Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 4,2010
The Honorable Joe Shannon Jr. Opinion No. GA-0772
Tarrant County Criminal District Attorney
401 West Belknap Re: Authority of the Texas Youth Commission to
Fort Worth, Texas 76196 require certain juveniles to register as sex offenders
(RQ-0760-GA)
Dear Mr. Shannon:
Your predecessor as Tarrant County Criminal District Attorney asked whether a rule of the
Texas Youth Commission (TYC) requiring the registration of certain juveniles as sex offenders is
inconsistent with Texas Code of Criminal Procedure article 62.352, which authorizes a court to defer
registration of a juvenile as a sex offender. l TEx. CODE CRIM. PROC. ANN. art. 62.352 (Vernon
2006). In juvenile cases involving an offense for which registration as a sex offender is required,
the court may conduct a hearing to determine whether the interests of the public require registration.
See id. art. 62.351(a). After the hearing, ajuvenile court may under certain circumstances enter an
order "deferring decision on requiring registration under this chapter until the respondent has
completed treatment for the respondent's sexual offense ... while committed to the Texas Youth
Commission." Id. art. 62.352(b)(1).
We observe as a threshold matter that the attorney general will not issue an opinion
addressing the validity of a court order. See Tex. Att 'y Gen. Op. Nos. GA-0182 (2004) at 3, JC-0346
(2001) at 4,0-1847 (1940) at 2. Accordingly, our discussion of the district attorney's question will
not address the validity of an extant court order that defers a decision on requiring registration. 2
The TYC rule on sex offender registration provides as follows:
(1) If the duty to register has been deferred, the PSW
[primary service worker] will send written notice certifying
completion of treatment for the sex offense to the court and
prosecuting attorney (that adjudicated the youth for the sex offense)
IRequest Letter at 1 (available at http://www.texasattomeygeneral.gov).
2See State Bar of Texas, Juvenile Law Section, "Order Deferring Sex Offender Registration" (providing that
the juvenile respondent shall not register as a sex offender pursuant to Code to Criminal Procedure chapter 62 until (1)
respondent's 18th birthday, or (2) further order of the court, whichever event occurs first), available at
http://www.juvenilelaw.org/Fonns.htm (last visited Apr. 23, 2010).
The Honorable Joe Shannon Jr. - Page 2 (GA-0772)
within ten (1 0) days following verification ofcompletion oftreatment
for the sex offense.
(2) If a youth successfully completes treatment for the sex
offense the youth shall not be required to register as a sex offender
unless additional orders are received from the court.
(3) If the duty to register has been deferred and the youth is
discharged from TYC without successfully completing treatment for
sex offense, the PSW shall register the youth as required in subsection
(f) of this policy.
37 TEx. ADMIN. CODE § 87.85(g) (2009).
The request letter suggests that section 87.85(g)(3) is inconsistent with article 62.352(c). See
Request Letter at 2. However, article 62.053, Code of Criminal Procedure, is also relevant to the
validity of this rule. 3 See TEx. CODE CRIM. PROC. ANN. art. 62.053(b) 01emon Supp. 2009). Article
62.053(b) expressly requires Tye to register persons subject to registration as sex offenders on the
seventh day before their release. 4 Id. art. 62.053(b). We seek to read article 62.352(c) in harmony
with article 62.053(b). See La Sara Grain Co. v. First Nat'l Bank o/Mercedes, 673 S. W.2d 558,565
(Tex. 1984) (courts are to construe statute to harmonize with other relevant laws, if possible).
Article 62.352 provides in part:
(b) After a hearing under Article 62.351 or under a plea
agreement described by Article 62.355(b), the juvenile court may
enter an order:
(1) deferring decision on requiring registration under
this chapter until the respondent has completed treatment for the
respondent's sexual offense as a condition of probation or while
committed to the Texas Youth Commission; or
3The brief from TYC raises this section. See TYC Briefat 1.
4Code of Criminal Procedure article 62.053(b) provides as follows:
(b) On the seventh day before the date on which a person who will be subject to
registration under this chapter is due to be released from a penal institution, or on
receipt of notice by a penal institution that a person who will be subject to
registration under this chapter is due to be released in less than seven days, an
official of the penal institution shall send the person's completed registration form
and numeric risk level to the department and to:
[the appropriate law enforcement agency].
TEx. CODECRIM. PROC. ANN. art. 62.053(b) (Vernon Supp. 2009).
The Honorable Joe Shannon Jr. - Page 3 (GA-0772)
(2) [providing for non-public registration] ... ;
(c) If the court enters an order described by Subsection
(b)(1), the court retains discretion and jurisdiction to require, or
exempt the respondent from, registration under this chapter at any
time during the treatment or on 'the successful or unsuccessful
completion of treatment, ,except that during the period of deferral,
registration may not be required. Following successful completion of
treatment, the respondent is exempted from registration under this
chapter unless a hearing under this subchapter is held on motion of
the state ....
TEx. CODE CRIM. PROC. ANN. art. 62.352(b)-{c) (Vernon 2006).
Article 62.352(c) provides an outcome for a respondent who successfully completes
treatment, but it is silent as to a respondent who does not successfully complete treatment. See id
art. 62.352(c).5 Section 87.85(g)(3) addresses a situation where a respondent fails to successfully
complete treatment. 37 TEx. ADMIN. CODE § 87.85(g)(3) (2009). It provides that "[i]fthe duty to
register has been deferred and the youth is discharged from TYC without successfully completing
treatment for sex offense, the PSW shall register the youth as required in subsection (t) of this
policy." ld. Under subsection (t), a respondent is subject to full registration when the respondent
"has a reportable adjUdication and the duty to register has not been excused or deferred." ld. §
87.85(t). TYC has a duty under article 62.053(a) to register persons "subject to registration under
[chapter 62]" as sex offenders before they are released. See TEx. CODE CRIM. PROC. ANN. art.
62.053(a) (Vernon Supp. 2009). Section 87.85(g)(3) implements the TYC duty to register persons
subject to registration under chapter 62.
However, in cases where a court order exempts a respondent from registration or defers a
decision on registration beyond the respondent's release from TYC, for example, where registration
is deferred until further order of the court, the respondent is not "a person who will be subject to
registration" within the meaning of article 62.053(b). ld. art.62.053(b).6 Likewise, section 87.85(t)
does not apply when the duty to register has been excused or deferred beyond the release date. See
37 TEx. ADMIN. CODE § 87.85(t) (2009). Because volume 37, section 87.85(g)(3) of the Texas
Administrative Code has valid applications when a court order has not exempted a respondent from
registration or deferred a decision on registration beyond the respondent's release date, we conclude
that a court would likely hold that section 87.85(g)(3) is not facially inconsistent with article 62.352.
SSection 87.85(g)(1) provides for notice certifying the successful or unsuccessful completion of treatment to
the court and prosecuting attorney that adjudicated the youth for the sex offense. See 37 TEX. ADMIN. CODE §
87 .85 (g)(1 ) (2009); see also Request Letter at 2, TYC Brief at 2.
6See also TEx. CODE CRIM. PROC. ANN. art. 62.353(ll) (Vernon 2006) (person registered as a sex offender for
delinquent conduct may seek exemption or nonpublic registration).
The Honorable Joe Shannon Jr. - Page~ (GA-0772)
SUMMARY
Pursuant to Code of Criminal Procedure article 62.352, a
juvenile court may defer a decision on sex offender registration of
certain juveniles pending treatment while in a Texas Youth
Commission facility. Following successful completion of treatment,
a juvenile is exempted from registration unless a hearing is held on
motion of the State.
Code of Criminal Procedure article 62.053 requires the Texas
Youth Commission to register juveniles as sex offenders seven days
before their release if they are subject to registration. Ajuvenile who
has not successfully completed treatment is subject to registration
absent a court order exempting him from registration or deferring a
decision on the respondent's registration beyond the respondent's
release date. Because volume 37, section 87.85(g)(3) of the Texas
Administrative Code has valid applications, we conclude that a court
would likely hold that section 87.85(g)(3) is not facially inconsistent
with article 62.352.
Very truly yours,
~
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee