021(c) § 43.05(a)(1)
Online solicitation of a minor Online solicitation of a minor Compelling prostitution Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children
10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II 15 years, Tier I
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II Lifetime, Tier III 25 years, Tier II
10 years post discharge
25 years, Tier II
§ 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.02¹ § 21.02²
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
6 of 22
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
10 years post discharge
Lifetime, Tier III
Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
§ 30.02(d)¹
Burglary of a habitation committed or engaged in with the intent to commit 21.02
10 years post discharge
Lifetime, Tier III
§ 30.02(d)²
Burglary of a habitation committed or engaged in with the intent to commit 21.02
10 years post discharge
25 years, Tier II
§ 21.11(a)(1) An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 20A.02(a)(8) § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d)
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26(a) § 43.26(e)
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Compelling prostitution 10 years post discharge Compelling prostitution of a person younger than 18 years of age 10 years post discharge Sexual performance by a child 10 years post discharge Possessing or promoting child pornography 10 years post discharge Possessing or promoting child pornography 10 years post discharge
15 years, Tier I 25 years, Tier II 25 years, Tier II 15 years, Tier I 25 years, Tier II
1 One act of “sexual abuse,” defined in Texas Penal Code § 21.02(c), is: aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually (§ 20.04(a)(4)); indecency with a child by contact with a child less than 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)); sexual assault (§ 22.011); aggravated sexual assault (§ 22.021); burglary of a habitation committed with the intent to commit one of the previous listed offenses (§ 30.02(d)); or trafficking of persons (§ 20A.02(a)(7) or (8)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§21.11(a)(1)); burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2))
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA § 20.02
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 20.03
Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 20.04
Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
10 years post discharge
No Duty to Register
§ 21.11(a)(2)
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
§ 21.08 § 21.11(a)(1)
Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
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§ 22.011 § 22.021 § 25.02
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 43.25
No duty to Register No Duty to Register No Duty to Register No Duty to Register
§ 20.02
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 20.03
Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 20.04
Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 21.11(a)(1)
Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
§ 21.11(a)(2) § 22.011
on, or it:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Sexual assault, offense is solely based on the victim’s age & involved consensual 10 years post discharge conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved 10 years post discharge consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. 10 years post discharge § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 10 years post discharge U.S.C. § 16911(5)(C)
§ 22.021
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
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An attempt, conspiracy, solicitatio solicitation of a minor to comm
ยง 25.02 ยง 43.25
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. 10 years post discharge ยง 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 10 years post discharge U.S.C. ยง 16911(5)(C)
No Duty to Register No Duty to Register
11 of 22
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA Unlawful restraint with an Art. 42.015 affirmative finding that 10 years post discharge 15 years, Tier I § 20.02 the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 10 years post discharge Lifetime, Tier III § 20.03 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was 10 years post discharge Lifetime, Tier III § 20.04 younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse 10 years post discharge Lifetime, Tier III § 20.04(a)(4) the victim sexually Trafficking of persons 10 years post discharge 15 years, Tier I § 20A.02(a)(3) § 20A.02(a)(4) Trafficking of persons 10 years post discharge 15 years, Tier I § 20A.02(a)(7) Trafficking of persons 10 years post discharge 25 years, Tier II § 20A.02(a)(8) Trafficking of persons 10 years post discharge 25 years, Tier II
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
10 years post discharge
25 years, Tier II
12 of 22
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d) § 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault, offense is solely based on the victim’s age Aggravated sexual assault Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
25 years, Tier II 15 years, Tier I 25 years, Tier II 25 years, Tier II
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ation of a minor to commit:
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 43.25 § 43.26(a) § 43.26(e) § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8)
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Sexual performance by a child 10 years post discharge Possessing or promoting child pornography 10 years post discharge Possessing or promoting child pornography 10 years post discharge Unlawful restraint with an Art. 42.015 affirmative finding that the victim was 10 years post discharge younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 10 years post discharge 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was 10 years post discharge younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse 10 years post discharge the victim sexually Trafficking of persons 10 years post discharge Trafficking of persons 10 years post discharge Trafficking of persons 10 years post discharge Trafficking of persons 10 years post discharge
25 years, Tier II 15 years, Tier I 25 years, Tier II 15 years, Tier I Lifetime, Tier III Lifetime, Tier III Lifetime, Tier III 15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
10 years post discharge
25 years, Tier II
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
10 years post discharge
Lifetime, Tier III
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An attempt, conspiracy, solicitation, or solicita
§ 21.11(a)(1) § 21.11(a)(2) § 22.011
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 30.02(d)
§ 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d)
§ 30.02(d) § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26(a) § 43.26(e)
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Indecency with a child by contact & the victim is younger than 13 years of age 10 years post discharge Indecency with a child by exposure 10 years post discharge Sexual assault 10 years post discharge Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 10 years post discharge years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of 10 years post discharge age or older Aggravated sexual assault 10 years post discharge Aggravated sexual assault, offense is solely based on the victim’s age 10 years post discharge Prohibited sexual conduct 10 years post discharge Prohibited sexual conduct & the victim is less than 16 years of age 10 years post discharge Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 10 years post discharge years of age Burglary of a habitation committed or engaged in with the intent to commit 10 years post discharge 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 10 years post discharge 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 10 years post discharge 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 10 years post discharge 21.11(a)(1) & the victim is at least 13 years of age Compelling prostitution 10 years post discharge Compelling prostitution of a person younger than 18 years of age 10 years post discharge Sexual performance by a child 10 years post discharge Possessing or promoting child pornography 10 years post discharge Possessing or promoting child pornography 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III Lifetime, Tier III 25 years, Tier II Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III 25 years, Tier II Lifetime, Tier III 15 years, Tier I Lifetime, Tier III 25 years, Tier II 15 years, Tier I 25 years, Tier II 25 years, Tier II 15 years, Tier I 25 years, Tier II
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA Unlawful restraint with an Art. 42.015 affirmative finding that the victim was 10 years post discharge No Duty to Register § 20.02 younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 10 years post discharge No Duty to Register § 20.03 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was 10 years post discharge No Duty to Register § 20.04 younger than 17 years of age Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(3) § 20A.02(a)(4) Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(7) Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(8) Trafficking of persons 10 years post discharge No Duty to Register Indecent exposure—second violation, but not if the second violation results in § 21.08 10 years post discharge No Duty to Register deferred adjudication Indecency with a child by contact & the victim is at least 16 years of age 10 years post discharge No Duty to Register § 21.11(a)(1)
§ 21.11(a)(1)
Indecency with a child by contact committed where the victim has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
10 years post discharge
No Duty to Register
§ 21.11(a)(2)
Indecency with a child by exposure
10 years post discharge
No Duty to Register
16 of 22
§ 22.011 § 22.021 § 22.021
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 25.02
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Sexual assault 10 years post discharge Aggravated sexual assault, offense is solely based on the victim’s age & the offense 10 years post discharge involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is 10 years post discharge at least 12 of age Prohibited sexual conduct 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
§ 30.02(d)
Burglary of a habitation committed or engaged in with the intent to commit 21.11
10 years post discharge
No Duty to Register
§ 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h) § 43.25 § 43.26
Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact & the victim is at least 16 years of age
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
§ 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1)
17 of 22
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Indecency with a child by contact committed where the victim has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
§ 25.02
Indecency with a child by exposure Sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age Prohibited sexual conduct
10 years post discharge
No Duty to Register
§ 30.02(d)
Burglary of a habitation committed or engaged in with the intent to commit 21.11
10 years post discharge
No Duty to Register
§ 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 22.021
18 of 22
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA Aggravated kidnapping committed or engaged in with the intent to violate or abuse 10 years post discharge Lifetime, Tier III § 20.04(a)(4) the victim sexually
§ 21.11(a)(1)
§ 22.011¹ § 22.021 § 22.021 § 25.02 § 30.02(d)
Indecency with a child by contact where the victim has not attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Sexual assault Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the victim is younger than 12 years of age Prohibited sexual conduct & the victim is at least 12 of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Aggravated kidnapping committed or engaged in with the intent to violate or abuse 10 years post discharge the victim sexually Indecency with a child by contact where the victim has not attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
Sexual assault 10 years post discharge Aggravated sexual assault 10 years post discharge Aggravated sexual assault, offense is solely based on the victim’s age & the victim is § 22.021 10 years post discharge younger than 12 years of age Prohibited sexual conduct & the victim is at least 12 of age 10 years post discharge § 25.02 Burglary of a habitation committed or engaged in with the intent to commit § 30.02(d) 10 years post discharge 20.04(a)(4), 22.011, 22.021 or 25.02 1 The adjudicated offense is comparable to or more severe than 18 U.S.C.S. § 2241, aggravated sexual abuse, or was an attempt or conspiracy to commit such an offense
Lifetime, Tier III Lifetime, Tier III
§ 21.11(a)(1)
§ 22.011¹ § 22.021
Lifetime, Tier III Lifetime, Tier III Lifetime, Tier III
20 of 22
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 14 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas SORNA Unlawful restraint with an Art. 42.015 affirmative finding that § 20.02 10 years post discharge No Duty to Register the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 10 years post discharge No Duty to Register § 20.03 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was 10 years post discharge No Duty to Register § 20.04 younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse 10 years post discharge No Duty to Register § 20.04(a)(4) the victim sexually Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(3) § 20A.02(a)(4) Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(7) Trafficking of persons 10 years post discharge No Duty to Register § 20A.02(a)(8) Trafficking of persons 10 years post discharge No Duty to Register Indecent exposure—second violation, but not if the second violation results in § 21.09 10 years post discharge No Duty to Register deferred adjudication Indecency with a child by contact 10 years post discharge No Duty to Register § 21.11(a)(1) § 21.11(a)(2) Indecency with a child by exposure 10 years post discharge No Duty to Register § 22.011 Sexual assault 10 years post discharge No Duty to Register § 22.021 Aggravated sexual assault 10 years post discharge No Duty to Register § 25.03 Prohibited sexual conduct 10 years post discharge No Duty to Register Burglary of a habitation committed or engaged in with the intent to commit 21.11, § 30.02(d) 10 years post discharge No Duty to Register 22.011, 22.021, 25.02, or 20.04(a)(4) Online solicitation of a minor 10 years post discharge No Duty to Register § 33.021(c) § 43.05(a)(1) Compelling prostitution 10 years post discharge No Duty to Register § 43.05(a)(2) Compelling prostitution of a person younger than 18 years of age 10 years post discharge No Duty to Register § 43.23(h) Obscenity 10 years post discharge No Duty to Register § 43.25 Sexual performance by a child 10 years post discharge No Duty to Register
21 of 22
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 43.26 § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Possessing or promoting child pornography 10 years post discharge Unlawful restraint with an Art. 42.015 affirmative finding that the victim was 10 years post discharge younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 10 years post discharge 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was 10 years post discharge younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse 10 years post discharge the victim sexually Trafficking of persons 10 years post discharge Trafficking of persons 10 years post discharge Trafficking of persons 10 years post discharge Trafficking of persons 10 years post discharge Indecency with a child by contact 10 years post discharge Indecency with a child by exposure 10 years post discharge Sexual assault 10 years post discharge Aggravated sexual assault 10 years post discharge Prohibited sexual conduct 10 years post discharge Burglary of a habitation committed or engaged in with the intent to commit 21.11, 10 years post discharge 22.011, 22.021, 25.02, or 20.04(a)(4) Compelling prostitution 10 years post discharge Compelling prostitution of a person younger than 18 years of age 10 years post discharge Sexual performance by a child 10 years post discharge Possessing or promoting child pornography 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
22 of 22
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) April 2015 Texas Code of Criminal Procedure Chapter 62, Subchapter I. Early Termination of Certain Persons’ Obligation to Register. Art. 62.402. Determination of Minimum Required Registration Period (a) The department by rule shall determine the minimum required registration period under federal law for each reportable conviction or adjudication under this (b) After determining the minimum required registration period for each reportable conviction or adjudication under Subsection (a), the department shall compile and publish a list of reportable convictions or adjudications for which a person must register under this chapter for a period that exceeds the minimum required registration period under federal law. (c) To the extent possible, the department shall periodically verify with the United States Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking or another appropriate federal agency or office the accuracy of the list of reportable convictions or adjudications described by Subsection (b). Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.02¹ § 21.02² § 21.08
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children Indecent exposure—second violation, but not if the second violation results in deferred adjudication
Length of Duty to Register as a Sex Offender Texas Federal 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
Lifetime Lifetime Lifetime Lifetime Lifetime Lifetime
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II No duty to Register
10 years post discharge
No Duty to Register
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 21.11(a)(1)
Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Lifetime
No Duty to Register
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
Lifetime
15 years, Tier I
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
Lifetime
25 years, Tier II
10 years post discharge
No Duty to Register
Lifetime
No duty to Register
Lifetime
25 years, Tier II
Lifetime
No Duty to Register
Lifetime
15 years, Tier I
Lifetime
No duty to Register
§ 21.11(a)(2) § 22.011 § 22.011 § 22.021 § 25.02 § 25.02
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 25.02 § 30.02(d) § 30.02(d)
Lifetime
25 years, Tier II
Lifetime
15 years, Tier I
Lifetime
25 years, Tier II
§ 30.02(d)¹
Burglary of a habitation committed or engaged in with the intent to commit 21.02
Lifetime
25 years, Tier II
§ 43.05(a)(2) § 43.23(h) § 43.25
Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Possessing or promoting child pornography Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Continuous sexual abuse of young child or children Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Lifetime Lifetime Lifetime
25 years, Tier II 25 years, Tier II 25 years, Tier II
Lifetime
No Duty to Register
Lifetime Lifetime
15 years, Tier I 25 years, Tier II
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
§ 43.25 § 43.26(a) § 43.26(e) An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age
§ 20.02 § 20.03 § 20.04 § 21.02² § 21.11(a)(1)
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 43.25
Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, 10 years post discharge (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No duty to Register
10 years post discharge
No duty to Register
1 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)) burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed with consensual conduct as defined by 42 U.S.C § 16911(5)(c)
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas Federal Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger § 20.02 10 years post discharge 15 years, Tier I than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than § 20.03 10 years post discharge Lifetime, Tier III 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was § 20.04 10 years post discharge Lifetime, Tier III younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the § 20.04(a)(4) Lifetime Lifetime, Tier III victim sexually Lifetime Lifetime, Tier III § 21.02¹ Continuous sexual abuse of young child or children
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.021 § 22.021 § 25.02
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct & the victim is less than 16 years of age
Lifetime
Lifetime, Tier II
Lifetime 10 years post discharge Lifetime
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime Lifetime Lifetime
Lifetime, Tier III Lifetime, Tier III Lifetime, Tier III
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 30.02(d)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 30.02(d)
Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age
Lifetime
Lifetime, Tier III
Lifetime
Lifetime, Tier III
§ 30.02(d)¹
Burglary of a habitation committed or engaged in with the intent to commit 21.02
Lifetime
Lifetime, Tier III
§ 33.021(b) § 33.021(c) § 43.05(a)(1)
Online solicitation of a minor Online solicitation of a minor Compelling prostitution Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children
10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II 15 years, Tier I
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II Lifetime, Tier III 25 years, Tier II
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by 10 years post discharge rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
25 years, Tier II
§ 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.02¹ § 21.02²
§ 21.11(a)(1)
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by 10 years post discharge administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
Lifetime, Tier III
§ 21.11(a)(1) § 21.11(a)(2) § 22.011
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 § 22.011 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of § 20A.02(a)(8) age or older § 22.021 Aggravated sexual assault § 22.021 Aggravated sexual assault, offense is solely based on the victim’s age § 25.02 Prohibited sexual conduct § 25.02 Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 § 25.02 years of age Burglary of a habitation committed or engaged in with the intent to commit § 30.02(d) 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit § 30.02(d) 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit § 30.02(d) 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit § 30.02(d) 21.11(a)(1) & the victim is at least 13 years of age § 30.02(d)¹
Burglary of a habitation committed or engaged in with the intent to commit 21.02
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 30.02(d)²
Burglary of a habitation committed or engaged in with the intent to commit 21.02
10 years post discharge
25 years, Tier II
§ 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26(a) § 43.26(e)
Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II 25 years, Tier II 15 years, Tier I 25 years, Tier II
1 One act of “sexual abuse,” defined in Texas Penal Code § 21.02(c), is: aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually (§ 20.04(a)(4)); indecency with a child by contact with a child less than 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)); sexual assault (§ 22.011); aggravated sexual assault (§ 22.021); burglary of a habitation committed with the intent to commit one of the previous listed offenses (§ 30.02(d)); or trafficking of persons (§ 20A.02(a)(7) or (8)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§21.11(a)(1)); burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2))
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02
Length of Duty to Register as a Sex Offender Texas SORNA
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger 10 years post discharge than 17 years of age & the offender is the parent or guardian of the victim
No Duty to Register
§ 20.03
Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 20.04
Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by 10 years post discharge rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
No Duty to Register
§ 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2)
Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 22.011 § 22.021 § 25.02
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 43.25 § 20.02
Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger 10 years post discharge than 17 years of age & the offender is the parent or guardian of the victim
No Duty to Register
§ 20.03
Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 20.04
Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 21.11(a)(1)
Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by 10 years post discharge rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
No Duty to Register
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 22.021 § 25.02 § 43.25
Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
11 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8)
§ 21.11(a)(1)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by 10 years post discharge rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
25 years, Tier II
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d) § 33.021(c) § 43.05(a)(1)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by 10 years post discharge administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge
25 years, Tier II 15 years, Tier I
Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault, offense is solely based on the victim’s age Aggravated sexual assault Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Online solicitation of a minor Compelling prostitution
13 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 43.05(a)(2) § 43.23(h) § 43.25 § 43.26(a) § 43.26(e) § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8)
§ 21.11(a)(1)
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
25 years, Tier II 25 years, Tier II 25 years, Tier II 15 years, Tier I 25 years, Tier II
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by 10 years post discharge rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
25 years, Tier II
Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons
14 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, 10 years post discharge (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II 25 years, Tier II
Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) ยง 43.26(a) ยง 43.26(e)
Possessing or promoting child pornography Possessing or promoting child pornography
10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact & the victim is at least 16 years of age
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
Indecency with a child by contact committed where the victim has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear 10 years post discharge that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
No Duty to Register
17 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 21.11(a)(2) § 22.011
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
§ 25.02
Indecency with a child by exposure Sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age Prohibited sexual conduct
10 years post discharge
No Duty to Register
§ 30.02(d)
Burglary of a habitation committed or engaged in with the intent to commit 21.11
10 years post discharge
No Duty to Register
§ 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h) § 43.25 § 43.26
Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact & the victim is at least 16 years of age
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
§ 22.021
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 22.021
§ 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1)
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Indecency with a child by contact committed where the victim has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering 10 years post discharge the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
§ 25.02
Indecency with a child by exposure Sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age Prohibited sexual conduct
10 years post discharge
No Duty to Register
§ 30.02(d)
Burglary of a habitation committed or engaged in with the intent to commit 21.11
10 years post discharge
No Duty to Register
§ 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 22.021
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Texas Offense § 20.04(a)(4)
§ 21.11(a)(1)
§ 22.011¹ § 22.021 § 22.021 § 25.02 § 30.02(d)
Length of Duty to Register as a Sex Offender Texas SORNA
Aggravated kidnapping committed or engaged in with the intent to violate or abuse the 10 years post discharge victim sexually Indecency with a child by contact where the victim has not attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Sexual assault Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the victim is younger than 12 years of age Prohibited sexual conduct & the victim is at least 12 of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
20 of 23
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 20.02
§ 21.11(a)(1)
§ 22.011¹ § 22.021 § 22.021 § 25.02 § 30.02(d)
Aggravated kidnapping committed or engaged in with the intent to violate or abuse the 10 years post discharge victim sexually Indecency with a child by contact where the victim has not attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Sexual assault Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the victim is younger than 12 years of age Prohibited sexual conduct & the victim is at least 12 of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
1 The adjudicated offense is comparable to or more severe than 18 U.S.C.S. § 2241, aggravated sexual abuse, or was an attempt or conspiracy to commit such an offense
21 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 14 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.09 § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021 § 25.03 § 30.02(d) § 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
22 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 43.25 § 43.26 § 20.02 § 20.03
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Sexual performance by a child Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
23 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) June 2015 Texas Code of Criminal Procedure Chapter 62, Subchapter I. Early Termination of Certain Persons’ Obligation to Register. Art. 62.402. Determination of Minimum Required Registration Period (a) The department by rule shall determine the minimum required registration period under federal law for each reportable conviction or adjudication under this (b) After determining the minimum required registration period for each reportable conviction or adjudication under Subsection (a), the department shall compile and publish a list of reportable convictions or adjudications for which a person must register under this chapter for a period that exceeds the minimum required registration period under federal law. (c) To the extent possible, the department shall periodically verify with the United States Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking or another appropriate federal agency or office the accuracy of the list of reportable convictions or adjudications described by Subsection (b). Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.02¹ § 21.02² § 21.08
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children Indecent exposure—second violation, but not if the second violation results in deferred adjudication
Length of Duty to Register as a Sex Offender Texas Federal 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
Lifetime Lifetime Lifetime Lifetime Lifetime Lifetime
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II No duty to Register
10 years post discharge
No Duty to Register
1 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 21.11(a)(1)
Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Lifetime
No Duty to Register
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
Lifetime
15 years, Tier I
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
Lifetime
25 years, Tier II
10 years post discharge
No Duty to Register
Lifetime
No duty to Register
Lifetime
25 years, Tier II
§ 21.11(a)(2) § 22.011 § 22.011
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older
2 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 22.011
§ 22.021 § 25.02 § 25.02
§ 25.02 § 30.02(d) § 30.02(d)
Sexual assault where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (g) with a victim that is incapable of declining participation or communicating unwillingness to participate Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age
Lifetime
25 years, Tier II
Lifetime
No Duty to Register
Lifetime
15 years, Tier I
Lifetime
No duty to Register
Lifetime
25 years, Tier II
Lifetime
15 years, Tier I
Lifetime
25 years, Tier II
§ 30.02(d)¹
Burglary of a habitation committed or engaged in with the intent to commit 21.02
Lifetime
25 years, Tier II
§ 43.05(a)(2) § 43.23(h) § 43.25
Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Possessing or promoting child pornography Possessing or promoting child pornography
Lifetime Lifetime Lifetime
25 years, Tier II 25 years, Tier II 25 years, Tier II
Lifetime
No Duty to Register
Lifetime Lifetime
15 years, Tier I 25 years, Tier II
§ 43.25 § 43.26(a) § 43.26(e)
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 20.02 § 20.03 § 20.04 § 21.02²
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 43.25
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Continuous sexual abuse of young child or children Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, 10 years post discharge (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
No Duty to Register
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No duty to Register
10 years post discharge
No duty to Register
1 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)) burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed with consensual conduct as defined by 42 U.S.C § 16911(5)(c)
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas Federal Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger § 20.02 10 years post discharge 15 years, Tier I than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than § 20.03 10 years post discharge Lifetime, Tier III 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was § 20.04 10 years post discharge Lifetime, Tier III younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the § 20.04(a)(4) Lifetime Lifetime, Tier III victim sexually Lifetime Lifetime, Tier III § 21.02¹ Continuous sexual abuse of young child or children
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.021 § 22.021 § 25.02
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct & the victim is less than 16 years of age
Lifetime
Lifetime, Tier II
Lifetime 10 years post discharge Lifetime
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime Lifetime Lifetime
Lifetime, Tier III Lifetime, Tier III Lifetime, Tier III
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 30.02(d)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 30.02(d)
Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age
Lifetime
Lifetime, Tier III
Lifetime
Lifetime, Tier III
§ 30.02(d)¹
Burglary of a habitation committed or engaged in with the intent to commit 21.02
Lifetime
Lifetime, Tier III
§ 33.021(b) § 33.021(c) § 43.05(a)(1)
Online solicitation of a minor Online solicitation of a minor Compelling prostitution Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children
10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II 15 years, Tier I
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II Lifetime, Tier III 25 years, Tier II
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by 10 years post discharge rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
25 years, Tier II
§ 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.02¹ § 21.02²
§ 21.11(a)(1)
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by 10 years post discharge administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
Lifetime, Tier III
§ 21.11(a)(1) § 21.11(a)(2) § 22.011
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 § 22.011 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of § 20A.02(a)(8) age or older § 22.021 Aggravated sexual assault § 22.021 Aggravated sexual assault, offense is solely based on the victim’s age § 25.02 Prohibited sexual conduct § 25.02 Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 § 25.02 years of age Burglary of a habitation committed or engaged in with the intent to commit § 30.02(d) 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit § 30.02(d) 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit § 30.02(d) 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit § 30.02(d) 21.11(a)(1) & the victim is at least 13 years of age § 30.02(d)¹
Burglary of a habitation committed or engaged in with the intent to commit 21.02
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 30.02(d)²
Burglary of a habitation committed or engaged in with the intent to commit 21.02
10 years post discharge
25 years, Tier II
§ 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26(a) § 43.26(e)
Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II 25 years, Tier II 15 years, Tier I 25 years, Tier II
1 One act of “sexual abuse,” defined in Texas Penal Code § 21.02(c), is: aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually (§ 20.04(a)(4)); indecency with a child by contact with a child less than 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)); sexual assault (§ 22.011); aggravated sexual assault (§ 22.021); burglary of a habitation committed with the intent to commit one of the previous listed offenses (§ 30.02(d)); or trafficking of persons (§ 20A.02(a)(7) or (8)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§21.11(a)(1)); burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2))
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02
Length of Duty to Register as a Sex Offender Texas SORNA
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger 10 years post discharge than 17 years of age & the offender is the parent or guardian of the victim
No Duty to Register
§ 20.03
Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 20.04
Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by 10 years post discharge rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
No Duty to Register
§ 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2)
Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 22.011 § 22.021 § 25.02
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 43.25 § 20.02
Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger 10 years post discharge than 17 years of age & the offender is the parent or guardian of the victim
No Duty to Register
§ 20.03
Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 20.04
Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim
10 years post discharge
No Duty to Register
§ 21.11(a)(1)
Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by 10 years post discharge rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
No Duty to Register
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 22.021 § 25.02 § 43.25
Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
11 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8)
§ 21.11(a)(1)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by 10 years post discharge rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
25 years, Tier II
12 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d) § 33.021(c) § 43.05(a)(1)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by 10 years post discharge administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge
25 years, Tier II 15 years, Tier I
Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault, offense is solely based on the victim’s age Aggravated sexual assault Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Online solicitation of a minor Compelling prostitution
13 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 43.05(a)(2) § 43.23(h) § 43.25 § 43.26(a) § 43.26(e) § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8)
§ 21.11(a)(1)
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
25 years, Tier II 25 years, Tier II 25 years, Tier II 15 years, Tier I 25 years, Tier II
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by 10 years post discharge rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
25 years, Tier II
Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons
14 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, 10 years post discharge (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II 25 years, Tier II
Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) ยง 43.26(a) ยง 43.26(e)
Possessing or promoting child pornography Possessing or promoting child pornography
10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II
16 of 23
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact & the victim is at least 16 years of age
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
Indecency with a child by contact committed where the victim has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear 10 years post discharge that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
No Duty to Register
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 21.11(a)(2) § 22.011
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
§ 25.02
Indecency with a child by exposure Sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age Prohibited sexual conduct
10 years post discharge
No Duty to Register
§ 30.02(d)
Burglary of a habitation committed or engaged in with the intent to commit 21.11
10 years post discharge
No Duty to Register
§ 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h) § 43.25 § 43.26
Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact & the victim is at least 16 years of age
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
§ 22.021
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 22.021
§ 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1)
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Indecency with a child by contact committed where the victim has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering 10 years post discharge the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
§ 25.02
Indecency with a child by exposure Sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age Prohibited sexual conduct
10 years post discharge
No Duty to Register
§ 30.02(d)
Burglary of a habitation committed or engaged in with the intent to commit 21.11
10 years post discharge
No Duty to Register
§ 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 22.021
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Texas Offense § 20.04(a)(4)
§ 21.11(a)(1)
§ 22.011¹ § 22.021 § 22.021 § 25.02 § 30.02(d)
Length of Duty to Register as a Sex Offender Texas SORNA
Aggravated kidnapping committed or engaged in with the intent to violate or abuse the 10 years post discharge victim sexually Indecency with a child by contact where the victim has not attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Sexual assault Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the victim is younger than 12 years of age Prohibited sexual conduct & the victim is at least 12 of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 20.02
§ 21.11(a)(1)
§ 22.011¹ § 22.021 § 22.021 § 25.02 § 30.02(d)
Aggravated kidnapping committed or engaged in with the intent to violate or abuse the 10 years post discharge victim sexually Indecency with a child by contact where the victim has not attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Sexual assault Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the victim is younger than 12 years of age Prohibited sexual conduct & the victim is at least 12 of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
1 The adjudicated offense is comparable to or more severe than 18 U.S.C.S. § 2241, aggravated sexual abuse, or was an attempt or conspiracy to commit such an offense
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 14 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.09 § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021 § 25.03 § 30.02(d) § 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 43.25 § 43.26 § 20.02 § 20.03
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Sexual performance by a child Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) December 2015 Texas Code of Criminal Procedure Chapter 62, Subchapter I. Early Termination of Certain Persons’ Obligation to Register. Art. 62.402. Determination of Minimum Required Registration Period (a) The department by rule shall determine the minimum required registration period under federal law for each reportable conviction or adjudication under this chapter. (b) After determining the minimum required registration period for each reportable conviction or adjudication under Subsection (a), the department shall compile and publish a list of reportable convictions or adjudications for which a person must register under this chapter for a period that exceeds the minimum required registration period under federal law. (c) To the extent possible, the department shall periodically verify with the United States Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking or another appropriate federal agency or office the accuracy of the list of reportable convictions or adjudications described by Subsection (b). Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.02¹ § 21.02²
Length of Duty to Register as a Sex Offender Texas Federal
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger 10 years post discharge than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 10 years post discharge years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was 10 years post discharge younger than 17 years of age & the offender is the parent or guardian of the victim Lifetime Trafficking of persons Lifetime Trafficking of persons Lifetime Trafficking of persons Lifetime Trafficking of persons Lifetime Continuous sexual abuse of young child or children Lifetime Continuous sexual abuse of young child or children
No Duty to Register No Duty to Register No Duty to Register 15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II No duty to Register
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.011
Indecent exposure—second violation, but not if the second violation results in deferred 10 years post discharge adjudication Indecency with a child by contact & involved consensual conducted as defined by 42 Lifetime U.S.C. § 16911(5)(C) Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by Lifetime rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by Lifetime rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by exposure & involved consensual conducted as defined by 42 10 years post discharge U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual Lifetime conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of Lifetime age or older
No Duty to Register No Duty to Register
15 years, Tier I
25 years, Tier II
No Duty to Register No duty to Register 25 years, Tier II
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 22.011
§ 22.021
§ 22.021
§ 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d)¹ § 43.05(a)(2) § 43.23(h) § 43.25 § 43.25
Sexual assault where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (g) with a victim that is incapable of declining participation or communicating unwillingness to participate Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (g) with a victim that is incapable of declining participation or communicating unwillingness to Prohibited sexual conduct Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.02 Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Lifetime
25 years, Tier II
Lifetime
No Duty to Register
Lifetime
25 years, Tier II
Lifetime
15 years, Tier I
Lifetime
No duty to Register
Lifetime
25 years, Tier II
Lifetime
15 years, Tier I
Lifetime
25 years, Tier II
Lifetime Lifetime Lifetime Lifetime
25 years, Tier II 25 years, Tier II 25 years, Tier II 25 years, Tier II
Lifetime
No Duty to Register
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 43.26(a) § 43.26(e) § 20.02 § 20.03 § 20.04 § 21.02²
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 43.25
Possessing or promoting child pornography Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Continuous sexual abuse of young child or children Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Lifetime Lifetime
15 years, Tier I 25 years, Tier II
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No duty to Register
10 years post discharge
No duty to Register
1 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)) burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed with consensual conduct as defined by 42 U.S.C § 16911(5)(c)
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas Federal Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger 10 years post discharge 15 years, Tier I § 20.02 than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 § 20.03 10 years post discharge Lifetime, Tier III years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was § 20.04 10 years post discharge Lifetime, Tier III younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the § 20.04(a)(4) Lifetime Lifetime, Tier III victim sexually § 21.02¹ Lifetime Lifetime, Tier III Continuous sexual abuse of young child or children
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.021 § 22.021 § 25.02
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct & the victim is less than 16 years of age
Lifetime
Lifetime, Tier II
Lifetime 10 years post discharge Lifetime
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime Lifetime Lifetime
Lifetime, Tier III Lifetime, Tier III Lifetime, Tier III
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 30.02(d) § 30.02(d) § 30.02(d)¹ § 33.021(b) § 33.021(c) § 43.05(a)(1)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.02¹ § 21.02²
§ 21.11(a)(1)
Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.02 Online solicitation of a minor Online solicitation of a minor Compelling prostitution Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to
Lifetime
Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I 25 years, Tier II 15 years, Tier I
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II Lifetime, Tier III 25 years, Tier II
10 years post discharge
25 years, Tier II
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 § 22.011 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of § 20A.02(a)(8) age or older § 22.021 Aggravated sexual assault § 22.021 Aggravated sexual assault, offense is solely based on the victim’s age § 25.02 Prohibited sexual conduct § 25.02 Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years § 25.02 of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), § 30.02(d) 22.011, 22.021 or 25.02 § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) § 30.02(d) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) § 30.02(d) & the victim is at least 13 years of age § 30.02(d)¹ Burglary of a habitation committed or engaged in with the intent to commit 21.02
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
7 of 21
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 30.02(d)² § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26(a) § 43.26(e)
Burglary of a habitation committed or engaged in with the intent to commit 21.02 Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
25 years, Tier II 15 years, Tier I 25 years, Tier II 25 years, Tier II 15 years, Tier I 25 years, Tier II
1 One act of “sexual abuse,” defined in Texas Penal Code § 21.02(c), is: aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually (§ 20.04(a)(4)); indecency with a child by contact with a child less than 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)); sexual assault (§ 22.011); aggravated sexual assault (§ 22.021); burglary of a habitation committed with the intent to commit one of the previous listed offenses (§ 30.02(d)); or trafficking of persons (§ 20A.02(a)(7) or (8)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§21.11(a)(1)); burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2))
8 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No duty to Register
10 years post discharge
No Duty to Register
9 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 25.02 § 43.25
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02 § 20.03 § 20.04 § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 43.25
Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8)
§ 21.11(a)(1)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II
10 years post discharge
25 years, Tier II
11 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d) § 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h) § 43.25 § 43.26(a)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault, offense is solely based on the victim’s age Aggravated sexual assault Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
25 years, Tier II 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II 15 years, Tier I
12 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 43.26(e) An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8)
§ 21.11(a)(1)
Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to
10 years post discharge
25 years, Tier II
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II
10 years post discharge
25 years, Tier II
13 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26(a) § 43.26(e)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II 25 years, Tier II 15 years, Tier I 25 years, Tier II
14 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact & the victim is at least 16 years of age Indecency with a child by contact committed where the victim has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
15 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 21.11(a)(2) § 22.011 § 22.021 § 22.021
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 25.02 § 30.02(d) § 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h) § 43.25 § 43.26 § 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1)
Indecency with a child by exposure Sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11 Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact & the victim is at least 16 years of age
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
16 of 21
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 22.021 § 25.02 § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Indecency with a child by contact committed where the victim has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by exposure Sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11 Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
17 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Texas Offense § 20.04(a)(4) § 21.11(a)(1) § 22.011¹ § 22.021 § 22.021 § 25.02 § 30.02(d)
Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Indecency with a child by contact where the victim has not attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s Sexual assault Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the victim is younger than 12 years of age Prohibited sexual conduct & the victim is at least 12 of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
18 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02
§ 21.11(a)(1)
§ 22.011¹ § 22.021 § 22.021 § 25.02 § 30.02(d)
Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Indecency with a child by contact where the victim has not attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to Sexual assault Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the victim is younger than 12 years of age Prohibited sexual conduct & the victim is at least 12 of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
1 The adjudicated offense is comparable to or more severe than 18 U.S.C.S. § 2241, aggravated sexual abuse, or was an attempt or conspiracy to commit such an offense
19 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 14 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.09 § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021 § 25.03 § 30.02(d) § 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
20 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 43.25 § 43.26 § 20.02
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Sexual performance by a child Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
21 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) May 2017 Texas Code of Criminal Procedure Chapter 62, Subchapter I. Early Termination of Certain Persons’ Obligation to Register. Art. 62.402. Determination of Minimum Required Registration Period (a)The department by rule shall determine the minimum required registration period under federal law for each reportable conviction or adjudication under this chapter. (b) After determining the minimum required registration period for each reportable conviction or adjudication under Subsection (a), the department shall compile and publish a list of reportable convictions or adjudications for which a person must register under this chapter for a period that exceeds the minimum required registration period under federal law. (c)To the extent possible, the department shall periodically verify with the United States Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking or another appropriate federal agency or office the accuracy of the list of reportable convictions or adjudications described by Subsection (b). Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.02¹ § 21.02²
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children
Length of Duty to Register as a Sex Offender Texas Federal 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
Lifetime Lifetime Lifetime Lifetime Lifetime Lifetime
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II No duty to Register
1 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.011
Indecent exposure—second violation, but not if the second violation results in deferred 10 years post discharge adjudication Indecency with a child by contact & involved consensual conducted as defined by 42 Lifetime U.S.C. § 16911(5)(C) Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by Lifetime rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by Lifetime rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by exposure & involved consensual conducted as defined by 42 10 years post discharge U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual Lifetime conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of Lifetime age or older
No Duty to Register No Duty to Register
15 years, Tier I
25 years, Tier II
No Duty to Register No duty to Register 25 years, Tier II
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 22.011
§ 22.021
§ 22.021
§ 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d)¹ § 43.05(a)(2) § 43.23(h) § 43.25 § 43.25
Sexual assault where the victim has attained the age of 13 years but not the age of 16 years, there was no penetration, and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (g) with a victim that is incapable of declining participation or communicating unwillingness to participate Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (g) with a victim that is incapable of declining participation or communicating unwillingness to Prohibited sexual conduct Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.02 Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Lifetime
25 years, Tier II
Lifetime
No Duty to Register
Lifetime
25 years, Tier II
Lifetime
15 years, Tier I
Lifetime
No duty to Register
Lifetime
25 years, Tier II
Lifetime
15 years, Tier I
Lifetime
25 years, Tier II
Lifetime Lifetime Lifetime Lifetime
25 years, Tier II 25 years, Tier II 25 years, Tier II 25 years, Tier II
Lifetime
No Duty to Register
3 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 43.26(a) § 43.26(e) An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02 § 20.03 § 20.04 § 21.02² § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 43.25
Possessing or promoting child pornography Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Continuous sexual abuse of young child or children Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Lifetime Lifetime
15 years, Tier I 25 years, Tier II
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No duty to Register
10 years post discharge
No duty to Register
1 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)) burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed with consensual conduct as defined by 42 U.S.C § 16911(5)(c)
4 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas Federal Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger § 20.02 10 years post discharge 15 years, Tier I than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 § 20.03 10 years post discharge Lifetime, Tier III years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was 10 years post discharge Lifetime, Tier III § 20.04 younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the § 20.04(a)(4) Lifetime Lifetime, Tier III victim sexually § 21.02¹ Continuous sexual abuse of young child or children Lifetime Lifetime, Tier III
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.021 § 22.021 § 25.02
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct & the victim is less than 16 years of age
Lifetime
Lifetime, Tier II
Lifetime 10 years post discharge Lifetime
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime Lifetime Lifetime
Lifetime, Tier III Lifetime, Tier III Lifetime, Tier III
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 30.02(d) § 30.02(d) § 30.02(d)¹ § 33.021(b) § 33.021(c) § 43.05(a)(1)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.02¹ § 21.02²
§ 21.11(a)(1)
Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.02 Online solicitation of a minor Online solicitation of a minor Compelling prostitution Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to
Lifetime
Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I 25 years, Tier II 15 years, Tier I
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II Lifetime, Tier III 25 years, Tier II
10 years post discharge
25 years, Tier II
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by 10 years post discharge administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
§ 21.11(a)(1) § 21.11(a)(2) § 22.011
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 § 22.011 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of § 20A.02(a)(8) age or older § 22.021 Aggravated sexual assault § 22.021 Aggravated sexual assault, offense is solely based on the victim’s age § 25.02 Prohibited sexual conduct § 25.02 Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years § 25.02 of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), § 30.02(d) 22.011, 22.021 or 25.02 § 30.02(d) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) § 30.02(d) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) § 30.02(d) & the victim is at least 13 years of age § 30.02(d)¹ Burglary of a habitation committed or engaged in with the intent to commit 21.02
Lifetime, Tier III
7 of 21
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 30.02(d)²
Burglary of a habitation committed or engaged in with the intent to commit 21.02
10 years post discharge
25 years, Tier II
§ 43.05(a)(1)
Compelling prostitution
10 years post discharge
15 years, Tier I
§ 43.05(a)(2)
Compelling prostitution of a person younger than 18 years of age
10 years post discharge
25 years, Tier II
§ 43.25
Sexual performance by a child
10 years post discharge
25 years, Tier II
§ 43.26(a)
Possessing or promoting child pornography
10 years post discharge
15 years, Tier I
§ 43.26(e)
Possessing or promoting child pornography
10 years post discharge
25 years, Tier II
1One act of “sexual abuse,” defined in Texas Penal Code § 21.02(c), is: aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually (§ 20.04(a)(4)); indecency with a child by contact with a child less than 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)); sexual assault (§ 22.011); aggravated sexual assault (§ 22.021); burglary of a habitation committed with the intent to commit one of the previous listed offenses (§ 30.02(d)); or trafficking of persons (§ 20A.02(a)(7) or (8)) 2All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§21.11(a)(1)); burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2))
8 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No duty to Register
10 years post discharge
No Duty to Register
9 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 25.02 § 43.25
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02 § 20.03 § 20.04 § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 43.25
Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8)
§ 21.11(a)(1)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II
10 years post discharge
25 years, Tier II
11 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d) § 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h) § 43.25 § 43.26(a)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault, offense is solely based on the victim’s age Aggravated sexual assault Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
25 years, Tier II 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II 15 years, Tier I
12 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 43.26(e)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8)
§ 21.11(a)(1)
Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to
10 years post discharge
25 years, Tier II
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II
10 years post discharge
25 years, Tier II
13 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26(a) § 43.26(e)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II 25 years, Tier II 15 years, Tier I 25 years, Tier II
14 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact & the victim is at least 16 years of age Indecency with a child by contact committed where the victim has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
15 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 21.11(a)(2) § 22.011 § 22.021 § 22.021
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 25.02 § 30.02(d) § 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h) § 43.25 § 43.26 § 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1)
Indecency with a child by exposure Sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11 Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact & the victim is at least 16 years of age
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
16 of 21
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 22.021 § 25.02 § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Indecency with a child by contact committed where the victim has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by exposure Sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11 Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
17 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Texas Offense § 20.04(a)(4) § 21.11(a)(1) § 22.011¹ § 22.021 § 22.021 § 25.02 § 30.02(d)
Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Indecency with a child by contact where the victim has not attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s Sexual assault Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the victim is younger than 12 years of age Prohibited sexual conduct & the victim is at least 12 of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
18 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Aggravated kidnapping committed or engaged in with the intent to violate or abuse the 10 years post discharge Lifetime, Tier III victim sexually Indecency with a child by contact where the victim has not attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) 10 years post discharge Lifetime, Tier III § 21.11(a)(1) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to § 22.011¹ Sexual assault 10 years post discharge Lifetime, Tier III § 22.021 Aggravated sexual assault 10 years post discharge Lifetime, Tier III Aggravated sexual assault, offense is solely based on the victim’s age & the victim is § 22.021 10 years post discharge Lifetime, Tier III younger than 12 years of age § 25.02 Prohibited sexual conduct & the victim is at least 12 of age 10 years post discharge Lifetime, Tier III Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 10 years post discharge Lifetime, Tier III § 30.02(d) 22.011, 22.021 or 25.02 1 The adjudicated offense is comparable to or more severe than 18 U.S.C.S. § 2241, aggravated sexual abuse, or was an attempt or conspiracy to commit such an offense An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02
19 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 14 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.09 § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021 § 25.03 § 30.02(d) § 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
20 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 43.25 § 43.26 § 20.02
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Sexual performance by a child Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
21 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) June 2017 Texas Code of Criminal Procedure Chapter 62, Subchapter I. Early Termination of Certain Persons’ Obligation to Register. Art. 62.402. Determination of Minimum Required Registration Period (a)The department by rule shall determine the minimum required registration period under federal law for each reportable conviction or adjudication under this chapter. (b) After determining the minimum required registration period for each reportable conviction or adjudication under Subsection (a), the department shall compile and publish a list of reportable convictions or adjudications for which a person must register under this chapter for a period that exceeds the minimum required registration period under federal law. (c)To the extent possible, the department shall periodically verify with the United States Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking or another appropriate federal agency or office the accuracy of the list of reportable convictions or adjudications described by Subsection (b). Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.02¹ § 21.02²
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children
Length of Duty to Register as a Sex Offender Texas Federal 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
Lifetime Lifetime Lifetime Lifetime Lifetime Lifetime
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II No duty to Register
1 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.011
Indecent exposure—second violation, but not if the second violation results in deferred 10 years post discharge adjudication Indecency with a child by contact & involved consensual conducted as defined by 42 Lifetime U.S.C. § 16911(5)(C) Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by Lifetime rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by Lifetime rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by exposure & involved consensual conducted as defined by 42 10 years post discharge U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual Lifetime conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of Lifetime age or older
No Duty to Register No Duty to Register
15 years, Tier I
25 years, Tier II
No Duty to Register No duty to Register 25 years, Tier II
2 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 22.011
§ 22.021
§ 22.021
§ 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d)¹ § 43.05(a)(2) § 43.23(h) § 43.25 § 43.25
Sexual assault where the victim has attained the age of 13 years but not the age of 16 years, there was no penetration, and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (g) with a victim that is incapable of declining participation or communicating unwillingness to participate Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (g) with a victim that is incapable of declining participation or communicating unwillingness to Prohibited sexual conduct Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.02 Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Lifetime
25 years, Tier II
Lifetime
No Duty to Register
Lifetime
25 years, Tier II
Lifetime
15 years, Tier I
Lifetime
No duty to Register
Lifetime
25 years, Tier II
Lifetime
15 years, Tier I
Lifetime
25 years, Tier II
Lifetime Lifetime Lifetime Lifetime
25 years, Tier II 25 years, Tier II 25 years, Tier II 25 years, Tier II
Lifetime
No Duty to Register
3 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 43.26(a) § 43.26(e) An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02 § 20.03 § 20.04 § 21.02² § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 43.25
Possessing or promoting child pornography Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Continuous sexual abuse of young child or children Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Lifetime Lifetime
15 years, Tier I 25 years, Tier II
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No duty to Register
10 years post discharge
No duty to Register
1 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)) burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2)) 2 All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed with consensual conduct as defined by 42 U.S.C § 16911(5)(c)
4 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 17 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Length of Duty to Register as a Sex Offender Texas Offense Texas Federal Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger § 20.02 10 years post discharge 15 years, Tier I than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 § 20.03 10 years post discharge Lifetime, Tier III years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was 10 years post discharge Lifetime, Tier III § 20.04 younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the § 20.04(a)(4) Lifetime Lifetime, Tier III victim sexually § 21.02¹ Continuous sexual abuse of young child or children Lifetime Lifetime, Tier III
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.021 § 22.021 § 25.02
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct & the victim is less than 16 years of age
Lifetime
Lifetime, Tier II
Lifetime 10 years post discharge Lifetime
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime Lifetime Lifetime
Lifetime, Tier III Lifetime, Tier III Lifetime, Tier III
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Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 30.02(d) § 30.02(d) § 30.02(d)¹ § 33.021(b) § 33.021(c) § 43.05(a)(1)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.02¹ § 21.02²
§ 21.11(a)(1)
Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.02 Online solicitation of a minor Online solicitation of a minor Compelling prostitution Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Continuous sexual abuse of young child or children Continuous sexual abuse of young child or children Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to
Lifetime
Lifetime, Tier III
Lifetime
Lifetime, Tier III
Lifetime 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I 25 years, Tier II 15 years, Tier I
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II Lifetime, Tier III 25 years, Tier II
10 years post discharge
25 years, Tier II
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An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d)¹
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by 10 years post discharge administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.02
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
7 of 21
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 30.02(d)²
Burglary of a habitation committed or engaged in with the intent to commit 21.02
10 years post discharge
25 years, Tier II
§ 43.05(a)(1)
Compelling prostitution
10 years post discharge
15 years, Tier I
§ 43.05(a)(2)
Compelling prostitution of a person younger than 18 years of age
10 years post discharge
25 years, Tier II
§ 43.25
Sexual performance by a child
10 years post discharge
25 years, Tier II
§ 43.26(a)
Possessing or promoting child pornography
10 years post discharge
15 years, Tier I
§ 43.26(e)
Possessing or promoting child pornography
10 years post discharge
25 years, Tier II
1One act of “sexual abuse,” defined in Texas Penal Code § 21.02(c), is: aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually (§ 20.04(a)(4)); indecency with a child by contact with a child less than 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§ 21.11(a)(1)); sexual assault (§ 22.011); aggravated sexual assault (§ 22.021); burglary of a habitation committed with the intent to commit one of the previous listed offenses (§ 30.02(d)); or trafficking of persons (§ 20A.02(a)(7) or (8)) 2All acts of “sexual abuse,” defined in Texas Penal Code § 21.02(c), are: indecency with a child by contact with a child at least 13 years of age and committed in a manner other than by touching, including touching through the clothing, the breast of a child (§21.11(a)(1)); burglary of a habitation committed with the intent to commit the previous listed offense (§ 30.02(d)); sexual performance by child (§ 43.25); or compelling prostitution of a minor (§ 43.05(a)(2))
8 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No duty to Register
10 years post discharge
No Duty to Register
9 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 25.02 § 43.25
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02 § 20.03 § 20.04 § 21.11(a)(1)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 43.25
Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age & the offender is the parent or guardian of the victim Indecency with a child by contact & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to Indecency with a child by exposure & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Prohibited sexual conduct & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C) Sexual performance by a child & involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C)
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 17 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on a conviction or deferred adjudication (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8)
§ 21.11(a)(1)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II
10 years post discharge
25 years, Tier II
11 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d) § 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h) § 43.25 § 43.26(a)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault, offense is solely based on the victim’s age Aggravated sexual assault Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
25 years, Tier II 15 years, Tier I 25 years, Tier II 25 years, Tier II 25 years, Tier II 15 years, Tier I
12 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 43.26(e)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8)
§ 21.11(a)(1)
Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to
10 years post discharge
25 years, Tier II
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 15 years, Tier I 25 years, Tier II 25 years, Tier II
10 years post discharge
25 years, Tier II
13 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 21.11(a)(1)
§ 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.011 § 22.011 § 22.021 § 22.021 § 25.02 § 25.02 § 25.02 § 30.02(d) § 30.02(d) § 30.02(d) § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26(a) § 43.26(e)
Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to participate
Indecency with a child by contact & the victim is younger than 13 years of age Indecency with a child by exposure Sexual assault Sexual assault, offense is solely based on the victim’s age & the victim is less than 16 years of age Sexual assault, offense is solely based on the victim’s age & the victim is 16 years of age or older Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age Prohibited sexual conduct Prohibited sexual conduct & the victim is less than 16 years of age Prohibited sexual conduct & the victim is 16 years of age or older but less than 18 years of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02 Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(2) Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is younger than 13 years of age Burglary of a habitation committed or engaged in with the intent to commit 21.11(a)(1) & the victim is at least 13 years of age Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography Possessing or promoting child pornography
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III 15 years, Tier I Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge
Lifetime, Tier III
10 years post discharge
15 years, Tier I
10 years post discharge
Lifetime, Tier III
10 years post discharge
25 years, Tier II
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
15 years, Tier I 25 years, Tier II 25 years, Tier II 15 years, Tier I 25 years, Tier II
14 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.08 § 21.11(a)(1)
§ 21.11(a)(1)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact & the victim is at least 16 years of age Indecency with a child by contact committed where the victim has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
15 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 21.11(a)(2) § 22.011 § 22.021 § 22.021
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 25.02 § 30.02(d) § 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h) § 43.25 § 43.26 § 20.02 § 20.03 § 20.04 § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1)
Indecency with a child by exposure Sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11 Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity Sexual performance by a child Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact & the victim is at least 16 years of age
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
16 of 21
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.)
§ 21.11(a)(1)
§ 21.11(a)(2) § 22.011 § 22.021 § 22.021 § 25.02 § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Indecency with a child by contact committed where the victim has not attained the age of 16 years and (i) the touching did not involve the victim’s genitals; (ii) the touching involved the victim’s genitals but was done through the clothing; or (iii) the touching was not done (a) by force, (b) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (c) by rendering the victim unconscious, (d) by administering a drug, intoxicant or other similar substance to the victim, (e) by threatening or placing the victim in fear, (f) with a victim that is incapable of appraising the nature of the conduct, and (e) with a victim that is incapable of declining participation or communicating unwillingness to participate Indecency with a child by exposure Sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the offense involved consensual conduct as defined by 42 U.S.C § 16911(5)(C) Aggravated sexual assault, offense is solely based on the victim’s age & the victim is at least 12 of age Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11 Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
17 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were 14 years of age or older at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct (cont.) Reportable convictions or adjudications where the registration period under Texas law does not exceed the minimum registration period under federal law Texas Offense § 20.04(a)(4) § 21.11(a)(1) § 22.011¹ § 22.021 § 22.021 § 25.02 § 30.02(d)
Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Indecency with a child by contact where the victim has not attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s Sexual assault Aggravated sexual assault Aggravated sexual assault, offense is solely based on the victim’s age & the victim is younger than 12 years of age Prohibited sexual conduct & the victim is at least 12 of age Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 22.011, 22.021 or 25.02
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge 10 years post discharge
Lifetime, Tier III Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
10 years post discharge
Lifetime, Tier III
18 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Aggravated kidnapping committed or engaged in with the intent to violate or abuse the 10 years post discharge Lifetime, Tier III victim sexually Indecency with a child by contact where the victim has not attained the age of 16 years; the touching was not done through the victim’s clothing and involved the victim’s genitals; and the touching was done (i) by force, (ii) by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping, (iii) 10 years post discharge Lifetime, Tier III § 21.11(a)(1) by rendering the victim unconscious, (iv) by administering a drug, intoxicant or other similar substance to the victim, (v) by threatening or placing the victim in fear, (vi) with a victim that is incapable of appraising the nature of the conduct, or (vii) with a victim that is incapable of declining participation or communicating unwillingness to § 22.011¹ Sexual assault 10 years post discharge Lifetime, Tier III § 22.021 Aggravated sexual assault 10 years post discharge Lifetime, Tier III Aggravated sexual assault, offense is solely based on the victim’s age & the victim is § 22.021 10 years post discharge Lifetime, Tier III younger than 12 years of age § 25.02 Prohibited sexual conduct & the victim is at least 12 of age 10 years post discharge Lifetime, Tier III Burglary of a habitation committed or engaged in with the intent to commit 20.04(a)(4), 10 years post discharge Lifetime, Tier III § 30.02(d) 22.011, 22.021 or 25.02 1 The adjudicated offense is comparable to or more severe than 18 U.S.C.S. § 2241, aggravated sexual abuse, or was an attempt or conspiracy to commit such an offense An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.02
19 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) Registrants who were younger than 14 years of age at the time the offense resulting in a reportable conviction or adjudication was committed and the reportable conviction or adjudication is based on an adjudication of delinquent conduct Reportable convictions or adjudications where the registration period under Texas law exceeds the minimum registration period under federal law Texas Offense § 20.02 § 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.09 § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021 § 25.03 § 30.02(d) § 33.021(c) § 43.05(a)(1) § 43.05(a)(2) § 43.23(h)
Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecent exposure—second violation, but not if the second violation results in deferred adjudication Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Online solicitation of a minor Compelling prostitution Compelling prostitution of a person younger than 18 years of age Obscenity
Length of Duty to Register as a Sex Offender Texas SORNA 10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
20 of 21
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et seq.) § 43.25 § 43.26 § 20.02
An attempt, conspiracy, solicitation, or solicitation of a minor to commit:
§ 20.03 § 20.04 § 20.04(a)(4) § 20A.02(a)(3) § 20A.02(a)(4) § 20A.02(a)(7) § 20A.02(a)(8) § 21.11(a)(1) § 21.11(a)(2) § 22.011 § 22.021 § 25.02 § 30.02(d) § 43.05(a)(1) § 43.05(a)(2) § 43.25 § 43.26
Sexual performance by a child Possessing or promoting child pornography Unlawful restraint with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping with an Art. 42.015 affirmative finding that the victim was younger than 17 years of age Aggravated kidnapping committed or engaged in with the intent to violate or abuse the victim sexually Trafficking of persons Trafficking of persons Trafficking of persons Trafficking of persons Indecency with a child by contact Indecency with a child by exposure Sexual assault Aggravated sexual assault Prohibited sexual conduct Burglary of a habitation committed or engaged in with the intent to commit 21.11, 22.011, 22.021, 25.02, or 20.04(a)(4) Compelling prostitution Compelling prostitution of a person younger than 18 years of age Sexual performance by a child Possessing or promoting child pornography
10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register No Duty to Register
10 years post discharge
No Duty to Register
10 years post discharge 10 years post discharge 10 years post discharge 10 years post discharge
No Duty to Register No Duty to Register No Duty to Register No Duty to Register
21 of 21
Texas Length of Duty to Register Compared to the Minimum Required Registration Period Under Federal Law (34 USC § 20911) March 2019
Texas Code of Criminal Procedure Chapter 62, Subchapter I. Early Termination of Certain Persons’ Obligation to Register. Art. 62.402. Determination of Minimum Required Registration Period (a) The department by rule shall determine the minimum required registration period under federal law for each reportable conviction or adjudication under this chapter. (b) After determining the minimum required registration period for each reportable conviction or adjudication under Subsection (a), the department shall compile and publish a list of reportable convictions or adjudications for which a person must register under this chapter for a period that exceeds the minimum required registration period under federal law. (c) To the extent possible, the department shall periodically verify with the United States Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking or another appropriate federal agency or office the accuracy of the list of reportable convictions or adjudications described by Subsection (b). Under Art. 62.403(b), a person with a single reportable adjudication or conviction may apply to the Council on Sex Offender Treatment for an individual risk assessment. Therefore, a second reportable offense that makes the Texas registration period longer than the Federal requirement would not be eligible for deregistration because there is no longer just a single reportable offense. [i.e. §§ 20.02, or 21.11(a)(2)] Art. 62.404 allows a registrant who has requested and received an individual risk assessment to file with the trial court that sentenced the person for the reportable conviction or adjudication a motion for early termination of the person’s obligation to register. Texas Statute
Texas Offense
Length of Duty to Register in Texas
Not a single offense OR Federal registration requirement is LONGER or EQUAL TO the Texas registration requirement, so NOT ELIGIBLE to apply for deregistration under CCP 62.403(b)
§ 20.02
§ 20.03
Unlawful Restraint with an affirmative finding that the victim was under 17
Kidnapping with an affirmative finding that victim was under 17
Adult conviction, non-parent offender 1st reportable conviction Adult conviction, non-parent offender 2nd reportable conviction
A single offense AND Federal registration requirement is SHORTER than the Texas registration requirement, so ELIGIBLE to apply for deregistration under CCP 62.403(b) Post-10 Lifetime
Attempt/conspiracy/solicitation
Post-10
Committed by a parent
Same as above, depending on circumstances
Adult conviction, non-parent offender 1st reportable conviction Adult conviction, non-parent offender 2nd reportable conviction
Length of Duty to Register under SORNA
Post-10 Lifetime
Attempt/conspiracy/solicitation
Post-10
Committed by a parent
Same as above, depending on circumstances
Tier I 15 years Tier I 15 years Tier I 15 years No duty to register Tier III Lifetime Tier III Lifetime Tier III Lifetime No duty to register
Texas Length of Duty to Register Compared to the Minimum Required Registration Period Under Federal Law (34 USC § 20911) March 2019 Texas Statute
Texas Offense
Length of Duty to Register in Texas
Not a single offense OR Federal registration requirement is LONGER or EQUAL TO the Texas registration requirement, so NOT ELIGIBLE to apply for deregistration under CCP 62.403(b)
§ 20.04
§ 20.04(a)(4)
§ 20A.02(a)(3) or (a)(4)
Aggravated Kidnapping with an affirmative finding that victim was under 17
Aggravated Kidnapping with the intent to violate or abuse victim sexually
A single offense AND Federal registration requirement is SHORTER than the Texas registration requirement, so ELIGIBLE to apply for deregistration under CCP 62.403(b) Post-10 Lifetime
Attempt/conspiracy/solicitation
Post-10
Committed by a parent
Same as above, depending on circumstances
Adult conviction
Lifetime
Trafficking of Children
§ 20A.03
Continuous Trafficking of Persons (if victims are 18 or older)
Continuous Trafficking of Persons (if victims are under 18)
Tier III Lifetime Tier III Lifetime Tier III Lifetime No duty to register Tier III Lifetime Tier III Lifetime
Attempt/conspiracy/solicitation
Post-10
Adult conviction
Lifetime
Tier I 15 years
Attempt/conspiracy/solicitation
Post-10
Tier I 15 years
Adult conviction
Lifetime
Tier II 25 years
Attempt/conspiracy/solicitation
Post-10
Tier II 25 years
Adult conviction
Lifetime
Tier I 15 years
Attempt/conspiracy/solicitation
Post-10
Tier I 15 years
Adult conviction
Lifetime
Tier II 25 years
Attempt/conspiracy/solicitation
Post-10
Tier II 25 years
Trafficking of Adults
§ 20A.02(a)(7) or (a)(8)
§ 20A.03
Adult conviction, non-parent offender 1st reportable conviction Adult conviction, non-parent offender 2nd reportable conviction
Length of Duty to Register under SORNA
Texas Length of Duty to Register Compared to the Minimum Required Registration Period Under Federal Law (34 USC § 20911) March 2019 Texas Statute
Texas Offense
Length of Duty to Register in Texas
A single offense AND Federal registration requirement is SHORTER than the Texas registration requirement, so ELIGIBLE to apply for deregistration under CCP 62.403(b)
Not a single offense OR Federal registration requirement is LONGER or EQUAL TO the Texas registration requirement, so NOT ELIGIBLE to apply for deregistration under CCP 62.403(b)
§ 21.02
§ 21.08
§ 21.09
§ 21.11(a)(1)
Continuous Sexual Abuse of Young Child or Children
Indecent Exposure
Adult conviction (victim under 13)
Lifetime
Tier III Lifetime
Adult conviction (victim age 13-17)
Lifetime
Tier II 25 years
Attempt/conspiracy/solicitation
Post-10
Tier III Lifetime or Tier II 25 years
2 or more violations and the 2nd violation is NOT a deferred adjudication
Post-10
No duty to register
Bestiality and Attempt/conspiracy/solicitation
Indecency with a Child by Contact
Indecency with a Child by Exposure
Adult conviction (victim age 13-17)
Lifetime
Tier II 25 years
Adult conviction (victim under 13)
Lifetime
Tier III Lifetime
Attempt/conspiracy/solicitation
Post-10
Tier III Lifetime or Tier II 25 years
2 or more convictions Attempt/conspiracy/solicitation
§ 22.011
Sexual Assault
§ 22.021
Aggravated Sexual Assault
Tier I 15 years
Post-10
1 conviction § 21.11(a)(2)
Length of Duty to Register under SORNA
Post-10
Tier I 15 years
Lifetime
Tier I 15 years
Post-10
Tier I 15 years
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Tier III Lifetime Tier III Lifetime Tier III Lifetime Tier III Lifetime
Texas Length of Duty to Register Compared to the Minimum Required Registration Period Under Federal Law (34 USC § 20911) March 2019 Texas Statute
Texas Offense
Length of Duty to Register in Texas
Not a single offense OR Federal registration requirement is LONGER or EQUAL TO the Texas registration requirement, so NOT ELIGIBLE to apply for deregistration under CCP 62.403(b)
Length of Duty to Register under SORNA
A single offense AND Federal registration requirement is SHORTER than the Texas registration requirement, so ELIGIBLE to apply for deregistration under CCP 62.403(b)
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Tier III Lifetime Tier III Lifetime
§ 25.02
Prohibited Sexual Conduct
§ 30.02(d)
Burglary of a Habitation with Intent to Commit Sex Offense
§ 33.021
Online Solicitation of a Minor
Post-10
Tier II 25 years
§ 43.02(c-1)(3)
Prostitution with a person younger than 18
Post-10
Tier II 25 years
§ 43.05(a)(1)
Compelling Prostitution of an Adult over 18 and Attempt/conspiracy/solicitation
Post-10
No duty to register
§ 43.05(a)(2)
Compelling Prostitution Victim under 18
§ 43.23(h)
Obscenity (if adult conviction and victim under age 18)
§ 43.25
Sexual Performance by a Child
§ 43.26(a)
Possession of Child Pornography
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Tier III Lifetime Tier III Lifetime
Tier II 25 years Tier II 25 years Tier II 25 years *if the victim is visually depicted in representations described under § 43.21(a)(1)(B) of the Texas Penal Code
Lifetime
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Tier II 25 years Tier II 25 years Tier I 15 years Tier I 15 years
Texas Length of Duty to Register Compared to the Minimum Required Registration Period Under Federal Law (34 USC ยง 20911) March 2019 Texas Statute
Texas Offense
Length of Duty to Register in Texas
Not a single offense OR Federal registration requirement is LONGER or EQUAL TO the Texas registration requirement, so NOT ELIGIBLE to apply for deregistration under CCP 62.403(b)
Length of Duty to Register under SORNA
A single offense AND Federal registration requirement is SHORTER than the Texas registration requirement, so ELIGIBLE to apply for deregistration under CCP 62.403(b)
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Tier II 25 years Tier II 25 years
ยง 43.26(e)
Promotion of Child Pornography
Juveniles under 14 at the time of offense
Adjudication of delinquent conduct for any of the above offenses
Post-10
No duty to register
Juveniles 14 or older at the time of offense
Adjudication of delinquent conduct for any of the above Tier I or II offenses
Post-10
No duty to register
Juveniles 14 or older at the time of offense
Adjudication of delinquent conduct for any of the above Tier III offenses
Post-10
Lifetime
References:
Texas Administrative Code TITLE 37
PUBLIC SAFETY AND CORRECTIONS
PART 1
TEXAS DEPARTMENT OF PUBLIC SAFETY
CHAPTER 37
SEX OFFENDER REGISTRATION
RULE ยง37.3
Minimum Required Registration Period
https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p dir=&p rloc=&p tloc=&p ploc=&pg=1&p tac=&ti=37&pt=1&ch=37&rl=3
Texas Public Sex Offender Registry HOMEPAGE
SEX OFFENDER REGISTRY
TIERED OFFENSES
TEXAS OFFENSES TIERED UNDER THE FEDERAL ADAM WALSH ACT
https://records.txdps.state.tx.us/SexOffenderRegistry/sor-public/SORNA 2019March.pdf
Texas Length of Duty to Register Compared to the Minimum Required Registration Period Under Federal Law (34 USC § 20911) June 2019
Texas Code of Criminal Procedure Chapter 62, Subchapter I. Early Termination of Certain Persons’ Obligation to Register. Art. 62.402. Determination of Minimum Required Registration Period (a) The department by rule shall determine the minimum required registration period under federal law for each reportable conviction or adjudication under this chapter. (b) After determining the minimum required registration period for each reportable conviction or adjudication under Subsection (a), the department shall compile and publish a list of reportable convictions or adjudications for which a person must register under this chapter for a period that exceeds the minimum required registration period under federal law. (c) To the extent possible, the department shall periodically verify with the United States Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking or another appropriate federal agency or office the accuracy of the list of reportable convictions or adjudications described by Subsection (b). Under Art. 62.403(b), a person with a single reportable adjudication or conviction may apply to the Council on Sex Offender Treatment for an individual risk assessment. Therefore, a second reportable offense that makes the Texas registration period longer than the Federal requirement would not be eligible for deregistration because there is no longer just a single reportable offense. [i.e. §§ 20.02, or 21.11(a)(2)] Art. 62.404 allows a registrant who has requested and received an individual risk assessment to file with the trial court that sentenced the person for the reportable conviction or adjudication a motion for early termination of the person’s obligation to register. Texas Statute
Texas Offense
Length of Duty to Register in Texas
Not a single offense OR Federal registration requirement is LONGER or EQUAL TO the Texas registration requirement, so NOT ELIGIBLE to apply for deregistration under CCP 62.403(b)
§ 20.02
§ 20.03
Unlawful Restraint with an affirmative finding that the victim was under 17
Kidnapping with an affirmative finding that victim was under 17
Adult conviction, non-parent offender 1st reportable conviction Adult conviction, non-parent offender 2nd reportable conviction
A single offense AND Federal registration requirement is SHORTER than the Texas registration requirement, so ELIGIBLE to apply for deregistration under CCP 62.403(b) Post-10 Lifetime
Attempt/conspiracy/solicitation
Post-10
Committed by a parent
Same as above, depending on circumstances
Adult conviction, non-parent offender 1st reportable conviction Adult conviction, non-parent offender 2nd reportable conviction
Length of Duty to Register under SORNA
Post-10 Lifetime
Attempt/conspiracy/solicitation
Post-10
Committed by a parent
Same as above, depending on circumstances
Tier I 15 years Tier I 15 years Tier I 15 years No duty to register Tier III Lifetime Tier III Lifetime Tier III Lifetime No duty to register
Texas Length of Duty to Register Compared to the Minimum Required Registration Period Under Federal Law (34 USC § 20911) June 2019 Texas Statute
Texas Offense
Length of Duty to Register in Texas
Not a single offense OR Federal registration requirement is LONGER or EQUAL TO the Texas registration requirement, so NOT ELIGIBLE to apply for deregistration under CCP 62.403(b)
§ 20.04
§ 20.04(a)(4)
§ 20A.02(a)(3) or (a)(4)
Aggravated Kidnapping with an affirmative finding that victim was under 17
Aggravated Kidnapping with the intent to violate or abuse victim sexually
A single offense AND Federal registration requirement is SHORTER than the Texas registration requirement, so ELIGIBLE to apply for deregistration under CCP 62.403(b) Post-10 Lifetime
Attempt/conspiracy/solicitation
Post-10
Committed by a parent
Same as above, depending on circumstances
Adult conviction
Lifetime
Trafficking of Children
§ 20A.03
Continuous Trafficking of Persons (if victims are 18 or older)
Continuous Trafficking of Persons (if victims are under 18)
Tier III Lifetime Tier III Lifetime Tier III Lifetime No duty to register Tier III Lifetime Tier III Lifetime
Attempt/conspiracy/solicitation
Post-10
Adult conviction
Lifetime
Tier I 15 years
Attempt/conspiracy/solicitation
Post-10
Tier I 15 years
Adult conviction
Lifetime
Tier II 25 years
Attempt/conspiracy/solicitation
Post-10
Tier II 25 years
Adult conviction
Lifetime
Tier I 15 years
Attempt/conspiracy/solicitation
Post-10
Tier I 15 years
Adult conviction
Lifetime
Tier II 25 years
Attempt/conspiracy/solicitation
Post-10
Tier II 25 years
Trafficking of Adults
§ 20A.02(a)(7) or (a)(8)
§ 20A.03
Adult conviction, non-parent offender 1st reportable conviction Adult conviction, non-parent offender 2nd reportable conviction
Length of Duty to Register under SORNA
Texas Length of Duty to Register Compared to the Minimum Required Registration Period Under Federal Law (34 USC § 20911) June 2019
Texas Statute
Texas Offense
Length of Duty to Register in Texas
A single offense AND Federal registration requirement is SHORTER than the Texas registration requirement, so ELIGIBLE to apply for deregistration under CCP 62.403(b)
Not a single offense OR Federal registration requirement is LONGER or EQUAL TO the Texas registration requirement, so NOT ELIGIBLE to apply for deregistration under CCP 62.403(b)
§ 21.02
§ 21.08
§ 21.09
§ 21.11(a)(1)
Continuous Sexual Abuse of Young Child or Children
Indecent Exposure
Adult conviction (victim under 13)
Lifetime
Tier III Lifetime
Adult conviction (victim age 13-17)
Lifetime
Tier II 25 years
Attempt/conspiracy/solicitation
Post-10
Tier III Lifetime or Tier II 25 years
2 or more violations and the 2nd violation is NOT a deferred adjudication
Post-10
No duty to register
Bestiality and Attempt/conspiracy/solicitation
Indecency with a Child by Contact
Indecency with a Child by Exposure
Adult conviction (victim age 13-17)
Lifetime
Tier II 25 years
Adult conviction (victim under 13)
Lifetime
Tier III Lifetime
Attempt/conspiracy/solicitation
Post-10
Tier III Lifetime or Tier II 25 years
2 or more convictions Attempt/conspiracy/solicitation
§ 22.011
§ 22.021
Sexual Assault
Aggravated Sexual Assault
Tier I 15 years
Post-10
1 conviction § 21.11(a)(2)
Length of Duty to Register under SORNA
Post-10
Tier I 15 years
Lifetime
Tier I 15 years
Post-10
Tier I 15 years
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Adult conviction if exception under 34 U.S. 20911(5)(c) applies
Lifetime
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Tier III Lifetime Tier III Lifetime No duty to register Tier III Lifetime Tier III Lifetime
Texas Length of Duty to Register Compared to the Minimum Required Registration Period Under Federal Law (34 USC § 20911) June 2019
Texas Statute
Texas Offense
Length of Duty to Register in Texas
Not a single offense OR Federal registration requirement is LONGER or EQUAL TO the Texas registration requirement, so NOT ELIGIBLE to apply for deregistration under CCP 62.403(b)
Length of Duty to Register under SORNA
A single offense AND Federal registration requirement is SHORTER than the Texas registration requirement, so ELIGIBLE to apply for deregistration under CCP 62.403(b)
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Tier III Lifetime Tier III Lifetime
§ 25.02
Prohibited Sexual Conduct
§ 30.02(d)
Burglary of a Habitation with Intent to Commit Sex Offense
§ 33.021
Online Solicitation of a Minor
Post-10
Tier II 25 years
§ 43.02(c-1)(3)
Prostitution with a person younger than 18
Post-10
Tier II 25 years
§ 43.05(a)(1)
Compelling Prostitution of an Adult over 18 and Attempt/conspiracy/solicitation
Post-10
No duty to register
§ 43.05(a)(2)
Compelling Prostitution Victim under 18
§ 43.23(h)
Obscenity (if adult conviction and victim under age 18)
§ 43.25
Sexual Performance by a Child
§ 43.26(a)
Possession of Child Pornography
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Tier III Lifetime Tier III Lifetime
Tier II 25 years Tier II 25 years Tier II 25 years *if the victim is visually depicted in representations described under § 43.21(a)(1)(B) of the Texas Penal Code
Lifetime
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Tier II 25 years Tier II 25 years Tier I 15 years Tier I 15 years
Texas Length of Duty to Register Compared to the Minimum Required Registration Period Under Federal Law (34 USC ยง 20911) June 2019
Texas Statute
Texas Offense
Length of Duty to Register in Texas
Not a single offense OR Federal registration requirement is LONGER or EQUAL TO the Texas registration requirement, so NOT ELIGIBLE to apply for deregistration under CCP 62.403(b)
Length of Duty to Register under SORNA
A single offense AND Federal registration requirement is SHORTER than the Texas registration requirement, so ELIGIBLE to apply for deregistration under CCP 62.403(b)
Adult conviction
Lifetime
Attempt/conspiracy/solicitation
Post-10
Tier II 25 years Tier II 25 years
ยง 43.26(e)
Promotion of Child Pornography
Juveniles under 14 at the time of offense
Adjudication of delinquent conduct for any of the above offenses
Post-10
No duty to register
Juveniles 14 or older at the time of offense
Adjudication of delinquent conduct for any of the above Tier I or II offenses
Post-10
No duty to register
Juveniles 14 or older at the time of offense
Adjudication of delinquent conduct for any of the above Tier III offenses
Post-10
Lifetime
References:
Texas Administrative Code TITLE 37
PUBLIC SAFETY AND CORRECTIONS
PART 1
TEXAS DEPARTMENT OF PUBLIC SAFETY
CHAPTER 37
SEX OFFENDER REGISTRATION
RULE ยง37.3
Minimum Required Registration Period
https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p dir=&p rloc=&p tloc=&p ploc=&pg=1&p tac=&ti=37&pt=1&ch=37&rl=3
Texas Public Sex Offender Registry HOMEPAGE
SEX OFFENDER REGISTRY
TIERED OFFENSES
TEXAS OFFENSES TIERED UNDER THE FEDERAL ADAM WALSH ACT
https://records.txdps.state.tx.us/SexOffenderRegistry/sor-public/SORNA.pdf
Texas Criminal Defense Lawyers Association
Post-Convictions Seminar October 29-30, 2020 Livestream
Topic: What Defense Attorneys Should Know About Parole & Related Administrative Post-Conviction Matters Speaker:
David O’Neil 3700 N Main St Houston, TX 77009-5428 (713) 863-9400 Phone (832) 879-2185 Fax david@paroletexaslawyer.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
WHAT DEFENSE ATTORNEYS NEED TO KNOW ABOUT PAROLE AND OTHER POST-CONVICTION ADMINISTRATIVE MATTERS By:
David P. O’Neil October 2020 3700 North Main Street Houston, TX 77009 Ph: 713 863-9400 (office) 936 661-5648 (cell) Email: david@paroletexaslawyer.com Website: www.paroletexaslawyer.com
1
What Defense Attorneys Need to Know About Parole And Other Post-Conviction Administrative Matters
I.
Parole eligibility requirements in Texas. A.
General.
Texas parole law does not create a reasonable expectation of a liberty interest in the granting of parole, as some other states do. As a result, due process rights do not attach to the granting of parole in Texas. See, Johnson v. Rodriguez, 110 F.3d 299 (5th Cir. 1997, cert denied). An inmate being considered for parole has no right to a hearing before the Parole Board, and boilerplate language used by the Board to notify an inmate of a parole denial complies with whatever due process rights an inmate may have to be informed of the reason for parole denial. Johnson v. Wells, 566 F2d. 1016 (5th Cir. 1978). Parole eligibility in Texas is governed by the law in effect at the time of the commission of the offense. Texas Government Code §508.145 establishes the eligibility for release on parole in Texas. The complexity of parole eligibility computations has increased dramatically over the years. The law governing parole for offenses occurring between January 1, 1966 and August 31, 1967 (59th Legislature) could be summed up in two sentences: All offenses are eligible for parole when calendar time plus good time credits equal 1/4, including any bonus and blood donation credits. The maximum time for parole eligibility is 15 years. Each time the Legislature meets they cannot resist changing and complicating the parole eligibility laws. The 65th Legislature (1977) gave rise to a new creature called mandatory supervision (MS). Initially, all offenses were eligible for mandatory supervision. Over the years, the legislature has steadily added to the list of offenses not eligible for mandatory supervision, while adding to the complexity of parole eligibility laws. Effective September 1, 1996 mandatory supervision became discretionary, giving rise to the anomaly of “discretionary mandatory supervision.” In recent years, the legislature has added some non-aggravated offenses to the list of offenses for which the parole eligibility requirements are the same as for aggravated offenses under 42.12(3)(g). There is now even an offense for which one can become eligible for mandatory supervision before they become eligible for parole. Today it takes four pages to summarize parole and mandatory supervision eligibility. When the Legislature next meets, some of the information in this paper will likely be outdated. Since one’s parole and MS eligibility dates are determined by the law in effect at the time of the commission of the offense, the Texas Board of Pardons and Paroles has included a Parole and Mandatory Supervision Eligibility Chart for “easy” reference at: http://www.tdcj.texas.gov/documents/pd/PIT_English.pdf (at Appendix A). As of the date of this article, the chart reflects parole eligibility requirements through the 84th Legislature. 2
The Board’s general web site is at: http://www.tdcj.state.tx.us/bpp. It contains a wealth of information on all matters related to pardons and paroles, including Parole Board policies and directives. It is a must read for anyone seriously interested in pursuing parole representation. Statutes governing parole matters include Texas Government Code, Chapter 508, and Texas Administrative Code Title 37, Part 5. This paper is designed to cover the basics that all defense attorneys should know about parole law. It is not intended to cover all matters related to parole in Texas, as that would require a seminar of its own. However, over the years, I have taken hundreds, if not thousands, of parole related calls where the caller has identified problems that were, for the most part avoidable. Beyond a discussion of parole eligibility requirements, this paper also discusses a number of those issues. One of the reasons trial attorneys need to be familiar with parole law is Ex Parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012), where the CCA stated: “We now disavow our prior decisions in Ex parte Evans and Moussazadeh II to the extent that they (1) require parole-eligibility misinformation to form an essential part of the plea agreement in order to make a showing of an involuntary plea that resulted from ineffective assistance of counsel, based upon such misinformation and (2) fail to appropriately recognize the distinction between parole eligibility and parole attainment.” The court then found that trial counsel’s erroneous advice to his client regarding his parole eligibility constituted ineffective assistance of counsel and rendered his plea involuntary. Trial attorneys must at least have a clear understanding of the parole law effecting their clients when they advise them on the effect of a plea agreement. In Ex Parte Patterson, No. AP76,901-CR (Tex. Crim. App. October 31, 2012, per curiam, not designated for publication), the CCA also found defense counsel ineffective and granted relief where the applicant claimed his plea was involuntary “because trial counsel failed to advise him of the effects of the drug free zone allegation on his sentence.” (Drug free zone convictions have their own special parole eligibility issues that will be discussed below.) See also, Ex Parte Fisher, No. WR-85,297-01 Tex. Crim. App. July 27, 2016, per curiam, not designated for publication (plea was involuntary where client was advised parole eligibility for Engaging in Criminal Activity was ¼ flat and good time, when actually it was ½ flat). Not all cases involving ineffective assistance of counsel due to erroneous parole eligibility information will result in a determination that the plea was involuntary. In Ex parte Colquitt, No. WR-25237-04 (Tex. Crim. App. March 21, 2012, per curiam, not designated for publication), the CCA found counsel ineffective for incorrectly advising Colquitt that he would be eligible for parole in four years on his eight year sentence, as opposed to five years; but ruled that Colquitt was not entitled to relief since he had not established that he was prejudiced by the erroneous advice. Critical to the courts determination was the fact that as part of the plea 3
agreement the State had waived five enhancement paragraphs and Colquitt did not demonstrate “that he would not have pleaded guilty but for counsel’s erroneous advice as to parole eligibility.” B.
Offenses ineligible for parole.
Certain offenses are ineligible for parole pursuant to Tx.Govt.Code §508.145(a): 1. An inmate under sentence of death, 2. serving a sentence of life imprisonment without parole, 3. serving a sentence for an offense under Section 21.02, TPC, (Continuous Sexual Abuse of Young Child or Children), or 4. serving a sentence for an offense under Section 22.021, TPC, (Aggravated Sexual Assault) that is punishable under Subsection (f), i.e., where the minimum punishment is 25 years because the victim is under 6 or, where victim is under 14: SBI or attempt to cause death of the victim or another; victim placed in fear that any person will become victim for an offense under TPC §20A.02 (Trafficking of Persons), subsections(a)(3), (4), (7), or (8) or that death, SBI, or kidnapping of any person will be inflicted; deadly weapon used or exhibited; acting in concert with another who commits aggravated sexual assault with same victim and same criminal episode; or administers or provides flunitrazepam to facilitate the offense. C.
Offenses eligible for parole after 40 calendar years.
An inmate serving a life sentence for a capital felony under Section 12.31(a)(1), Penal Code (capital felony committed while the inmate was younger than 18 years of age), is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 40 calendar years. Tx. Gov’t. Code §508.145(b). D.
Offenses eligible for parole after 35 years.
“An inmate serving a sentence under Section 12.42(c)(2), Penal Code (certain repeat sex offenders), is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 35 calendar years.” Tx. Govt. Code §508.145(c). This involves cases where a defendant is sentenced to a mandatory life sentence under the habitual offender statute for: Child Trafficking under TPC §20A.02(a)(7) or (8) (causing the victim to engage in or be a victim of sexual offenses, or benefiting from such conduct of another); Indecency with a Child by Contact (TPC §21.11(a)(1)); Aggravated Sexual Assault (TPC §22.021); Sexual Assault (TPC §22.011): Aggravated Kidnapping under TPC §20.04(a)(4), if there was intent to violate the victim sexually; Burglary under TPC §30.02(d), if 4
the burglary involved a habitation and the intent to commit a sexual offense under TPC §20A.02(a)(7) or (8), TPC §21.11(a)(1), TPC §22.021, TPC §22.011, or TPC §20.04(a)(4). AND, the defendant was previously convicted of: Sexual Performance of a Child (TPC §43.25); Possession or Promotion of Child Pornography (TPC §43.26); or Obscenity (TPC §43.23) punished under §43.23 (h), i.e., involving a child <18, an image of a child “virtually indistinguishable” from the image of a child <18, or “an image created, adapted, or modified to be an image of an identified child”; Trafficking of Persons (TPC §20A.02(a)(7) or (8) causing the victim to engage in or be a victim of sexual offenses, or benefiting from such conduct of another; Continuous Sexual Abuse of Young Child or Children (TPC §21.02); Indecency with a Child (TPC §21.11); Sexual Assault (TPC §22.011); Aggravated Sexual Assault (TPC §22.021); Prohibited Sexual Conduct (TPC §25.02); Aggravated Kidnapping under TPC §20.04(a)(4), if there was intent to violate the victim sexually; Burglary under TPC §30.02(d), i.e., if the burglary involved a habitation and the intent to commit a sexual offense under TPC §20A.02(a)(7) or (8), TPC §21.02, TPC §21.11 TPC §22.011; TPC §22.021, TPC § 25.02, or TPC §20.04(a)(4)if there was to violate or abuse the victim sexually; or, an offense under the laws of another state containing elements substantially similar to the elements of an of these offenses. E.
Offenses Eligible after ½ Calendar Time Served.
An inmate serving a sentence for an offense described by Article 42A.054 (a), Code of Criminal Procedure (other than an offense under Section 19.03, Penal Code); an offense for which the judgment contains an affirmative finding under Article 42.A054 (c) or (d); an offense under 20A.03, Penal Code; or an offense under section 71.02 or 71.03, Penal Code, is not eligible for release on parole until the inmate's actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release on parole in less than two calendar years.” Tx. Govt. Code §508.145. This is a provision with which most attorneys are intimately familiar. Offenses under this section that require completion of “one-half of the sentence or 30 calendar years, whichever is less, but in no event …less than two calendar years” include: 1. 2. 3. 4.
Murder, TPC §19.02; Indecency with a Child by Contact, TPC §21.11(a)(1); Aggravated Kidnapping, TPC §20.04; Aggravated Sexual Assault, TPC §22.021 (unless enhanced under TPC §12.42(c)(4), i.e., LWOP. 5. Aggravated Robbery, TPC §29.03; 6. Offenses under Chapter 481, H&SC for which punishment is increased under §481.140 (use of a child in commission of certain H&SC offenses – no prior 5
conviction required), or “Section 481.134 [Drug-Free Zones] (c), (d), (e), or (f)…if it is shown the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections”; 7. Sexual Assault, §22.011; 8. Injury to a Child, Elderly Individual, or Disabled Individual, TPC §22.04(a)(1) (i.e., involving serious bodily injury), if the victim is a child and the offense is punishable as a first degree felony, i.e., committed intentionally or knowingly; 9. Sexual Performance by a Child, TPC §43.25; 10. Criminal Solicitation, TPC §15.03, if punishable as a first degree felony, i.e., if the offense solicited is a capital offense; 11. Trafficking of Persons, TPC §20.A02 12. Continuous Trafficking of Persons §20.A03; 13. Compelling Prostitution, TPC §43.05; 14. Burglary, TPC § 30.02, if the premises are a habitation and there was an intent to commit a felony under TPC § 21.02 (Continuous Sexual Abuse of Young Child or Children), TPC § 21.11 (Indecency with a Child), TPC § 22.011 (Sexual Assault), TPC § 22.021 (Aggravated Sexual Assault), or TPC § 25.02 (Prohibited Sexual Conduct); 15. An offense for which the judgment contains an affirmative finding of a deadly weapon; 16. Engaging in Organized Criminal Activity, TPC §71.02; and 17. Directing Activities of Criminal Street Gangs, §TPC 71.023. It used to be that generally all aggravated offenses were subject to the ½ rule; however, §508.145(d) made no mention of the offenses listed in TCCP Art. 42.12(3)(g)(a)(1)(L) and (M), (Compelling Prostitution and Trafficking of Persons) until the 83rd Legislature. Also, the 83rd Legislature added TPC §71.02 and §71.023, and the 82nd Legislature added §20.A03, to the list of offense coming under the ½ rule, even though they are not aggravated offenses described in CCP, 42A.054 (formerly 42.12(3)(g). These kind of statutory disconnects are not uncommon which again is why one must understand what law applied at the time of the commission of the offense for which parole or MS is being considered. F.
It doesn’t pay to run.
“[F]or every 12 months that elapse between the date an arrest warrant is issued for the inmate following an indictment for the offense and the date the inmate is arrested for the offense, the earliest date on which an inmate is eligible for parole is delayed by three years from the date otherwise provided by Subsection (d), if the inmate is serving a sentence for an offense under Section 19.02 (Murder), 22.011 (Sexual Assault), or 22.021 Aggravated Sexual Assault), Penal Code.” Tx.Govt.Code §508.145(d-1). 6
G.
Drug Free Zone Cases.
“An inmate serving a sentence for which the punishment is increased under Section 481.134, Health and Safety Code, is not eligible for release on parole until the inmate's actual calendar time served, without consideration of good conduct time, equals five years or the term to which the inmate was sentenced, whichever is less.” Tx. Gov’t. Code §508.145(e). As noted above, in Ex Parte Patterson, the CCA found defense counsel ineffective and granted relief where the applicant claimed his plea was involuntary “because trial counsel failed to advise him of the effects of the drug free zone allegation on his sentence.” Therefore, it is important that trial counsel understand the complex sentencing scheme for drug free zone case. This is no small challenge when one examines the complexity of the drug free zone statutes, particularly as they relate to parole. For example, §508.145(d)(1) establishes parole eligibility at one-half of the sentence or 30 calendar years, whichever is less, but in no event less than two calendar years for someone serving a sentence for an offense listed in TCCP 42.12 (3)(g)(a)(1)(G) (an offense under Chapter 481 H&SC for which punishment is increased under H&SC § 481.140, or §481.134 (c), (d), (e), or (f) if it is shown that the defendant was previously convicted of an offense for which punishment was increased under any of those subsections; while Tx. Gov’t. Code §508.145(e), establishes parole eligibility at a minimum of five years for someone serving a sentence “for which the punishment is increased under Section 481.134, Health and Safety Code.” When determining parole eligibility under §508.145(e), one must determine whether “punishment is increased under Section 481.134”. The only provision of §481.134 that speaks of punishment being “increased” is 481.134(c). However, other sections permit certain offenses to be punished at a higher punishment range. For instance, 481.134(b) states that “an offense otherwise punishable as a felony of the second degree under [481.112, 481.113, 481.114] is punishable as a felony of the first degree” if it is shown at the punishment stage that the offense occurred in a drug-free zone. An argument can be made that only in those cases where punishment was “increased” under 481.134 (c) is parole eligibility 5 years. However, reading the statutes in context, it appears the Legislature likely intended that by “increased” they also meant where the punishment range was increased. Nonetheless, there does appear to be some room here to at least challenge the five year parole eligibility requirement in those cases. The CCA has shown a willingness to split hairs over the wording of the Drug Free Zones statute. In Moore v. State, No. PD-0965-11 (Tx. Crim. App. June 20, 2012), the CCA analyzed the mandatory stacking provision in §481.134(h) which stated that punishment increased for a conviction under §481.134 “may not run concurrently with punishment for a conviction under any other statute. The court modified the judgment to delete the cumulation order finding that a conviction “under any other statute” does not include a conviction under §481.134.
7
H.
All other cases.
“Except as provided by Section 508.146 (Medically Recommended Intensive Supervision), any other inmate is eligible for release on parole when the inmate's actual calendar time served plus good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less.” Tx.Govt.Code §508.145(f). State jail felonies are not eligible for parole. It is well established law that good time credits only serve to get one to their parole eligibility date sooner. They do not diminish the sentence length. I. Medically Recommended Intensive Supervision Medically Recommended Intensive Supervision (MRIS) is addressed in §508.146. An individual may qualify for MRIS regardless of whether they have reached their initial parole eligibility date, except that offenders serving a sentence of death or life without parole are not eligible. Inmates serving a sentence for an offense described in 42A.054, CCP, are eligible for MRIS only if they are identified by the Texas Correctional Office for Offenders with Medical or Mental Impairments (TCOOMMI) and Correctional Managed Health Care as being “elderly, physically disabled, mentally ill, terminally ill, mentally retarded, or having a condition requiring long-term care.” Inmates with a reportable conviction or adjudication under Chapter 62, CCP, are eligible for MRIS only if they are identified by the Texas Correctional Office for Offenders with Medical or Mental Impairments (TCOOMMI) and Correctional Managed Health Care as being in a “persistent vegetative state or being a person with an organic brain syndrome with significant to total mobility impairment.” Once a determination is made that an individual meets the medical requirements for MRIS, there is a specially designated parole panel that votes whether to approve MRIS. The panel may only grant MRIS if they make a determination that the offender “does not constitute a threat to the public safety.” TCOOMMI must then approve the supervision plan.
II.
Mandatory Supervision
Mandatory supervision (MS) was first implemented for offenses occurring on or after August 31, 1977. At that time MS was just that – mandatory. (There is no MS date for life sentences.) For offenders whose offenses occurred between August 31, 1977, and August 31, 1996, the Parole Board was required to order the release of an inmate to MS when the actual calendar time the inmate had served plus any accrued good conduct time equaled the term to which the inmate was sentenced. For eligible offenses committed on or after September 1, 1996, 8
MS is actually discretionary. In those cases, the Board is still required to release an inmate to MS when the actual calendar time the inmate had served plus any accrued good conduct time equaled the term to which the inmate was sentenced; however, an offender may not be released to MS if a parole panel determines that the offender’s accrued good conduct time is not an accurate reflection of rehabilitative potential, AND the offender’s release would endanger the public. Tx. Gov’t. Code §508.149. For cases governed by the discretionary statute the Board is required to provide an offender with prior notice of the upcoming MS consideration. Failure to do so, or failure to timely make the findings required to deny MS means the offender must be released to MS. See Ex Parte Retzlaff, 135 S.W.3d 45 (Tx. Crim. App. 2004). Current policy is to notify an offender in writing about 90 days prior to the MS date, and to allow 30 days for the offender to submit materials to the Board for their consideration. Unlike Texas parole statutes, because of the way the MS statute is written it creates a liberty interest, and thus the notice and opportunity to respond in MS cases. When entering into a plea agreement for a client who will receive jail time credits, the attorney’s understanding of Ex Parte Retzlaff can sometimes result in a windfall for the client. Because of the Ex Parte Retzlaff decision, the Texas Department of Criminal Justice policy is to immediately release any offender who enters TDCJ past their MS date where the Parole Board has not made the necessary findings required by §508.149 and Ex Parte Retzlaff. Where an attorney can negotiate enough time credits such that their client will be at or past their MS date when they enter TDCJ, under current policy it will result in immediate release to MS. Generally, TDCJ will allow whatever jail time credits are awarded by the court, and which appear on the judgment; however, even where jail time credits are reflected on the judgment TDCJ will not compute jail time credits that predate the offense. Knowledge of MS is also important because MS eligibility is one of two requirements that determine whether an individual is eligible for street time credit if their parole is revoked. Oftentimes, defense attorneys are representing clients who are also facing a parole revocation. Where a client has served years on parole supervision, they will want to know how much, if any, of that time they will be credited for. The street time credits can sometimes be a much larger concern for a client facing new charges than the problem posed by the new charges. This issue will be discussed in more detail later in this paper. Unfortunately, the list of offenses that are ineligible for MS seems to grow each time the legislature meets. This was especially true between 1987 and 1995. Currently, the law states that an inmate may not be released to MS if they are serving a sentence for or have previously been convicted of:
9
(1) an offense for which the judgment contains an affirmative finding Article 42A.05 (c) or (d), Code of Criminal Procedure; (2) a first degree felony or a second degree felony under Section 19.02, Code (Murder); (3) a capital felony under Section 19.03, Penal Code (Capital Murder); (4) a first degree felony or a second degree felony under Section 20.04, Code (aggravated kidnapping); (5) an offense under Section 21.11, Penal Code (Indecency with a Child); (6) a felony under Section 22.011, Penal Code (Sexual Assault); (7) a first degree felony or a second degree felony under Section 22.02,
under Penal
Penal
Penal
Code (Aggravated Assault); (8) a first degree felony under Section 22.021, Penal Code (Aggravated Sexual Assault); (9) a first degree felony under Section 22.04, Penal Code (Injury to a Child, Elderly Individual, or Disabled Individual) where the conduct was committed intentionally or knowingly; (10) a first degree felony under Section 28.02, Penal Code (Arson); (11) a second degree felony under Section 29.02, Penal Code (Robbery); (12) a first degree felony under Section 29.03, Penal Code (Aggravated Robbery); (13) a first degree felony under Section 30.02, Penal Code (Burglary); (14) a felony for which the punishment is increased under Section 481.134 or Section 481.140, Health and Safety Code; (15) an offense under Section 43.25, Penal Code (Sexual Performance of a Child); (16) an offense under Section 21.02, Penal Code (Continuous Sexual Abuse of Young Child or Children); (17) a first degree felony under Section 15.03, Penal Code (Criminal Solicitation of a Capital Offense); (18) an offense under Section 43.05, Penal Code (Compelling Prostitution); (19) an offense under Section 20A.02, Penal Code (Trafficking of Persons); (20) an offense under 20A.03 (Continuous Trafficking of Persons); (21) a first degree felony under Section 71.02 (Engaging in Organized Criminal Activity) (Offenses punishable as a second or third degree felony are eligible for MS; however, all 71.02 offenses are aggravated for parole purposes. Thus, one may become eligible for MS before being eligible for parole!); or 10
(22) 71.023 Directing Activities of Criminal Street Gangs. When an offender is released to MS, they are required to serve the remainder of their sentence on supervision, without credit for any good time served.
III.
Practical considerations and problem areas related to parole and MS. A.
Time credit for jail time awaiting parole revocation on a new offense.
It is fairly well established that in Texas one is entitled to jail time credit for time spent in jail awaiting trial. However, there are cases where that may not be true. For example, if an individual on parole or MS is arrested for a new offense, makes bond on that new offense, and is then arrested on a blue warrant and taken to jail; they will not be entitled to time credit towards any sentence imposed as a result of the new offense unless and until the bond is relinquished. They will still be entitled to time credit towards the original sentence for which the blue warrant was issued, but not for any new sentence that may be imposed as a result of the new offense for which they posted bond. That said, if the court awards jail time, prison officials cannot deny the jail time credit where the time credits awarded do not exceed the time between the date of the offense and the date of sentencing. See, Ex Parte Harvey, 846 SW2d 328 (Tex. Crim. App. 1993); and Ex Parte Thiles, 333 SW3d 148 (Tex. Crim. App. 2011). Therefore, in a case where the client made bond on a new offense, but was later jailed on a blue warrant and did not get off the original bond; although the client is not entitled to jail time credit for that time towards the sentence imposed for the conviction on the new offense, the attorney can try to negotiate to have the judge award that time credit in the judgment. If the time credit awarded is not for any period that predates the date of the new offense, the time credit should be accepted by prison officials. B.
Sex offender conditions of parole arenâ&#x20AC;&#x2122;t just for sex offenders.
In Coleman v. Dretke, 395 F3d. 216 (5th Cir. 2005) rehâ&#x20AC;&#x2122;g and en banc denied, 409 F.3d 665 (5th Cir. 2005), the court recognized that sex offender conditions of parole could be imposed on individuals who had not been convicted of a sex offense. The court required that, in such cases, due process must be afforded prior to the imposition of such conditions. In that case, the court declined to specify the due process required. After Coleman, the Texas Board of Pardons and Paroles implemented a procedure whereby they simply notified an offender in writing that they were considering imposition of sex offender conditions and giving the offender 30 days to reply and tell the Board why such conditions should not be imposed. There was no notice of the evidence being considered, no right to a hearing, and no right to call or cross-examine witnesses.
11
In Meza v. Livingston, 09-50367 (5th Cir. 5-20-10), rehearing denied en banc, (5th Cir. 10-19-10), the court concluded that it was a denial of due process to, among other things: deny discovery; not allow the parolee and counsel to be present at the hearing before a disinterested parole panel; not allow sufficient time to review the evidence and to prepare to examine or cross examine witnesses; not allow the parolee or his attorney to subpoena witnesses; not afford a written report stating the panel’s decision. At the Coleman hearing, the state must now prove that an offender “constitutes a threat to society by reason of his lack of sexual control” before sex offender conditions of parole may be imposed on one who has never been convicted of a sex offense. Initially, the Parole Board chose to apply Meza only to those under old law MS. It was not applied to parole cases until Ex Parte Evans, 338 S.W.3d 545 (Tex. Crim. App. 2011) where the Court of Criminal Appeals held that, for any individual who has never been convicted of a sex offense, the Parole Board must provide due process (a Coleman hearing) before imposing sex offender conditions. Coleman, Meza, and Evans have considerable implications for individuals who have been arrested for or charged with sex offenses, but have never been convicted of a sex offense. If such an individual is later convicted of some other felony and then released to parole or MS, they will almost certainly be notified that the Parole Board is requiring them to undergo an evaluation and polygraph to determine if the Board will try to impose sex offender conditions of parole based upon the prior alleged sexual misconduct. Depending upon the results of the evaluation and polygraph, the Board may decide to notify the individual that they intend to pursue sex offender conditions. In those cases, they will notify the person that they are entitled to what has come to be called a Coleman hearing. Board Policy BPP-POL. 148.200, Sex Offender Conditions – Releasee Not Convicted of a Sex Offense, states: “It is the policy of the Texas Board of Pardons and Paroles (Board) to review and consider sex offender conditions as a special condition for releases who have not been convicted for a sex offense and are currently on parole or mandatory supervision (1) for an offense which contains a sexual element, or (2) has a past juvenile adjudication for a sex offense.” “It is the policy of the Board to afford releases who have not been convicted of a sex offense or who have a past juvenile adjudication for a sex offense due process prior to the imposition of sex offender conditions.” For those offenders who do not have a conviction for a sex offense but who were placed on parole with sex offender conditions without the benefit of a Coleman Hearing prior to the Meza and Evans decision, the Board will provide for a Coleman hearing if they are advised that such a person has had sex offender conditions imposed without a hearing. 12
Coleman hearings can, and have, taken place decades after an alleged sexual act. Exculpatory evidence is near impossible to locate that long after the event. Attorneys who represent individuals who are placed on deferred adjudication or who are adjudicated delinquent for a sex offense under the Texas Family Code, and attorneys who are successful in getting dismissals or no bills in sex offense cases should warn the client of the importance of preserving any evidence in those cases, including, but not limited to polygraphs, police reports and DA files (if provided during discovery), and other mitigating evidence. (to the extent that the Morton Act limits the release of discovery to a defendant, it is important for attorneys to preserve exculpatory evidence provided in discovery and relating to a sex offense allegation.) Additionally, where there is a dismissal, getting the court or the prosecutor to state on the record or in the dismissal order that there was no sexual component to an offense (where there is a conviction for a non sex offense as part of a plea bargain), or that the sex offense was dismissed for lack of evidence, can be helpful if the client ever has to go through a Coleman hearing. Where the court or prosecutor makes the make such a statement on the record and there is no written documentation of the same, be sure to advise the client of the importance of ordering a copy of that portion of the record. Save a copy to the file, and provide a copy to the client advising them of the importance of preserving the document. Most importantly, clients who have not been convicted of a sex offense should be reminded that it is in their best interest to demand a Coleman hearing when the Parole Board attempts to impose sex offender conditions of parole. Imposition of sex offender conditions in those cases will be preceded by imposition of Special Condition “O.33” calling for an evaluation to determine whether there is a need for sex offender counseling. If the evaluation determines there is such a need, the offender will be served with Parole Division “Notice of Sex Offender Conditions” that will advise the individual in writing of the right to either request or waive a Coleman hearing. Waiving the hearing greatly increases the likelihood that sex offender conditions of parole will be imposed. In fact, the client should consult with an attorney as soon as the client is given notice that they will be evaluated for possible imposition of sex offender conditions of parole. If an attorney is timely retained, they can properly advise the client and may be able to arrange for an evaluation and polygraph using experts of their choosing. This can sometimes prevent the case from even moving forward to a Coleman hearing. The Coleman Notice will also advise the individual that all documents must be submitted to the parole officer “not later than seven calendar days prior to the date of the scheduled hearing.” C.
Street time eligibility.
Section 508.283, Tx. Gov’t. Code, also known as the “street-time credit law” entitles offenders who are revoked on or after September 1, 2001 to credit for time served while on parole or MS if they meet two conditions: (1) the offender is not a person described in §508.149(a) as being ineligible for MS, and (2) on the date of the warrant or summons initiating the revocation process the remaining portion of the offenders sentence is less than the time the offender spent on parole, i.e., the offender has successfully completed more than half of his time 13
required on supervision. For revocations occurring prior to September 1, 2001, there was no credit awarded for time served on parole or MS if an offender was revoked. In Ex Parte Noyola, 215 S.W.3d 862 (Tx. Crim. App. 2007), the CCA ruled that eligibility for street time credit under 508.283 is controlled by the particular language of Gov’t Code §508.149(a) in effect at the time of the parole revocation – not whether his offense was eligible for MS based on the MS law in effect when the offense was committed. This causes no end of confusion for offenders who are revoked after being on parole or MS for a MS eligible offense. Those offenders invariably believe that they should be entitled to street time credit if they met the ½ requirement. That is simply not the case. That application of 508.283 does not invoke an Ex Post Facto issue, as the MS statute and the street time statute are separate and distinct. The street time statute does not seek to deny the offender their MS eligibility. What it does is define the class of offenders who are eligible for street time credits. The wording of 508.283 creates special concerns for defense counsel who are representing clients on new criminal charges where their client is also on parole or MS for a MS eligible offense and who have successfully completed more than half of that parole or MS. Those individuals are potentially eligible for street time credit for the sentence for which they are on parole if revoked; however, that may depend on what occurs in their pending criminal case. If their client has their parole revoked, and at the time of the revocation the client “is serving a sentence for or has been previously convicted of” an offense listed in 508.149(a), then their client will not be eligible to receive street time credit. In those cases, the defense attorney should certainly consider this factor in any plea negotiations on the new pending charge, as a plea to an offense currently listed in 508.149(a) will disqualify the client for street time credit. Where the client has been on parole or MS for a lengthy period, what may have seemed like a great plea bargain can instead result in a considerably longer sentence than the client had bargained for. The importance of understanding the law on street-time eligibility was evident in Ex Parte Brooks, No. WR-83,550-02 (Tex. Crim. App. October 25, 2017, not designated for publication). Brooks pleaded guilty to aggravated assault while on parole from a twenty-eight year sentence for possession of a controlled substance. He was sentenced to seven years in TDCJ and did not appeal his conviction. He later filed a writ of habeas corpus contending that his attorney advised him that the new seven year sentence would be Brooks’ controlling offense and would “override” the remaining six years on his twenty-eight year sentence. However, when Brooks’ parole was revoked, he forfeited 3,352 days he had spent on parole, substantially changing his discharge date. In its order, the court cited Strickland v. Washington in writing that Brooks “has alleged facts that, if true, might entitle him to relief.” D.
Early Release from Parole Supervision.
Tx. Gov’t. Code §508.1555, Procedures for the Early Release from Supervision of Certain Releasees, provides that the Parole Division may allow releasees to serve the remainder 14
of their sentence without being required to report. The process is initiated by the parole officer and is limited to those releasees who: 1. have been under supervision for at least ½ of the time remaining on the sentence when the release was released from prison; 2. has not had a violation in the previous 2 years; 3. has not been revoked on the current parole; and, 4. the division finds a good faith effort to comply with any restitution order, and that it is in the best interest of society. In determining recommendations for early release from supervision parole officers shall consider whether the release has a low risk of recidivism as determined by an assessment developed by TDCJ, and whether the release has made a good faith effort to comply with parole conditions. E.
Consecutive Sentences.
Consecutive sentences pose unique problems in determining parole eligibility. Whereas TDCJ, prior to September 1, 1987, routinely added stacked sentences together and computed parole eligibility based upon the total sentence length, the law changed in 1987. It took TDCJ a few years to comply with the new statute, but parole eligibility on consecutive sentences are now computed in accord with Tex. Gov’t. Code §508.150. Parole eligibility is determined for the first case in the stacked series. When parole is granted on that case, that sentence will be considered to have ceased to operate for purposes of beginning the running of the next sentence in the stacked series. A separate parole eligibility date will then be calculated for that offense, and the same process is followed for each remaining stacked sentence. The offender is not released until parole is granted in the last of the stacked cases, or the offender reached their discharge date – whichever occurs first. MS only applies to the last case in a stacked series, if that offense is otherwise eligible for MS. F.
Miscellaneous Considerations.
-Certain gang affiliations substantially diminish the prospect of parole. If an inmate belongs to a gang that appears on TDCJ’s list of “security threat groups” the inmate will be placed in administrative segregation. The Gang Renunciation and Decertification (GRAD) Program is a lengthy process that allows willing participants to shed their gang tag. TDCJ examines inmates’ tattoos for signs of gang membership. -The Parole Board considers the entirety of an offender’s criminal history, including arrest reports. Many inmates mistakenly expect that by pleading to a lesser offense the Parole Board will not be considering the specific facts of their offense.
15
-Attorneys should advise on parole eligibility and not a date certain when an inmate will be released to parole. -Always try to get jail time credits stated on the record or in writing, especially where a client has been reindicted after serving jail time on a previous indictment. -Any plea agreement involving a sex offense should take into account Tex. Health & Safety Code, Chapter 841, Civil Commitment of Sexually Violent Predators. That provides for the Civil Commitment of repeat sexual offenders. A repeat sexual offender includes one convicted of multiple sexually violent offenses at the same court disposition, even if it is under multiple counts and not separate indictments. Even parole approval does not preclude civil commitment under this law. -Certain individuals are eligible for up to 10 year set-offs if parole is denied, ie., Capital felons with a life sentence that is parole eligible, those convicted of Aggravated Sexual Assault under TPC 22.021. For inmates otherwise ineligible for MS, and for an offense punishable as a felony of the second or third degree under Section 22.04, Penal Code (Injury to a Child, Elderly Individual, or Disabled Individual) the set-off can be up to five years. For MS eligible offenses the maximum set-off is one year.
IV.
Conclusion.
Texas parole law is a patchwork body of law. To determine a personâ&#x20AC;&#x2122;s parole or MS eligibility one must refer to the statute in effect when the offense occurred. Considering the inclination of the legislature to regularly change the parole laws, that requires attorneys to be knowledgeable of current parole law, and in many cases prior parole law. Whereas parole law could be summed up in two sentences years ago, today it is ever changing and ever more complex. The legislature changes the parole laws almost every session and it is likely that there will be additional changes in the next legislative session. To properly advise a client on their options attorneys must be able to advise them on the parole implications of their decisions. Since Ex Parte Moussazadeh, failure to do so constitutes ineffective assistance of counsel and may render a clientâ&#x20AC;&#x2122;s plea of guilty involuntary. Beyond accurately advising a client on parole eligibility, attorneys must also be aware of other parole related matters, such as street time eligibility for those facing parole revocations. More and more, matters that have previously been considered by the courts to be collateral are now being considered essential to a voluntary plea of guilty. Even where the courts have not yet determined that certain information is essential to the rendering of a voluntary plea, attorneys still have an ethical duty to advise their clients on other significant consequences that may attach to the clientâ&#x20AC;&#x2122;s decisions in a given case. Hopefully, this paper will be helpful in doing both. 16
Texas Criminal Defense Lawyers Association
Post-Convictions Seminar October 29-30, 2020 Livestream
Topic: Parole Revocation Case Law Speaker:
Bill Habern PO Box 130744 Houston, TX 77219-0744 (713) 942-2376 Phone (832) 649-2085 Fax bill@paroletexas.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
GOING TO PRISON IN TEXAS BY William T. Habern, David P. O’Neil, and Debra Bone
The Law Offices Of
Habern, O=Neil & Associates (Not a Partnership)
Attorneys at Law William T. Habern David P. O’Neil
Houston Area Office 3700 N. Main St. Houston, TX 77009 Office: (713) 863-9400 Facsimile: (832) 879-2185 www.paroletexas.com
~1~ (Rev.3.31.2016)
Going to Prison in Texas (Copyright 03/2016)
By William T. Habern David P. O’Neil, and Debra Bone The Law Offices of Habern, O=Neil, & Associates Houston, Texas
Introduction For over thirty years our firm has represented offenders and their families in prison and parole administrative and legal issues. The first version of this article was published in THE VOICE (the magazine of the Texas Criminal Defense Lawyer=s Association) more than twenty years ago. But the Texas prison system changes so often I periodically update this material so that Texas lawyers and their clients and families know what to expect when a client must Ado time.@ The purpose is to reduce the fear and uncertainty every Afirst timer@ (and their loved ones) anticipate after realizing he/she is going to prison -- and how to conduct themselves once there. In the past our law firm held private seminars for families and defendants who faced prison time. In the mid-80's we backed away from doing that work as we were too busy with other types of cases. In the mid-90's, as our firm expanded, we again started offering individual counseling seminars to clients and families prior to a family member leaving to serve a prison term. We hope the general information we provide will be of assistance to attorneys, their clients and their client=s families. In fact, often it’s the families that need this information as much, or more, than the client going to prison. The general information here applies to both male and female prisoners. The best time to provide this information is before the client is in jail, before conviction. In other words, when the client is out on bond, the information should be available with the hope he or she will not need it while recognizing that prison is a possibility.1 However, in most cases we end up presenting the information after the client has been sentenced, while in county jail awaiting transfer to TDCJ. In the past these seminars have been done by an attorney from our firm and a former TDCJ offender. Our “How to Go to Prison” seminars generally are now conducted by attorney David O’Neil, one of our paralegals who is a former prison guard whose son had been incarcerated in TDCJ, and, in some cases a former TDCJ offender. David O=Neil graduated from St. Mary's School of Law in 1979. He has both a Juris Doctor and an L.L.M. (a Masters in Law Degree). David is a retired Marine JAG officer. Upon retiring 1 Where a defendant pleads to a felony offense and is sentenced to “time served” TDCJ has taken the position that the defendant must be transferred to TDCJ for preparation of a release certificate. This could means several weeks in County Jail awaiting transit, and several more weeks in TDCJ awaiting the release certificate.
~2~ (Rev.3.31.2016)
from the military, David spent five years as Chief of the Public Defender=s Trial Section at the Texas Department of Criminal Justice. David is a Co-Chairman of the TCDLA Corrections & Parole Committee and has written a number of articles about defending TDCJ offenders, parole, and civil commitment of sex offenders. David now handles most of the parole and prison related cases for the firm. Our Legal Assistant, Debbie Bone, worked as a TDCJ for thirteen years; first as a correctional officer, then in administration. Her husband was also an officer, eventually rising to the rank of captain. Debbieâ&#x20AC;&#x2122;s son was incarcerated in TDCJ and then spent time on parole. She not only knows TDCJ inside and out, she also understands what parents go through when their children are incarcerated and on parole. Debbie has worked in our Huntsville office as a paralegal for over ten years. In some cases we also have a former TDCJ offender assist us in the presentation. Throughout this presentation there are three major rules the newly arrived offender should keep in mind at all times: 1. 2. 3.
Learn to be self-reliant. Do not use others, or allow others to use you. There are no secrets in prison. What you do and who you do it with will be noted by both guards and offenders. Privacy disappears. Life is not fair and nowhere is that more true than in prison. Do not waste your time on issues outside your control.
All the horror stories one hears about prison from movies, newspapers, books or gossip likely have a degree of truth to them. However, most of these horrible incidents are very rare exceptions to the boring daily life that most experience in prison. For instance, there is a common perception that weaker prisoners are often raped by stronger ones. But the reality is that evidence of rape in prison is far less common that is perceived by the general public. Other incidents of violence that appear regularly in the media certainly take place, but with far less regularity than is commonly believed. I know many, many, offenders who have served over twenty years in prison without serious problems. The key to success in prison is to understand the culture, staying out of other people=s business and avoiding situations which lead to trouble.
I.
GETTING READY FOR PRISON
I strongly recommend to the potential offender to get complete medical and dental checkups. Keep a copy to take or mail to the county jail facility (depending upon their practice) and leave a copy with family. Things do get lost in prisons. If possible, have the client complete a signed HIPAA release filed with any medical provider that may have relevant medical records. Hopefully the check-ups can be done before you go before the judge. Benefits from a physician=s report include: 1) Medical problems may affect the judge=s decisions at sentencing. 2) The offender will have current medical records as proof of any ongoing medical issues the ~3~ (Rev.3.31.2016)
jail and the prison should know about. Tell the doctor you may be going to prison, and that you want everything documented. Tell your dentist to perform any cleaning and preventative care at this time. Have any cavities filled. Dental care in prison is not prompt and is more likely to involve pulling a tooth as opposed to more modern dental procedures. Prison is not a place for toothaches. If you wear prescription lenses, we suggest you have your eyes reexamined and that you bring one sturdy medically prescribed pair of glasses. The prison does not provide contact lenses and will not allow colored contact lenses. Further, an offender cannot replenish Contact lenses through the prison commissary system. Be aware that any further acquisition of glasses will be done through the prison and there is a long wait for that service.
A.
Medical Issues
If medical problems are already diagnosed, and medication is being taken, have the doctor prepare a prognosis letter explaining the problems and the medication used, which includes any limitations on work assignments or other similar concerns. This should be provided to the County Jail â&#x20AC;&#x201C;TDCJ will not accept this from the offender; hopefully the County Jail will forward it. The prison will not believe a word an incoming offender says about his health without written medical verification of his claims from a physician. Even then, the medical personnel may not accept the letter unless it comes to them directly from the doctor. We would recommend that the offender have all physician contact information available during their intake process. There have been documented cases of offenders using fraudulent medical reports to gain the system and even to escape. Furthermore, once the client enters prison, there is no guarantee that the quality or nature of treatment received in the free world will continue in prison. In prison, the offender will be one of over 150,000 patients in a health care system that is often described as horrible. The prison=s medical system is in need of substantial improvement. The care providers are contracted by the state with state medical schools. The University of Texas Medical School in Galveston contracts for most of the East and South Texas area prisons. In the Northern and Western sections of the state service is provided by the Texas Tech University Health Sciences Center in Lubbock. It is not that these schools fail to supply good medical care in their medical school hospitals, the problem lies in the quality of services available on the prison units. The health services on the units are nurse-driven with doctors available if a nurse determines one is needed. For the most part, the medical situation is, at best, inadequate. Once incarcerated, the prison system is responsible for the offender=s care, and will determine what medications will be administered. The client will not be allowed to take prescriptions into prison. The prison will totally take over from this point forward. A rather common problem is where one suffers from bi-polar disorder or has other similar mental issues prior to arriving in prison. Upon entering prison, the medication previously prescribed will likely be changed by the prison medical staff. At times medication for some mental or physical disabilities may be terminated at the prison. The better the past medical history can be documented upon oneâ&#x20AC;&#x2122;s arrival in prison, the more likely the chance of continuing the treatment as occurred in the free world. ~4~ (Rev.3.31.2016)
Effective September 28, 2011, a law went into effect that amended the fee charged to offenders that request services from a health care provider. TDCJ is required to collect $100.00 from each offender who requests a visit to a health care provider. You will be charged a $100.00 fee for the first health care visit that you request by submitting a Sick Call Request form or by requesting a staff member provide assistance in accessing routine health care services (i.e., not an emergency or life threatening as a walk-in patient). This fee covers all health care visits that you request for one year. Any visit that you request after the one year period will be charged another $100.00 annual fee. If you do not request a health care visit, you will not be charged a fee. The fee will be deducted out of the offender trust fund account. In the event there is no money in the trust fund account to cover the fee the law requires that fifty percent of each deposit into the offenders trust fund account will be applied to the amount owed until total amount is paid. Exemptions to the fee are: Emergency visit; Follow-up visit; Chronic Care visit; Health screening and evaluation visit related to the diagnostic and reception process; prenatal visit; or health care services necessary to comply with State law and regulations. No offender will be denied access to health care as a result of a failure or inability to pay for the fee. When the client enters the county jail he should have the doctor=s letter which includes a list of medications being taken and a statement of why they are necessary. Your medical history may affect eligibility for a specific type of job assignment. For example, suppose the client was injured in a car wreck some time ago, and still suffers from that incident. If there is written proof of that, he may be able to avoid jobs that require heavy lifting or walking long distances. Without a documented medical history an offender may be ordered to do work he shouldn’t be doing. For instance, we have seen many cases where offenders on medication that specifically instruct the patient to avoid direct sunlight when taking that medication have nonetheless been assigned to work long hours in the fields until they’ve collapsed. In such situations one needs to have proof of his injury to show why he should not be assigned certain jobs. Without that verification, there will likely be problems. Remember, the prison system will not take an offender’s word for anything.
B.
Child Support
Incarceration does not eliminate an obligation to pay child support. The Texas Attorney General’s office is able to deduct money directly from the offender’s commissary account. The best way to deal with this issue is to have your lawyer file a motion to amend child support conditions so the payments are deferred until thirty days after release from prison.
C.
Government Benefits
If Social Security or veteran=s benefits (other than retired military pay) are being received, those will terminate until the offender is released. Others receiving Social Security benefits under the offender=s name will continue to receive them.
D.
Doing Business and the Mail
A prisoner is not allowed to operate a business and we suggest that, if possible, arrange to have someone handle your business for you while you are in prison. If caught trying to operate a business from prison the offender can be subject to disciplinary action and lose classification rank or ~5~ (Rev.3.31.2016)
good time. Besides, running a business from prison is hard since there is limited phone access. It is difficult, but we have seen some offenders who could maintain control of certain types of management decisions via weekend visits and letters. Remember that both incoming and outgoing mail is read by prison personnel and any exchange of bank account numbers, credit card receipts, etc. should be strictly avoided. There are some cases where prison officials are not allowed to read offender mail. Mail to lawyers, judges, some elected officials, all media and public service groups such as the ACLU may be exempt from censorship. Incoming legal and media mail may be opened and inspected for contraband in the offender’s presence, but may not be read by prison personnel. Phone calls are also monitored.
E.
Quit Addictions
Addictions can cause serious problems in prison. Nearly all prisoners have used alcohol, drugs or tobacco. Most have been addicted to one thing or another, even if it’s just caffeine. Those addictions should be stopped as soon as possible. This may be a difficult process, but the sooner you become completely free of cravings for anything, the easier life is going to be in prison. Being addicted to drugs or tobacco in prison is a hellish existence and always leads to trouble. The Texas prison system is tobacco-free. That does not mean cigarettes are not available, it simply means you’re not supposed to have them. Smoking in prison can lead to several varieties of disciplinary violations and can get an offender indebted to other offenders and guards thereby making life more difficult. The same is true of drugs. You can find just about anything in prison you’re willing to pay for, but I can’t think of a surer way to get in trouble than to fool around with tobacco or drugs while in prison. Attempting to smuggle tobacco into a correctional facility in Texas is now a felony. Offenders, family members and other visitors have been prosecuted for such conduct. Offenders have also been indicted for trying to bribe correctional officers to provide them with tobacco and certain other contraband.
F.
What Can I Take to Prison?
Not much. You can bring a wedding ring, watch, and one religious medallion, but if deemed excessive in value or size they will not be allowed. You can also bring photos (not photo albums), legal and medical documents, one religious text and substance abuse literature.. If medically prescribed, Eyeglasses, Dentures, and Prostheses will be allowed. Contacts will be permitted until Health Services issues eyeglasses. One thing we strongly suggest you do is write the names and addresses of your loved ones as they appear on their driver’s licenses and place the list among your legal papers which you are allowed to have. You will need this information when you fill out your TDCJ visitation list. What about the money? How much money and how does it get there? We recommend around $200 to $300. Keep that much on your offender account at the county jail. When you go to prison, the money will go with you and will be available a week or two after you arrive, when you receive your TDCJ ID card. There are several ways to send money to the offenders trust fund account. They are through the U.S. Postal Service, Monthly checking account debit, Western Union Quick Collect, Western Union Convenience Pay, ACE, America’s Cash Express, Jpay, eComm, ~6~ (Rev.3.31.2016)
touchpay payment services, MoneyPak, and MoneyGram Express Payment. (Refer to the TDCJ website for details.) If paying through the U. S. Postal Service, be sure all incoming monies, both in jail and in prison, are sent by certified funds. A U.S. Postal Service money order works but electronic transfers are quicker. The money order must be mailed along with an Offender Trust Fund Deposit Slip (the offender should mail several of these to his loved ones as soon as possible). If using the various electronic services, check with each service as the codes and fees necessary to send monies to the offender are different. In any of the above services you will be required to have the offender’s name and TDCJ ID number to have it deposited in the Offender Trust Fund in Huntsville. To send deposits and or request deposit slips to Offender Trust Fund, P O Box 60, Huntsville, Texas 77342-0060, Phone number (936) 438-8990. Be aware that if you have court orders that require you to pay restitution, court fees or child support, then TDCJ will garnish those amounts from your trust fund account as stated in the orders. Usually the amount to be garnished in regards to restitution or court fees is ten percent (10%) of any deposit into the account until paid in full, but the initial transfer of funds from the county jail can be subject to a higher %. Child Support is dealt with differently, In the event that you are in arrears of Child Support, then the Attorney General’s Office can place a lien on your account until arrangements can be made on an agreed amount to be deducted from your trust fund account.
G.
Preparing the Family
It is often the families, not the offender, who suffer the greatest emotional trauma during the prison term. Hopefully, the family can visit regularly but most offenders at some time will be in a prison hundreds of miles away from their homes. This is something the family needs to get used to and the offender needs to reassure his family that he will take care of himself. The offender who continues to complain about problems over which the family has no control only enhances their fears and concerns. That is not to say that when certain exceptional unfairness or abuse occurs one should not notify the family, but the day to day hassles of prison life are best left in prison. There is nothing anyone can do about the fact that prison is not fun. Complaining about it to loved ones will only make them feel bad. Don’t make your family do your time with you.
II. A.
ADMISSION INTO TDCJ Leaving the County Jail
Transfer from county jail to TDCJ usually occurs within 45 days from the date TDCJ receives the Judgment and other required documents from the county because state law requires that TDCJ must begin paying rent to the county jail after 45 days. So what=s going on during the time while the newly convicted offender is in jail? Documents are being prepared by the court, district clerk, district attorney and sheriff’s department to be forwarded to the prison. This is called becoming “state ready.@ Once the documents are in the state ready office and TDCJ has authorized the county to ship the offender, the offender is ready for transport to TDCJ by the County and a delivery order will be issued to the County.
~7~ (Rev.3.31.2016)
B.
Catching the Chain
At most county jails there is a particular day of the week when the chain bus arrives, and everyone in jail knows about it. The offenders will generally have some kind of idea, and may even be told which day of the week they are going out. While one may know the day of the week the bus (a van or car in smaller counties) usually departs, one may not know which week one is leaving. There may be little or no advance notice so families should be prepared to learn that their loved one has left for prison with little or no warning. When the chain bus arrives, the offender must understand the rules are now going to change. The local jail visitation rights, the phone calls, the status one may have enjoyed as a Trusty are all gone. Early one morning, the offender will be abruptly awakened. He will be told the chain bus or other vehicle is waiting. Each offender will be stripped naked and strip searched in order to ensure no one is bringing in contraband. TDCJ clothes will be issued upon arrival at TDCJ. County jail uniforms stay with the county. Offenders will be shackled to one another in pairs, handed a paper sack with their possessions and take a seat on the bus or other vehicle. Get used to it. Long, uncomfortable bus rides handcuffed to a person you don’t know, and probably don’t even want to know, are a common feature of prison life. If possible, try to use the bathroom before you leave because using the bathroom if on a moving bus while handcuffed to another person is not easy.
C. Receiving and Screening There are four male offender intake facilities across the state, (Byrd, Gurney, Holiday and Garza West) and two for women, one in Gatesville (Woodman Sate Jail and the Crain Unit). Women travel in a van or other vehicle, separately from men. Usually the offender is transferred to the nearest intake facility but offenders may wind up anywhere in the state. A few special cases will go directly to the Byrd Unit in Huntsville. There are basically two kinds of prisons in Texas. About 70 prisons are part of TDCJ’s Institutional Division, and are what we will refer to in the rest of this presentation as “real prisons.” You likely won’t be going to a real prison anytime soon. Instead, you will likely spend the first year or two in one of TDCJ’s other 40 or so institutions that are commonly called state jails or transfer facilities. A male offender can spend as much as two years “in transit@ at these facilities before reaching a real prison. But your first month or more will likely be spent at one of the six intake facilities. When you get there you will be stripped naked (get used to being seen naked in front of male and female officers) and told to stand while officers strip search you and go through your property. You will be asked to squat and cough. Some officers may yell at or ridicule you. Try to pick a spot on the wall, stare at it and don’t pay attention to any insults. All the guards are trying to do at this point is see if anyone among you is stupid or crazy enough to talk back to them. Next, for males, you will be shaved nearly bald; all offenders are made to shower with lice killer and issued clothing, bedding, hygiene products and a rule book. This process will take several hours after which you will be fed and assigned a temporary bunk. It will take about a week to complete the intake process before you are moved into the general population. You should take this time to read the rules and become very familiar with them. Many offenders dump them in the trash. ~8~ (Rev.3.31.2016)
This is a poor choice. Keeping the book shows prison employees that you are interested in following the rules. But it is important to remember that prisons do not always operate as the rule books suggest. The interpretation of these rules can change and change often. The only rule that really counts is whatever the individual guard says it is. The rules in TDCJ change, if not every two years when the legislature meets, and then whenever the warden decides a change is needed. A security lapse can bring about massive change overnight. Prison is a hard place to find fairness or justice. Get used to seeing things done unfairly. The next day the offender is going to be taken down to another room, and then another room, and during this process the offender will sit, and wait, then sit and wait again. The offender may be taken back to Athe house@ (cell) and wait. Get used to this. During the first week you will be photographed, fingerprinted and checked for tattoos. You will be assigned a TDCJ number which will essentially serve as your name for the duration. All mail, incoming and outgoing, must have your name and TDCJ number on it or it will not be delivered. During this time you will be allowed to put ten names on your visiting list. Again, they must appear as they are on the driverâ&#x20AC;&#x2122;s license or other government issued ID. TDCJ will then check to names on your list to make sure none of them are currently on parole. The approval process usually takes about 2-4 weeks after which you may begin receiving visits from those persons on your list. If an offender lies about the relationship of a visitor (usually to obtain more favorable visitation rights) the offender can be disciplined and the visitor may lose their visitation and telephone privileges.
D.
Medical Examination
You will be examined by the TDCJ medical staff. This will occur in 4 or 5 visits back and forth to receive an EEG, an eye test, a physical examination, x-rays and a dental exam. Now one can begin to understand why it was so important that the medical records were collected and forwarded from the sheriff=s office. Youâ&#x20AC;&#x2122;ll listen to lectures on AIDS and Hepatitis and possibly be interviewed by a psychiatrist. For sex offenders this may be the most important visit. Keep in mind that anything you tell the psychiatrist will be available to the parole board later. This is not the time to discuss fantasies or events known only to you.
E.
Sociology Interviews
These are two very important interviews. The questions asked in both interviews will be essentially the same, but the styles of the interview will be completely different. These are the Sociology I and II interviews. Sociology I is generally done by a clerk who will ask about the offender=s crime, why he did it, how he felt about it, whether he liked his mother and father and similar types of questions. If your case is on appeal, discuss with your lawyer if questions about your crime should be answered. A simple, Amy lawyer has advised I not speak of the facts of the case because of our appeal,@ should be sufficient to satisfy the inquisitor. This sociologist will make every effort to be very friendly so they can encourage the offender to talk. Remember that anything said will be available for review by the parole board someday. Again, the less said, the better. Providing false information can be the basis for disciplinary action. At a later time, you will return to the interview area and repeat the same interview, with the same questions, but this time with a different person. This is the Sociology II interview. This person may be belligerent and difficult. This is sometimes referred to as a AMutt and Jeff@ routine. The ~9~ (Rev.3.31.2016)
offender should behave in the same calm, polite, manner as he did with the Sociology I interviewer. This second interview is designed to see how the offender handles anger and frustration. The interviewer will try to push buttons in order to observe the offender=s reaction. Do not get angry! The offender=s reaction helps the interviewer determine which type of prison unit the offender will be assigned. In most cases a calm, controlled and respectful reaction will increase the possibility of being placed in a minimum security unit. Shortly after you complete the Sociology interviews you will be given your TDCJ ID card and housed in the general population. From now on this TDCJ ID card must be in your possession everywhere you go.
F.
Education
All offenders are given an education achievement (EA) test and an IQ test. The test results will determine whether the offender is required to attend school. If an offender is judged to be functionally illiterate, or can’t perform basic math skills, he will refer to education for placement in classes. Offenders who do not have a high school diploma or GED will be placed in GED classes. Those offenders should take advantage of this opportunity. If you already have a GED or high school diploma then you will likely never see the inside of a prison classroom. Most real prisons offer college courses and some even offer four year degrees, but the offender must pay for this himself.
III.
CLASSIFICATION AND TIME CREDITS
Classification depends on a number of factors: what crime was committed, criminal history, age, your prison disciplinary record – all of these factors go into it. How you are classified will determine how much “good time” – time earned in addition to calendar time -- you receive.
A.
The Nature of Your Crime
There are certain crimes for which good time has very little meaning. Those crimes are called “3g” crimes. If the crime committed is an Aaggravated crime,@ which we will discuss in more detail later, good time does not mean a lot except in classification and the benefits attached to that. Good time can be an important factor for the purposes of parole or discretionary mandatory supervision unless the crime involves a weapon or is a crime of serious violence. Losing good time, however, will harm any offender, including 3g offenders. Losing good time can result in loss of privileges, and custody changes that also can result in losing the opportunity to be considered for parole.
B.
AG@ Levels
The first important classification for time earning classification is the custody classification. In the past there were fairly simple classification categories, minimum-in, minimum-out, mediumcustody, close custody, and administrative segregation. After the AConnally Seven@ escapes the rules regarding classification were revamped into the present incarnation. We have now come to what is called the AG@ levels. The optimum level is a G1 (General Population Level One). This level is within the sole discretion of TDCJ. There is a specific criterion that has to be met to reach this level. Those with certain offenses will never receive this level and others with aggravated or lengthy sentences must be ~ 10 ~ (Rev.3.31.2016)
within 24 months of parole or discharge date for this classification. The most frequent assignment is a G2. If one is serving a 3g sentence that is 50 years or more they generally must complete 10 years flat to be eligible for G2 (or G3), 5 years if the sentence is non-3g and more than 50 years. That eliminates most of the aggravated offenders. But the people with the lower classification of crimes will fall into this G2 level. The next level is G3. This is for newly assigned offenders and people who have had a disciplinary case(s), or other types of problems which we will also discuss in another area. G4 level can be assigned to newly-received offenders, if the current offense of record is for a violent crime, or a pattern of violence has been established in “free world” convictions or if the offenders has committed an assault of staff or offenders in an adult correctional institution within the past twenty four months. Finally, the most aggravated offenders will be in G5, General Population Level 5. This is for those offenders that have security precaution designators, i.e. escapes, assaults, or continued disciplinary problems. There is a further designation of custody level for offenders who need to be protected by the system and are kept out of the general population in protective custody.
C.
What Kind of Prison am I Going to?
As mentioned earlier, you will likely do at least a year at transfer facilities before you are assigned to a “real prison”. The prison system has a unit level assignment. Level One unit is Trusty camps. Generally, only after two years can one achieve the Trusty level and be promoted and be eligible for a level one unit assignment. Level Two units will only house those offenders classified as G1 and G2. The Level Three units will only house offenders who are G1 through G3. Level Four units will only house those offenders who are G1 through G4. Finally, the Level Five, the big units, will house offenders who are G1 through G5 plus administrative segregation. There are a handful of those units. Then there is a special type of unit, the administrative units, which are better known as a “High Security” unit. We have a handful of those across the state and they house a low number of offenders who, by their behavior, need to be segregated from the population.
D.
Earning Time Credit
Everyone gets one day of credit for each day spent in prison.2 Even if the offender is the worst offender in the system day for day time is granted and it can never be taken away. However, depending upon the nature of one’s conviction or criminal history, knowing the rules about earning good time may or may not be of interest. If you’re convicted of a 3g crime, good time may have only academic interest, although losing good time can have serious consequences. The great majority of these crimes require a judicial finding that a weapon was used in the offense, but that is not always true. For example, convictions of indecency with a child may not have involved use of a weapon, but it is currently considered a 3g crime. If one is not convicted of a crime of violence, or if a weapon was not involved in the crime, good time may have a considerable effect upon the amount of time served. When no weapon or crime of violence is involved, good time credit may apply toward both parole eligibility and toward discretionary mandatory supervision. Good time credit can accelerate the date one gets to return home. If an offender has established himself as a model offender, and has earned one of the higher 2 State Jail Felons do not earn any goodtime credits towards a state jail sentence. State Jail sentences must be served day –for-day unless diligent participation credit is recommended by the warden and approved by the court. Diligent participation credit can be awarded for up to 20%.
~ 11 ~ (Rev.3.31.2016)
classifications, he is earning good time at a pretty rapid rate. Everyone enters prison as a Line Class I. There are two classifications lower than that, Line Class 2 and Line Class 3. It is our hope that the offender will never receive either of those classifications, because one must receive a major discipline to get into those classifications. Traditionally, to be promoted to a level above Line Class 1 takes a minimum of 6 months in TDCJ custody, as does each promotion. One will then be eligible for promotion to what is called State Approved Trusty (SAT) Level IV or III. Six months later an offender can go to SAT III and then SAT II. The prison is no longer using the SAT I category. While in jail before coming to prison the offender gets credit at a rate of 20 days of good time (GT) for each 30 days in jail. The good time credit, however, is not credited to the offender until he actually arrives at the prison. Misbehavior in the county jail can result in the Sheriff asking the prison to withhold good time credit in jail, and most usually the prison will follow the Sheriff=s request. Below explains the classification levels. As far as the prison is concerned, all months considered to have 30 days.
Time Earning
Good Time
SAT II SAT III SAT IV Line Class I Line Class II Line Class III
Work Time
30 days GT same as above 25 days GT per 30 days served 20 days GT for 30 days served 10 days GT for No GT credit
15 days same as above 15 days 15 days 15 days - 0- days
.
There are different good time earnings assigned to each of those. When starting out as a Line Class 1 youâ&#x20AC;&#x2122;ll earn 20 days of good time for every 30 days of calendar time that passes. Rather than say calendar time, offenders say Aflat@ time. So for every 30 days of flat time that passes you are gaining 20 days of good time. Jobs are assigned at intake and the most common job is the hoe squad, or field squad. This is also known among offenders as the largest weed eater in the world. For every 30 days one works, 20 days of good time and 15 days of work time will be credited. So every month that goes by one can possibly get 65 days of time earning credit. As can be seen from the chart, each promotion adds a certain number of days until eventually when SAT III level is achieved, where one can begin to earn the maximum amount of time -- 75 days for every month.
E.
Old Timers and New Offenders
The new TDCJ arrival will find offenders who have been there a long time. These Aold timers@ may be overheard discussing other types of good time earning capacity not discussed in the above sections. Offenders who come in today are not entitled to bonus time, education time, and that kind of thing. When discussions of Abonus time@ or time credit other than what was just previously explained are heard, the new offender should realize that these terms not apply to him. Many changes have occurred in the task of counting time credit and many methods may be used to calculate the time credit of an old timer. Do not concern yourself with the conditions under which others are serving time. It is quite possible they do not know themselves.
~ 12 ~ (Rev.3.31.2016)
F.
Visits and Other Forms of Contact
Each level of time credit gets a number of contact visit privileges associated with it. Visitation is not a right. It is a privilege. The warden of the unit has total control over who comes to visit, and the conditions associated with each visit. An offender who enters the unit as a Line Class 1 will be eligible for one contact visit per month. Any other visits that month will be non-contact. This means it will be like in the county jail. The offender will sit on the other side of a divider and talk to his family through a screen, or through glass with telephone handsets. One good thing about prison visits is that they are considerably longer than what was enjoyed in the county jail. Most county jails limit visits to 15 or 20 minutes. In Texas prisons, visits are one day per weekend for two hours every time. A warden may allow a “special” visit if the family lives more than 250 miles from the unit. A “special visit” may be allowed one weekend a month for 8 hours (4 hours on Saturday and 4 hours and Sunday). This has to be setup in advance and approved by the unit warden. Once you have undergone the initial admission and processing, you will be allowed a visit every weekend. There are some offenders who are limited to non-contact visitation with friends and family. This will depend upon criminal history and overall classification. Most offenders are allowed contact visits. As one gets promoted he will be permitted to have more contact visits. The first promotion to SAT4 allows two contact visits per month. At the SAT3 level, three contact visits per month are allowed. You may hear many offenders make references to SAT2. Those offenders have been in the system for quite some time and eventually the unit warden and the classification board thought highly enough of them to promote them to that level. The only real benefit to SAT2 is that a contact visit is allowed every weekend. If there are 5 weekends in the month, 5 visits are allowed. There are a number of wardens around the state who have decided that everyone on the visiting list gets a contact visit. Your visitation list can only be altered every six months, and may only include ten names, so make sure you get it right the first time. In the past telephone calls placed by offenders to loved ones were very rare if any. TDCJ has contracted and implemented a Telephone System whereas the offender can place collect calls or through pre-paid account to as many persons through an approved calling list which will be separate from their visitors list. Telephone calls can be placed in the following manner:
Collect calls- charges are accepted when the offender calls. Friends and Family Prepaid- the telephone number owner establishes an account in which to deposit money to pay for the offenders calls. Offender Telephone Prepaid Debit Account- the offender or family can deposit money into the offenders account. Offenders can purchase an unlimited amount of phone time at the commissary.
The offender is allowed an unlimited number of minutes per month at 20 minutes per call. These phone calls are monitored with the exception of legal telephone calls. Telephone access is a privilege and can be taken away given any disciplinary infraction or change in custody designation as phone calls are not allowed for those offenders that are in Transient Status, Pre-Hearing Detention, Solitary, Cell Restriction, or Special Cell Restriction regardless of Custody designation. Telephones are located within the dayrooms/living areas of the cellblock/dormitories and various other locations as designated by TDCJ. Telephone systems are generally operational between 7:00 AM and 10:00 ~ 13 ~ (Rev.3.31.2016)
PM seven days per week with the exception of count time and other times as designated by the Unit Warden. Family members have the ability to purchase telephone minutes for use by the eligible offender directly through the provider. Calls can now be placed to Post-paid cell phones numbers within the continental United States. Postpaid cell phones are those that have accounts with companies such as AT&T, Verizon, Sprint, etc. that have specified usage through contracts. No calls are allowed to pre-paid cell phones or Pay as You Go cell phones, internet services, 800 numbers, businesses, pay phones, or international numbers There are two other ways that offenders can place calls: a collect call placed from a state owned unit telephone, which is requested through the Warden or designee; or, collect call on a state owned unit telephone through the Unit Law Library placed pursuant to a statute or Agency policy. These calls will be placed at the discretion of the unit Warden or designee, shall be limited to one telephone call every 90 days (30 days for state jail offenders) and shall be no longer than 5 minutes in duration. Prior to initial approval, an offender must not have been found guilty of any major disciplinary violations within the last 90 days (30 days for state jail offenders) and must be engaged in a full-time work, school or treatment programs. Another form of communication is E-Messaging, also known as â&#x20AC;&#x153;JPAYâ&#x20AC;?. This allows friends and family to send electronic messages to offenders for a fee. The fee is the same cost as a postage stamp. The offender will receive their message or letter usually within two business days. 3 Remember, when communicating in the various forms listed above, never say or write anything that you wouldnâ&#x20AC;&#x2122;t want put on a sign in your front yard for all to see. Everything is read. The only calls not monitored are call made to an attorney who has specifically made a written request to EMBARQ to receive calls from a client and has received prior authorization to do so. The application form for the attorney is on the TDCJ website. Offenders should not put attorneys on their phone list, or their calls may be monitored.
G.
Security Precaution Designations (SPD=S)
Security Precaution Designations, SPD=s, are undesirable notations placed behind an offender=s name after all other classifications have been listed. This notation is an internal agency notation that may not be known be known to the offender. There are four SPDs and each means the offender has something in his record which is a potential problem to the prison. Security precaution designators are assigned for behavior in any way related to: escapes, staff assault, hostage incidents, sentences to life without parole, and security issues (e.g., offender has gotten out of his handcuffs, or has managed to open the door on his cell),
3 Source: Texas Department of Criminal Justice. Offender Phone and E-Messaging System, WEB (02/3/2011)
~ 14 ~ (Rev.3.31.2016)
Offenders with an SPD designation receive a G4 custody classification. After 10-years, it is possible to move up to G3, but once labeled with an SPD, one cannot achieve higher than a G3 classification. I offer a piece of advice about staff assault. AStaff assault@ does not necessarily mean reaching out and striking a correctional employee. All that is necessary for this label is to reach out and brush an employee’s shoulder and that employee has been assaulted. The definition of staff assault is an offender simply touching an employee. Never touch a prison employee whether he/she wears uniform or street/civilian clothes. Once that occurs, the offender may has problems and an SPD. He probably will be assigned to administrative segregation, and all kinds of problems and bad things happen as a result.
H.
Unit Classification and Other Committees
Once an offender has done his time on transfer facilities (no more than two years) they will be reassigned to a “”real prison”.” After arriving at your new unit, you’ll be led to the Unit Classification Committee. This committee is made up of the warden or the assistant warden, the building major or his designee, someone from the medical department and someone from the education department. They visit with the offender and are in possession of the offender=s complete file. Unless one’s attorney instructs otherwise, this is one of the few times we would recommend that the offender discuss his case with anyone in prison. The only time offenders should discuss their case, or their personal business, is if the people with whom the offender is conversing have the offender’s file in front of them. When the UCC meets with the offender, they are making several decisions which will be significant to the offender=s stay at that unit. For example, they will determine what job you’ll be assigned to and where you’re housed and what job you will have. One should be forthright with the members of these committees. Look them straight in the eye and let them know you are there to do your time the right way and get out. If you have any job skills (typing, welding, or plumbing) that are useful in prison be sure to mention them. Wardens like offenders who like to work and a good job can mean all the difference in the world. Most wardens make new offenders spend 90 days on the hoe squad. Those who do that job well are usually rewarded with better jobs. Unfortunately, none of them pay. But those who refuse to work are put in close custody or cell restriction through the discipline process.
IV. SOME SPECIAL CONSIDERATIONS FOR WOMEN In the men=s units there are gangs, which we will discuss later. Women have their form of gangs too, but more often women gather together in groups that are based on relationships. A woman entering the Texas prisons should be just as cautious of quickly forming close relationships with other women or groups of women as should men be careful when considering the offers to join a gang. Gang members exist on the women=s units, but are not as prevalent as on the male units. Familial-type relationships seem to be the norm on the female units. In many ways, the approach can resemble the invitation to be in a gang, but it’s more of a one-on-one relationship. Women are more emotional creatures and the stronger women will play on the emotions of the weaker ones, and will particularly set the traps for a new offender. The pitch may be for protection, for so called ~ 15 ~ (Rev.3.31.2016)
friendships, or need to ease the loneliness by having an emotional closeness with another person, and this can include a sexual relationship. Do not get that close to anyone for any reason. New offenders are prime targets, especially those that go to the commissary regularly and get mail and visits on a regular basis. There are plenty of women that have been there for a long while and they look for this. Perhaps they don=t have the support and the assistance the new offender has, and perhaps they are looking for that. Don=t go for it. Take your time, watch those who try to befriend others, and after close observation, pick your friends carefully. Women in prison are notorious for taking a personal relationship with another offender extremely seriously. Do not think that the approach from another female offender is really about love or caring because it is not. It is about control. If the Auser@ feels that the other party is pulling away, wants out of the relationship or that there is an interest somewhere else, watch out. If there is a threat of loss of control of the relationship, there are instances where the offender pulling away has been beaten up or cut up over an attempt to cool off a relationship with another offender. Women in prison can be very petty and jealous and every bit as violent as any male prisoner. Women in prison also intimidate or try to loudly Aout talk@ others by getting in their face. If this happens, do not respond and do not react. Reaction is exactly what the other party is looking for. An angry response or reaction gives the other offender the excuse to start a fight. Ultimately following this advice will result in respect and others will stop trying to bait the newer offender.
V. A.
STANDARDS AND BEHAVIOR Keep your business to yourself.
The best advice for newly entering men and women offenders is to OBSERVE, OBSERVE, OBSERVE. While observing, always keep in mind that you are also being observed, not just by other offenders, but by those who guard and manage the prison as well. Never comment on an incident which doesnâ&#x20AC;&#x2122;t involve you. If itâ&#x20AC;&#x2122;s not your business, avoid having anything to do with it. I again recommend that offenders not discuss their case with anyone other than officials and committees, and then only when your file is on the table. Of course if your case is on appeal do not discuss your case with anyone without your lawyer=s consent. If you talk about your case, an offender can be potential witnesses against you for any admission you make. Secondly, there is a pecking order in the prison. Everybody needs someone to look down on in prison. The offender who used a child for sex is considered the lowest of the low, as are rapists or any offense of a sexual nature. Offenders should not discuss the facts of their case, nor events surrounding the case. For example, if the conviction is of a sex offense involving a child, the last thing in the world that should be done is to tell another offender. It is no one else=s business anyway and it is considered extremely disrespectful to ask another offender about his crime.
B.
Old Joe or JoAnn wants to be my buddy
The best advice I can give in this area is that when an offender tries to warm up to another, or do a favor, or ask a favor, it could lead to trouble. For example, if someone says, Atake this envelope ~ 16 ~ (Rev.3.31.2016)
down the hall to that cell down there,@ don=t do it. What if the contents of that envelope include an escape plot? If the escape plan is later discovered, and it becomes known you acted as delivery boy for the plot by passing the plan from one offender to another, you could wind up in serious trouble. Getting out of that kind of trouble could be real problems for the innocent offender, and could include new criminal charges. The point here is this: one goes into the prison alone, and one comes out alone. Nobody can do time for another. The rule is, ADo your own time.@ At times a correctional officer will befriend certain offenders. If this appears to be happening, watch out because it is dangerous for both the guard and the offender. Guards, like offenders, have good days and bad days. Guards are not supposed to develop any kind of personal relationship with offenders. The friendly guard that was kidding around yesterday is going to be the same one that writes you a disciplinary action today for the same behavior that was previously considered acceptable.
C.
Hygiene, Grooming and Clothing
If the new offender is thrown in a cell situation with someone that fails to meet good standards for cleanliness and good grooming, the first thing to do is to talk to that person to see if the matter can be resolved. If not, then the next step is to, Ago to someone with “rank.” Rank is someone at the level of lieutenant or above. Don’t go to a corrections officer with a complaint like this. They don’t want to be bothered. The offender should talk with a ranking officer. It is a common error for other offenders to gang up on an offender who does not maintain an acceptable level of cleanliness or grooming. It is a terrible mistake to get involved in such an effort to fix the problem. There is a high likelihood that the attacking offenders will get a disciplinary action (or worse) and it will cost each of them a loss of class or time credit. In prison there are too may acts of retaliation among the offender population, and among offenders and employees. Seldom does any offender ever win in these situations. An offender who keeps his appearance and living area neat, showers every day and grooms himself reasonably well will likely be respected by other prisoners for the way he presents himself. He will also be healthier. Prison is rampant with diseases like hepatitis and staph infection. Like any enclosed place with lots of people in it, colds and viruses travel rapidly. Keeping yourself as clean as possible is the best way not to get sick. You should especially get used to washing your hands several times a day. Most prisoners are free to shower anytime they are in their cell block or dorm and soap is free in TDCJ. One of the daily rituals in regular TDCJ facilities is the daily change of clothing. As we said earlier, a set of boxer shorts, socks, and a set of white pants, shirt, towel and rag will be issued and each day there is a time at which these will be exchanged for a clean set. Clothing exchange may deviate from the norm in transfer facilities. Another exception to clothing exchange occurs if the unit is going through a Alock down@, when entry, exit and movement within the prison is restricted and offenders are required to remain, for the most part, inside their cells. Clothing exchanges are rare during a lockdown.
~ 17 ~ (Rev.3.31.2016)
D.
What is a Prison Lockdown?
Most people associate a prison lockdown with a riot, a prison break, or some major crime that has occurred and has heightened security at the unit. More often, lockdowns are a result of a routine unit security shakedown to search for weapons and other contraband. During lockdowns the entire unit will stop any and all offender traffic during such searches. The lockdown may involve one or more units. It can even be system-wide. During a lockdown, the offenders will be staying in their cells. Food in paper sacks called “johnnies” is brought up and served in the cell block. Lockdown status can last hours or days and weeks. At these times, clothing will not be exchanged every day. Times such as lockdown are when it is really important to have a good supply of hygiene and foodstuffs. Every prison has one lengthy lockdown per year while the entire facility is searched for contraband.
VI. A.
PRISON LIFE
Dorm Living and Cell Blocks
Some prisons have dorm-like living conditions with each wing housing about 90 offenders. The bunks can be two high and very close together. When the offender first goes into prison he will be housed in a dorm until he is assigned to a “real prison”, where most offenders live in two-man cells. Single cells are generally reserved for restrictive maximum security situations. In “real prisons” there are rows of cells like you see in the movies. When you walk down the cell row do not look into any cell except your own. What is going on in another cell is not your business. Never go into a cell that isn’t yours, even if invited. It is against the rules to be in any cell you are not assigned to.
B.
The Chow Hall
The food in TDCJ is tolerable. The calorie content, fat, starch and cholesterol levels are high. The meat is usually processed and there are rarely any fresh vegetables. As in most institutional settings everything is overcooked and devoid of flavor. However, the food in prison is generally much better than that in most county jails. Service is cafeteria style with offender waiters refilling pitchers of water and tea. Breakfast is usually at 3:00 a.m., lunch around 10:00 a.m. and dinner at 4:00 p.m. Get used to eating fast. Guards like to run offenders through the chow hall quickly and you usually have less than ten minutes to eat before a guard will tell you to get up.
C.
Day Rooms
The day room is the center of any cell block or dorm. It is where offenders play games, watch TV and visit. The day room has several metal tables and rows of benches in front of the two televisions. The noise can be deafening. Consider two televisions 15 yards apart, on different channels, turned to maximum volume. The programming is determined by a show of hands of the offenders who are sitting on the benches. If you like sports you’re in luck but offenders do not watch a lot of news or educational programs. The most popular pastime other than watching television is playing dominoes. Scrabble and chess are also popular. When offenders play dominoes, it is a prison tradition to slam the dominoes against the steel table. The racket made by this eventually gets to where it really rides on the nerves. Several people slamming dominoes on a multiple steel tables in addition to two competing televisions amongst twenty loud conversations makes a great deal of ~ 18 ~ (Rev.3.31.2016)
noise. Most prison commissaries sell ear plugs because it can be very hard to sleep when the day room is full. As stated previously this is also where the telephones are placed. The day room is also where most fights occur. Many start over a disagreement about what to watch on TV. When a fight breaks out in the dayroom you should head to your cell. One-on-one fights often evolve into riots and in such cases the guards will simply write up everyone in the dayroom for fighting. If questioned by a guard about how a fight started, always say you didn’t see anything.
D.
Recreation Yards
One advantage to prison is that you can get in pretty good shape there. Most rec yards have universal-style weights and basketball, volleyball and hand ball courts. Many offenders exercise by walking or jogging around the perimeter of the yard. The recreation yard is also a place for offenders to meet and a place for trouble to develop. Just as in the day room, the innocent can be caught up in something he had no part in. TDCJ has a long history of disciplining everyone on the yard when trouble occurs. If trouble starts, get away from it, and stand with your back to the fence. Most offenders are called out for recreation several times a day. Most “real prisons” also have gyms, but they are not frequently utilized due to staff shortages.
E.
Commissary
Your TDCJ ID card will have a magnetic strip on the back that works like a debit card. Purchases are limited to $95.00 every two weeks. Most prisoners are allowed to go to the commissary once a week, at the discretion of the unit. The items are similar to what you might find in a convenience store, but the prices are much lower in prison. $95.00 buys a lot of stuff. When a purchase is made at the commissary you’ll be issued a receipt. Keep recent receipts in a safe place as you may be asked to prove you bought the items in your possession. Never drop it in the trash where it can be found by other offenders. Old receipts should be flushed. The receipt has valuable information on it, such as your TDCJ number and your account balance. Some commissary items are designated as “special purchases.” These are items like tennis shoes, radios, hot pots and fans. Offenders are allowed to possess only one of each of these items and the warden must pre-approve each special purchase. Effective September 1, 2012, the TDCJ Commissary and Trust Fund Department initiated a direct purchase program for friends and family member to allow them to make online purchases for offenders. The purchases will be made from and existing product line with new products to be added later. Offenders can receive items purchased (through eComm) by family or friends in an amount up to $60.00 per calendar quarter. Offenders who are placed on commissary restrictions will not be eligible to receive commissary items from direct purchase. This program will be accessible either through a link on the TDCJ website or the TEXAS.gov website. The merchandise purchased will be distributed to the offenders from the commissary at their unit of assignment.
~ 19 ~ (Rev.3.31.2016)
F.
Race Relations
One of the most regrettable issues in prison life all over the United States is pervasive racial animosity. It would be improper to lay blame for this on any group. Just remember that in prison race is among the greatest of serious problems. Each offender must determine how he or she will deal with this issue. The U.S. Supreme Court proclaimed that prison cells must be integrated, so you will likely always be celled with a person of another race. The only exceptions to this rule are for security or other valid penal causes. Gangs in prison are racially based, and can be violent. Disagreements regularly arise over race and culture. Again, this is not just a problem in the Texas prisons, but all U.S. prisons. At the same time, I have come to seriously contemplate whether many prison administrators give tacit approval to racial separation in order to, Akeep the enemy divided.@ Offenders seem to let their negative perception override the logical prospect of power that offender unity could bring to the prison system. It appears that both offenders and administrators are at fault in this regard, but I do not believe that the situation will change in my lifetime.
G.
Hall Rules
The hallways and other traffic corridors in prison have yellow lines about two feet from each side of the wall. Offenders must always walk between the wall and the yellow line with their right shoulder nearest to the wall. The middle of the corridor is reserved for prison employees. The only time offenders are allowed to walk in the middle of the corridor is when being escorted by guards.
H.
Personal Property
Different prison units have different types of storage space. A problem developed in TDCJ for offenders being transferred from a unit with a good amount of storage space to a unit with less space. In some cases there was no room for all of the offender=s belongings. Therefore, TDCJ developed a regulation limiting each offender to an area of approximately 2 cubic feet to store all personal items. Donâ&#x20AC;&#x2122;t buy more than you can store. If your property doesnâ&#x20AC;&#x2122;t fit into the limited area provided, prison employees are authorized to take it away. These regulations might be enforced with some latitude. Some wardens donâ&#x20AC;&#x2122;t enforce it at all. Also, if one has a complicated legal case that is on appeal, one can apply for more space in which to store the legal material. But this is a cumbersome process and if the additional space is not absolutely necessary do not get involved with applying for more space. You should put a lock on the assigned TDCJ storage box. Plastic locks are sold at the commissary for ten dollars. Prison officials have a master key to all the locks, so they can search as necessary. However, as a general rule, guards are not supposed to open your storage box without you being present. The advantage to having a lock is so you can keep your things reasonably secure from other offenders.
H.
Gangs
Gangs are a major problem in prison. They usually form around racial lines. It is very important for a new offender to remember upon entering prison that he will be viewed by some gang as a new prospect. It is not unusual that a new arrival will be approached by another offender who will try to get the newcomer indebted to him in some way or to recruit the new offender into a gang. They may offer protection from assault or blackmail. It is important to reject these entreaties. Gangs ~ 20 ~ (Rev.3.31.2016)
demand total loyalty and will eventually demand money, sex or participation in some criminal activity. Gangs are the source of most criminal cases in prison. Offenders in gang are much more likely to get in trouble and even membership in some gangs causes prison officials to place known members in administrative segregation, even if that offender hasn’t done anything that would normally merit solitary confinement. Perhaps of greatest importance, it will be very difficult for a gang member to be approved for parole once a gang tag is applied. Those entering TDCJ with gang tattoos will be classified as gang members and placed in administrative segregation if their tattoo represents one of the “security threat groups” (STG). The list of STGs changes from time to time. The only way to be returned to the general population once classified as a gang member is to formally renounce gang affiliation through the Gang Renunciation and Disassociation (GRAD) Program. Details are available on the TDCJ website.
I.
Fighting
Fist fights are very common in prison. For younger prisoners they are often unavoidable. Older prisoners are usually not bothered but at many prisons, it is not uncommon for a new arrival to be challenged. If this happens, the best thing to do is to try to defend yourself. If you refuse to fight then you will be perceived as weak, and everything you have may be taken from you. Once an offender shows he will fight back he is rarely forced to prove it a second time. Never use anything but your fists. If you use anything but your fists -- even a cup or a shoe -- that may be considered “fighting with a weapon” and that is a major disciplinary offense and may affect your parole date.
J.
Jail House Lawyers
Jail house lawyers, often called Awrit writers@ are offenders who are self-taught as lawyers. They seldom, if ever, have any actual legal background. Watch out when relying upon their representation or assistance. The law has changed regarding how many times you can appeal your conviction. You have only one chance at a writ of habeas corpus action. If the writ is not professionally done, end results can be horrible. One could waste this opportunity on a frivolous claim while a valid cause would be forever lost. Offenders should avoid allowing jail house lawyers from being involved in their case. In addition to the legal ramifications, using a jail house lawyer gives another offender information about your case that can be used to your detriment. I admit that in 40 years of practice in this area I have learned some things from jail house lawyers. However, I have spent more time correcting their work than learning from their expertise. The new convict only gets one opportunity for an appeal or one writ of habeas corpus, so it is best not to use a jail house lawyer with no legal education as the vehicle to travel down the post-conviction road. The prison does have a public defender service. Several lawyers in our firm have worked in that office. While it is a fact that the TDCJ has economic control over that office, there have been some excellent lawyers employed there. If you’re charged with a criminal case while in prison, a lawyer will be provided.
K.
Grievances
If something goes wrong, and you want to complain about it, the prison has a grievance process. If you are seriously mistreated and want to file a law suit against the prison or its ~ 21 ~ (Rev.3.31.2016)
employees, current law generally requires that one must exhaust all administrative grievance remedies before you can go into court. It does not matter whether it is a medical problem, a job loss, or lost good time through a disciplinary action, you must exhaust all administrative grievance procedures. There should be no fear to file a grievance if one believes it is justified. Offenders should pay close attention to what can and cannot be remedied through the grievance process. That is contained in the Offender Orientation Handbook. Also, the grievance process should only be used in very serious matters. Most problems are better solved informally by speaking to a ranking officer or writing the warden.
VII. PROGRAM PARTICIPATION A.
Individualized Treatment Program
Participating in programs is not only the way to improve oneâ&#x20AC;&#x2122;s life during and after prison, it helps demonstrate that one is worthy of parole. The process of getting into programs starts almost immediately. Within the first 180 days of incarceration, a sociologist or a counselor prepares the offender=s Individualized Treatment Plan (ITP). This plan is placed into the offender=s file, but the offender may never see it. A case manager will typically advise the offender what programs they should complete, and what is available on their unit. The prison will expect an offender to complete the ITP courses recommended in the Individualized Treatment Plan. Common programs include substance abuse and anger management classes. Prison programming is extremely important when it comes to parole. I have had parole board members tell me that their policy is that an offender=s failure to accept or participate in a program can cause them to vote no. So whatever they tell you to take, take it. It may sound like nonsense, but one wants to pay close attention to the direction one has been provided. Otherwise the offender will be telling the Parole Board he is not interested in being released. However, if it is impossible to get into a program in the ITP, do not panic. The Parole Board recognizes that it is not always possible to get into the courses one needs according to the ITP. If an offender demonstrates that he has done all within his power to participate, the Board will not hold factors beyond his control against him.
B.
Self Help
There are a lot of self-help programs in prison. Many prisons have frequent religious services and weekly Alcoholics Anonymous/Narcotics Anonymous meetings. Most people in prison are there because of some kind of substance abuse. Prison is a good place to address these issues through religion, A.A. or both. There is typically no official record of who attends church or A.A. but those who attend these meetings tend to be a little more agreeable and have a better attitude than the average prisoner. Also, people in the community usually attend these meetings and it is a nice change of pace to interact with people who are not viewing life through prison bars. At the same time, religious services are times when many offenders gather in a single location, and as explained previously, that can be the opportunity for improper activity.
C.
Chaplaincy
Every prison has a chaplain, although smaller units may share a chaplain. They represent most major religious denominations but nearly all of them are Christians. Those ministers who work in prison have a great challenge, and while they are limited by the prison in their ability to be as ~ 22 ~ (Rev.3.31.2016)
helpful as many would like, they are there to assist. If there is an emergency, the chaplain is the person the offender should seek out if the issue is a personal problem. It will be the chaplain who will come to an offender with a message of a death or serious illness in the family and it is the chaplain who can arrange a special telephone call home in a family emergency. Our office has had many interactions with prison chaplains, and for the most part, they have been helpful. You should get to know the chaplain on your unit. VIII. PAROLE AND MANDATORY SUPERVISION This section could be a book by itself, so I am only going to hit the high points. Getting out of prison is every offender=s goal. Parole and mandatory supervision are the two most likely methods leading back to the free world. For offense committed after September 1996 all mandatory supervision is discretionary, which means there is no longer anything mandatory about it. Parole eligibility is determined in two ways. Initially oneâ&#x20AC;&#x2122;s parole eligibility is determined by statutes. If a conviction involved a weapon or was one of several serious violent crimes, generally one will not be considered for parole until one half of the sentence is served day for day. Generally, if the conviction is for a non-violent crime and no weapon finding was made, one must earn one-fourth of the sentence with good time being applied to that calculation. Each parole consideration, after that initial consideration, is determined by the date of the decision of the parole panel who last voted the case.
A.
Parole Panels
Over the years the Texas Board of Pardons and Paroles has gone through substantial statutory changes. There are now seven members of the board, and fourteen commissioners who also vote. Each panel has one board member, and two commissioners. To be paroled, most offenders need two of the three votes on that panel. If the conviction falls under one of the crimes known as Senate Bill 45 cases there is a different rule. Senate Bill 45 cases include: 1) A life sentence arising from a parole eligible capital murder charge, 2) Aggravated Sexual Assault, 3) Indecency with a Child by Contact, and 4) Continuous Sexual Abuse of Young Child or Children 5) Continuous Trafficking of Persons 6) Offense requiring 35 calendars for parole eligibility under Tx. Govâ&#x20AC;&#x2122;t Code Section 508.145(c) The statute regarding Senate Bill 45 cases requires two-thirds of the seven board members to favorably consider the case. However, that is not exactly how things work. Since two thirds of seven equals a number that is more than four and five, the board has adopted a rule which requires that one subject to parole consideration fails if there are three negative votes out of the seven. In other words, if convicted of the three above mentioned crimes, then all seven Board Members vote the parole case. If three of them vote to deny parole, one will not be paroled. At this writing this issue has not been tested in the courts.
~ 23 ~ (Rev.3.31.2016)
B.
Parole
Unless one is convicted of an offense listed as a 3g offense or Engaging In Organized Criminal Activity (TPC 71.02) or Directing Activities of Criminal Street Gangs (TPC 71.023) or Continuous Trafficking of Persons (TPC 20.A03), one will be parole eligible when earned credit equals one-fourth of the total sentence with credit for any good time earned applying to that time. Being parole eligible does not mean one will automatically be paroled. It means you have a chance. If you have a 3g sentence, meaning a weapon was involved, or a serious crime of violence is involved without a weapon, such as aggravated sexual assault, then one has to serve half the total sentence before being considered for parole. In Texas to terminate a sentence, one must serve each and every day imposed in the sentence. For example, even if good time credit toward parole eligibility is acquired, that good time credit is not deducted from the sentence termination date. So, if one has a ten year sentence, and is released after three years of flat time, one will still owe seven full years under parole supervision. Few offenders make first parole, so do not count on it. After one is denied parole the parole board will set the next date for one to be again considered for release. The board may set off the next parole consideration for up to five years if the conviction is for an offense not eligible for mandatory supervision, and SB 45 cases carry a mandatory three years set-off. The minimum set-off for all other cases is one year. Drug cases with an affirmative finding that they occurred in a drug-free zone carry a five year minimum for parole eligibility.
C. Mandatory Supervision So long as oneâ&#x20AC;&#x2122;s offense is eligible for mandatory supervision there is another option for releases to supervision. Mandatory supervision applies when oneâ&#x20AC;&#x2122;s flat time (day for day time) plus good time earned equal the whole of oneâ&#x20AC;&#x2122;s sentence. Once this is attained, the person is eligible to be considered for mandatory supervision. For example, let=s assume the offender has a five year sentence: Flat time earned Good time earned Total time earned
2.2 years 2.8 years 5.0 years
It is at this point that mandatory supervision will be considered. The offender is entitled to be notified at least 30 days in advance of the board considering a mandatory supervision case so the offender can provide information to the parole board. If the vote is favorable, the offender may be released to conditions similar to that of being paroled for a length of time on supervision equal to the good time earned. Thus, in the above hypothetical, if mandatory supervision was granted, the offender would be on parole supervision for 2.8 years after release.
~ 24 ~ (Rev.3.31.2016)
IX.
OFFENDER SUPPORT GROUPS
There are a number of offender support groups. These groups of people are active in trying to improve the problems and alleviate some of the emotional trauma offenders and families suffer as the result of incarceration. The prison does listen, but it is our opinion the prison=s view of these groups is that they represent as much an annoyance as a benefit. The prison only takes these groups as seriously as the political climate requires. Certainly being a member of such a group may be an asset to certain people who have a loved one in prison. It is our opinion that these groups often have shortcomings, but we do not discourage membership; however, families are well advised to do their due diligence before joining. They are family support groups and as such help people who have loved ones in prison realize that they are not alone. They can provide insights to dealing with problems common to families of those who are incarcerated. These organizations are not designed to be prison reform groups. The primary interests of the members are to get their loved one out of prison. After that occurs, they usually lose interest in the organization. I have seen any number of these groups rise and fall. Deciding whether and which group to join is an individual decision. Membership will not likely hurt the offender, but how much good membership in an offender family organization will help the offender=s situation is dependent upon the quality of the individual organization.
X.
CONCLUSION
After practicing post-conviction criminal law in Texas for forty years, I have concluded that in this state neither prisons, nor the attitudes of prison employees, are going to change to any great extent. Being employed at the prison definitely requires hooking up to the Agood ole= boy@ team if one wants to be considered for the serious promotions. Today I see the same types of problems with the Texas prison I saw when I was first employed there in 1973. There are some improvements, but there are also many new problems to replace those which were resolved by the Ruiz civil rights suits. The economics of doing business with state and federal prisons has become an industry that has gotten too closely intertwined with government. This appears to be something that should cause great concern, but I do not see substantial improvement on the horizon. Prisons have become such an important factor in the economic survival of some small Texas towns that some of those communities might fail but for the fact they have one or more prisons to provide employment for the local work force. Few correctional officers I have known over the last forty years enjoy what they do for a living. Few offenders want to be in prison. The combination and interaction of these two groups makes for a negative mix in the work place. As a result, the society that exists in prison is less then positive. The best suggestion I know for someone entering prison for the first time is keep to yourself for the most part, do not discuss your case, learn to occupy your time in a positive way and take advantage of every opportunity that comes your way. By all means do not allow yourself to become obligated to another offender. Prison is a cold, hard place to be, but you can get through it, and this episode of life will one day be past history. 95% of everyone who enters prison will someday be released. Prison can be a real wakeup call and a turning point (good or bad) in life. There are many offenders, mostly ex-addicts, who told me that having to go to prison saved their lives.
~ 25 ~ (Rev.3.31.2016)
When I was a young man we had to deal with the military draft. Once in the military, young men usually Agot the message@, and the military became the vehicle that pushed an individual into being a responsible citizen. Today we no longer have the draft, and the element of drugs have been added to our social mix. Today we send the same young people that used to get drafted to prison. I have concluded the military did a much better job of turning out responsible people than is currently produced in our prisons.
~ 26 ~ (Rev.3.31.2016)
Texas Criminal Defense Lawyers Association
Post-Convictions Seminar October 29-30, 2020 Livestream
Topic: How to Present a Parole Revocation Case Speaker:
Alan Bennett 600 West 9th Street Austin, TX 78701 512-476-2494 phone 512-476-2497 fax alan@gbafirm.com
Co-Author:
Gary Cohen 600 West 9th Street Austin, TX 78701 512-476-6201 phone 512-477-5773 fax garycohen@parolelaw.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
PAROLE REVOCATIONS A BASIC PRIMER FOR TEXAS LAWYERS
PRESENTED BY
GARY J. COHEN / ALAN BENNETT AUSTIN, TEXAS 78759 {512) 476-6201 PHONE {512) 477-5773 FAX garycohen@parolelaw.com www.parolelaw.com
TEXAS CRIMINAL DEFENSE LAWYERS POST CONVICTION PRACTICE SEM IN AR
Austin, TEXAS October 2020 ©2020
STATUTORY REFERENCES TEXAS GOVERNMENT CODE, SECTIONS 508.001-508.324 TEXAS CODE OF CRIMINAL PROCEDURE, ARTICLE 42.12 TEXAS BOARD OF PARDONS AND PAROLES RULES
DEFINITION OF TERMS BLUE WARRANT: The common shorthand term for the parole violation warrant. BOARD: The Texas Board of Pardons and Paroles is the state agency responsible for determining which eligible Offenders are to be released to parole or mandatory supervision; the conditions of parole or mandatory supervision; the revocation of parole or mandatory supervision; and executive clemency recommendations to the Governor. Specific to the revocation process, the Board schedules hearings, reviews and acts upon requests for appointment of counsel, conducts hearings, reviews and processes hearing reports and waivers and makes recommendations to the Governor for disposition, handles hearings with respect to out of state cases supervised in Texas and provides a process for reconsideration of revocation decisions. DIVISION: The Parole Division is a branch of the Texas Department of Criminal Justice (TDCJ-PD). Among their responsibilities are the supervision of Offenders according to the terms and conditions imposed by the Board; the recommendation to the Board of modifications of terms of release; the processing of violations of conditions of release and the processing of requests for subpoenas for administrative release proceedings. ISF: An Intermediate Sanction Facility that serves as an alternative for Offenders who have violated one or more release conditions,but have no pending charges. An Offender may be placed in an ISF facility as a condition of parole or mandatory supervision following an administrative hearing. An Offender may also be placed in such a facility by agreement between the Offender and the Division in lieu of a hearing when such agreement is approved by the Board. MANDATORY SUPERVISION CERTIFICATE: A written statement setting forth the rules and conditions of release. There is no requirement that the Offender agrees to, accept, or execute this document in order to be bound by its terms and conditions. 2
PAROLE CERTIFICATE: A contract that is signed by the Offender and sets forth the rules and conditions of release. The acceptance, signing and execution of the contract by the Offender is a precondition to release. RELEASEE: An informal term used to describe an Offender who has been released from incarceration. REVOCATION: A decision by the Board to return an Offender to the custody of the Institutional Division of the Texas Department of Criminal Justice because the Offender has violated terms or conditions of release, committed a new crime or both. SAFPF: A Substance Abuse Felony Punishment Facility is a secure chemical dependence treatment facility where an Offender may be placed in lieu of revocation. SISP: The Super Intensive Supervision Program is the highest level of supervision. It was created by the 75th Legislature for the most dangerous class of Offenders released to parole of mandatory supervision. It was implemented in September of 1997, but may be imposed on any Offender that meets the criteria for the program regardless of the date of the commission of the offense. SUMMONS: A written notification to be served on an Offender not in custody to appear at an administrative hearing to answer allegations of violations of the conditions of release. TECHNICAL VIOLATION: A violation of one or more of the rules of parole or mandatory supervision, not including the commission of a new criminal offense. This is also known as an administrative violation. WHITE WARRANT: The shorthand term for the warrant returning the Offender to custody of the Institutional Division of the Texas Department of Criminal Justice. This document issues after a revocation decision has been entered by the Board. VR: A violation report that sets forth the nature of the allegations of violation. PAROLE SUPERVISION An Offender released to parole, to mandatory supervision or to discretionary mandatory supervision is required to serve the remainder of their sentence under supervisio n of the Division. (Gov. Code 508.001 [51[6]). The period of supervision is computed by subtracting from the
3
Offender's sentence the actual time spent incarcerated on that sentence (Gov. Code 508.142[c]). To complete the period of supervision the Offender must serve the entire period of parole (Gov. Code 508.155[0)). Unlike probation, there is no early release from parole except by action of the Governor
in the clemency process. An Offender released to supervision is furnished with a release certificate that sets forth the terms and conditions of release (Gov. Code 508.154). There are certain mandatory conditions of release that are required by statute to be imposed in all cases. These conditions include a requirement that the Offender reside in the county in which he resided at the time of the commission of the offense, or, if not a resident of this state, the county in which the offense was committed (Gov. Code 508.181[0)). All Offenders are required to pay supervision fees (Gov. Code 508.182). Offenders
are also required to possess a minimum education level (Gov. Code 508.183). Other mandatory conditions are imposed depending on the nature of the offense of conviction: controlled substance testing, substance abuse treatment, sex offender registration, child safety zone restrictions, community service, avoiding the victim of a stalking offense and no contact with a victim (Gov. Code 508.184-508.191). In addition to the mandatory conditions of release, the Board has a broad grant of general authority to impose any condition that a court may impose on a defendant placed on community supervision under Article 42.12, Texas Code of Criminal Procedure. As long as the condition is reasonably related to the offense of conviction or is necessary for the protection of the public, it is unlikely to be interfered with by the courts. The Board has also, unfortunately, delegated broad authority to the Division to selectively impose other conditions of supervision. These conditions are generally found in cases where the Offender is on a specialized sex offender supervision caseload or has been placed on an SISP caseload. THE REVOCATION PROCESS When the parole officer learns that the Releasee has been arrested, has failed to comply with a condition of release or has reliable evidence to believe the Releasee has exhibited behavior
4
that poses a danger to society, a Violation Report is prepared that sets forth the nature of allegations. The VR shall include a recommendation for Division action in response to the allegations of violation. The Division action may include recommendations that a Warrant issue or that supervision be continued with modification or condition of release. If the VR contains two recommendations that a Warrant issue, the VR is transmitted to the Warrant Section of the Division. A Warrant may be issued if there is a reason to believe that the Releasee has been erroneously released when not eligible; when the person has been arrested for an offense; when there is a self authenticating document stating that the person has violated a rule or condition of release; or when there is credible evidence that the person has exhibited behavior that indicates the person is a danger to society (Gov. Code 508.252) . The Warrant authorizes the custodial detention of the Releasee pending a determination of the facts surrounding the allegations. A summons may be issued if the releasee is not under intensive or superintensive supervision; an absconder; or determined by the Division to be a threat to public safety; or, is charged with a new offense committed after the first anniversary of the date of release, if: the new offense is a Class C, other than an offense committed against against a child or a family violence offense; and, if the releasee has maintained stable residency and employment for at least one year and has not been previously charged with an offense committed after release. A summons shall be issued if the releasee is charged only with committing an administrative violation that is alleged to have been committed after the first anniversary of release and is not serving a sentence for or has been previously convicted of a sex offense. Genarelly there is no bond for individuals detained under the Blue Warrant {Gov. Code 508.254). However, a magistrate may release the offender only if the releasee is held on an administrative violation, and, the Division includes on the warrant that the releasee has not previou sly been convicted of an offense under Chaper 29 of the Penal Code, a felony under Title 5 or an offense involving Family Violence, and if the offender is not under intensive or superintensive supervision and is not an absconder or a threat to public safety. The practical problem with the bond provisions is that Judges and Magistrates are not familiar with these types of bond and there is no prosecutor or Division employee who is available to recommend a specific bond amount or conditions. They therefore shy away from assuming responsibility to act; especially when they do not have a prosecutor or other agency official available to give them recommendations (i.e. cover).
Any time periods from the date of the issuance of the Warrant to the date of the apprehension of the offender are not counted as time spent under the sentence (Gov. Code 508.253) . At any time before the setting of a revocation hearing date the Division may withdraw the warrant and continue supervision of the Releasee (Gov. Code 508.256) . Within five calendar days of the Releasee's arrest on the Blue Warrant a Pre-Hearing interview is conducted. At that interview the Releasee is read and given; a copy of his rights in the revocation hearing process, notice of the allegations of violations and forms that allow the Releasee to either waive or to request a Preliminary Hearing and/or a final Revocation Hearing. If a hearing is requested, the parole officer must then schedule a hearing within one business day of the Pre Hearing initial interview. The parole officer must notify the Releasee of the scheduled hearing date and provide additional documents that include the Violation Report outlining the particulars of the allegations, witness list, supporting documents and an Adjustment Statement setting forth his conduct while under supervision. These documents are referred to as the Pre-Revocation Hearing Packet. The Releasee is required to be provided notice at least three calendar days prior to any scheduled Preliminary Hearing and at least five calendar days prior to any scheduled Revocation Hearing. Hearings {both Preliminary and Revocation) consist of two stages. The first stage is the fact-finding stage. This is the equivalent to the guilt/innocence phase of a criminal trial. The second stage is for adjustment evidence. This is the equivalent of the punishment phase of the criminal trial and is designed to place the violation conduct in the proper perspective of the Releasee's overall behavior since release to supervision. The Releasee is entitled to a Preliminary Hearing to determine whether probable cause or reasonable grounds exist to believe that the inmate or person has committed an act that would constitute a violation of a condition of release, unless the inmate or person: waives the preliminary hearing; or after release has been charged only with an administrative violation of a condition of release; or has been adjudicated guilty of or has pleaded guilty or nolo contendere to an offense committed after release, other than an offense punishable by fine only involving the operation of a motor vehicle, regardless of whether the court has deferred disposition of the case, imposed a sentence in the case, or placed the inmate or person on community supervision {Gov. Code 508.2811). The purpose of the Preliminary Hearing is to determine whether or not probable cause exists
to believe that the Releasee has violated one or more of the conditions of release. The Division does not subpoena witnesses for the Preliminary Hearing unless requested by the Releasee or his counsel. The burden of proof is so low at this stage that it is often satisfied by the introduction of a complaint, information or probable cause affidavit support a warrant of arrest. Usually if there is any quantum of evidence admitted at a Preliminary Hearing, a decision to proceed to the final Revocation Hearing will be made. However, in unusual circumstances the Hearing Officer can recommend that the hearing not proceed to the final Revocation Hearing. While this hearing appears to be meaningless do not discount its value when the releasee has been charged with an new criminal offense. It can be an invaluable tool of discovery. The Releasee is entitled to only a final Revocation Hearing where he is charged with only technical violations or where he has been convicted of a new offense, or both. If there is a new conviction, the Releasee is only entitled to a Revocation Hearing that is limited to his adjustment while under supervision. This restriction is based upon the fact that the Judgment and Conviction in the new criminal case more than satisfies the preponderance of evidence standard that applies to the Revocation Hearing. The hearing process is to be completed within 41 calendar days of the execution of the Blue Warrant. However, this time frame does not apply when new criminal charges are pending or when the Offender is in custody in another state or a federal correctional institution (Gov. Code 508.282). While statistical data shows that the Board and the Division are in compliance with the 41day rule in over 90% of the cases, there is no sanction in the statute for exceeding the time limit. previous version of the statute required that the Blue Warrant be withdrawn in most cases if the hearing was not scheduled within 120 days of arrest, but no such remedy is contained within the current statute. But see Ex Parte Palma, and Ex Parte Nugent. The Offender is entitled to be supplied with all documents to be presented at the hearing and the names of witnesses expected or subpoenaed to appear no later than three calendar days prior to the Preliminary Hearing and no later than five calendar days prior to the Revocation Hearing. Alarmingly, parole officers often refuse to provide documents to the Offender's counsel within these timelines. Requests to the Parole Division Director to include retained and appointed counsel in the disclosure regulation have finally been addressed. Parole Division Policy and Operating Procedure 4.2.1 now states that the parole officer must provide the Offender and his attorney with all documents that will be presented in the hearing including the names of all witnesses who have been subpoenaed or requested to appear.
The hearings are presided over by hearing officers designated by the Board to make findings of fact and recommendations to the Board for disposition. The hearing officers are not lawyers; they mainly consist of former parole officers who have been promoted to positions in the Hearing Section of the Board of Pardons and Paroles. As such, many of them bring prejudices to the hearings that are common to parole officers. They are also incapable, or unwilling, in many situations of making fine distinctions regarding the admissibility of evidence. At the conclusion of the hearing, the hearing officer makes a written report that is to fairly, completely and objectively set forth all the relevant evidence necessary for the Board to make a disposition of the matter. The hearing report will contain a recommendation by the parole officer (most always to revoke), a recommendation by the hearing officer and a recommendation by a hearing analyst. The Board is free to follow those recommendations or to ignore them. Please remember to keep in mind that the burden of proof in revocation hearings is by a preponderance of the evidence. This means that a revocation decision can be based upon conduct which has been dismissed, upon which the Offender has been found not guilty by a Judge or jury or upon conduct which has not resulted in the filing of any criminal charges. The Board's options are to continue the Releasee under supervision with same conditions; modify the conditions in any way deemed necessary including placement in an ISF or SAFPF facility or to revoke supervision and return the Offender to incarceration. A Board decision to place an Offender in an ISF or SAFPF facility is not a revocation action, but merely a modification of the terms of supervision. While the Offender does receive custodial credits for such placement in the event of a subsequent revocation, there is no administrative appeal from such a decision. When an Offender receives notice that his supervision has been revoked he has two administrative remedies available. He may request that the hearing be reopened due to a substantial error in the process or based upon newly discovered information. The motion must be made in writing no later than 60 calendar days from the date of the Board's decision. The request is directed to the Texas Board of Pardons and Paroles, Board Administrator, P.O. Box 13401, Austin, Texas 78711. Upon receipt of the request for reopening, the Board may grant the request and order the hearing be reopened (with or without reconvening); may deny the request or may reverse the revocation decision.
An Offender returned to incarceration on a revocation generally loses all previously earned good time credits and receives no credit for time spent under supervision. In other words, they returned with custodial credits only. However, a recent modification of the statute dealing with sanctions provided some relief to a small class of Offenders (Gov. Code 208.283) . For revocation hearings held on or after September 1, 2001, an Offender may retain his street time credits (i.e. credit for time spent under supervision) if the following conditions exist. If the Offender is revoked for an offense to which either release to mandatory Supervision or to Discretionary Mandatory Supervision applies, and, if at the time the Blue Warrant issues the Offender has served at least onehalf, plus one day, of the period of supervision then the Offender will receive time credits for the period spent form the date of release to the date of the issuance of the Blue Warrant. Example: An Offender receives a five-year sentence for Possession of a Controlled Substance. He is released to supervision after serving 20 months of the sentence, leaving him with 40 months on supervision. After serving 25 months of the supervisory term, a Blue Warrant is issued and his parole is revoked. Upon revocation he will receive credit for the initial 20 months of incarceration and he will also be credited with the 25 months spent under supervision, leaving him only 15 months owing on his sentence. He can be released upon receiving a favorable vote by the Board or upon the discharge of the sentence (depending on the applicable law in effect at the time of the commission of the offense).
CONCLUSION Please keep in mind the fact handling a revocation proceeding is very different from trying a case in a court of law. The Hearing Officers are not lawyers and are therefore either unable or unconcerned with many of the law's fine distinctions. Motions are virtually worthless in this arena. Rather than being hyper-technical try to place more emphasis on placing the violation conduct in the proper perspective of the Offender's overall behavior. The Hearing Officer is much more likely to be sympathetic to fundamental fairness issues than they are to whether or not a report complies with the business records exception rules. This does not mean that you should abandon your role as a lawyer or fail to object when appropriate. You should, however, not try the case based upon a view to obtaining redress from the courts. Realistically, you are not going to appeal that many of them and the courts will rarely interfere.
Texas Criminal Defense Lawyers Association
Post-Convictions Seminar October 29-30, 2020 Livestream
Topic: What Criminal Defense Lawyers Need to Know About 42 USC 1983 Speaker:
Scott Medlock 1405 Montopolis Dr Austin, TX 78741-3438 512-474-0609 scott@edwards-law.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
WHAT CRIMINAL DEFENSE LAWYERS NEED TO KNOW ABOUT CIVIL RIGHTS LITIGATION SCOTT MEDLOCK1 Criminal defense lawyers are the tip of the spear in defending citizens civil rights. Every day, they work to defend their client’s civil liberties. And every day, they are likely to hear from their clients (or suspect in their guts) that their client’s civil rights have been violated. This paper is an attempt to inform criminal defense lawyers about the basics of civil rights claims that they are most likely to encounter in their day-to-day practice, with the goal of providing basic advise to their clients about potential civil remedies.2 Preventing a Heck v. Humphrey Bar An adverse judgment against the client in the criminal case will bar many civil rights claims. This is the “hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments.” Heck v. Humphrey, 512 U.S. 477 (1994) (Scalia, J.). A civil court and a criminal court cannot be asked to enter inconsistent judgments because “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Hainze v. Richards, 207 F.3d 795, 798 (5th Cir. 2000). For example, if a client is convicted in a criminal case, their civil false arrest or illegal detention claims are barred until their conviction is “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a
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Scott Medlock is a civil rights and personal injury attorney practicing with Edwards Law Group in Austin, Texas. Prior to joining the firm, Scott practiced for eight years with the Texas Civil Rights Project, leading the Project’s Prisoners’ Rights Program. 2
Civil rights law, like criminal defense, is a highly-specialized practice area, and it is always best to consult with an experienced practitioner to determine the strength of a claim and develop a proper litigation strategy.
federal court’s issuance of a write of habeas corpus under 28 U.S.C. § 2254.” DeLeon v. City of Corpus Christi, Tex., 488 F.3d 649, 652 (5th Cir. 2007). In Texas, a “deferred adjudication” operates as a conviction for purposes of Heck. DeLeon v. City of Corpus Christi, Tex., 488 F.3d 649, 652 (2007). Though a client is not “convicted” when they accept a deferred adjudication, they are “sentenced” – so an inconsistent judgment in a civil suit would operate as a Heck bar. DeLeon, 488 F.3d at 653. Administrative rulings in prison disciplinary proceedings also operate as a Heck bar. Edwards v. Balisok, 520 U.S. 641, 648 (1997). A conviction (or deferred adjudication) thus bars some excessive force claims. If the client pleads guilty (or admits guilt as part of a deferred adjudication) to an offense like assault on a police officer or resisting arrest, he must be able to explain how the “officers used force far great than that required for his arrest [that] is conceptually distinct from his conviction for assault with a deadly weapon.” DeLeon v. City of Corpus Christi, Tex., 488 F.3d 649, 656 (5th Cir. 2007) (citing Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996)). This is largely a pleading problem for the civil attorney, who must be able to articulate an “alternative pleading or recovery that would allow this claim for excessive force to proceed without interfering with the [criminal] proceeding against [the client] for aggravated assault on an officer.” Id. See, e.g., Streetman v. Coriell, No. A-13-CA404-LY, 2014 WL 3548458, *5 (W.D. Tex. July 17, 2014) (Austin, Mag. J.) (client convicted of resisting arrest for initially running from officers, but had surrendered when officers began to beat and tase him). A civil suit where claims would contradict allegations in a pending criminal case can still be filed, however, while the criminal case is still pending. Wallace v. Kato, 127 S.Ct. 1091, 1098 (2007). This strategy, however, will most likely result in the civil suit being stayed until resolution
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of the criminal case (and the civil case will likely be dismissed if the client is convicted). Id. Of course, if the State knows that a civil case is pending, it may also complicate the client’s ability to negotiate a fair resolution to the criminal matter. Thus, filing a civil suit while there are still unresolved criminal charges should only be done to toll the statute of limitations on the civil claims. Statutes of Limitations In general, statutes of limitations in civil actions are much shorter than in criminal proceedings. 42 U.S.C. § 1983 – the federal statute that creates a civil rights cause of action – “does not prescribe a statute of limitations. Instead, the statute of limitations for a suit brought under § 1983 is determined by the general statute of limitations governing personal injuries in the forum state.” Heilman v. City of Beaumont, Tex., 683 Fed. Appx. 363, 366 (5th Cir. 2016). In Texas, the “general statute of limitations” for personal injuries is two years. TEX. CIV. PRAC. & REM. CODE § 16.003(a). Thus, in most civil rights cases, the client must file their case within two years of the incident. There are some exceptions, mostly for Texas statutes that have longer limitations periods. For example, if the client is alleging they were sexually assaulted by a law enforcement officer, then the limitations period is five years for claims brought by adults, and thirty years for claims that arose while the client was a child. TEX. CIV. PRAC. & REM. CODE § 16.0045. Some Texas statutes also have a one-year limitations period, including malicious prosecution. TEX. CIV. PRAC. & REM. CODE § 16.002(a). A claim for malicious prosecution, however, does not accrue until the criminal prosecution ends. Aly v. City of Lake Jackson, Tex., 453 Fed. Appx. 538, 539 (5th Cir. 2011). See also Brown v. City of Houston, Tex., 297 F.Supp.3d 748, 761 (S.D. Tex. 2017) (citing Brandley v. Keeshan, 64 F.3d 196 (5th Cir. 1995)).
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Specific Civil Rights Claims False Arrest False arrest claims require the client to show that the arresting officer “did not have probable cause to arrest him.” Haggerty v. Tex. Southern Univ., 391 F.3d 653, 655 (5th Cir. 2004). The client must show that, given “the totality of the facts and circumstances within a police officer’s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.” Glenn v. City of Tyler, Tex., 242 F.3d 307, 313 (5th Cir. 2001). That an officer made a reasonable, but mistaken, decision, is not enough to prove a false arrest claim. Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000). “There must not even arguable be probable cause of the arrest.” Brown v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001). It is not enough that a client is found “not guilty” in their criminal proceedings, or that charges were dismissed. Evans v. City of Meridian, Miss., 630 Fed. Appx. 312, 315 (5th Cir. 2015). Thus, false arrest claims necessarily involve an analysis of the criminal provision the client is alleged to have violated. See, e.g., Haggerty v. Tex. Southern Univ., 391 F.3d 653, 656 (5th Cir. 2004). See also Childers v. Iglesias, 848 F.3d 412, 415 (5th Cir. 2017) (reviewing Texas criminal cases to determine elements of offense and defenses thereto). Excessive Force Police officers violate a suspect’s protection from excessive force when they use force that is not “objectively reasonable” in making an arrest. When a police officer uses force to make a ‘seizure,’ [courts] analyze a claim against the officer under the Fourth Amendment for ‘objective reasonableness.’ To prevail on an excessive-force claim, a plaintiff must show (1) an injury (2) which resulted from the use of force that was clearly excessive to the need and (3) the excessiveness of which was objectively unreasonable. Mason v. Lafayette City-Parish Consol. Gov’t, 806 F.3d 268, 275 (5th Cir. 2015)
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Factors to consider in assessing the “objective reasonableness” of the force include: the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (citing Graham v. Connor, 490 U.S. 386, 390 (1989)). Further limitations are placed on officers’ ability to use deadly force. “Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” Cole, 935 F.3d at 453 (citing Tennessee v. Garner, 471 U.S. 1, 11 (1985)). Likewise, “an exercise of force that is reasonable at one moment can become unreasonable in the next if the justification for the use of force has ceased.” Mason, 806 F.3d at 277 (citing Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 413 (5th Cir. 2009)). “The excessive force inquiry is confined to whether the [officer or bystander] was in danger at the moment of the threat that resulted in the [officer’s] shooting [the victim].” Bazan v. Hidalgo Cnty., Tex., 246 F.3d 481, 493 (5th Cir. 2001) (emphasis in original). Courts must “expressly” assess “whether [the officer’s] use of his firearm was justified throughout the encounter.” Mason, 806 F.3d at 277. Thus, if an officer’s initial use of force is reasonable – such as because the client initially resisted or fled – that does not mean that all subsequent force is also reasonable. Mason, 806 F.3d at 277 (final two, fatal, shots fired were unreasonable, when first volley of shots had incapacitated deceased). Generally, officers will be permitted to use force (including deadly force) if the suspect is armed and the officer reasonably perceives they are capable of harming the officer or another person. Kisela v. Hughes, 138 S.Ct. 1148 (2018) (suspect advancing on bystander with a knife);
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Garza v. Briones, 943 F.3d 740, 745 (5th Cir. 2019) (suspect “armed” with BB gun with “appearance that was almost indistinguishable from a handgun”). Jail and Prison Conditions Prison Litigation Reform Act Exhaustion The Prison Litigation Reform Act requires that before any court can evaluate the merits of a prisoner’s claim, the inmate must first exhaust all “available” administrative remedies. 42 U.S.C. § 1997e(a). “This exhaustion obligation is mandatory – there are no futility or other judicially created exceptions to the statutory exhaustion requirement.” Valentine v. Collier, 956 F.3d 797, 804 (5th Cir. 2020). The Fifth Circuit requires “strict” compliance with the prison or jail’s grievance policy. Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010) (pre-trial detainee’s claims related to treatment during Hurricane Katrina barred for failure to exhaust). The PLRA applies equally to convicted prisoners and pre-trial detainees (including juveniles). 42 U.S.C. § 1997e(h).3 For inmates in the custody of the Texas Department of Criminal Justice, inmates must first attempt to informally resolve their complaint, such as by discussing it with a member of the prison’s staff. (I suggest that they submit an “I-60 request to official” form, to document they made the attempt.) The prisoner must then file a “Step 1” grievance. The “Step 1” grievance is processed locally at the inmate’s prison. After the “Step 1” grievance is returned to the prisoner, he must appeal the denial by filing a “Step 2” grievance, which is processed at TDCJ’s headquarters in Huntsville. See, e.g., Johnson v. Johnson, 385 F.3d 503, 519 (5th Cir. 2004). The grievance is only “exhausted” after TDCJ’s time to respond to the Step 2 grievance passes.
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Immigration detainees’ claims, however, are not governed by the PLRA. Ojo v. Immigration & Naturalization Serv., 106 F.3d 680, 682 (5th Cir. 1997). 6
Each county is free to develop its own grievance procedure. See Hicks v. Lingle, 370 Fed. Appx. 497, 498-99 (5th Cir. 2010) (Tarrant County procedure); Manemann v. Garrett, 484 Fed. Appx. 857 (5th Cir. 2012) (pre-trial detainee barred from bringing claim regarding injuries that caused his leg to be amputated due to failure to follow Llano County jail’s policy). The client will need to carefully file the county’s particular policy. Sometimes this policy can be found in the “inmate handbook” that prisoners are given. If there are no instructions to be found there, I suggest asking the jail’s staff how to file a grievance, and following those instructions. Failing to comply with all the rules of the grievance process can also result in failing to exhaust the claim, and the claim being barred. For example, TDCJ inmates must file their Step 1 grievance within fifteen (15) days of the incident they are complaining about. Thus, claims against TDCJ officials effectively have a fifteen day statute of limitations. Likewise, a prisoner must file a Step 2 grievance (or other “appellate” remedy) even if the prison or jail never responds to the “Step 1.” See Hicks v. Lingle, 370 Fed. Appx. 497, 498-99 (5th Cir. 2010); Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). In addition to the administrative exhaustion requirement, the PLRA also prohibits prisoners from recovering damages “for mental or emotional injury … without a prior showing of physical injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e). Essentially, unless a prisoner has also suffered a “physical injury” or sexual abuse, they cannot recover mental anguish damages. A person who has been released from custody is no longer a “prisoner” under the PLRA, and does not have to comply with any of the statute’s requirements before filing suit. “This restriction … applies only to people who are currently incarcerated – not to former prisoners.” Bernal v. Bexar Cnty., Tex., 757 Fed. Appx. 316, 320 (5th Cir. 2018). To avoid these (and other onerous requirements and limitations of the PLRA), it is often wise to wait until the client is
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released from custody before filing suit (if the civil statute of limitations would not otherwise expire). Prison and Jail Excessive Force For pre-trial detainees, excessive force claims are also evaluated under an “objective reasonableness” standard, just like excessive force claims against the police. Kingsley v. Hendrickson, 576 U.S. 389 (2015). Convicted inmates, however, face a much more difficult standard. Convicted inmates must show the force was used “maliciously or sadistically to cause harm,” or “unneccessar[ily] and wanton[ly] to cause pain.” Hudson v. McMillan, 503 U.S. 1, 7 (1992). See, e.g., Payne v. Parnell, 246 Fed. Appx. 884 (5th Cir. 2007) (shocking compliant prisoner with cattle prod violates Eighth Amendment). Factors to consider include “the extent of the injury suffered,” “the need for the application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response.” Hudson, 503 U.S. at 7. Medical Care Pre-trial detainees and convicted prisoners have the same right to receive access to medical care. Hare v. City of Corinth, Miss., 74 F.3d 633, 640 (5th Cir. 1996). This right is also very limited. Prison officials violate the Eighth Amendment only when they “act[] with deliberate indifference to a prisoner’s serious medical needs.” Domino v. Tex. Dep’t of Crim. Justice, 239 F.2d 752, 754 (5th Cir. 2001). A prison official must “both kn[ow] of and disregard[]” a serious medical risk. Id. “Deliberate indifference is an extremely high standard to meet.” Id. at 756. An “incorrect diagnosis by prison medical personnel does not suffice to state a claim for deliberate indifference. Rather, the plaintiff must show that the officials refused to treat him, ignored his complaints, intentionally
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treated him incorrectly, or engaged in similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Id. If providing an additional treatment is a matter of “medical judgment,” it does not constitute deliberate indifference. Id. See also Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019) (policy prohibiting gender confirmation surgery does not constitute deliberate indifference because the necessity of the procedure “remains one of the most hotly debated topics within the medical community”). While the right to receive access to medical care does not displace a patient’s medical malpractice tort remedies, frequently the medical providers will be immune from tort actions. If a provider is a state or municipal employee, they can only be liable for medical malpractice if their conduct also “arises from the operation or use of a motor driven vehicle or motor driven equipment” or “a condition or use of tangible personal property.” TEX. CIV. PRAC. & REM. CODE § 101.021. In practice, these conditions will seldom be met and even gross malpractice can occur without providing the client any remedy. See, e.g., Tex. Dep’t of Crim. Justice v. Miller, 52 S.W.3d 583, 586 (Tex. 2001) (state immune from suit for medical malpractice caused by prescribing drugs that masked patient’s true condition). Qualified Immunity Police officers and prison officials are entitled to “qualified immunity” unless: 1) the officer violated the plaintiff’s constitutional rights, and 2) the right in question was clearly established. Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019) (en banc). Qualified immunity is a “judge-invented” doctrine that “strikes an uneasy, cost-benefit balance” between “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Cole v. Carson, 935 F.3d 444, 470 (5th Cir. 2019) (Willett, J., dissenting). “[T]he doctrine formalizes a
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rights-remedies gap through which untold constitutional violations slip unchecked,” as the “real world functioning of modern immunity practice” is “essentially “heads government wins, tails plaintiff loses.” Id. The core of the qualified immunity analysis is whether the right at issue is “clearly established.” Constitutional rights are “clearly established” by “controlling authority – or a robust consensus of cases of persuasive authority – that defines the contours of the right in question with a high degree of particularity.” Wigginton v. Jones, 964 F.3d 329, 355 (5th Cir. 2020). Government officials are only entitled to qualified immunity when “their conduct does not violate clearly established statutory or constitutional rights.” Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982). The purpose of the “clearly established” prong of the qualified immunity analysis is to ensure “that every reasonable official would have understood that what he [or she] is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (internal citations omitted). The right’s “contours must be sufficiently clear that a reasonable officer would understand what they are doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). “[I]n light of pre-existing law the unlawfulness must be apparent.” Hope, 536 U.S. at 739. A plaintiff, however, does not need to produce a case “directly on point” to demonstrate the law is clearly established, and the defense will not protect “officers who apply excessive and unreasonable force merely because their means of applying it are novel.” McCoy v. Alamu, 950 F.3d 226, 233 (5th Cir. 2020) (citing Newman v. Guedry, 703 F.3d 757, 764 (5th Cir. 2012)). The effect of the doctrine, however, is “letting public officials duck consequences for bad behavior – no matter how palpably unreasonable – as long as they were the first to behave badly.” Cole, 935 F.3d at 471 (Willett, J., dissenting). Qualified immunity makes civil rights litigation extremely difficult. “While this bar is not insurmountable, it is sky-high.” Cole, 935 F.3d at 471 (Willett, J., dissenting).
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Fees A successful civil rights plaintiff is entitled to recover a reasonable attorneys’ fee as part of the damages. 42 U.S.C. § 1988; Sanchez v. City of Austin, 774 F.3d 873, 880 (5th Cir. 2014) (“a district court not merely ‘may’ but must award fees to the prevailing plaintiff”) (emphasis in original). The potential for obtaining attorneys’ fees was put into the civil rights statutes “because Congress believed that the incentive of attorney’s fees was critical to the enforcement of the civil rights laws.” Id. (citing Hous. Chron. Publ’g Co. v. City of League City, Tex., 488 F.3d 613, 623 (5th Cir. 2007)). A client who can demonstrate that fees incurred by a criminal defense attorney were “a necessary prerequisite of his action to ‘enforce’ the protections of § 1983” is entitled to recover fees incurred in the criminal proceedings. Castellano v. Fragozo, 311 F.3d 689, 711 (5th Cir. 2002) rev’d on other grounds 352 F.3d 939 (5th Cir. 2003). Attorneys’ fees are calculated by determining the “lodestar” amount – the “number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work.” Jimenez v. Wood Cnty., Tex., 621 F.3d 372, 379-80 (5th Cir. 2010) rev’d on other grounds at 660 F.3d 841 (5th Cir. 2011) (en banc). When a lawyer might seek to recover attorneys’ fees, she should keep contemporaneous time logs, enumerating the amount of time spent on each task. See, e.g., Serafine v. Branaman, 2016 WL 6069184, *5 (W.D. Tex. Oct. 17, 2016) (Austin, Mag. J.). Michael Morton Act If your client (or you) believes there is a viable civil rights claim, you may want an experienced civil rights attorney to review the evidence to provide advice to the client when negotiating a plea. While the Michael Morton Act (TEX. CODE
OF
CRIM. PROC. § 39.14(e))
generally prohibits disclosure of evidence from discovery to “a third party,” discovery materials
12
can be provided to “consulting legal counsel” – such as a civil rights expert. The best practice to accomplish this would be to provide the civil rights attorney with an agreement not to disclose any discovery materials they review, similar to agreements that you utilize with other “investigator[s], expert[s], … or other agent[s] of the attorney representing the [criminal] defendant.” TEX. CODE CRIM. PROC. § 39.14(e). Conclusion Even given the great difficulty in litigating these claims, your clients have likely experienced numerous civil rights violations that warrant examination.
13
Texas Criminal Defense Lawyers Association
Post-Convictions Seminar October 29-30, 2020 Livestream
Topic: What Is a Sex Offense Under SORNA: Consequences Under Federal & State Law Speaker:
Richard Gladden 1200 W University Dr Ste 100 Denton, TX 76201-1754 940-323-9300 Phone 940-539-0093 Fax richscot1@hotmail.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
What Is a “Sex Offense” under SORNA? Legal Consequences under Federal & State Law. BY RICHARD GLADDEN INTRODUCTION Chapter 62 of the Texas Code of Criminal Procedure (“Chapter 62”) has basically three categories of offenses which may require a person to register as a “sex offender.” First, Texas has an enumerated list of offenses which will require a person to register if he is convicted or placed on community supervision for an offense that is committed in Texas which violates Texas law.1 Under Texas’ statutory scheme this list of offenses provides the clearest notice to criminal defense attorneys and their clients on whether registration will be required under the Texas Sex Offender Registration Program. I’ll refer to this category as the “enumerated” offense category. Second, Chapter 62 may require a person to register as a “sex offender” if the person has been convicted or placed on community supervision for an offense committed in another state, in violation of the laws of another state, when the offense contains elements that are “substantially similar” to the elements of an “enumerated” offense listed under Texas law.2 It is important to note that whether or not another state requires registration under its laws, after commission of an offense in violation the other state’s laws, is irrelevant to whether Chapter 62 requires registration in Texas for a “substantially similar” offense. Third, Chapter 62 may require a person to register as a “sex offender” under Texas law if, regardless of whether the offense qualifies as an “enumerated” or “substantially similar” offense
1 2
Article 62.001(5) (A), (B), (B-1), (C), (D), (E), (G), (J), (K), or (L), Texas Code of Criminal Procedure. Article 62.001(5) (H) and (I), Texas Code of Criminal Procedure. 1
under
Chapter
62,
the
offense
constitutes
an
“extrajurisdictional”
offense.3
An
“extrajurisdictional” offense is defined not by Texas law, but instead by the federal definition of the term “sex offense” as it appears in Title I of the Adam Walsh Child Protection and Safety Act of 2006, 34 U.S.C. §20911 (“Section 20911” or “§20911”), also known as the Sex Offender Registration and Notification Act (“SORNA”).4 The analyses for determining whether an out-of-state offense requires registration in Texas because it is “substantially similar” to an offense enumerated under Texas law (when an offense has been committed in another state), and whether an out-of-state offense constitutes a “sex offense” as defined by federal law under SORNA (and is thus an “extrajurisdictional” offense which requires registration under Texas law), frequently overlap. While “substantial similarity” analysis generally provides fertile ground for discussion in its own right, this paper will be confined to whether an out-of-state offense constitutes a “sex offense” as defined under federal law by SORNA, and whether it is therefore an “extrajurisdictional” offense that in turn requires registration under Chapter 62 (Texas law). The answer to what constitutes a “sex offense” as defined by federal law under SORNA has acquired greater significance recently. In the past few years several federal appellate courts have ruled SORNA imposes an “independent federal duty” to register and that such an “independent federal duty” may expose our clients to federal criminal liability more broadly than previously understood. In the past, the “independent federal duty” was interpreted narrowly to require a person to register under federal law only: 1) when the person arrived in Texas from 3
Article 62.001(10), Texas Code of Criminal Procedure. Section 20911(A) of SORNA provides its own definition of the term “sex offense,” and Texas law has adopted that definition specifically for purposes of defining “extrajurisdictional” offenses under Article 62.001(10), Texas Code of Criminal Procedure. Although SORNA technically delegates authority to the U. S. Secretary of Defense “to specify categories of offenses” in the Uniform Code of Military Justice that require registration, the Secretary must “to the maximum extent practicable” confine such “categories of specified offenses” to those “specified for Federal offenders” under SORNA. See, 10 U.S.C. Section 951 (note). 4
2
another state, or 2) when the person departed from Texas and traveled to another state. However, under the recently expanded definition of the “independent federal duty” to register, as adopted by several federal appellate courts, a person may also be required to register or update their registration information: 3) even when a person remains in Texas and does not “travel in interstate commerce” after their Texas convictions (or placements on community supervision) for an offense that is defined under federal law as a “sex offense” by SORNA. Here, the federal duty is “independent” in the sense that it does not depend on whether a person is required to register as a sex offender under Texas law. The General Federal Duty to Register Imposed by SORNA. Under “federal law” the requirement that certain persons register as “sex offenders” is governed by SORNA. Under SORNA a person is defined as a “sex offender” if he is a person who has been “convicted of a sex offense.”5 Except with regard to “foreign convictions” and “offenses involving consensual sexual conduct,” Section 20911(5)(A) of SORNA defines a “sex offense” as: (i) a criminal offense that has an element involving a sexual act or sexual contact with another; (ii) a criminal offense that is a specified offense against a minor; (iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of title 18; (iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105–119 (10 U.S.C. 951 note); or (iv) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).
5
34 U.S.C. §20911(1)(SORNA). 3
Additionally, Section 20911(7) of SORNA defines a “specified offense against a minor” to mean an offense against a minor that involves any of the following: (A) An offense (unless committed by a parent or guardian) involving kidnapping; (B) An offense (unless committed by a parent or guardian) involving false imprisonment; (C) Solicitation to engage in sexual conduct; (D) Use in a sexual performance; (E) Solicitation to practice prostitution; (F) Video voyeurism as described in section 1801 of title 18; (G) Possession, production, or distribution of child pornography; (H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; and, (I) Any conduct that by its nature is a sex offense against a minor. Who Determines Whether an Out-of-State Conviction is a “Sex Offense” as Defined by SORNA, and When Must this Determination be Made? Federal law contemplates that the determination of whether an offense constitutes a “sex offense” under SORNA will be made by a U.S. District Court at the time a person is convicted of a federal offense or placed on supervised release after commission of a federal offense, either after trial or as the result of a plea agreement.6 Similarly, in most state courts, including Texas State District Courts, the determination of whether an offense constitutes a “sex offense,” as defined by state law, is made at the time a person is convicted or placed on community supervision.7 6
18 U.S.C. §3583(d); United States v. Peebles, 296 F.3d 325, 327 (5th Cir. 2002)(“The district court was required by 18 U.S.C. § 3583(d) to make sex-offender registration a condition of Peebles’ supervised release”). 7 Texas Code of Criminal Procedure, Article 26.13(a)(5)(judicial notice of registration requirement prior to plea of guilty); Article 42.01, §1 (27)(judicial finding in judgment); Article 62.053(c)(judicial “risk level” determination). 4
An issue of federal constitutional dimension frequently arises when the Court of jurisdiction over an offense, in either federal or state court, fails to make the federal “sex offense” determination under SORNA at the time a person is convicted or placed under institutional supervision. For example, the federal sentencing guidelines provide that certain “mandatory” conditions of supervised release must be imposed on federal offenders. One of these mandatory conditions states that… “If the defendant is required to register under the Sex Offender Registration and Notification Act, the defendant shall comply with the requirements of that Act (see 18 U.S.C. § 3583(d)).”8 Unfortunately, as written this statement in the federal sentencing guidelines merely begs the question (is the defendant required to register?) and some U.S. District Courts do not make the determination of whether a federal offender has been convicted or placed on supervised release for an offense defined as a “sex offense” by SORNA. Instead, as the result of laziness or for some other reason, some U. S. District Courts merely “copy and paste” the passage from the sentencing guidelines quoted above and simply insert this passage verbatim as a written condition of a person’s supervised release. This is a common error and the effect of such a procedure is that a determination of whether the offender has been convicted or placed on supervised release for an offense defined as a “sex offense” by SORNA is left undecided by the Court and is instead delegated to other, non-judicial, authorities. Although likely unintended by Texas statutory law, the Texas Sex Offender Registration Bureau (“SORB”), which is a division of the Texas Department of Public Safety (“TxDPS”), currently interprets Texas law to include a delegation of decision-making authority that permits it to make the “sex offense” determination in the first instance, and to resolve disputed issues of 8
United States Sentencing Commission. Guidelines Manuel 2018, ch. 5, §5D.1(a)(7), p. 428 (eff. Nov. 1, 2018)(emphasis added). 5
fact necessary to make that determination.9 More remarkably, SORB also interprets Texas statutory law to delegate administrative authority that permits it to override “sex offender” determinations made by U. S. District Courts and Texas District Courts. For example, with regard to written judgments of conviction or orders placing a person community supervision entered under state law by Texas State District Courts, the trial court may include within such documents a provision that expressly states: “SEX OFFENDER REGISTRATION NOT REQUIRED BY CHAPTER 62, TEXAS CODE OF CRIMINAL PROCEDURE.” Yet SORB, on the advice of its “Managing Attorney,” currently gives no weight to such a finding by State District Courts. In my view, SORB’s decision to give no weight to such a finding by State District Courts rests on a plainly erroneous interpretation of Texas statutory law. The legal conclusion adopted by SORB, i.e., that it may disregard State District Court findings concerning whether a person is required to register under Texas law (based on an assertion that the person is an “extrajurisdictional” offender or otherwise), rests on its interpretation of Article 62.251 of the Texas Code of Criminal Procedure (“Article 62.251”). Article 62.251 governs when a person’s name and other identifying information must be removed from the Texas Sex Offender Registry and from the “computerized central database” that is maintained by TxDPS. Thus, Article 62.251 assumes a valid determination has already been made that a person is required to register, and the literal terms of Section 62.251 do not purport to delegate to SORB discretionary authority to make that determination in the first instance.
9
But cf., Rogers v. State, 226 A.3d 261, 264 (Md. 2020)(ruling Maryland’s Department of Public Safety “lack[s] authority to determine that the victim [of defendant’s offense] was a minor and to order registration”), pet. for cert. filed, No. 20-272 (U.S., Aug. 28, 2020). 6
The “Managing Attorney” for SORB, however, disagrees with the conclusion that Article 62.251 is confined to “removal” of a person’s name and other identifying information from the Texas Sex Offender registry and from the “computerized central database.” She has further concluded Article 62.251 has delegated administrative authority in SORB to override or countermand “sex offender” determinations made by U. S. District Courts and Texas District Courts. Article 62.251(b) provides in relevant part that when “the court having jurisdiction over the case for which registration is required requests removal” the TxDPS must still “determine” or independently “verify” that the person’s “duty to register has expired.” On this basis TxDPS and SORB have directed local Texas officials to require persons to register in defiance of judgments and orders entered by U. S. District Courts and Texas District Courts that expressly state the person is not required to register under either Texas law or SORNA.10 The existence of this audacious official policy, which assumes administrative authority to override judicial decisions, was publicly confirmed by the “Managing Attorney” for SORB, Jeanine Hudson, during her recorded appearance in Austin, on April 26, 2019, at a seminar sponsored in part by TCDLA.11 When asked by an audience member how long she would choose to remain in confinement for contempt of court as the result of her reliance on this policy, Ms. Hudson was unable to provide a coherent answer.12
10
19 Crime Records Service Newsletter, 6 (Texas Dept. of Public Safety, July-September, 2014)(“Statute requires that DPS verifies that the duty to register has completed [sic] before the person is removed from the registry.”); see also, TxDPS Form CR-33 (“IN ACCORDANCE WITH ARTICLE 62.251, TEXAS CODE OF CRIMINAL PROCEDURE, REMOVAL FROM THE SEX OFFENDER REGISTRY WILL NOT OCCUR UNTIL THE DEPARTMENT OF PUBLIC SAFETY VERIFIES THE RGISTRANT’S DUTY TO REGISTER HAS EXPIRED”). 11 What You Need to Know about Sexual Deregistration (TCDLA video, part 1, 9:00 a.m., April 26, 2019). 12 Ibid. 7
Federal Constitutional Violations that Arise from Trial Court Failures to Make “Sex Offense” Determinations under SORNA. In Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004), the United States Court of Appeals for the Fifth Circuit ruled that a person “who ha[s] not been convicted of a sex offense” as defined by statutory law “ha[s] a liberty interest created by the Due Process Clause in freedom from sex offender classification and conditions,” and that the Fourteenth Amendment prohibits the taking of that liberty interest by the State of Texas without procedural due process.13 On denial of a petition for rehearing in Coleman v. Dretke, supra, the Fifth Circuit further ruled that when the truth of allegations contained in an indictment for the offense of “sexual assault” has never been established “in a criminal trial or other proceeding,” it is “improper” to consider those alleged facts when determining whether the plaintiff has been deprived of procedural due process.14 Under those circumstances, the Court held, there would be “no basis for assessing the veracity” of facts alleged in the unproven indictment, and it would be impermissible for the Court to assume those facts “either true or false.”15 When a federal or state trial court has failed to make the federal “sex offense” determination under SORNA at the time a person is convicted or placed under institutional supervision, the SORB division as a matter of course makes that determination ex parte without first affording a person potentially subject to registration with prior notice or an opportunity to be heard. However, for more than 15 years U. S. District Courts in Texas have ruled SORB’s ex parte determinations that a person is required to register, in the absence of a prior judicial
13
Coleman v. Dretke, 395 F.3d 216, 222 (5th Cir. 2004). Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005)(on denial of rehearing). 15 Coleman v. Dretke, supra, 409 F.3d at 667. 14
8
determination of that question, violate procedural due process under the Fourteenth Amendment.16 Having apparently decided it prefers to incur and pay non-insignificant attorney’s fees awarded under 42 U.S.C. §1988 rather than comply with the U. S. Constitution, the State of Texas continues to make ex parte determinations concerning whether a person is required to register as an “extrajurisdictional” offender, without first affording the person potentially subject to registration either prior notice or an opportunity to be heard. In my view, the State of Texas’ open defiance of these U. S. District Court decisions and the Fifth Circuit’s decision in Coleman v. Dretke, supra should alone foreclose a person’s conviction for “failure to register” in violation of Texas law. Another violation of federal constitutional law may arise when a U.S. District Court that has sentenced a person fails to make a determination whether the offense constituted a “sex offense” as defined by SORNA. For purposes of federal supervised release, federal appellate courts have ruled such a determination may not be delegated to the U.S. Bureau of Prisons, a federal supervision officer, or any other federal official who is not “the Court.”17 Furthermore, at least one federal appellate court has ruled that, insofar as SORNA’s “sex offense” determination
16
Williams v. Ballard, 2004 WL 1499457 (N.D. Tex. June 18, 2004)(TxDPS’ placement of plaintiff “on its Internet website” without prior notice or an opportunity to be heard violated procedural due process)(not designated for publication); Creekmore v. Attorney General of Texas, 341 F. Supp. 2d 648, 658 (E.D. Tex. 2004)(procedural due process violated when TxDPS “determined, without any process at all” that plaintiff was required to register); Littlepage v. Trejo, No. 1:17-cv-190-RP, 2017 WL 3611773, *4 (W.D. Tex, Aug. 21, 2017)(not yet published)(“Plaintif[f] [Littlepage’s] evidence establishes that she was not afforded notice of the [TxDPS’] intent to impose registration requirements, nor was she afforded a predeprivation opportunity to challenge the designation….Defendants [Castillejo and McCraw] have not countered this evidence with anything tending to show that she received any process at all.”) 17 United States v. Rhone, 535 F.3d 812, 814-815 (8th Cir. 2012)(the “sex offense” determination cannot be delegated to a “probation office or the Board of Prisons” under 18 U.S.C. §3583(d)); Sealed Appellee v. Sealed Appellant, 937 F.3d 392, 400 (5th Cir. 2019)(“The imposition of a sentence, including the terms and conditions of supervised release, is a core judicial function that cannot be delegated”). 9
is involved, a delegation of that determination is prohibited by Article III of the U.S. Constitution.18 Thus, for purposes of a federal prosecution for failure to register,19 when a determination of a duty to register is not made by the U.S. District Court, but is instead made by an official with the U.S. Bureau of Prisons, a federal supervision officer, or any other federal official who is not “the Court,” such a determination may be invalid or insufficient to show a person has “knowingly” failed to register as required by Section 2250(a) after travel in interstate commerce.20 With regard to a state-court prosecution that alleges a person has failed to register as an “extrajurisdictional” offender, a prior administrative decision by SORB that the person is required to register on the basis of SORNA’s definition of the term “sex offense,” may similarly fail to establish a defendant’s “knowledge” of a duty to register under state law, or may fail to establish valid or sufficient notice, necessary to support a conviction under Texas law.21 The Analysis that Applies to “Sex Offender” Determinations under SORNA after a Trial Court Fails to Make the Determination. The “extrajurisdictional” sex offense determination under Chapter 62 requires consideration of whether an out-of-state offense, or a federal offense, constitutes a “sex offense” as defined by SORNA. This inquiry in turn requires comparison of the statutory “elements” of 18
United States v. Kent, 209 F.3d 1073, 1079 (8th Cir. 2000). 18 U. S. C. §2250. 20 The factual “knowledge” element of an offense under Section 2250(a), which necessarily must be proven for conviction, could be satisfied when a federal prosecutor proves the person was notified by state authorities in the state in which he resides that he was required to register under “state law” prior to departure from a state. Elkins v. United States, 683 F.3d 1039, 1050 (9th Cir. 2012); United State v. Whaley, 577 F.3d 254, 261-262 (5th Cir. 2009). Similarly, a federal prosecutor could prove at trial that the person was notified by state authorities that he was required by “federal law” to register information prior to his departure from his state of residence, and that form of notice could satisfy the “knowledge” element in a federal prosecution. This element of “knowledge,” however, would only include the defendant’s awareness of facts that are “true,” not those assumed to be true by unauthorized local officials. 21 Febus v. State, 542 S.W.3d 568, 573 (Tex. Crim. App. 2018)(ruling the offense of failure to register under Texas law “is a ‘circumstances of the conduct’ type of offense…[and] [t]he ‘circumstance’ at issue is the duty to register and the culpable mental state of ‘knowledge and recklessness’ applies…to the duty-to-register element.”). 19
10
the out-of-state offense or the federal offense, to the elements of a “sex offense” defined by SORNA. In another context, when determining whether an offense-of-conviction “has an element of” another offense the U.S. Supreme Court has adopted a doctrine that requires courts to determine, as a matter of statutory interpretation, whether Congress intended a “categorical” or a “modified-categorical” method of analysis to apply. Under “categorical” analysis courts are constrained to examine only the “generic” statutorily prescribed elements of an offense and thereby determine, without resort to extratextual sources, whether a defendant’s offense-of-conviction necessarily establishes his commission of the generic statute.22 In contrast, under “modified-categorical” analysis, when a defendant has been convicted for violating a “divisible” statute (which contains more than one basis or means for conviction) courts may examine a “limited class of documents” to determine, if possible, which of multiple offenses within a “divisible” statute the defendant was convicted.23 Then, if a court can ascertain which among the multiple offenses in a “divisible” statute actually formed the basis for the defendant’s conviction (by examination of a limited class of documents related to the defendant’s offense-of-conviction), the court, with that more particularized knowledge, must compare the known basis for the defendant’s conviction to the “generic” elements of the hypothetical “other” offense.24 With regard to the “limited class of documents” to which a court may resort when applying the modified-categorical analysis, the Supreme Court has ruled courts are “generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the
22
Shepard v. United States, 544 U.S. 13, 16 (2005). Descamps v. United States, 570 U.S. 254, 257 (2013). 24 Id., 570 U.S. at 262-263. 23
11
defendant assented.”25 When applying the modified-categorical approach, courts may not “look to police reports or complaint applications” to determine whether a defendant’s guilty plea “necessarily admitted,” or whether factual circumstances would have supported, a conviction for the generic offense.26 When distinguishing the “modified-categorical” analysis from the “categorical” analysis, the Supreme Court has stated: “We have previously approved a variant of this [categorical] method—labeled (not very inventively) the ‘modified categorical approach’—when a prior conviction is for violating a so-called ‘divisible statute.’ That kind of statute sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.”27 In Descamps v. United States, supra, the Supreme Court distinguished “divisible” from “indivisible” statutes, and ruled that “sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.”28 The Court further ruled that, under a “categorical” analysis, an offense-ofconviction may qualify as a basis for enhancement only if the offense-of-conviction has “elements” that “are the same as, or narrower than, those of the generic offense.”29 For example, when the offense for which the defendant was convicted does not depend on the age of any
25
Shepard v. United States, supra, 544 U.S. at 16. Id., 544 U.S. at 16. 27 Descamps v. United States, supra, 570 U.S. at 257 (italics in original). 28 Id., 570 U.S. at 258 (italics added). 29 Id., 570 U.S. at 257. 26
12
alleged victim its elements are not “narrower than” a “generic” offense wherein the age of a victim is an element of the generic offense. In the context of determining whether a prior offense may be considered to “enhance” a defendant’s sentence for commission of a subsequent offense, the Supreme Court has ruled a “categorical” analysis must be applied. Thus, when applying 18 U.S.C. § 924(e), sentencing courts “must look only to the statutory definitions of the prior offens[e],” and they may not “consider other evidence concerning the defendant’s prior crim[e].” Taylor v. United States, 495 U.S. 575, 600 (1990), citing with approval, United States v. Vidaure, 861 F.2d 1337, 1340 (5th Cir. 1988), cert. denied, 489 U.S. 1088 (1989). As a practical matter determination of whether a person has committed an offense that requires the person to register must either be made by a trial court that presided at the person’s criminal trial, or it must be delegated by the trial court to another arbiter of fact after the person has been convicted. If a full-blown trial has preceded a person’s potentially triggering conviction, the trial court, on the basis of evidence admitted at that trial, is enabled to apply a “fact-specific” analysis to determine whether the conviction qualifies as an offense which requires registration. On the other hand, when a person’s potentially triggering conviction is the result of the person’s plea of guilty, and a trial court does not have the benefit of a full trial record to make the determination, the trial court may apply a “modified-categorical” analysis. In this context a trial court’s determination of whether a person’s conviction constitutes an offense that requires registration must be confined to consideration of “the statutory definition, charging document,
13
written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”30 If a trial court does not itself make a determination that a conviction requires registration and instead delegates that task to another arbiter a different constitutional dynamic would arise. When a “subsequent arbiter” (for lack of a better name) is delegated authority to make an extrajudicial determination of whether a conviction requires registration, the subsequent arbiter, as a practical matter, must apply either a “categorical,” a “modified categorical” or a “factspecific” analysis when making the determination. If the statute-of-conviction contains an “indivisible set of elements,” the subsequent arbiter, like a sentencing court, “may not apply the modified categorical approach.”31 Conversely, when the statute-of-conviction contains a “divisible set of elements” whereby the “sex offense” determination depends on which of two (or more) means of committing an offense may hypothetically qualify as a conviction requiring registration (with one means requiring registration and another not), a different method of analysis must be applied. In this latter situation a subsequent arbiter, like a sentencing court, may apply the “modified categorical approach” confined to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”32 When neither a “categorical” analysis, nor a “modified categorical” analysis (if applicable), establishes that a person’s conviction requires registration, the subsequent arbiter is left with only one option: the option, if appropriate and permissible, to conduct a “fact-specific” analysis to determine whether the person’s conviction requires registration. When a subsequent 30
Shepard v. United States, supra, 544 U.S. at 16. Descamps v. United States, 570 U.S. 254, 258 (2013)(emphasis added). 32 Shepard v. United States, supra, 544 U.S. at 16. 31
14
arbiter, unlike a trial court, has not personally heard testimony or received evidence at an adversarial proceeding, an ex parte determination by the subsequent arbiter clearly presents an intolerably high, and unconstitutionally unacceptable, risk of an erroneous determination.33 That is not to say that an intolerable risk of an erroneous deprivation would not also be presented were the subsequent arbiter to apply a “categorical” analysis, or a “modified categorical” analysis (if applicable), without first affording a person whose liberty is at stake an opportunity be heard. Given the relative complexity of those arguably more objective inquiries, an adversarial proceeding would also significantly diminish the risk of an erroneous deprivation.34 For example, when procedural protections are afforded at an adversarial proceeding, such as when a “sex offense” determination is judicially made for the first time at a criminal proceeding detached from a person’s original conviction (such as when a person is criminally accused of failing to register); or at a civil proceeding to resolve a plaintiff’s claims under 42 U.S.C. §1983 (i.e., claims by the plaintiff that he was unconstitutionally required to register as the result of extrajudicial procedures); the attendant procedures deployed obviously reduce the risk of an erroneous deprivation substantially. An open question exists concerning whether, as a matter of Texas statutory law, a “modified categorical” analysis may be applied to determine whether an offense constitutes a “sex offense” under SORNA. In its opinion in United States v. Shepard, 880 F.3d 734 (5th Cir. 2018) the Fifth Circuit observed the decision of the Texas Court of Appeals in Texas Department of Public Safety v. Anonymous Adult Texas Resident, 382 S.W.3d 531 (Tex. App. - Austin 2012, 33
The relative “risk of an erroneous deprivation” of liberty is the second analytical factor relevant to determining the constitutional adequacy of procedural due process, as described in Mathews v. Eldridge, 424 U.S. 319, 335 (1979). 34 The Supreme Court has recognized that participation of effective legal counsel at contested administrative hearings, whether retained or not, may serve to reduce the risk of an erroneous determination when disputed issues are “complex” or when an unrepresented party would likely be unable to speak effectively for himself. Gagnon v. Scarpelli, 411 U.S. 778, 790-791 (1973). The utility of counsel’s personal appearance, for purposes of assuring procedural due process is satisfied, is particularly evident when a “sex offense” determination depends on legal analysis. 15
no pet.) pretermitted its own authority to “remove [its] blinders and review the [defendant’s] underlying conduct.”35 The Texas Court of Appeals’ decision in Anonymous Adult Texas Resident, however, was limited to the question of whether the defendant’s out-of-state conviction was “substantial similar” to an offense that required registration under Texas statutory law.36 Nonetheless, the Texas Court of Criminal Appeals’ decision in Crabtree v. State, 389 S.W.3d 820 (Tex. Crim. App. 2013) discloses SORB’s administrative decision, both with regard to “substantial similarity” and independently with regard to whether a person’s offense qualifies as an “extrajurisdictional” offense, are each governed by Article 62.003 of the Texas Code of Criminal Procedure (“Article 62.003”).37 Moreover, there appears to be no rational basis to conclude on the one hand, as a matter of Texas statutory law, that modified-categorical analysis may not be applied to determine whether a defendant’s out-of-state conviction is “substantial similar” (as the Texas Court of Appeals ruled in Anonymous Adult Texas Resident, supra); but on the other hand that, under the same statute (Article 62.003) a modified-categorical analysis may be applied to determine whether a person qualifies as an “extrajurisdictional registrant.” Thus, insofar as Texas statutory law controls the method of analysis that must be applied to determine whether a person qualifies as an “extrajurisdictional registrant,” it seems likely a modifiedcategorical analysis, at least generally, may not be applied to determine whether an out-of-state offense qualifies as a “sex offense” as defined by SORNA.
35
United States v. Shepard, supra, 880 F.3d at 746. Texas Department of Public Safety v. Anonymous Adult Texas Resident, supra, 382 S.W.3d at 534. 37 Crabtree v. State, supra, 389 S.W.3d at 827 (“the [Texas] Legislature intended for DPS to decide whether extrajurisdictional convictions are reportable convictions or adjudications” under Article 62.003); compare, Rogers v. State, supra, 226 A.3d at 264 (ruling Maryland’s Department of Public Safety “lack[s] authority to determine that the victim [of defendant’s offense] was a minor and to order registration”). 36
16
The Recently Broadened “Independent Federal Duty” to Register Directly under SORNA. Congress first enacted legislation concerning sex offender registration in 1994 under the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (“Wetterling Act”).38 As explained by the U.S. Supreme Court in United States v. Kebodeaux, 570 U.S. 387 (2013), when Congress enacted the Wetterling Act it exercised its “Spending Clause” power, and the act was designed to encourage states to require their residents to register after conviction for certain enumerated offenses or “any other offense designated by the Attorney General as a sexual offense.”39 The Wetterling Act provided that the power to enforce registration requirements, including the authority to launch criminal prosecutions for failure to register, would reside exclusively with the several states and not with federal authorities. In 2006 Congress replaced the Wetterling Act with SORNA and added a federal criminal enforcement provision for the first time.40 When doing so, Congress relied upon its Commerce Clause power that was delegated to it under Article I, § 8, cl. 3 of the U. S. Constitution. On this basis Congress in SORNA permissibly created a federal duty (and a corresponding criminal penalty for its breach) that is applicable to certain persons who “travel in interstate commerce.”41 This federal duty requires a person defined as a “sex offender” by SORNA to register within three business days after arrival in a state other than the state of their residence,42 if or when their activities involve “commerce” (i.e., establishment of a new residence, employment, or enrollment as a student).43 A federal constitutional question has arisen, however, concerning
38
Pub. L. No. 103–322, Sections 170101– 70303, 108 Stat. 1796, 2038–45 (1994). United States v. Kebodeaux, supra, 570 U.S. at 391-392, citing 42 U.S.C. §14072(i)(3) and 18 U.S.C. §4042(c)(4). 40 18 U.S.C. § 2250(a)(“Section 2250(a)”). 41 Section 2250(a)(2)(B). 42 34 U. S. C. § 20913(c)(“Section 20913”). 43 Section 20913(a). 39
17
whether the “federal duty” to comply with SORNA arises before, or only after, a person has traveled across a state line, i.e., “interstate.” As recently exemplified by the Sixth Circuit’s decision in Willman v. Attorney General of the United States, --- F.3d ---, 2020 WL 5033039 (6th Cir., Aug. 3, 2020)(not yet published), several federal appellate courts (other than the Fifth Circuit) have ruled as a matter of statutory interpretation that SORNA’s requirements impose a “federal duty” that was intended by Congress to apply to individuals “independently” of any state-law requirements.44 While I disagree for a variety of reasons with federal decisions that have reached this conclusion as a matter of statutory interpretation, I even more fervently believe such an “independent federal duty” is unconstitutional. The basis for my belief rests on the conclusion that such an “independent federal duty,” when applied to an individual, would exceed the scope of any enumerated power delegated to Congress under Article I of the U. S. Constitution. The personal liberties at stake, which depend on the answer to this constitutional question, are not insignificant. The Supreme Court has cast doubt on the notion that, in the absence of “interstate” travel by a person convicted for a sex offense under state law, SORNA imposes an “intrastate” federal duty to register that is independent of the laws of the person’s state of residence. In Carr v. United States, 560 U.S. 438 (2010), for example, the Court was presented with the question of whether Section 2250 applies to sex offenders whose interstate travel occurred prior to the effective date of SORNA in 2006.45 While the defendant in Carr v. United States had engaged in interstate travel prior to 2006, the Court nonetheless took the occasion to more broadly express its views concerning the scope of the federal duty to register imposed by SORNA. In this 44 45
Willman v. Attorney General of the United States, supra, 2020 WL 5033039, at *3. Carr v. United States, supra, 560 U.S. at 441. 18
connection, the Court observed that Section 2250 has “three elements” and that “the statute’s three elements must be satisfied in sequence.”46 As the basis for this conclusion the Court further stated: “A sequential reading…helps to ensure a nexus between a defendant’s interstate travel and his failure to register as a sex offender. Persons convicted of sex offenses under state law who fail to register in their State of conviction would otherwise be subject to federal prosecution under § 2250 even if they had not left the State after being convicted-- an illogical result given the absence of any obvious federal interest in punishing such state offenders.”47 Thus, under the Supreme Court’s interpretation of Section 2250 in Carr v. United States, supra, Congress intended Section 2250 to apply only to “persons required to register under SORNA over whom the Federal Government has a direct supervisory interest,” or to persons “who threaten the efficacy of [SORNA’s] statutory scheme by traveling in interstate commerce.”48 The Supreme Court subsequently echoed this interpretation of Section 2250(a) in Reynolds v. United States, 565 U.S. 432 (2012), wherein the Court interpreted the phrase “whoever… is required to register under [SORNA],” as stated in Section 2250(a), to be limited to “federal sex offender[s]” or “nonfederal sex offender[s] who trave[l] in interstate commerce.”49 On August 13, 2020, the U.S. Justice Department (“Justice Department”) issued a Notice of Proposed Rulemaking (“NPR”), Docket No. OAG 157 (AG Order No. 4759–2020), for the purpose of amending regulations designed to implement SORNA. The Attorney General of the United States (“Attorney General”) when issuing the NPR invoked legislative authority delegated to him by Title 34 U.S.C. § Section 20912(b)(Pub. L. 109-248, title I, §112, July 27, 2006, 120 Stat. 593). The period for public comment on the proposed new regulations is 46
Carr v. United States, supra, 560 U.S. at 446. Id., 560 U.S. at 441 (emphasis added). 48 Id., 560 U.S. at 453 (emphasis added). 49 Reynolds v. United States, supra, 565 U.S. at 435 (emphasis added). 47
19
scheduled to expire on October 13, 2020, and, at the time of this writing, the proposed new regulations have not been formally adopted in a “final rule” published by the Justice Department. The legal premise of the Attorney General’s proposed new regulations, like the federal appellate court decisions referenced above, is that it assumes there is an unqualified intrastate “federal duty” to comply with SORNA that may be imposed on all persons convicted of statelaw offenses in state courts regardless of whether the person has “traveled in interstate commerce.” Among other provisions, the proposed regulations would require a person who has committed a “sex offense” as defined by SORNA, but who has not traveled across any state line (that is, a person who has not engaged in “interstate travel”) to register with state authorities such things as the “license plate number” and “description” of any “watercraft and aircraft” that is “owned or operated” by the person, as well as “[i]nformation concerning all licensing” that authorizes the person “to engage in an occupation or carry out a trade or business.”50 The constitutional problem with the aforementioned regulations is that, as proposed by the Attorney General, the regulations exceed any “enumerated power” vested in Congress. Under the proposed regulations a person who would fail to disclose and register his boat, aircraft or occupational license information with state sex offender registration authorities before departing a state and traveling to another state would be criminally liable under federal law for his failure to do so before departing. This would be true even when the state from which a person has departed does not require that information to be reported. Moreover, while the literal text of SORNA allows a person “three business days” to comply with SORNA’s registration requirements after arriving in a state,51 the person’s failure to report and register his boat, aircraft or occupational license information to state authorities in his state of departure, before 50
Registration Requirements under SORNA, 85 Fed. Reg. 49332, 49353-49354 (August 13, 2020)(proposed rule §§72.6(f) and (g)). 51 Section 20913(c). 20
leaving, would automatically establish federal criminal liability without the benefit of the “three business day” rule expressly provide by statute. As a matter of statutory interpretation the Attorney General’s proposed regulations concerning federal duties that may be imposed in the absence of interstate travel is more than dubious. It is flagrantly in error.52 The primary constitutional obstacle with these proposed regulations, however, is that Supreme Court precedents under the Commerce Clause “recognize Congress’s power to regulate ‘class [es] of activities,’ not classes of individuals, apart from any activity in which they are engaged.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 556 (2012)(separate opinion per Roberts, C.J.)(emphasis in original)(Part III-A). A person’s “status” as an individual who has previously been convicted of a sex offense, of course, does not alone establish the person is engaged (or will engage) in interstate commerce. Just as “possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce,” United States v. Lopez, 514 U.S. 549, 567 (1995); a person’s mere status as a state sex offender “is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.”53 Apart from the Commerce Clause, Congress has also been delegated authority to “make all Laws which shall be necessary and proper for carrying into Execution” those powers which have been expressly enumerated by the U.S. Constitution.54
Analysis of whether an intrastate
duty under Section 20913(a) may constitutionally be imposed pursuant to the “Necessary and Proper Clause,” upon persons who have not engaged in interstate commerce, depends on whether 52
Nichols v. United States, 578 U.S. ---, 136 S. Ct. 1113 (2016)(ruling that, with the exception of “International Megan’s Law,” SORNA does not impose an “intrastate” federal duty upon individuals to report registration information prior to departing a state). 53 United States v. Lopez, supra, 514 U.S. at 567. 54 U. S. Const., Art. I, § 8, cl. 18 (“Necessary and Proper Clause”). 21
Section 20913(a) is “necessary and proper for carrying into Execution” powers that have been expressly “enumerated” by the U.S. Constitution. In other words, the Necessary and Proper Clause “is not itself a grant of power, but a caveat that the Congress possesses all the means necessary to carry out the specifically granted ‘foregoing’ powers of § 8 ‘and all other Powers vested by th[e] Constitution.’” Kinsella v. United States ex rel Singleton, 361 U.S. 234, 247 (1960). The Commerce Clause is an “enumerated” power under the U.S. Constitution but it does not directly confer upon Congress the power to enact Section 20913(a) so as to impose upon persons an “intrastate” federal duty to register information solely upon the basis of their status. A federally imposed intrastate duty to register, as would be imposed by some of the Attorney General’s proposed regulations,55 cannot be sustained under the Necessary and Proper Clause unless Section 2250(a) itself, as applied to a person’s “intrastate” conduct or status, is authorized by Congress’ Commerce Clause power. And it clearly is not in the absence of interstate travel. CONCLUSION Ascertaining whether a duty to register as a sex offender is imposed on our clients, depending on whether they have been convicted or placed on community supervision for a “sex offense” as “enumerated” under Chapter 62, is complicated enough. When the answer to that question depends on whether a client is an “extrajurisdictional” offender, however, the answer becomes even more complicated because the answer depends on whether SORNA, and not Texas law, defines the offense as a “sex offense.” The process during which the federal “sex offense” determination under SORNA has been made frequently raises questions involving procedural due process under the Fourteenth 55
E.g., Registration Requirements under SORNA, supra, 85 Fed. Reg. at 49353-49354 (proposed rule §§72.6(f) and (g)). 22
Amendment. Against this background, our current U. S. Attorney General, William P. Barr, seems intent on expanding the duty to register under federal law beyond constitutional and even the statutory limits established by Congress. Under these circumstances it is imperative that Texas criminal defense lawyers become acquainted with not only Chapter 62, but also with the duties that are, and those that are not, validly imposed by Congress under SORNA. When in doubt, I’d advise Texas criminal defense attorneys to reach out to others who may be more familiar with SORNA, in the same way many of us wisely consult our colleagues when in doubt about the consequences of a plea or conviction in relation to U. S. immigration law. *****
23
Texas Criminal Defense Lawyers Association
Post-Convictions Seminar October 29-30, 2020 Livestream
Topic: Expunctions & Nondisclosures Speaker:
Dorian Cotlar 14201 Memorial Dr Houston, TX 77079-6731 713-522-9444 Phone 713-524-2580 Fax dcotlar@hanszenlaporte.com www.hanszenlaporte.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
A brief overview of expunctions and petitions for non-disclosure in The Lone Star State
Why this topic? Disclaimer Expunctions Petitions for Non-Disclosure Questions – not today, but you can call or email me.
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
2
Chapter 55 Tex. Code Cr. Procedure. This talk does not cover Class C or identity theft expunctions. The event is deemed never to have happened. A District Court judge signs an order requiring all listed agencies to physically destroy all records relating to the arrest, trial (if applicable), disposition, etc. of the case. Petitioner can legally lie. Non-Citizens be careful. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
3
Acquittal – assuming that there are no additional charges arising out of the same criminal episode.
Mandatory – “Shall”.
Pardon. (Yeah, right.) Court of Criminal Appeals acquittal.
Discretionary – “May”.
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
4
This is the most common type of expunction – and the one that generates the most confusion. Basic requirements:
The Indictment or Information was dismissed; The Petitioner has been released without either a final conviction or court-ordered supervision; and Applicable waiting period has elapsed. PTI/PTD is NOT court-ordered supervision.
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
5
Misdemeanors – one year from arrest (MA & MB), 180 days for MC. Art. 55.01(a)(2)(A)(i)(a)&(b). Felonies – three years from arrest. Art. 55.01(a)(2)(A)(i)(c). PTI/Veterans Court – no wait post-dismissal upon successful completion. Art. 55.01(a)(2)(A)(ii)(a)&(b). No PC, mistake, false information, etc. – no wait. Art. 55.01(a)(2)(A)(i)(c). No longer have to wait for SOL to expire. Art. 55.01(a)(2)(A). But talk to the DA’s Office about getting it done sooner. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
6
Must be granted by a District Court Judge – Criminal or Civil depending on when filed. If an acquittal, trial court judge retains jurisdiction for 30 days in District Court. County Court judges can’t grant an acquittal expunction. Municipal and Justice Court judges can now grant them. Art. 55.01(b). Filing fee waived for acquittals if filed within 30 days.
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
7
Considered a civil matter, despite the obvious connection to criminal law. Petitioner has BOP to prove eligibility. File a Petition and Order. Petition must be verified and include information listed in Art. 55.02 or explain why information is absent Order needs to include every agency that you want included. Each agency is considered a Respondent. DPS will frequently be more of a hassle than the DAO. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
8
Each Respondent has a right to agree, oppose and/or participate in the hearing. Procedure in most larger counties:
DAO makes it easy for you; If DAO is not opposed, other agencies generally will not be either; DPS exception for DWIs. Beyond the scope of this
discussion. DPS objections – “arrest” vs. “charge” based approach.
Rarely goes to a hearing. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
9
A person is eligible for expunction if they have successfully completed a Veteran’s Treatment Court Program.
No waiting period for these folks!!!!! Get these people into these programs whenever possible.
A person who receives an expunction from completion of Veteran's Treatment Court Program will not pay any fee or be assessed any other cost for the expunction. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
10
In the last three years there have been about 170 appellate decisions. We’re going to focus – briefly – on five of them. “Arrest” based vs. “Charge” based approach to expunctions. What does that mean?
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
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Position that an expunction should only be granted when every case stemming from that arrest qualifies for expunction. Under this approach, it is irrelevant whether the offenses are related or arose out of the same “criminal episode”. DPS and (historically) DAOs have argued for this citing the “record keeping” problems with redacting arrest records. They don’t want to expose State employees to a Class B misdemeanor. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
12
Dudley Doright is arrested for an Aggravated Assault – Public Servant. When he is arrested, he also has a warrant for a UUMV from a year ago. It is totally unrelated to the Aggravated Assault. He pleads guilty to the Aggravated Assault. The UUMV is dismissed. Under the Arrest-Based approach, he would not be able to get the UUMV expunged because he plead on the Aggravated Assault and was arrested at the same time. What do we call this? Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
13
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
14
Position that an expunction should be granted when each charge qualifies for expunction, regardless of arrest date. Under this approach, offenses that do not arise out of the same “criminal episode” that are eligible for expunction can be expunged even if arrest date for unrelated offenses is the same. From the previous example, Dudley would be eligible for an expunction of the UUMV assuming all other conditions are met. What do we call this? Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
15
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
16
547 S.W. 3d 617, Texas Supreme Court (2018). Clarification FINALLY!!!! Well, sort of… This is a Collin County case (of course). T.S.N. had an open warrant for Theft by Check. On 6/11/2013, she was arrested for Aggravated Assault. She was also taken into custody for the old, open warrant. She plead to the Theft by Check but was acquitted on the Aggravated Assault. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
17
Collin County DAO and Texas DPS (Amicus Curiae) argued (with a straight face, ostensibly) that TSN should not be able to have her Aggravated Assault arrest expunged because she was arrested for the Theft by Check at the same time and was convicted of that offense. They go all in for an “arrest” based approach, essentially arguing, “it’s all or nothing.” The Texas Supreme Court points out that neither they nor any courts of appeals have specifically addressed whether 55.01(a)(1) is charge- or arrest-based. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
18
“To the extent the courts of appeals have stated that article 55.01 is entirely arrest-based, we disagree. Article 55.01 is neither arrest-based or offense-based.” “We recognize that there are…difficulties posed by partial expunctions[.] But given the Legislature’s [intent], the arguments of the State and DPS do not convince us.” This was the right holding for all of the right reasons. Refreshing bit of clarity on a long-debated issue.
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
19
552 S.W.3d 376, 14th COA (2018). Decided just after T.S.N. Almost the same scenario, but she plead on one case and another was dismissed (not an acquittal). The winners at DPS tried AGAIN to have the court deny the Petition for Expunction. They argued that T.S.N. only dealt with an acquittal 55.01(a)(1) and that the same argument should not be made for an expunction under 55.01(a)(2) – dismissal. The 14th COA disagreed and applied the Court’s holding in T.S.N. to grant relief. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
20
I include this only to illustrate what it means for charges to arise out of the same “criminal episode”. D was arrested for Injury to a Child (felony – two counts) and Assault – FV (misdemeanor). One felony count was dismissed, one felony count was reduced to a misdemeanor and the misdemeanor was dismissed. The TC inexplicably granted an expunction on ALL 3 cases. Petitioner conceded that he was not eligible for an expunction of the reduced charge, but argued that he was eligible for expunctions on the other two. Of course he wasn’t. All three offenses arose out of the same incident (and arrest). He plead on one of them. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
21
602 S.W.3d 486, Supreme Court of Texas (2020). D gets a DADJ for Online Solicitation of a Minor. That statute is later found to be unconstitutional (Ex Parte Lo). D files a writ, gets relief, case is dismissed. DPS fights the expunction petition. Argues that D not entitled because the DADJ constituted “court-ordered community supervision”. This – despite the fact that the law was unconstitutional on its face. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
22
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
23
It was a nearly unanimous decision. Cited US Supreme Court precedent going back to 1880. Except for… Justice Jimmy Blacklock. Dissent almost as long at the opinion. Don’t read the dissent unless you need justification for why 40-year old civil lawyers shouldn’t sit on the State’s highest court and rule on criminal matters. And take him off of your Holiday card list. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
24
What is it? What does it do? Who is entitled? Who is not entitled? Procedure CYA
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
25
Previous distinctions between Deferred Adjudication (DADJ) and “straight” probation on misdemeanors are no longer important. In 2003 a law was passed that restricted the disclosure of records of certain defendants who successfully complete their DADJs. That law has now been expanded to include misdemeanor “straight” probation and misdemeanor convictions resulting in jail time – under certain circumstances. 2017 changes are quite remarkable. Felony straight PROBATION still not eligible for PND. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
26
Upon signing of an order of non-disclosure, law enforcement and background check companies are prohibited from disseminating any information about criminal history to the general PUBLIC and PRIVATE entities. There are lots of exceptions. Not an expunction, but the next best thing. www.txcourts.gov.
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
27
PNDs used to be discretionary. Old Tex. Gov’t Code Sec. 411.0725(d). Court must hold a hearing on whether or not Petitioner is entitled; and Whether the issuance of the order is in the best interest of justice. Under the new statute, the court shall grant the PND with most misdemeanors. No requirement for a hearing or “best interest of justice” finding on the most common misdemeanors. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
28
Effective 9/1/15. IS retroactive. Does not apply to any alcohol-related offense (Chapter 49 TPC), but relief is available. Does not apply to any Organized Crime offense (Chapter 71 TPC).
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
29
ď&#x201A;¨
A person is not entitled to a PND on any case if they were ever placed on community supervision or has been previously convicted of the following: Any offense requiring registration as a sex offender. 2. Aggravated Kidnapping. 3. Murder. 4. Capital Murder. 5. Trafficking of persons 6. Injury to a Child/Elderly/Disabled. 7. Abandoning/Endangering a Child. 8. VPO. 9. Stalking. 10. Any other offense involving family violence. 1.
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
30
ď&#x201A;¨
There is nothing in the 2015 or 2017 changes that allow for the granting of a PND when there is an Affirmative Finding of Family Violence.
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
31
READ THE LAW!!!!!!!! Felonies – 5 years after the community supervision ends. Most Misdemeanors: As soon as practicable on or after 180th day after granting of DADJ, if discharge and dismissal occurred before that date. Put simply, DADJs less than 180 days don’t move up eligibility.
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
32
Misdemeanors with a two-year waiting period:
Offenses found in the following chapters of the Texas Penal Code: Chapter 20 Kidnapping, Unlawful Restraint & Smuggling of Persons -
(Unlawful Restraint)
Chapter 21 Sexual Offenses - (Public Lewdness, Indecent Exposure) Chapter 22 Assaultive Offenses - (Assault, Deadly Conduct, Terr. Threat, Aiding Suicide, Leaving a Child in the Car) Chapter 25 Offenses Against the Family - (Enticing a Child, Criminal Nonsupport, Harboring a Runaway, VPO, Advertisement for Placement of Child, etc) Chapter 42 Disorderly Conduct and Related Offenses - (Disorderly Conduct, Obstructing a Highway, Disrupting Meeting or Procession, Funeral Service Disruptions, False Alarm or Report, Harassment, Abuse of Corpse, Animal Cruelty, Dog Fighting, Cockfighting, Use of Laser Pointers, etc. Chapter 43 Public Indecency - (Prostitution, Promotion of Prostitution, Obscene Display or Distribution, Obscenity, Sale Distribution or Display or Harmful Material to Minor, Electronic Transmission of Certain Visual Material Depicting Minor) Chapter 46 Weapons - (Unlawful Carrying Weapons, Unlawful Possession of Firearm, Unlawful Possession of Metal or Body Armor by Felon[(a)(2)], Unlawful Transfer of Certain Weapons, Hoax Bombs, Making Firearm Accessible to a Child) Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
33
“The first thing we do, let’s kill all the lawyers.” Bill Shakespeare, Henry VI New law for people put on DADJ after 9/1/17 for certain non-violent misdemeanors. The court is supposed to determine if you qualify and to issue an order of non-disclosure. Fee is $28. New procedure is designed for folks to be able to do this without hiring a lawyer and spending several hundred dollars in filing fees.
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
34
Immediate Eligibility: Completion of Misdemeanor Community Supervision for “typical” misdemeanors (theft, weed, criminal mischief, misdemeanor possession, e.g.). Two Year Wait: Completion of Misdemeanor Community Supervision for Unlawful Restraint, Indecent Exposure, Assaults, Disorderly Conduct, Weapons offenses. Five Year Wait: On or after the 5th anniversary of discharge and dismissal on a felony DEFERRED only. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
35
First time ever that there has been relief for folks convicted of alcohol-related driving offenses. Must be a Class B (under .15) and no accident associated with arrest. Must SUCCESSFULLY complete probation. No other criminal history. TWO year waiting period if person had an interlock for at least six months. Five-year period if no interlock ordered or order was for less than six months. Get your client a GI even if it’s not required. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
36
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
37
Designed to give relief to folks who either had their probation REVOKED and served jail time; OR, just served jail time. There are waiting periods: If you had an interlock on for six months, you can apply after three years, even though your probation was revoked. If you did not have an interlock, waiting period is five years. Must be a Class B (less than .15) and NO accident. So get a GI with your ODL even if the judge doesn’t require it. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
38
The State of Texas vs. S.M., 2019 WL 1186799, COA Ft. Worth (unpublished). Must read for DWI practitioners. D arrested for Class A DWI (>.15). Worked out a plea bargain for a Class B. Got 20d confinement. Filed for an ODL and had GI as part of ODL. Judge granted PND over State’s objection. PND was actually filed prematurely, but State didn’t catch it and didn’t object at TC. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
39
The State argued that S.M. was not entitled to the PND because he was arrested for DWI >.15. COA noted that the offense of conviction controls, not the offense of arrest. Smart move to get the GI – whether required or not. Judge granted this thing prematurely, but State didn’t raise it at the TC, so it was deemed waived. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
40
How did the State even have the ability to appeal the TC’s granting of the PND? Defense counsel made the argument that the State could not appeal the decision. Probably anticipating that, the prosecutor asked the petitioner if having the PND granted would be “worth more than $250” to the petitioner. The petitioner answered, “absolutely.” Wrong answer! COAs are finding that they have jurisdiction to hear PND appeals when the amount in controversy (not including the filing fee) exceeds $250. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
41
This gets back to “straight probation” vs. “deferred adjudication”. People now eligible even with “straight” probation. Not eligible if probation was REVOKED or not completed SUCCESSFULLY. If revoked, there’s still a remedy, but the waiting period is longer. Waiting periods are the same as for deferred adjudication (either none or two years). Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
42
Effective 9/1/15. IS retroactive. Does not apply to any alcohol-related offense (Chapter 49 TPC). We already covered that. Does not apply to any Organized Crime offense (Chapter 71 TPC). Must be a first offender. Is otherwise eligible under Tex. Gov’t Code 411.074. Hell froze over with the 2015 Legislature. Never thought that I would see that in my career. Two year waiting period post-release from confinement.
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
43
2020 WL 1129972, COA Dallas (2020). Worth a read. Juvenile Respondent got probation on an ASAC w/ no Sex Offender Registration. Probation was transferred to adult court when he turned 18. For a short while his conditions were modified and he did have to register. That was eventually waived. Petitioner argued that he should be eligible for PND because he didn’t have to register. State argued that COA didn’t have appellate jurisdiction. Neither argument was persuasive and the Petitioner lost. Holding: this was not a felony DADJ, it was a felony PROBATION. Remember, felony PROBATIONS are not eligible. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
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Judge will sign an order. Statute does not set forth requirements for the order. Email me or… Go to the HCDAO website. Order should state that criminal justice agencies are prohibited from disclosing to the public any information related to the DADJ. Practice Tip – include yourself on order as an entity that can obtain copy in the future. Your client can legally lie. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
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Lots of companies that charge employers lots of $$$ for background checks. The problem – historically. The solution from Austin.
Government Code (Sec. 411.0851) says that any entity that purchases criminal history information can only disseminate that information if it is less than 90 days old. Up to a $1000 fine for each violation. Any entity in violation is liable to the Petitioner for any damages, court costs and attorney’s fees. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
46
Checklist
Know the law. Make a checklist. Determine if the potential Petitioner is eligible.
Disclaimer
Discuss with the client who can still see the record.
State entities. Law enforcement. Schools. Hospitals. Warn your client about the private entities. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
47
Get a copy of the J&S beforehand. You’ll thank me later. Prepare, prepare, prepare. Talk to the Chief before approaching. Find out (informally) what the judge wants. Reason for PND. Items to show client has changed. Get a copy of the signed order that day. Check with both the County and DPS 60 days out. Send a copy to your client (if it’s clear). Follow up with DPS and/or the County if there’s a problem. Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
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dcotlar@hanszenlaporte.com Questions?
Hanszen Laporte, LLP 14201 Memorial Drive Houston, Texas 77079 dcotlar@hanszenlaporte.com
49
Texas Criminal Defense Lawyers Association
Post-Convictions Seminar October 29-30, 2020 Livestream
Topic: Civil Commitment of Sexually Violent Predators Speaker:
William Marshall 16011 Maplehurst Dr. Spring, TX 77379 (713) 301-2854 Phone billmarshallpm@gmail.com
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
The original article “Civil Commitment of Sexually Violent Predators: Indeterminate Life Sentencing” was initially written by David O’Neil when he was the first Acting Director of the State Counsel for Offenders Division that represented offenders who were facing civil commitment as sexually violent predators. That article was published in Voice for the Defense, a publication of the Texas Criminal Defense Lawyers Association. In 2008, the article was updated by Mr. O’Neil and Mr. Scott Pawgan, who was then a member of Habern, O’Neil & Pawgan, LLP. The article that appears below is a 2020 revision of the 2010 article made by Mr. William A. Marshall a former State Counsel for Offenders staff attorney. Bill is currently the attorney for several men civilly committed as sexually violent predators and confined in the Texas Civil Commitment Center.
The 85th Legislature recently enacted changes to the Civil Commitment statute and most of those changes are not incorporated in the below article. The recent legislature should be consulted.
CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS: A PRIMER FOR THE UNINITIATED By
William A. Marshall, Scott Pawgan & David P. O'Neil INTRODUCTION Joe reluctantly accepted his plea agreement. His attorney presented strong arguments to convince Joe it was in his best interest, all factors considered. Without the agreement, Joe, if convicted by a jury of his conservative rural Texas neighbors, faced the possibility of life in prison. His attorney explained that although there were inconsistencies in the statements of the state's reluctant witnesses, the prosecutor would portray Joe as a sexual predator of the worst sort, victimizing two innocent 14year-old girls. His attorney also explained how difficult it would be to present an alibi defense, as the state really wasn't bound by the "on or about" dates alleged in the indictment. i Although Joe wasn't sure about the soundness of those arguments, there was one fact he couldn't dispute - his felony conviction for credit card fraud would be admissible if he testified. That alone was enough to tip the scales against him, and was what ultimately led him to accept the plea offer. Another issue Joe had to consider was the requirement that as a convicted sex offender, he would be required to register with local law enforcement annually, perhaps for the rest of his life. ii Furthermore, wherever Joe moved in Texas (and in many other states because of the Sex Offender Registration and Notification Act), it would be a matter of public record that he was, in essence, a child molester. This, however, paled in comparison to the legislature's latest initiative. The Sexually Violent Predator Act confronted Joe with the potential of lifelong "treatment" and rigorous supervision, including the possibility of lifelong total confinement.. Under the Texas commitment law, if Joe is declared a "sexually violent predator" (SVP), he could be
ordered to undergo treatment and supervision, the terms of which must include: residing where instructed by the Texas Civil Commitment Office (TCCO); never having contact with any of his victims; participation in and compliance with sex offender treatment; compliance with all written requirements imposed by TCCO; submitting to appropriate supervision, including GPS tracking; and, securing court permission prior to leaving the state. To make matters worse, under the SVP law a violation of the terms of a commitment constitutes a third degree felony, punishable (if the state alleges and proves two prior final convictions) by a minimum of 25 and a maximum of 99 years, or life, in prison. TEX. PEN. CODE ยง 12.42(d). The prosecutor's offer was particularly appealing considering the nature of the offenses. Of course, Joe knew the prosecutor made it so attractive only because the state lacked any physical evidence to support the charges. Still, despite all the horror stories he had heard about life behind the walls of the Texas penitentiary, he tried to be upbeat. Joe's attorney assured him that, with good behavior, he could make parole and the odds that he would be committed as an SVP were not high. The advice was sound. Many other attorneys would have provided the same advice under the circumstances.
SCOPE This fictional scenario is one that has taken on very real dimensions for some of the nearly 1,500 sex offenders scheduled for release from the Texas Department of Criminal Justice during 2017. iii This article will focus on the specific provisions of the Texas statute for the Civil Commitment of Sexually Violent Predators; practical considerations for attorneys representing clients who, at any time in their past, have ever been convicted of a sex offense (regardless of whether sentence was deferred or probated, and regardless of whether adjudication occurred in a juvenile court, U.S. federal court, U.S. military court, or the court of another state); and, some of the constitutional issues raised by the Texas statute. This article does not address the policy arguments for and against such legislation. The Legislature purportedly passed the SVP law to address only the worst sexually violent offenders. Their intent was that only 15 persons per year would face SVP civil commitment hearings. iv The imminent departure of nearly 1,500 sexual offenders from TDCJ during the upcoming year would make meeting that
legislative goal impossible. Other states with SVP commitment laws have conducted anywhere from 10 to 30 times the rate of commitment proceedings than that initially projected by the Texas Legislature. v This program has grown well beyond the Legislature's originally stated aims; especially with the Legislature creating the 435 th Judicial District Court in Montgomery County dedicated solely to dealing with SVP cases, which by 2010 was hearing 50 cases per year.
SUBSTANCE OF THE ACT The Texas statute is similar in many respects to the Kansas statute reviewed by the U.S. Supreme Court in Kansas v. Hendricks.vivi In that case, Hendricks was civilly committed for treatment as a "sexually violent predator." Based upon a "long history of sexually molesting children," Kansas sought to civilly commit Hendricks, who was scheduled for release from prison. After considering issues of ex post facto application, due process, separation of powers, and double jeopardy, the Court upheld the Kansas statute.vii The Legislature passed the Texas SVP statute at its next regular session. Act of June 1, 1999, 76 th Leg., R.S., S.B. 365. ยง 4.01 (codified at TEX. HEALTH & SAFETY CODE, ch. 841).
1. LEGISLATIVE HISTORY The statute begins with legislative findings, deemed essential in Hendricks, that there is a small group of sexually violent predators that have a behavioral abnormality that is not amenable to traditional mental health treatment and that makes them likely to repeat their predatory acts of sexual violence. The findings also note that present involuntary commitment provisions cannot adequately address this threat, and that a long-term supervision and treatment program for these SVPs is "necessary and in the interest of the state." ยง 841.001. With this predicate, the Legislature established the SVP civil commitment program. 2. WHO IS A SEXUALLY VIOLENT PREDATOR? An SVP is any repeat sexually violent offender who suffers from a behavioral abnormality that makes the offender likely to engage in predatory acts of sexual violence. ยง 841.003. The first prong of the SVP definition focuses on the nature and number of the prior offenses. The "sexually violent offenses" that may qualify a person as a "repeat sexually violent offender" are:
1.
§ 21.02: Continuous sexual abuse of a child;
2.
§ 21.11(a)(1): Indecency With a Child (sexual contact);
3.
§ 22.011: Sexual Assault;
4.
§ 22.021: Aggravated Sexual Assault;
5.
§ 20.04(a)(4): Aggravated Kidnapping (intent to sexually abuse or violate);
6.
§ 30.02: Burglary (if punishable under § 30.02(d), i.e. premises was a habitation and was entered with intent to commit (or did commit or attempt to commit) a felony in 1-4. above;
7.
A murder that is determined beyond a reasonable doubt to have been based on sexually motivated conduct;
8.
Attempt, conspiracy, or solicitation to commit any offense in 1-5, above;
9.
Offenses under prior state law with elements substantially like 1-6, above; and
10.
Offenses under prior law, another's state law, federal law, or the Uniform Code of Military Justice with elements substantially like 1-6, above. § 841.002(8).
The number of adjudications to qualify as a "repeat sexually violent offender" is less clear. The statute includes those convicted of more than one sexually violent offense and "a sentence is imposed for at least one of the offenses." § 841.003(b)(1)(A). It also applies to those offenders: whose first conviction was set aside after successfully completing probation; or whose first conviction was set aside after deferred adjudication; or who were adjudicated by a juvenile court as having engaged in deliquent conduct constituting a sexually violent offense and was committed to the Juvenile Justice Department. This later group of offenses qualifies a person as an SVP only where the person subsequently commits a sexually violent offense for which he is convicted and a sentence is imposed. § 841.003(b)(2). Thus, a single conviction may qualify a person as a "repeat sexually violent offender." The question of whether the person is a "repeat sexually violent offender" is rarely contested. The issue is usually taken away from the jury by a directed verdict by the judge. The second prong of the SVP definition focuses on whether the repeat sexually violent offender suffers from a "behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." §
841.003(a)(2). This will be the terrain on which the battle of the experts will be fought. The state will bear the burden of proving that the repeat sexually violent predator has a "congenital or acquired condition that, by affecting a person's emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person." § 841.002(2). As a practical matter, it is likely that the state will always be able to find some expert to opine that a person’s multiple sexually violent offenses evidence a behavioral abnormality that predisposes him to commit a future sexually violent offense. This done, the state will have presented a prima facie case on the final prong of the commitment standard. 3. CIVIL COMMITMENT PROCEDURES a. THE CULLING PROCESS The culling process begins with TDCJ. TDCJ conducts a preliminary assessment of each inmate serving a sentence in TDCJ for a sexually violent offense to determine whether the inmate is serving a sentence for a sexually violent offense. § 841.021(a). Not later than the first day of the 24 th month before the inmate's anticipated release date, TDCJ must provide notice to the "multidisciplinary team" (MDT) for most of the inmates who meet these criteria. § 841.021(c). The notification must include documentation of institutional adjustment and treatment, as well as an assessment of the likelihood of further sexually violent offenses. § 841.021(c). TDCJ is not allowed to send a notice regarding three categories of repeat sexually violent offenders. The first category for whom notice is not to be given is the inmates who will be released on parole or mandatory supervision less than 24 months after the notice will be given. § 841.021(a-1). The second category for whom notice is not to be given is the inmates already released on parole or to mandatory supervision. viii § 841.021(a1). The third category for whom notice is not to be given consists of the inmates for whom notice was previously given to the MDT and for whom the MDT previously recommended further assessment by TDCJ. This third limitation does not apply if, after the earlier recommendation for further assessment, the inmate has been convicted of a new sexually violent offense or had his parole revoked for committing a new sexually
violent offense. § 841.021(d). The MDT assessment is the first significant step in the initial SVP review process. Established by the SVP civil commitment legislation, the team has the Herculean task of reviewing all cases referred to it by the TDCJ. TDCJ sends on average 50 notices per month to the MDT. ix TDCJ is required to provide the MDT written notice of the anticipated discharge of any person who "is serving a sentence for a sexually violent offense; and … may be a repeat sexually violent offender." This wording creates an unforeseen gap by failing to require that TDCJ give the MDT written notice of the anticipated discharge of an offender who has a history of sexually violent offenses, but is presently pending release on a non-sexually violent offense. § 841.021(a)(1). Although TDCJ must give the required notice to the MDT 24 months prior to the anticipated release date, exigent circumstances may permit notice any time before the anticipated release or discharge date. Exigent circumstances will not allow TDCJ to provide notice less that 24 months before the release date for inmates under circumstances controlled by § 841.021(a-1). The MDT includes representatives from the following: DSHS (2), TDCJ (2), DPS (1), TCCO (2), and Council on Sex Offender Treatment (CSOT) (1). All 8 are appointed by the Executive Director of TDCJ. § 841.022. Within 60 days of receiving the notice provided by TDCJ, the MDT must assess the inmate to determine whether he is a repeat sexually violent offender and is likely to commit a sexually violent offense after being released from TDCJ. If appropriate, i.e. the inmate is a repeat sexually violent offender and is likely to commit a sexually violent offense after release, the MDT is to recommend that TDCJ assess the inmate for a behavioral abnormality. § 841.022. On average, the MDT recommends further assessment of 8 inmates per month.x Not later than the 60th day after receiving an MDT recommendation, TDCJ is required to assess the inmate to determine whether he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. To aid TDCJ in making the assessment, it is required to use an expert who is required to make a clinical assessment of the inmate. The clinical assessment must be based on testing for psychopathy, a clinical interview and any other appropriate assessments and techniques. § 841.023(a). Within the same 60 day period, TDCJ is required, if appropriate, to provide notice, to the prosecutor
with felony jurisdiction in the county where the person was last convicted of a sexually violent offense, that TDCJ believes the inmate has a behavioral abnormality and is likely to commit a sexually violent offense after release. TDCJ also must provide supporting documentation. § 841.023(b). On average, over the last two years, TDCJ has sent 3 notices per month to local prosecutors.xi The local prosecutor may request legal, technical, and financial support from the Special Prosecution Unit. If the local prosecutor requests, the Special Prosecution Unit (SPU) must provide that request. § 841.024. Prior to June 17, 2015, the SPU was responsible for prosecuting all Chapter 841 civil commitment cases. As part of the effort to forestall constitutional challenges to the SVP Act, the 84 th Legislature stripped the 435th District Court of its Special Status, e.g. the responsibility to hear all SVP Act cases. Since June 17, 2015, all SVP Act cases must be filed in the county where the inmate was most recently convicted of a sexually violent offense and pursued by the local prosecutor with felony criminal jurisdiction. In order to ensure these cases were handled properly and to minimze the economic impact on the local prosecutors' budgets, the Legislature made provision for the SPU to continue handling the SVP Act cases. b. COMMITMENT PROCEEDINGS
The Attorney for the State, the “district attorney, criminal district attorney, or county attorney with felony criminal jurisdiction” § 841.002(2), has 90 days (§ 841.041(b)) to file a petition in THE court in which the inmate was most recently convicted of a sexually violent offense alleging SVP status and stating facts sufficient to support the allegation. (§ 841.041(a).) Failure to file the case within 90 days will not form a succesful basis for dismissing the case.xii The judge shall conduct a trial on the SVP issue within 270 days of the date on which the inmate is served with the Petition, but in no event later than the inmate's anticipated release date. Both the inmate and the state are entitled to a jury trial, if requested at least 10 days before the scheduled trial date. § 841.061. Upon a showing that the inmate will not be "substantially prejudiced" the judge may grant a party's continuance request based upon good cause, or "in the due administration of justice." In no event may the case be rescheduled to a date occurring later than the inmate's sentence discharge date. § 841.063. Beginning immediately after the filing of a petition, an inmate facing commitment is entitled to counsel
at all stages of a civil commitment proceeding. § 841.144. (The term civil commitment proceeding is limited to the trial or hearing under subchapter D, F or G. Subchapter D is the section that addresses the commitment trial, subchapter F addresses biennial reviews and subchapter G addresses petitions for review. Subchapter E addresses the requirements that must be imposed on an SVP, including the modification of those requirements. § 841.002(3-1).)xiii If the inmate is indigent, the court must appoint counsel from the Office of State Counsel for Offenders (SCFO). § 841.144. If SCFO cannot represent the person, the court must appoint some other attorney. § 841.005. Other rights of the inmate include: the right to be examined by an expert; the right to be present at trial; the right to present evidence and cross-examine witnesses who testify against him; and the right to view and copy all petitions and reports in the file. The state may supplement the petition at trial with documentary or live testimony. § 841.061. Both the inmate and the state are entitled to have the inmate examined by an expert as part of the pretrial procedures. § 841.061(c). If the inmate refuses to cooperate with the state's examination, that refusal can be admitted in evidence at trial, the inmate might lose his right to present expert testimony on his behalf, and the inmate can be held in contempt of court. § 841.061. Although the proceedings are subject to the rules of procedure and appeal for civil cases, the number and selection of jurors is governed by Chapter 33, Code of Criminal Procedure (§ 841.146(a)) and the state bears the burden of proving beyond a reasonable doubt (§ 841.062) that the person is a sexually violent predator. In order to secure the commitment of the inmate, the jury verdict must be unanimous. § 841.062. With respect to the rules of civil procedure governing a jury verdict, TRCP Rule 292(a) states: "[A] verdict may be rendered in any cause by the concurrence, as to each and all answers made, of the same ten or more members of an original jury of twelve." This applies to a “No” verdict in an SVP trial, so a jury vote of 10-2 of “No” results in a state's appeal.xiv If a mistrial is declared, for example because the jury was deadlocked at 6-6, retrial must begin within 90 days. § 841.064. Currently, on average, 36 petitions seeking civil commitment are filed in Texas each year and 35
inmates are civilly committed each year.xv c. COMMITMENT AND TREATMENT
TCCO is responsible for providing appropriate treatment and supervision of any person determined, at trial, to be an SVP. § 841.007. After a trial where a person is found to be an SVP, but before ordering the person into civil commitment, the judge must impose on the person the following requirements necessary to insure compliance with treatment and supervision: (1) reside where instructed by TCCO; (2) prohibiting contact with a victim; (3) participating in and compliance with treatment; (4) submitting to a tracking service and any other appropriate supervision; (5) obtaining court permission before leaving the state. § 841.082(a). The judge enters a Final Judgment ordering the Respondent into treatment and supervision and issues an Order of Commitment in which the requirements are enumerated and imposed. The document ordering the Respondent into civil commitment must order him into “treatment and supervision [beginning] immediately on entry of the order”, however treatment and supervision begins on the person's release from TDCJ and continues “until the person's behavioral abnormality has changed to the extent that the person is no longer likely to engae in a predatory act of sexual violence.” § 841.081(a). (Until 2016 this was a death sentence, because no one had been released from civil commitment because his behavioral abnormality had changed sufficiently. Approximately 20 people had died while under an order of civil commitment, most by suicide.xvi) After commitment, the court entering the Final Judgment retains jurisdiction of the Respondent and case with respect to a proceeding conducted under Chapter 841, except a criminal proceeding involving an offense under § 841.085. § 841.082(d). § 841.085 provides that violation of some of the requirements imposed by the judge constitutes a third degree felony. Failing to live where instructed by TCCO, having contact with a victim, refusing to submit to tracking, and leaving the state without permission from the court are criminal offenses. § 841.085. Most violators will have at least two prior felony convictions, and thus will potentially face 25-99 years in prison as habitual offenders.xvii
TDCJ is supposed to give priorty to enrolling men civilly committed before release in a TDCJ sex offender rehabilitation program. TDCJ and TCCO are supposed to enter into a memorandum of understanding that established their respective responsibilities to institute a continuity of care program. § 841.0821. (Note the requirement is not for a “continuity of treatment program.”) As noted, it is TCCO's responsibility to provide “appropriate and necessary treatment and supervision for committed persons through the case management system and developing and implementing a sex offender treatment program for persons committed under [Chapter 841].” § 841.007. Under the case management system, it is TCCO's duty to: determine the conditions of supervision and treatment; and, provide supervision, which must include GPS tracking and, if needed, supervised housing. It is the responsibility of the man's case manager (who is a TCCO employee) to: coordinate treatment and supervision; perform a periodic assessment of the treatment and supervision; report to TCCO at least semiannually explaining any known change in the person's status that affects the treatment and supervision. § 841.083. TCCO is required to provide a tiered program for treatment and supervision beginning in “a total confinement facility.” § 841.0831. The treatment program is required to provide a seamless transition from a total confinement facility to less restrictive housing and supervision and eventually to release from civil commitment based on the person's behavior and progress in treatment. § 841.0831. The current program has 5 tiers. The 5th tier is living out in the community while still being subject to treatment and supervision.xviii The person's behavior and progress in treatment (allegedly) control movement to release. However, even though she is not a trained counselor or treatment provider the TCCO executive director, not the treatment providers, decides who progresses and regresses and when. The executive director has admitted that she is the ultimate decision maker.xix Prior to 2015, the Texas treatment program was labelled “Outpatient Treatment” and the judge was required to order civilly committed persons into “outpatient treatment” until the person would be released from civil commitment. ( § 841.081 prior to June 17, 2015.) The TCCO executive director has admitted that the Texas Civil Commitment Center (TCCC) is a total
confinement facility AND that “outpatient treatment” is not possible at the TCCC. xx So far no one has been successful in getting a court to require TCCO to provide “outpatient treatment” to persons whose judgment orders them into outpatient treatment until they are released from civil commitment. The statute requires TCCO to transfer committed persons to less restrictive housing and supervision IF TCCO believes it is in the person's best interest and conditions can be imposed on the person to protect the community. § 841.0831(a)-(b). If a committed person believes it would be in his best interest and that conditions can be imposed on him that will protect the community, he can go into court and ask the court to order TCCO to transfer him to less restrictive housing and supervision. Id. If the court finds it to be in the best interest of the person and that conditions can be imposed on him that will protect the community, it shall order the person transferred to less restrictive housing and supervision. Id. If TCCO believes it to be necessary to further treatment and to protect the community it SHALL return the person to more restrictive housing and supervision. § 841.0831(c)-(d). The decision MUST be based on the person's behavior OR progress in treatment. Id. If the person believes that TCCO made a mistake, he can ask the court to review the decision. Id. The Court shall order the person returned to less restrictive housing and supervision ONLY if it finds TCCO did not base its decision on the person's behavior or progress in treatment. Id. Persons allowed to move outside the TCCC must be released to the county where they were most recently convicted of a sexually violent offense, UNLESS TCCO does not have resources available there to provide necessary treatment and supervsion. § 841.0836. If TCCO does not have adequate resources in the county, then TCCO decides where to send them. Id. Today – they only have case managers in Harris, Travis, Dallas & Tarrant Counties.xxi TCCO is always afraid that if they decide to transfer a person back to more restrictive housing, i.e. back to TCCC, the person may resist. xxii In order to return a person to TCCC, TCCO can issue an emergency detention order and have the person taken into custody by law enforcement without having to get a court order. § 841.087. This is not possible in a parole situation unless the parole officer sees the individual commit an offense. Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593 (1972).
TCCO has the authority to collect what it determines to be an appropriate amount of money to defray the cost of GPS tracking, housing and treatment from committed persons who are not indigent. § 841.084. In early 2016, TCCO determined that 33 1/3% of all income is the appropriate amount to charge each non-indigent resident of TCCC.xxiii TCCO Policy and Procedure 3.5. TCCO has not changed the same rate since. This rate is within the amount authorized (50%) by TCCO administrative rules. 37 Tex. Admin. Code § 810.273.
TCCO has taken upon itself the authority to: - define who is indigent - anyone who receives $50 or more in a month is not indigent - 37 Tex. Admin. Code Art. 810.122 - define income - anything of value, except used clothes and used books, is income - 37 Tex. Admin. Code Art. 810.122 (the cost of shipping items to a TCCC resident is included in income. Internal TCCO Memo) - whether or not and how to punish anyone who refuses to pay. (No due process is needed for imposing punishment because it is addressed as a “treatment issue” rather than a “behavior issue”.xxiv) d. RELEASE FROM COMMITMENT
Once committed, the SVP may obtain relief from the terms of supervision in three ways: by dieing; through the biennial review process §§ 841.101-841.103, or through a petition for release. §§ 841.121-841.124. Death is far and away the more common means of relief. Nine SVPs have been released by court order while nearly 40 have died.xxv Every two years, each civilly committed person is supposed to get a review by the court that ordered them into civil commitment. § 841.101. TCCO must contract for an expert to conduct a biennial examination of the SVP. Id. (The expert – a psychologist – is also given access to some materials in the files maintained by TCCO and MTC.xxvi) The expert prepares a report that is required to include consideration of the propriety of modifying requirements imposed on the SVP and release of the SVP from civil commitment. Id. TCCO then forwards a copy of the report of the examination, and (although not authorized by the statute) reports by the SVP's treatment provider and case manager xxvii, to the judge for a biennial review. The biennial review has two purposes – determine whether any requirements imposed on the SVP need to be modified and whtehr the SVP should be released from civil commitment. § 841.101. Within 60 days of receiving them, the judge is required to review the materials submitted by TCCO and, presumably, any
materials submitted by SCFO and either end the review or order a hearing. § 841.102. The SVP is entitled to be represented by counsel as part of the judge's “review” but is not entitled to be present. Id. In reality, participation by the SVP's counsel is limited to a submission of information, unless the judge determines a hearing is appropriate. A hearing will be scheduled if the judge determines that the supervision should be modified or that probable cause exists to believe that the SVP's behavioral abnormality has changed to the extent that he is no longer likely to engage in a predatory act of sexual violence. § 841.102. xxviii Most of the same rules, rights, procedures, and standards of proof applicable at the initial commitment trial will apply at the hearing, including the right to a jury trial. § 841.103. However, if the State requests, the SVP's presence will be by videoconference. § 841.152. Hearsay deemed trustworthy by the court may be admitted at a hearing to modify a requirement of supervision. § 841.103(b). Even though there have been a few cases where the psychologist opined in his report of the examination that the SVP's behavioral abnormality had changed to the extent that the person was no longer likely to engage in a predatory act of sexual violence, there has never been a hearing on a biennial review. In one case in 2019 a Motion for a Hearing on a Biennial Review was treated, with the agreement of the Special Prosecution Unit, as an unauthorized petition for review. In re the Commitment of Robinson, Cause No. 13-07-07692-CV, In the 435th District Court, Montgomery County, Texas. Recenly SCFO has followed suit and requested a hearing on a biennial review asserting, as did Robinson's freeworld attorney, that the opinion of the examining expert that the SVP's behavioral abnormality had changed demonstrated probable cause that the SVP's behavioral abnormality had changed sufficiently and therefore the SVP is entitled to a hearing on the bienial review. That motion has been on file snce April of this ear. In re the Commitment of Jamison, Cause No. 04-04-02481-CV, In the 435 th District Court, Montgomery County, Texas. There are two types of petition for review – Authorized and Unauthorized. An authorized petition refers to a petition for release that TCCO authorized the person to file. If TCCO decides that the person's behavioral abnormality has changed to a sufficient extent, then TCCO shall authorize the person to petition the court for release. § 841.121. The SVP must serve a copy of the petition on the court
and the attorney representing the state. Id. The judge shall set hearing on the petition within 30 days. ยง 841.121. Either party can request jury. Id. At such a hearing, the State's burden would be to prove beyond a reasonable doubt that the person's behavioral abnormality has not changed to the extent the person is not likely to commit predatory acts of sexual violence. Id. As a practical matter, since TCCO has concluded that the SVP's behavioral abnormality has changed to the extent that the person is no longer likely to engage in a predatory act of sexual violence, it is hard to imagine why a hearing would be necessary. After all, how could the State hope to rebut, with proof beyond a reasonable doubt, TCCO's conclusion that the SVP's behavioral abnormality had changed. A petition for release filed without permission from TCCO is an Unauthorized Petition for Release. ยง 841.122. Within 60 days of receiving the it, the Judge shall review, and issue a ruling on, an unauthorized petition. Id. The Judge SHALL DENY the petition WITHOUT A HEARING IF - the petition is frivolous OR - the person has previously filed an unauthorized petition for release and that petition was denied. ยง 841.123.xxix The Judge is not required to deny a Second or subsequent Unauthorized Petition IF there is probable cause to believe the person's behavioral abnormality has changed enough. ยง 841.123(d). The language of that subsection seems to allow the Judge to deny a second or subsequent unauthorized petition EVEN IF there is probable cause to believe his behavioral abnormality has changed to the extent the person is not likely to engage in predatory acts of sexual violence. There has never been a hearing on an unauthorized petition for release. As noted above, in the Robinson case, a motion for a hearing on a biennial was treated as an Unauthorized Petition for Review. In that case, the psychologist hired by TCCO had reported that the person's behavioral abnormality had changed to the extent that he was no longer likely to engage in a predatory act of sexual violence. Unfortunately, SCFO did not even point out the psychologist's opinion to the Judge, who did not order a hearing and ordered the person to continue in commitment. Two years later, Robinson hired a free world attorney who hired another one of the experts the State often used in commitment trials. That psychologist agreed with the 2 year old biennial examination report that the person's behavioral abnormality had changed. When confronted by adverse opinions
from two psychologists that it regularly used, the State agreed to stipulate that it could not prevail in a hearing, agreed that the Judge should treat the Motion for Hearing on a Biennial Review as an Unauthorized Petition for Review and release the person. The Court's record gives the impression that the attorney representing the State did not even consult with TCCO on that course of action. Robinson was the 7 th person released from civil commitment by court order. He was released in April 2019. e. MISCELLANEOUS PROVISIONS The Legislature instructed TCCO, not the Board whose responsibility it is to govern TCCO, to administer the SVP commitment statute by rule. § 841.141. TCCO has not made any rules. All such rules have been adopted and/or amended by the Board whose responsibility it is to govern TCCO. xxx Even though in the past the Texas Supreme Court has ruled that a state agency has the authority reasonably necessary to perform its duties, it delined to review the 3rd Court of Appeals' decision that the governing Board had the authority to enact rules for TCCO. Thomas, et al v. McLane, Cause No. 20-0302, Texas Supreme Court On Petition for Review from Appeal No. 03-18-00439-CV, In the Court of Appeals, Third Supreme Judicial District, Pet. Den. 2020. Further, privacy rights of persons subject to determinations under the statute are substantially relaxed, including the availability of certain juvenile records. § 841.142-841.143. Of particular importance to the counties involved are the provisions for court costs, expert witnesses’ fees, and attorney fees related to the commitment proceedings. Reasonable compensation for these expenses is to be paid by the state. § 841.145 and 841.146.
LEGAL AND PRACTICAL CONSIDERATION 1. CONSTITUTIONAL ISSUES The Kansas SVP Act is similar to that of Texas in its retroactive application, but while the Texas SVP Act originally provided for “outpatient treatment and supervision”, the Kansas statute required inpatient treatment, i.e. confinement of the SVPs. In a 5-4 decision, the Court in Hendricks found that the retroactive application of the Kansas statute violated neither the double jeopardy nor the ex post facto provisions of the constitution. The Court further determined that the definition of "mental abnormalities" in the Kansas SVP Act
satisfied substantive due process.xxxi In re Commitment of Michael Fisher, 164 S.W.3d 637 (Tex. 2005) is the Texas Supreme Court's first opinion addressing the contitutionality of the Texas SVP Act. In Fisher's case, in the trial court, he only challenged the constitutionality of the statute on the gorunds of his incompetence to stand trial and the violation of his 5th Amendment right against self-incrimination. After transfer from the 9 th Court of Appeals, the 13th Court of Appeal found the SVP Act "manifestly punitive, both facially and as applied," and, therefore, unconstitutional. In re Commitment of Michael Fisher, 123 S.W.3d 828, 850 (Tex.App.- CorpusChristi, 2004). The Supreme Court, quoting extensively from Hendricks, reversed the Court of Appeals, ruling the SVP Act constitutional. The Texas Supreme Court noted the many similarities between the Texas and Kansas SVP statutes in support of their decision. Those similarities evidence of the intent of the Texas legislature to insure compliance with constitutional protections. The Texas definition of "behavioral abnormality" is virtually identical to the Kansas definition of "mental abnormalities."xxxii Further, by requiring outpatient treatment and supervision versus commitment (prior to June 17, 2015) Texas satisfied even the concerns of the dissenting Hendricks Justices, who noted that use of measures less restrictive than commitment (such as supervision) is an important consideration in guaranteeing protection from double jeopardy and ex post fact violations.xxxiii Since June 2015, the Texas statute has provided a treatment program that has an outpatient component (Tier 5), but no longer requires outpatient treatment. Hendricks, however, is not dispositive of the constitutional issues that will surround application of the revised Texas SVP statute. The Court relied heavily upon the uncontested facts that Hendricks was a diagnosed pedophile and that he would molest again. This fulfilled the requirement that the there be a mental abnormality to support the prediction of future dangerousness.xxxiv Substantive due process issues may still exist, depending upon the specific diagnosis under which the person is committed. In every reported decision the State's expert has opined that the inmate had a condition found either in the Diagnostic and Statistical Manual then recognized by some psychologists and/or psychiatrists. Even though some of those diagnoses have been of questionable applicability and/or validity, xxxv it does not appear that the applicability or validity of such a diagnosis has been
the cause of reversal of a verdict. The Hendricks Court's resolution of double jeopardy and ex post fact claims was based in large part upon a determination that the Kansas SVP law was civil, as opposed to criminal. Our Supreme Court ruled in the Fisher case that the Texas SVP Act is civil and therefore not criminal. With regard to the analysis of whether a state statute is civil or criminal, the Fisher Court quoted Hendricks thus “we will reject the legislature's manifest intent only if Fisher provides " 'the clearest proof' that 'the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention' to deem it 'civil.' " The Fisher Court then proceeded to consider the seven "useful guideposts" identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). xxxvi However, as a result of changes made to the Texas SVP statute in 2015, consideration of those “useful guideposts” may find the “clearest proof” and result in a different conclusion. First among those changes is the termination of the outpatient treatment program and the institution of a treatment program that is required to begin with total confinement and the fact that so few SVPs have been moved out of total confinement, let alone released from civil commitment, over the past 5 years. The Supreme Court viewed favorably the Kansas provision that guaranteed annual review of the committed person's status, noting: "[t]he maximum amount of time an individual can be incapacitated pursuant to a single judicial proceeding is one year." xxxvii Each year “the court must once again determine beyond a reasonable doubt that that the detainee satisfies the same standards as required for the initial confinement."xxxviii Texas provides no such guarantee. Instead, an elected judge conducts a biennial review and only grants a new trial on continued commitment if he determines the requirements should be modified, or if he finds probable cause to terminate supervision. § 841.102. In the history of the program, one case which started as a biennial review morphed into an “unauthorized petition”, otherwise, no biennial review has resulted in either modification of requirements or release from the program. The person's right to petition the court for a review also fails to meet the Kansas standard because it relies upon the limited discretion of the judge, xxxix and in the history of the program only 2 men out of the nearly 500 who have been civilly committed have been released as a result of an unauthorized petition for release.
b. PRACTICAL CONSIDERATIONS I. Plea Agreements
Although the Legislature tasked State Counsel for Offenders with representing indigent persons under the SVP statute, all criminal defense attorneys should understand the subtleties of the statute. Every day defendants in Texas enter pleas of guilty to sex offenses, or they enter pleas to other crimes, but have a history of sex offenses. Defense attorneys have an obligation to advise their clients on the consequences of their plea. This includes how the SVP statute can apply to them. It should be noted that the only Texas court of appeals to have considered the question refused to extend Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, 78 U.S.L.W. 4235 (U.S. Mar. 31, 2010) to the failure of a defense attorney to advise his client facing charges of sexually violent offenses of the possibility of civil commitment. In Thomas v. Texas, 365 S.W.3d 537 (Tex.App.-Beaumont 2012) the Court ruled that it did not constitute ineffective assistance of counsel not to have advised the client. That ruling should not form the basis of defense counsel's deceision not to advise the client. Prosecutors familiar with the statute may seek to maximize a defendant's exposure to it when negotiating plea agreements. They may and do insist on guilty pleas to multiple counts or indictments which immediately bring the defendant under the terms of the statute. They may and do insist on stipulations that can later facilitate SVP determinations. The defense attorney will not only have to advise his client on the consequences of these tactics, but will also have to discuss whether it might be preferable to offer such pleas or stipulations to the prosecutor in return for a reduced sentence. The knowledge that the defendant has subjected himself to the SVP statute might dissuade the prosecutor from seeking a stiffer sentence. On the other hand, with the felony enforcement provision, the rarity of release and the high number of men who have died while subject to commitment, the SVP commitment has for most of the men become a de facto life sentence. Further, a person who meets the definition of an SVP may well decide that the conditions of treatment and supervision will be so onerous, and the stigma of registration under the Sex Offender Registration Act so insurmountable, that a guilty plea is not an option.
Defense attorneys also need to know when their clients are not exposing themselves to SVP commitment. For example, even multiple deferred adjudications, multiple probations, and multiple juvenile adjudications of sexually violent offenses cannot serve as the basis of SVP commitment, unless there is a conviction for which sentence is imposed. Certainly no lawyer is expected to advise a client about what the Legislature will do in the future, but the legislative history of the SVP statute and practical realities leave little doubt that there will be future initiatives to change or extend the statute to actual commitment. The original SVP bill called for commitment. Fiscal concerns (perhaps the foremost of which was the focus given to a $1.7 billion tax cut going into the presidential primary season) were a key reason for the present form of the statute. xl What will happen when the first SVP under "supervision" molests a small child? 2. The Commitment Process The SVP statute tries to guarantee that a person who meets the definition of an SVP will have a trial on their SVP status before discharge from TDCJ. Although notice of release of a sex offender "shall" be provided by TDCJ 24 months prior to the release date, in some cases exigent circumstances allow notification any time prior to the release date. Attorneys representing sex offenders should require the state to make the exigent circumstances a part of the record of the proceedings. This may be useful in subsequent litigation. To insure the continued incarceration until commitment, TDCJ's notice must be adequate to permit the multidisciplinary assessment and report; to conduct a behavioral assessment; to file a commitment petition; to give 10 daysâ&#x20AC;&#x2122; notice so jury trial may be demanded; and to conduct an examination of the person. Even then, a mistrial will require setting another trial date. After the date of discharge from TDCJ there is no provision for detaining the person while awaiting these proceedings or while pending appeal or while awaiting a new trial after reversal of a verdict. Attempts to detain the person beyond the release date should be countered with a writ of habeas corpus. If the state has been unable to show exigent circumstances, that failure will reinforce the equity claim. Further, if the anticipated date of release has passed, challenge the applicability of the statute to such persons. Once the person is committed, there is no appellate jurisdiction over the court's determination in the
biennial review,xli however, a ruling on a petition for release is a final judgment. xlii The court may deny a hearing on a petition for release even if the court finds probable cause to believe the person is no longer an SVP. That denial may be based upon punitive reasons, i.e. the person filed a previous unsuccessful petition. xliii Arguably the court's determination not to grant a trial based upon the biennial review or on a petition for release is appealable.xliv Attorneys should make every effort to obtain a final order on this determination, or consider filing a writ of mandamus in an appropriate case. Finally, the commitment process will consist primarily of supervised housing contracted for by the TCCO. The vast majority of SVPs who have not been sent back to prison for a rule violation will be housed in the Texas Civil Commitment Center in Littlefield, Texas. The Sex Offender Registration Act guarantees the place of residence of SVPs will be public record. In seeking injunctive action or in a civil suit for damages for a client sexually victimized by an SVP, be aware that for every SVP under supervision there is a state pleading and a court finding that it was not only foreseeable that the SVP would commit a future predatory act of sexual violence, but that it was likely. CONCLUSION Joe has now had plenty of time to contemplate the sex offender legislation. As he laments the limitations that it will place on his mandatory release in 2002, he at least considers how lucky he is that the Texas SVP statute does not require civil commitment to a mental institution. The next Legislature may pass that change, but Joe is confident they can't apply it to him - but will they? Micahel Fisher, of In re the Commitment of Fisher fame, has been the guest of the Department of State Health Services since his commitment.
i
See Hoffman v. State, 922 S.W.2d 663 (Tex. App.-Waco 1996, pet. ref”d): Garcia v. State, 907 S.W.2d 635 (Tex. App.Corpus Christi 1995), aff'd, 981 S.W.2d 683 (Tex. Crim. App. 1998). ii C. Cr. Pro. Art. 62.101. iii TDCJ Statistical Report Fiscal Year 2017 iv v
Paul Burka and Patricia Hart, The Best and the Worst Legislators: 1999, TEX. MONTHLY. July 1999, at 88, 100.
In January, 1999 Department of Corrections officials provided the following information on their respective states: California: in the preceding 16 preceding months 630 cases referred to prosecutor, 495 probable cause hearings conducted or pending, 273 commitment trials conducted or pending. Kansas: Filed petitions to commit only 10% of sexual offenders (from a total prison population of 8,167), resulting in 11 jury trials per year. Illinois: Tried 75 commitment cases in first year. Total prison population of 43,000. Wisconsin: Tried 212 civil commitments in 4 years.. Total prison population of 17,000. vi 521 U.S. 346, 1 1 7 S.Ct. 2072, 138 L.Ed.2d 501 (1997). vii Kansas had petitioned the Supreme Court after the Kansas Supreme Court had found the statute unconstitutional. viii If MDT received the required notice before the inmate's release, it may perform the functions assigned with respect to the inmate. ix Data provided by TDCJ in response to Public Information Act request. x Data provided by TDCJ in response to Public Information Act request. xi Data provided by TDCJ in response to Public Information Act request. xii Tex. Health and Safety Code § 841.1463. xiii This phraseology results in the SVP being denied the right to counsel when the requirements imposed on him are modified. xiv In In re the Commitment of Gipson, 580 S.W.3d 476 (Tex.App.—Austin 2019) the Court of Appeals ruled, and in In re Commitment of Garcia, No. 03-18-00331-CV (Tex.App.-Austin 2019) confirmed, that TRCP 292(a) applies to verdicts that “No, the Respondent is not a sexually violent predator.” Other courts have agreed, but in those other cases the record did not reflect that the jury's vote was 10-2 in favor of the Respondent, resulting in a remand for a new trial. xv Data provided by TCCO in response to PIA request. xvi Data provided by TCCO in response to PIA request. xvii TEX. PEN. CODE ANN. § 12.42(d)(Vernon 1994 & Supp. 1998). Any underlying conviction that the state must plead in the indictment or information cannot also be used to enhance the offense. See McWilliams v. State, 782 S.W.2d 871 (Tex. Cr. App. 1990) (en banc). Defense attorneys should attempt to quash indictments that do not allege the conviction(s) serving as the basis for the supervision. Where there are other convictions that could be pled, trial tactics dictate waiting until sentencing to object. See Wilt: v. State, 787 S.W.2d. 511 (Tex. App.-Houston [1' Dist.] 1990, no pet.). xviii Texas Civil Commitment Handbook. xix Testimony of the executive director during the trial of a civil rights lawsuit filed by a TCCC resident against the executive director. xx Testimony of the executive director during the trial of a civil rights lawsuit filed by a TCCC resident against the executive director. xxi Comments of executive director during September 2020 TCCO Board meeting. xxii Testimony of various witnesses at the trial of a civil rights lawsuit filed by a TCCC resident against the executive director. xxiii TCCO Policy and Procedure 3.5. xxiv Comments of residents of TCCC. xxv Data provided in part by TCCO in response to PIA requests and in part by SVPs. xxvi Source: various biennial evaluation reports filed with the court. xxvii Source: various biennial evaluation packets filed with the court. xxviii The courts of appeal do not have jurisdiction over biennial review orders because they are not final. In re the Commitment of Richards, 202 S.W.3d 779 (Tex.App. - Beaumont, 2006. Consider filing a writ of mandamus in an
appropriate case. Ruling on a Petition for Release is appealable. In re Commitment of Keen, 462 S.W.3d 524 (Tex.App.-Beaumont 2015) xxx Minutes of Meetings of TCCO Board. xxxi Hendricks, 117 S.Ct. at 2079. xxxii Compare Hendricks, 117 S.Ct. at 2077, with § 841.002(2). xxxiii See Hendricks, 117 S.Ct. at 2094-95. xxxiv Id., at 2081. xxxv E.g. paraphilia not otherwise specified otherwise known as “sexual deviance.” xxxvi Fisher, at 647. xxxvii Hendricks, at 2083. xxxviii Id., at 2078. xxxix See supra notes xxviii, xxix and accompanying text. xl See Paul Burka and Patricia Hart, The Best and the Worst Legislators: 1999, TEX. MONTHLY, July 1999, 88 at 100. The original bill called for actual commitment of only 15 persons, at a projected cost of $20 million. As passed, the SVP law carried a fiscal note of $4 million for the anticipated 15 persons. Currently there are 387 residents of the TCCC and the TCCO Board voted in September to ask the legislature for $35,000,000.00 for the next biennium. xli See In re Commitment of Richards, supra. xlii See In re Commitment of Keen, supra at note xxix. xliii Health and Safety Code § 841.123 xliv See notes xli and xlii, supra. xxix