Untitled Texas Attorney General Opinion ( 1997 )

@ffice of the ZWmtep @eneral
.&ate of Eexae
DAN MORALES April 11, 1997
ATTORNEY
GENERAL
The Honorable Tii Cony Opinion No. DM-437
Criminal Diict Attorney
Tarrant County Re: Whether a district court is authorized to
401 West Beknap Street, Justice Center require a defendant to post a warning sign at his
Fort Worth, Texas 76 196-0201 residence stating that he is a convicted sex
offender as a condition of wmmunity supervision
@Q-908)
Dear Mr. Curry:
You ask whether a district wurt is authorized to require a wnvicted sex offender to post a
sign at his residence as a condition of community supervision. Apparently, a district Court in’Taii%nt
County has required a wnvicted sex offender to post a twelve inch by twenty-four inch sign on his
home stating ia three inch letters that “A PERSON ON PROBATION FOR A CHILD SEX
OFFENSE LIVES HERE.” You ask whether the sign requkement is wnsistent with the wurt’s
statutory authority to impose w&ions of community supervision and whether the sign requirement
is wn&utional. While we cannot determine whether a specitic condition of wmmunity supervision
is authorized or wnstitutional in a particular case, we can address your question in general terms.
‘Before we examine the relevant T&IS ‘statutory provisions,,we believe itimportant to note
that your questions raise issues of first impression in this state. We have found only one case in
another jurisdiction addressiig a sin&r situation. In Tennessee v. Bun.&, 924 S.W.Zd 82 (Term.
1996), the Supreme Court of Tennessee considered a challenge to a condition of probation that
required a wnvicted sex offender to erect a sign in his &ont yard stating, Warning, ah chifdren
fDe&dmt] is an admhted and wnvicted child molester. Parents beware.” The defendant contended
that the requirement was not authorized by Tennessee’s sentenchrg laws and that it violated the
Eighth Amendment to the United States Constitution as well as provisions of the Tennessee
Constimtion. The wurt did not reach the wnstitutional issues bwause it concluded that the condition
was not authorized by statute. The court reasoned that the primary purpose of probation under
Tennessee law was rehabiitation of the defendant and that a broadly written grant of authority to trial
courts to fashion conditions of probation %annot be read as granting unfettered authority to the
wurts to impose punishments which are beyond the bounds of traditional notions of rehabilitation.”
Id. at 86-87. The court wntinued:
The wnsequences of imposing such a condition without the normal
safeguards of legislative study and debate are uncertain. Posting the sign in
the defendant’s yard would dramatically affect persons other than the
detbndant and those charged with his supervision. In addition to being novel
TheHonombleTimCurry - Page 2 (DM-437)
and somewhat bizarre, wmpliance with the condition would have wnse
quences in the wmmunity, perhaps beneficial, perhaps detrimental, but in any
event unforeseen and unpredictable. Though innovative techniques of
probation sre encouraged to promote the rehabilitation of offenders and the
prevention of recidivism, this legislative grant of authority may not be used to
usurp the legislative role of delining the nature of punishment which may be
imposed.
Id. at 87.
In Texas, article 42.12 of the Code of Criminal Procedure governs probation, now called
“wmmunity supervision.” Section 11 sets forth the basic conditions of wmmunity supervision. It
provides in pertinent part as follows:
The judge of the court having jurisdiction of the case shall determine the
w&ions of community supervision and may, at any time, during the period
of community supervision.alter ,or modify the wnditions.. lIre&u& ~raqx
impose my reosomble condition that is designed to protect or restore the
commm@ protect or restore the victim, or pun+ rehobihate, or refmn
rhe defeendrmt. Conditions of wmmunity supervision may include, but shall
notbelimitedto....
Code Grim. Proc. art. 42.12,s 1l(a) (emphasis added). The language emphasized above was added
to section 1l(a) in 1993, as was language replacing the term “probation” with the phrase “wmmunity
supqvision” See~Actofh4ay29,F?93,73dLeg.,~S.,~,ch.900, §4.01,1993 Tex. Gen. Laxvs3>86,
3725. The change in the law was effective September 1, 1993, id. 5 4.05, at 3743, and applies only
to a defendant charged with or wnvicted of an offense wmmitted on or atIer that date, id. $4.02,
at 3742. Because you have not given us informationregardiig the date of the underlying offense, we
address the law both as it existed prior to the 1993 amendment and as it provides today.
It is clear from the tinal m of section 1 l(a), which was not signitkantly aEected by the
1993 revision, that a trisl court is not limited to imposing only the specilic wnditions delineated in
the subsections that follow. Courts have concluded that this language gives trial courts broad
disc&ion to determix wnditions ofcommunity supervision Courts have used the following criteria
to determine whether a condition of wmmunity supervision is unreasonable and therefore invalid
under article 42.12 as it existed prior to 1993:
(1) it has no relationship to the crime;
(2) it relates to conduct that is not in itself criminal; and
(3) it forbids or requires conduct that is not reasonably related to Wure
criminality of [the] defendant or does not serve the statutory ends of
probation.
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The Honorable Tim Curry - Page 3 (DM-437)
To&v. Sfale, 911 S.W.2d 807,817 (Tex. App.--El Paso 1995, no writ ); see&o Z,eBIanc v, Stare,
908 S.W.2d 573,574-75 (Rx. App.-Fort Worth 1995, no writ); Simpson v. Siare, 772 S.W.2d 276,
280 (Tex. App.-Amarillo 1989, no writ). A condition ofwmmunity supervision is invalid under this
test only ifhas all three of these characteristics. Todd, 911 S.W.2d at.817. Case law also indicates
that conditions of probation that are unambiguous and that bear a reasonable relationship to the
treatment of the probationer and the protection of the public will not be disturbed on review. Id..; see
also Tmez v. Slale, 534 S.W.2d 686,691 (Tex. Crim. App. 1976); Simpson, 772 S.W.2d at 280;
Mackv.S#ate,649S.W.2d 150, 152(Tex.App.-ElPaso 1983,nowrit).~
Whether a specitic condition of community service complies with the foregoing criteria and
therefore is authorized by article 42.12 will depend upon the facts of the particular case.’ For this
reason, this office is unable to definitively determine whether a particular condition of probation is
valid. See Letter Opinion No. 93-95 (1995) (concluding that whether term of probation imposing
hair and dress wde wmplies with article 42.12 involves factual determinations and is therefore
beyond purview of opinion process). As a general matter, we believe it is likely that a court would
wnclude in the case of a defkknt wnvicted of a child-related sex offense that the sign requirement
has a relationship to the crime, relates t0 wnduct that..is w sod requires conduct .&t is
reas&ably related to titure criminality. Similarly, we believe it is also likely that a wurt would
~thatrequiringaw~~sscoffendertopostawamingsignonhispremisesissufliciently
dear, servea a rehabilitatk purpose by deterring recidivism, and protects the wmmunity by warning
parentsandchi&en.*
We believe that a Texas court might not have the same concerns about the sign requirement
as the Supreme Court of Tennessee in Tennessee v. Burden for two reasons. Pii the Tennessee
court was concerned th# the sign requirement usurped the legislature’s prerogative to fashion
sentences. By contrast, the Texas statute appears to give the wurts broad latitude in this &a. As
section 1 of article 42.12 states, “It is the purpose of this article to place wholly within the state
wurts the responsibiity for det ermining . . . the conditions of community supervision . . , It is the
purpose of this article to remove from existing statutes the limitations, other than questions of
constitutionality, that have acted as barriers to effective systems of wmmunity supervision in the
public interest.” Code Grim. Proc. art. 42.12.5 1.
P- 2439
TheHonorableTimCurry - Page 4 (DM-437)
Sewnd, there is some debate in the case law over whether requiring a probationer to post a
sign regarding the aiminal conduct serves a rehabii purpose or is primarily punitive. While this
was clearly a concern of the court in Tennessee v.. Beak, Florida courts in driving under the
intluence cases have concluded that similar probation conditions’ serve at least some rehabilitative
purpose! We also note that the post-1993 version of the Texas statute, article 42.12, may permit
more pmitive w&ions thsn did the pm1993 version, particularly the new language in section 11(a)
that provides that a trial wurt may impose any reasonable condition of community supervision “that
is designed to . _ . punish . . . the defendant.“’ We have not been able to locate any case construing
~new~andwecarmotpredict~acourtwouldwnstrueittoaffectthelongstanding
aituia used to detumine whether a condition of wmmunity supervision is reasonable, but we believe
it is possible that a court might conclude that this language permits more punitive wnditions.6 In
sun&evetlifthesignrequiremmt were held to be more punitive than rehabiitative, article 42.12 may
now permit this, provided that the condition is not unwnstitutional.
Although you ask whether the sign requirement is constitutional, you do not specify any
particular wnwrn. We believe the most obvious wnstitutional concern is whether the sign
reqrurement violates the dekiant’s right to pnvacy or f%eeexpression. In a prior opinion, this office
concluded that a condition of probation that restricts a fin&mental right is valid ifit (1) is primarily
designed to meet the ends of rehabiitation and protection of the public and (2) is reasonably related
to such ends. See Letter OpiionNo. 93-95 (1995) at 3-4. For the reasons stated above with respect
to our anal@ ofartide 42.12, we believe it is likely that a wurt could conclude in a case invohkg
a wnvicted sex offies that the sign reqkme@ even ifit restricts a fundamental right, is designed
to meet the ends of rehabilitation and protection of the public and is reasonably related to those ends.’
?SeeLbdrqy~,F)orido,606So.2d652(F&Dist.CiApp. 1992)(ccocludingthatconditionofpmbatioarquiring
Madsatto plsoewt in mwspaperconsistingof his pidure andstatunentthat he had beenoonvictedofD.U.L
scmd both rehabilitativeand punitive p- and was valid); Goldrchmitt v. Horkkz, 490 S&d 123 @Ia. Dist Ct. App.
1986) (au&ding that cmditim ofpmbatica zqkiag pmbationa to &ix bumper sticky to his car indicating D.U.L
-savedrchabilitativeplupose).
%eeTodd, 911 S.W.Zd at 18 a4 (suggestiqthatwhilepreZJ93 vasicmof atick42.12 slrasedrehabitation
asgoalofp&&xl, 1993 amadmc&maybrosdeapurposc).
‘C’ Linaby, 606 S&d 652 (con&d@ that amditica ofprobatic~ that probaticuter place sdvatisancnt in
newspaper cc&sting ofhis picture and statement that be had been cowicted of D.U.I. did mt violate his cmslitutiaml
(fontinued..)
P. 2440
The Honorable Tim Curry - Page 5 (DM-437)
Whether a condition satisfies these criteria in a particular case will depend upon the facts, see id. at
4,but we do not believe that a condition of community supervision requiring a convicted sex offender
toposta warning sign at his residence is unwnstitutionalper se.’
SUMMARY
A wndition of wrnnnmity supervision is authorized by artide 42.12 of
the Code of Criminal Procedure if it is unambiguous and bears a reasonable
relationship to the treatment of the probationer and the protection of the
public. A condition is unreasonable only ifit has no relationship to the crirnq
it relates to conduct that is not in itselfcriminal, and it forbids or requires
conduct that is not reasonably related to future criminality of the defendant
or doss not serve the statutory ends of probation. A condition that restricts
a findatnental right is valid and does not run afoul of wnstitutional
guarantees ifit (1) is ptimkly designed to meet the ends of rehabilitation and
protection of the public and (2) is reasonably related to such ends, A
wndition of wnmnmhy supervision requiring a defendant to post a warning
sign at his residence stating that he is a wnvicted sex offender is notper se
unauthorized by article 42.12 or unwnstitutional.
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fii Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opiion Conunittee.
Prepared by Mary R Grouter
Assistant Attorney General
p. 2441