in the Matter of R.A. ( 2015 )

Affirmed and Opinion filed April 30, 2015.
In The
Fourteenth Court of Appeals
NO. 14-11-00570-CV
IN THE MATTER OF R.A.
On Appeal from the County Court at Law No. 3
Fort Bend County, Texas
Trial Court Cause No. 07-CJV-013620
OPINION
This case involves an appeal from a juvenile court’s order requiring a person
who had been found to have committed aggravated sexual assault as a juvenile to
privately register as a sex offender under article 62.352(b)(2) of the Texas Code of
Criminal Procedure. We affirm the trial court’s order requiring private
registration. We conclude that we lack appellate jurisdiction over a subsequent
order of the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant R.A. was alleged to have engaged in delinquent conduct by
committing the offenses of aggravated sexual assault and indecency with a child.
At the time of these offenses, R.A. was fourteen years old and the victim was six
years old. R.A. stipulated to the truth of the allegations in the petition. In March
2008, when R.A. was fifteen years old, the trial court, sitting as a juvenile court
(hereinafter the “Juvenile Court”), signed an adjudication order in which it found
that R.A. had engaged in delinquent conduct. On the same day, after a disposition
hearing, the trial court signed a disposition order in which the Juvenile Court found
that R.A. was in need of rehabilitation and that the protection of the public and of
R.A. required a disposition to be made. The Juvenile Court placed R.A. on
probation for two years, subject to various conditions.
On the same day the Juvenile Court signed the disposition order, the
Juvenile Court also signed an “Order Deferring Sex Offender Registration.” In this
order, the Juvenile Court deferred its decision as to whether R.A. should be
required to register as a sex offender under Chapter 62 of the Code of Criminal
Procedure.1 The Juvenile Court stated that the period of deferment would expire
upon R.A.’s completion of probation or release or parole by the Texas Youth
Commission.2 The record indicates that R.A.’s probation ended in March 2010,
when he was seventeen years old.
In October 2010, the State filed a motion in which it requested that the
1
Unless otherwise specified, all statutory references in this opinion are to the Texas Code of
Criminal Procedure.
2
The record reflects that R.A. was not committed to the Texas Youth Commission.
2
Juvenile Court order R.A. to register as a sex offender pursuant to subchapter H of
Chapter 62. The State asserted that registration protects the public and that any
potential increase in protection of the public resulting from registration of R.A. is
not clearly outweighed by the anticipated substantial harm to R.A. and R.A.’s
family resulting from registration. R.A. objected to and opposed the State’s
motion, asserting that the Juvenile Court’s jurisdiction over R.A. ended when he
completed probation in March 2010, and that the State waived its right to request
registration by failing to request an order requiring registration until seven and a
half months after R.A. completed probation.
The Juvenile Court held a hearing on the State’s motion in February 2011.
At the hearing, the State called as witnesses R.A.’s probation officer, the probation
department’s psychology supervisor, and a therapist who ran a treatment group that
R.A. attended. The probation department recommended that R.A. be required to
register. R.A. called as witnesses his mother, grandmother, grandfather, and his
private therapist. His relatives testified that he had made marked improvements in
his behavior and that registration would be harmful. His therapist testified that
R.A. had made lots of changes and that he was not a threat to society. His therapist
recommended that he not be required to register.
In June 2011, when R.A. was eighteen years old, the Juvenile Court signed
an order in which it found as follows:
• The protection of the public would be increased by R.A. registering under
Chapter 62;
• Any potential increase in protection of the public resulting from registration
of R.A. is not clearly outweighed by any anticipated substantial harm to
R.A. and R.A.’s family that would result from registration under Chapter 62;
• R.A. did not successfully participate in or complete the required sex-
3
offender-treatment program; and
• The interests of the public require R.A. to register as a sex offender under
Chapter 62.
The Juvenile Court ordered that R.A. register as a sex offender under Chapter 62
and that this sex-offender registration be private. In addition, the trial court
ordered that “said registration shall be reconsidered by this Court 12 months from
the date of this Order.” R.A. appealed this order (the “First Order”), generating
this appeal. 3
While R.A.’s appeal was pending in this court, the trial court, acting sua
sponte, held a hearing to consider whether it should change the registration
requirement in the First Order. The second hearing occurred in March 2013,
twenty months after the Juvenile Court signed the First Order. In April 2013,
when R.A. was twenty years old, the Juvenile Court signed an order (the “Second
Order”) in which the court ordered R.A. to continue to register privately as a sex
offender. R.A. has not filed a notice of appeal from the Second Order.
Before the Juvenile Court issued the Second Order, this court granted the
State and R.A.’s request that this appeal be abated pending the trial court’s second
hearing and order, given that the Second Order might moot this appeal. After the
trial court signed the Second Order, this appeal was reinstated. The State and R.A.
have filed supplemental briefing. In his supplemental briefing, R.A. continues to
assert his prior challenges to the First Order. In addition, R.A. challenges the
Second Order, arguing that the Juvenile Court abused its discretion in admitting
certain evidence at the second hearing and in ordering that R.A. continue with the
3
This appeal is under article 62.357(b). See Tex. Code Crim. Proc. Ann. art. 62.357(b) (West,
Westlaw through 2013 3d C.S.).
4
private sex-offender registration.
I. JURISDICTION
Before addressing R.A.’s issues, we first must address this court’s
jurisdiction over the appeal. R.A. filed a notice of appeal in June 2011. Two days
later, the trial court signed the First Order. In that order, the trial court stated that
in twelve months it would reconsider its order requiring private registration by
R.A. Consistent with this statement, the trial court, acting sua sponte, held a
hearing in March 2013, to consider whether it should change the registration
requirement in the First Order. In April 2013, the trial court signed the Second
Order, declining to change the registration requirement in the First Order. Neither
R.A. nor the State filed a notice of appeal from the Second Order.
A. Appellate Jurisdiction over the First Order
R.A. asserts that the Juvenile Court lacked jurisdiction over the First Order.
If the Juvenile Court lacked jurisdiction over the First Order, this court lacks
jurisdiction over this appeal from the First Order. See Curry v. Harris County
Appraisal District, 434 S.W.3d 815, 820 & n.2 (Tex. App.—Houston [14th Dist.]
2014, no pet.). A juvenile adjudicated of delinquent conduct based on the offense
of aggravated sexual assault or the offense of indecency with a child generally is
required to register as a sex offender. See Tex. Code Crim. Proc. Ann. arts.
62.001(5), 62.051 (West, Westlaw through 2013 3d C.S.). But, the person
adjudicated of such delinquent conduct may move the juvenile court in which he
was adjudicated for an exemption from the registration requirement. Tex. Code
Crim. Proc. Ann. art. 62.351(a) (West, Westlaw through 2013 3d C.S.). If such a
motion is filed, the juvenile court shall conduct a hearing to determine whether the
interests of the public require registration under Chapter 62. Tex. Code Crim.
5
Proc. Ann. art. 62.351(a) (West, Westlaw through 2013 3d C.S.). After such a
hearing, the juvenile court shall enter an order exempting the movant from
registration under Chapter 62 if the court determines that (1) the protection of the
public would not be increased by registration of the movant under this chapter; or
(2) any potential increase in protection of the public resulting from registration of
the respondent is clearly outweighed by the anticipated substantial harm to the
movant and the movant’s family that would result from registration under Chapter
62. Tex. Code Crim. Proc. Ann. art. 62.352(a) (West 2006). After this hearing,
the juvenile court also may enter an order in which the court (1) defers a decision
on requiring registration under Chapter 62 until the movant has completed
treatment for the movant’s sexual offense as a condition of probation or while
committed to the Texas Youth Commission; or (2) requires the movant to register
as a sex offender but provides that the registration information is not public
information and is restricted to use by law enforcement and criminal justice
agencies, the Council on Sex Offender Treatment, and public or private institutions
of higher education. See id. art. 62.352(b).
If the juvenile court enters an order in which it defers a decision on requiring
registration, the court retains discretion and jurisdiction to require, or exempt the
movant from, registration under Chapter 62 “at any time during the treatment or on
the successful or unsuccessful completion of the treatment,” except that during the
period of deferral, registration may not be required. Id. art. 62.352(c). Following
successful completion of treatment, the movant is exempted from registration
under this chapter unless a hearing under this subchapter is held on motion of the
state, regardless of whether respondent is eighteen years of age or older, and the
court determines the interests of the public require registration. See id.
6
On the same day the Juvenile Court signed the disposition order, the Juvenile
Court also signed a deferral order, stating that the State and R.A. both agreed that
the court should defer its decision as to whether R.A. should be required to register
as a sex offender under Chapter 62 until after R.A. had participated in or
completed a sex-offender treatment program while on court-ordered probation.
The Juvenile Court deferred its decision as to whether R.A. should be required to
register as a sex offender under Chapter 62 until R.A. had participated in or
completed a sex-offender treatment program while on probation or while
committed to the Texas Youth Commission, if ever so committed. The Juvenile
Court stated that the period of deferment would expire upon R.A.’s completion of
probation or release or parole by the Texas Youth Commission. In the order, the
Juvenile Court also stated that it retained discretion to require or excuse
registration at any time during the treatment program or upon its successful or
unsuccessful completion. We conclude that the trial court had jurisdiction to
render this order, which was a valid order under article 62.352(b)(1), in which the
Juvenile Court deferred consideration of this issue until R.A.’s completion of
probation or release or parole by the Texas Youth Commission. Id. art.
62.352(b)(1). R.A. was not committed to the Texas Youth Commission, and the
record indicates that he completed probation in March 2010. R.A. does not
contend otherwise; rather, he argues that the Juvenile Court lost jurisdiction
because the State did not move the Juvenile Court to decide whether R.A. should
be required to register as a sex offender under Chapter 62 until seven and a half
months after R.A. completed probation and the deferral period ended.
We conclude that the State filed its motion under article 62.352(c). Id. art.
62.352(b)(1). We now address whether the Juvenile Court had jurisdiction to rule
on this motion and to decide whether R.A. should be required to register as a sex-
7
offender under Chapter 62 in June 2011, more than fifteen months after R.A.
completed probation and after R.A. had turned eighteen years old.
Before we address this specific issue, we consider the decision of the
Supreme Court of Texas in In re N.J.A. and general principles regarding the
jurisdiction of a juvenile court. See In re N.J.A., 997 S.W.2d 554 (Tex. 1999). In
In re N.J.A., the high court concluded that a juvenile court is not a court of general
jurisdiction. See id. at 555. The N.J.A. court construed the version of Family
Code section 54.05(b) that was applicable to that case to mean that a juvenile court
lacked jurisdiction to conduct a disposition or adjudication hearing after the
respondent is eighteen years old. See id. The N.J.A. court concluded that, when a
respondent turns eighteen, the juvenile court’s jurisdiction is limited to transferring
the case to the appropriate district court or criminal district court or dismissing the
case. See id. at 555–56. The N.J.A. court did not address Family Code section
51.042, which then, as now, provided that if a child does not object to the juvenile
court’s lack of jurisdiction due to the child’s age at the adjudication hearing or
discretionary-transfer hearing, the child waives the right to object to the juvenile
court’s lack of jurisdiction based on the child’s age at a later hearing, or on appeal.
See id. The In re N.J.A. court held that, because the respondent in that case turned
eighteen before the disposition hearing, the juvenile court’s jurisdiction was
limited to transferring the case to the appropriate district court or criminal district
court or to dismissing the case but that the court lacked jurisdiction to render an
adjudication or disposition order. See id.
It might appear that the In re N.J.A. court concluded that once a respondent
turns eighteen, the juvenile court only has jurisdiction to transfer the case to the
appropriate district court or criminal district court or to dismiss the case. See id.
8
The better reading of this precedent, however, is that the high court concluded that
(1) juvenile courts are courts of limited jurisdiction, rather than general
jurisdiction; (2) therefore, their jurisdiction must be based on an applicable statute;
and (3) under the statutes applicable in In re N.J.A., the juvenile court only had
jurisdiction to transfer the case to the appropriate district court or criminal district
court or to dismiss the case. See id.
Subsequent cases support this view of In re N.J.A. See In re B.R.H., 426
S.W.3d 163, 166-68 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding); In re
T.A.W., 234 S.W.3d 704, 705 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
In In re T.A.W., the adjudication hearing did not begin until after the respondent
had turned eighteen. See In re T.A.W., 234 S.W.3d at 705. This court cited In re
N.J.A. for the proposition that, although a juvenile court does not lose jurisdiction
when a juvenile turns eighteen, such jurisdiction is generally limited to either
transferring the case under Family Code section 54.02(j) or dismissing the case.
See id. Although the juvenile court in In re T.A.W. conducted the adjudication
hearing after the respondent had turned eighteen, this court did not conclude, as the
In re N.J.A. court did, that the juvenile court lacked jurisdiction to conduct an
adjudication hearing or render an adjudication order; rather, this court affirmed the
trial court’s adjudication order after concluding that the respondent had waived any
objection to the trial court’s lack of jurisdiction by failing to object at the
adjudication hearing, as required by Family Code section 51.042. See Tex. Family
Code Ann. § 51.042 (West, Westlaw through 2013 3d C.S.). Thus, the In re
T.A.W. court interpreted In re N.J.A. as requiring that the applicable statutes be
construed to determine whether the trial court’s order could be reversed for lack of
jurisdiction. See In re T.A.W., 234 S.W.3d at 705.
9
The better reading of this precedent, however, is that the high court concluded that
(1) juvenile courts are courts of limited jurisdiction, rather than general
jurisdiction; (2) therefore, their jurisdiction must be based on an applicable statute;
and (3) under the statutes applicable in In re N.J.A., the juvenile court only had
jurisdiction to transfer the case to the appropriate district court or criminal district
court or to dismiss the case. See id.
Subsequent cases support this view of In re N.J.A. See In re B.R.H., 426
S.W.3d 163, 166-68 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding); In re
T.A.W., 234 S.W.3d 704, 705 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
In In re T.A.W., the adjudication hearing did not begin until after the respondent
had turned eighteen. See In re T.A.W., 234 S.W.3d at 705. This court cited In re
N.J.A. for the proposition that, although a juvenile court does not lose jurisdiction
when a juvenile turns eighteen, such jurisdiction is generally limited to either
transferring the case under Family Code section 54.02(j) or dismissing the case.
See id. Although the juvenile court in In re T.A.W. conducted the adjudication
hearing after the respondent had turned eighteen, this court did not conclude, as the
In re N.J.A. court did, that the juvenile court lacked jurisdiction to conduct an
adjudication hearing or render an adjudication order; rather, this court affirmed the
trial court’s adjudication order after concluding that the respondent had waived any
objection to the trial court’s lack of jurisdiction by failing to object at the
adjudication hearing, as required by Family Code section 51.042. See Tex. Family
Code Ann. § 51.042 (West, Westlaw through 2013 3d C.S.). Thus, the In re
T.A.W. court interpreted In re N.J.A. as requiring that the applicable statutes be
construed to determine whether the trial court’s order could be reversed for lack of
jurisdiction. See In re T.A.W., 234 S.W.3d at 705.
9
54.05(b). Nonetheless, the duty to register as a sex offender arises from Chapter
62, and R.A.’s duty to register or any exemption therefrom is not part of the
disposition that terminated on R.A.’s eighteenth birthday. 4
Though it may be unusual for the Legislature to expand the jurisdiction of a
juvenile court by enacting new provisions of the Code of Criminal Procedure, that
is what has occurred in subchapter H of Chapter 62. See Tex. Code Crim. Proc.
Ann. art. 62.351, et seq.; In re J.M., 2011 WL 6000778, at *1–3. The Legislature
enacted these statutes after the Supreme Court of Texas’s decision in In re N.J.A.
See In re N.J.A., 997 S.W.2d at 555–56. Thus, if the Juvenile Court acted under
the authority of article 62.352 when it issued the First Order, the Juvenile Court
had jurisdiction to do so. See Tex. Code Crim. Proc. Ann. art. 62.352; In re J.M.,
2011 WL 6000778, at *1–3. To the extent In re N.J.A. indicated that after the
respondent turns eighteen, a juvenile court lacks jurisdiction to determine whether
a respondent should be required to register as a sex offender, subchapter H of
4
See Tex. Code Crim. Proc. Ann. art. 62.351(a) (stating that “[d]uring or after
disposition of a case under Family Code section 54.04 for adjudication of an offense for which
registration is required under this chapter, the juvenile court on motion of the respondent shall
conduct a hearing to determine whether the interests of the public require registration under this
chapter. The motion may be filed and the hearing held regardless of whether the respondent is
under 18 years of age”) (emphasis added); id. art. 62.352(c) (stating that “[f]ollowing 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 prosecuting attorney, regardless of
whether the respondent is 18 years of age or older, and the court determines the interests of the
public require registration”) (emphasis added); id. art. 62.353(a),(b) (providing that a person who
has registered as a sex offender for an adjudication of delinquent conduct, regardless of when the
delinquent conduct or the adjudication for the conduct occurred, may file a motion in the
adjudicating juvenile court for a hearing seeking exemption from registration as provided by
article 62.351 or an order that the registration be private, regardless of whether the person, at the
time of filing the motion, is eighteen years of age or older); In re J.M., No. 12-10-00159-CV,
2011 WL 6000778, at *1–3 (Tex. App.—Tyler Nov. 23, 2011, no pet.) (holding that, even
following respondent’s unsuccessful completion of treatment, the State may move for a hearing
under subchapter H as to whether respondent should be required to register as a sex offender)
(mem. op.).
11
Likewise, in In re B.R.H., the court of appeals held that the juvenile court
did not abuse its discretion in refusing to dismiss, and retaining for adjudication, a
petition alleging delinquent conduct against a respondent who had turned eighteen.
See In re B.R.H., 426 S.W.3d at 166-68. The court based its ruling on Family
Code section 51.0412, which was enacted after In re N.J.A. was decided. See Tex.
Family Code Ann. § 51.0412 (West, Westlaw through 2013 3d C.S.) (providing
that a juvenile court retains jurisdiction over a person, without regard to the age of
the person, who is a respondent in an adjudication proceeding, a disposition
proceeding, a proceeding to modify disposition, a proceeding for waiver of
jurisdiction and transfer to criminal court under section 54.02(a), or a motion for
transfer of determinate sentence probation to an appropriate district court under
certain circumstances). The In re B.R.H. court correctly concluded that to the
extent In re N.J.A. indicates that a juvenile court lacks jurisdiction to conduct a
disposition or adjudication hearing that falls within the scope of section 51.0412
after the respondent turns eighteen, Family Code section 51.0412 supersedes that
decision. See Tex. Family Code Ann. § 51.0412; In re B.R.H., 426 S.W.3d at 167.
A juvenile adjudicated of delinquent conduct based on one of the offenses
listed in article 62.001(5) (including the offenses of aggravated sexual assault and
indecency with a child) is required to register as a sex offender unless exempted
from registration under subchapter H of Chapter 62. See Tex. Code Crim. Proc.
Ann. arts. 62.001(5), 62.051, 62.351, et seq. Under Texas Family Code section
54.05(a), various dispositions, including R.A.’s disposition, may not be modified
on or after the child’s eighteenth birthday. See Tex. Family Code Ann. § 54.05(a),
54.05(a) (West, Westlaw through 2013 3d C.S.). Under Texas Family Code
section 54.05(b), various dispositions, including R.A.’s disposition, automatically
terminate on the child’s eighteenth birthday. See Tex. Family Code Ann. §
10
54.05(b). Nonetheless, the duty to register as a sex offender arises from Chapter
62, and R.A.’s duty to register or any exemption therefrom is not part of the
disposition that terminated on R.A.’s eighteenth birthday. 4
Though it may be unusual for the Legislature to expand the jurisdiction of a
juvenile court by enacting new provisions of the Code of Criminal Procedure, that
is what has occurred in subchapter H of Chapter 62. See Tex. Code Crim. Proc.
Ann. art. 62.351, et seq.; In re J.M., 2011 WL 6000778, at *1–3. The Legislature
enacted these statutes after the Supreme Court of Texas’s decision in In re N.J.A.
See In re N.J.A., 997 S.W.2d at 555–56. Thus, if the Juvenile Court acted under
the authority of article 62.352 when it issued the First Order, the Juvenile Court
had jurisdiction to do so. See Tex. Code Crim. Proc. Ann. art. 62.352; In re J.M.,
2011 WL 6000778, at *1–3. To the extent In re N.J.A. indicated that after the
respondent turns eighteen, a juvenile court lacks jurisdiction to determine whether
a respondent should be required to register as a sex offender, subchapter H of
4
See Tex. Code Crim. Proc. Ann. art. 62.351(a) (stating that “[d]uring or after
disposition of a case under Family Code section 54.04 for adjudication of an offense for which
registration is required under this chapter, the juvenile court on motion of the respondent shall
conduct a hearing to determine whether the interests of the public require registration under this
chapter. The motion may be filed and the hearing held regardless of whether the respondent is
under 18 years of age”) (emphasis added); id. art. 62.352(c) (stating that “[f]ollowing 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 prosecuting attorney, regardless of
whether the respondent is 18 years of age or older, and the court determines the interests of the
public require registration”) (emphasis added); id. art. 62.353(a),(b) (providing that a person who
has registered as a sex offender for an adjudication of delinquent conduct, regardless of when the
delinquent conduct or the adjudication for the conduct occurred, may file a motion in the
adjudicating juvenile court for a hearing seeking exemption from registration as provided by
article 62.351 or an order that the registration be private, regardless of whether the person, at the
time of filing the motion, is eighteen years of age or older); In re J.M., No. 12-10-00159-CV,
2011 WL 6000778, at *1–3 (Tex. App.—Tyler Nov. 23, 2011, no pet.) (holding that, even
following respondent’s unsuccessful completion of treatment, the State may move for a hearing
under subchapter H as to whether respondent should be required to register as a sex offender)
(mem. op.).
11
under this statute. In re J.M., 2011 WL 6000778, at *1–3. We agree that, even if
R.A. unsuccessfully completed treatment, the State still may move for a hearing
under article 62.352(c) and the juvenile court still may require registration under
this statute. See Tex. Code Crim. Proc. Ann. art. 62.352(c); In re J.M., 2011 WL
6000778, at *1–3.
On appeal, R.A. asserts that he successfully completed treatment and that
under article 62.352(c) he was exempted from registration as a sex offender unless
a hearing was held on motion of the prosecuting attorney. According to R.A, he
successfully completed treatment on March 14, 2010. The State did not move for a
hearing until October 29, 2010, seven and a half months later. R.A. asserts that the
State’s motion had to be filed “very soon after” March 14, 2010, for the Juvenile
Court to have jurisdiction under article 62.352(c). Because seven and a half
months later is not “very soon after,” R.A. claims that the Juvenile Court no longer
could exercise jurisdiction.
In the First Order, the Juvenile Court specifically found that R.A. “did not
successfully participate in and/or complete the required sex-offender treatment
program.” R.A. has not challenged this finding on appeal. Even so, we need not
decide whether R.A. successfully completed treatment because we conclude that,
whether or not R.A. successfully completed treatment, the State still had the ability
to file a motion requesting a hearing on the issue of whether R.A. should be
required to register as a sex offender. See Tex. Code Crim. Proc. Ann. art.
62.352(c); In re J.M., 2011 WL 6000778, at *1–3.
As to the seven-and-a-half-month delay by the State in moving for a hearing,
the interests of R.A. and of the public are best served by a motion by the State
either during treatment or promptly thereafter. Nonetheless, the statute does not
14
provide a specific deadline for the State to file a motion or for a hearing to be held.
We conclude that the seven-and-a-half month delay did not cause the Juvenile
Court to lose jurisdiction to determine whether R.A. should be required to register
as a sex offender. See Tex. Code Crim. Proc. Ann. arts. 62.351, 62.352(c); In re
J.M., 2011 WL 6000778, at *1–3 (holding that juvenile court had jurisdiction to
require respondent to register privately as a sex offender, in case in which State did
not file motion for hearing until four and a half months after respondent
unsuccessfully completed treatment). We conclude that, under articles 62.351 and
62.352(c) the Juvenile Court had jurisdiction to determine whether R.A. should be
required to register as a sex offender and whether this registration should be public
or private. See Tex. Code Crim. Proc. Ann. arts. 62.351, 62.352(c); In re J.M.,
2011 WL 6000778, at *1–3.
The State has suggested that the appeal from the First Order may have
become moot due to the issuance of the Second Order. As we explain below, the
Second Order did not supersede the First Order. A determination by this court that
the Juvenile Court erred in requiring R.A. to register privately as a sex offender
would have a direct effect on R.A.’s potential criminal liability for failing to
register. See Tex. Code Crim. Proc. Ann. arts. 62.102 (West, Westlaw through
2013 3d C.S.). R.A.’s appeal from the First Order is not moot.
B. Appellate Jurisdiction over the Second Order
At the hearing in which the trial court issued the First Order, the Juvenile
Court indicated it would revisit the issue in a year. Then, in the First Order, the
Juvenile Court stated that its registration order would be “reconsidered” twelve
months from the date of the First Order. R.A. timely appealed from the First
Order. While R.A.’s appeal was pending in this court, the trial court, acting sua
15
Chapter 62 has superseded that decision. See Tex. Family Code Ann. § 51.0412;
In re B.R.H., 426 S.W.3d at 167. To the extent subchapter H of Chapter 62
provides the juvenile court authority to act and In re N.J.A. indicates that the
juvenile court lacks jurisdiction because the respondent is eighteen or older,
subchapter H of Chapter 62 has superseded In re N.J.A. See Tex. Code Crim. Proc.
Ann. art. 62.351, et seq.; In re B.R.H., 426 S.W.3d at 167; In re J.M., 2011 WL
6000778, at *1–3.
Thus, we must determine whether the Juvenile Court acted under the
authority of article 62.352. This statute provides in pertinent part as follows:
(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 Juvenile Justice Department; or
(2) requiring the respondent to register as a sex offender but providing
that the registration information is not public information and is
restricted to use by law enforcement and criminal justice agencies,
the Council on Sex Offender Treatment, and public or private
institutions of higher education.
(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 prosecuting
attorney, regardless of whether the respondent is 18 years of age or
older, and the court determines the interests of the public require
registration. Not later than the 10th day after the date of the
respondent’s successful completion of treatment, the treatment
12
appealed from the First Order, and this court has jurisdiction over this appeal and
R.A.’s challenges to the First Order.5
R.A. asserts that, if the First Order is interlocutory, then R.A. filed an
effective premature notice of appeal under Texas Rule of Appellate Procedure
27.1(a), but the First Order is a final order and R.A. filed a notice of appeal from
the First Order, not the Second Order. Though R.A. perfected an appeal from the
First Order by filing a premature notice of appeal under Rule 27.1(a) two days
before the Juvenile Court rendered the First Order, we cannot construe this notice
of appeal as a premature notice of appeal from the Second Order, which the trial
court rendered twenty-one months later. See Tex. R. App. P. 27.1(a).
Texas Rule of Appellate Procedure 27.3 provides:
After an order or judgment in a civil case has been appealed, if the
trial court modifies the order or judgment, or if the trial court vacates
the order or judgment and replaces it with another appealable order or
judgment, the appellate court must treat the appeal as from the
subsequent order or judgment and may treat actions relating to the
appeal of the first order or judgment as relating to the appeal of the
subsequent order or judgment. The subsequent order or judgment and
actions relating to it may be included in the original or supplemental
record. Any party may nonetheless appeal from the subsequent order
or judgment.
Tex. R. App. P. 27.3. In the Second Order, the trial court found that the interests
5
Because the First Order is a final order, Texas Rule of Appellate Procedure 29.6(a) does not
provide a basis for appellate jurisdiction over the Second Order. See Tex. R. App. P. 29.6(a)
(stating that “[w]hile an appeal from an interlocutory order is pending, on a party’s motion or on
the appellate court's own initiative, the appellate court may review the following: (1) a further
appealable interlocutory order concerning the same subject matter; and (2) any interlocutory
order that interferes with or impairs the effectiveness of the relief sought or that may be granted
on appeal”) (emphasis added).
17
of the public required that R.A. continue to register privately as a sex offender
under Chapter 62 and that R.A.’s Texas Juvenile Sex Offender Risk Assessment,
previously determined to be “high risk,” should be reduced to “moderate risk.” In
the Second Order, the Juvenile Court then ordered that R.A. continue to register
privately as a sex offender under Chapter 62 and that R.A.’s Texas Juvenile Sex
Offender Risk Assessment should be reduced to “moderate risk.”
The Second Order did not vacate or replace the Juvenile Court’s First Order,
nor did the Second Order modify the First Order. In the Second Order, the
Juvenile Court evaluated whether or not the interests of the public required that
R.A. continue to register privately as a sex offender at the time of the Second
Order. The Juvenile Court did not address whether the interests of the public
required that R.A. register privately as a sex offender at the time of the First Order
or whether the First Order should be modified, vacated, or replaced. In the First
Order, the trial court ordered R.A. to register privately as a sex offender under
Chapter 62 and did not address R.A.’s Texas Juvenile Sex Offender Risk
Assessment. In the Second Order, the trial court ordered R.A. to continue to
register privately as a sex offender under Chapter 62 and reduced R.A.’s Texas
Juvenile Sex Offender Risk to “moderate risk.” Though the trial court may have
modified R.A.’s risk assessment, that risk assessment was not contained in the First
Order; therefore, the order reducing the risk assessment did not modify the First
Order. Because the Juvenile Court did not modify, vacate, or replace the First
Order in the Second Order, we conclude that this court does not have jurisdiction
over the Second Order under Rule 27.3. See Tex. R. App. P. 27.3. Because no
notice of appeal has been filed from the Second Order and because there is no
other basis for this court to exercise appellate jurisdiction, we conclude that we
lack appellate jurisdiction over the Second Order and R.A.’s issues challenging
18
that order.6 See Overka v. Bauri, No. 14-06-00083-CV, 2006 WL 2074688 at *1
(Tex. App.—Houston [14th Dist.] Jul. 27, 2006, no pet.) (mem. op.).
III. ISSUES AND ANALYSIS
A. Did the trial court reversibly err in connection with the First Order?
In his first issue, R.A. asserts that the First Order should be reversed because
the trial court committed procedural errors sufficient to cause an improper
registration order. Under this issue, R.A. argues that the trial court conducted the
hearing on the State’s motion in contravention of the plea agreement between R.A.
and the State, and that the Juvenile Court erred in denying his request to withdraw
the plea. An appellate court reviews a respondent’s challenge of an order requiring
registration as a sex offender for procedural error and an abuse of discretion. See
Tex. Crim. Proc. Code Ann. art. 62.357(b) (West, Westlaw through 2013 3d C.S.).
1. Did the trial court err in conducting the hearing in contravention
of the plea agreement between the State and R.A.?
R.A. argues that he had an “agreed stipulation and plea agreement” with the
State that limited the period of decision making on registration to the time R.A.
was in treatment and during probation. According to R.A., the plea agreement
exempted him from registration unless the State brought a motion to require
registration within this time period. R.A. relies on the language in the court’s order
deferring registration to support his argument. He does not reference any other
plea agreement and our record does not contain a separate plea agreement.
The court’s order states in pertinent part:
6
We do not address any issue relating to the Juvenile Court’s jurisdiction to render the Second
Order or the propriety of the Second Order.
19
[The State and R.A.] presently agreed to DEFER the issue of whether
R.A. should be required to register as a sex offender pursuant to
Chapter 62 of the Texas Code of Criminal Procedure until after such
time as Respondent has participated in and/or completed a sex
offender treatment program while on Court Ordered probation. Such
parties further agreed that said deferment ends upon the completion of
the child’s probation or the child’s release and/or parole by the Texas
Youth Commission, if ever so committed.
The record reflects that R.A. and the State agreed to defer the issue of
whether R.A. should be required to register as a sex offender pursuant to Chapter
62 until after such time as R.A. had participated in or completed a sex-offender
treatment program while on court-ordered probation. As discussed above, the
requirement that a respondent register under Chapter 62, or any exemption from
this requirement, is not part of the respondent’s disposition. See Tex. Code Crim.
Proc. Ann. art. 62.351(a); id. art. 62.352(c); id. art. 62.353(a),(b); In re J.M., No.
12-10-00159-CV, 2011 WL 6000778, at *1–3.
The language in this order reflects an agreement between the parties to defer
the decision of whether R.A. should register as a sex offender. It articulates a time
period during which registration will not be ordered, and it articulates the ending of
that time period. The interval during which registration will not be ordered ends
after R.A. completed probation. But, the order does not reflect that the parties
agreed to limit the time period during which registration could be ordered after that
date. Likewise, the language does not reflect any agreement by the State to limit
the time period during which it could file a motion seeking an order requiring R.A.
to register.
R.A. argues that the trial court’s findings that it retained discretion to require
or excuse registration at any time during the treatment program or upon successful
20
or unsuccessful completion show a limitation. First, this language does not reflect
any agreement of the parties; it is a separate finding by the court. Second, that
language does not limit the court’s jurisdiction to any specific time period. Other
than the order, R.A. does not point to any additional plea agreement that limited
the State’s ability to bring a motion. R.A.’s argument lacks merit.
2. Did the trial court err in denying R.A.’s request to withdraw his plea?
R.A. argues that the trial court erred in denying his request to withdraw his
plea because the State violated its alleged plea agreement regarding disposition. As
discussed above, the requirement that a respondent register under Chapter 62, or
any exemption from this requirement, is not part of the respondent’s disposition.
See Tex. Code Crim. Proc. Ann. art. 62.351(a); id. art. 62.352(c); id. art.
62.353(a),(b); In re J.M., No. 12-10-00159-CV, 2011 WL 6000778, at *1–3. Even
as to the agreement to defer the issue of whether R.A. should be required to
register as a sex offender pursuant to Chapter 62, R.A. has not shown that the
State violated that agreement. The court did not abuse its discretion or commit
procedural error in denying R.A.’s request to withdraw his plea or stipulation of
evidence under Family Code 54.03(j). See Tex. Fam. Code Ann. 54.03(j). Having
concluded that the arguments under the first issue lack merit, we overrule that
issue.
B. Did the trial court abuse its discretion in ordering R.A. to register
privately as a sex offender?
In his second issue, R.A. asserts that the trial court erred in requiring him to
register as a sex offender because any potential increase in protection to the public
in requiring him to register was outweighed by the substantial harm to him. To be
exempted, the respondent must show by a preponderance of the evidence that
21
protection of the public would not be increased by registration of the respondent or
that any potential increase in protection of the public from registration is clearly
outweighed by the anticipated substantial harm to the respondent and the
respondent’s family that would result from registration.7 Id. art. 62.351(b),
62.352(a).
Generally, the test for abuse of discretion is whether the trial court acted
without reference to any guiding rules and principles or whether the trial court
acted arbitrarily or unreasonably. See Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985). Under an abuse-of-discretion standard, legal and
factual insufficiency are not independent grounds of error, but rather are relevant
factors in assessing whether the trial court abused its discretion. See Baltzer v.
Medina, 240 S.W.3d 469, 475 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
There is no abuse of discretion as long as some evidence of a substantive and
probative character exists to support the trial court’s decision. Id.
At the hearing, the State presented evidence from R.A.’s probation officer,
the probation department’s psychology supervisor, and a therapist who ran a
treatment group R.A. attended. The psychology supervisor testified that she
evaluated R.A. in 2007 and diagnosed him with oppositional-defiant disorder,
attention-deficit-hyperactivity disorder, borderline intellectual functioning, and
provisional sexual abuse of a child, pending the outcome of R.A.’s adjudication.
She noted that R.A. had a full scale IQ score of 55.
7
R.A. argues that because he is exempt, unless the State brings a motion to require registration
under article 62.352(c), this provision shifts the burden of proof to the State. We need not
address this issue because we determine that even if this provision shifts the burden of proof, the
State presented sufficient evidence to satisfy the burden of proof.
22
sponte, held a hearing to consider whether it should change the registration
requirement in the First Order. The second hearing occurred in March 2013,
twenty months after the Juvenile Court signed the First Order. In April 2013, the
Juvenile Court signed the Second Order, in which the court ordered R.A. to
continue to register privately as a sex offender. Before the Juvenile Court issued
the Second Order, this court granted the State’s and R.A.’s request to abate this
appeal pending the trial court’s second hearing and order. R.A. has not filed a
notice of appeal from the Second Order. After the trial court signed the Second
Order, this court reinstated the appeal. A supplemental record relating to the
Second Order has been filed with this court, and this court ordered the parties to
file supplemental briefing.
R.A. filed a supplemental brief asserting issues challenging the Second
Order. In its supplemental brief, the State questions whether this court has
appellate jurisdiction to review the Second Order. R.A. asserts that this court has
jurisdiction over the Second Order because he prematurely filed a notice of appeal
or because the Second Order is a modification of the First Order under Texas Rule
of Appellate Procedure 27.3.
R.A. argues that he did not need to file a second notice of appeal because his
appeal from the First Order was a timely appeal of a final order. In the context of
the procedures provided in subchapter H of Chapter 62, the First Order was a final
order in which the Juvenile Court actually disposes of all claims and parties then
before the court. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192, 200 (Tex.
2001) (providing that a judgment that issues without a conventional trial is final for
purposes of appeal if it actually disposes of all claims and parties then before the
court or states with unmistakable clarity that it is a final judgment). R.A. timely
16
that a big group would be “more than eight, more than ten, 12” and admitted that
R.A.’s group sometimes had more than a dozen juveniles.
R.A. presented testimony from his mother, grandmother, grandfather, and
individual therapist. R.A.’s grandmother characterized the changes in R.A.
between 2007 and the present as “day and night.” She testified that she was proud
of R.A.’s progress and had hired R.A.’s therapist to continue working with him
after R.A.’s probation period ended. In her opinion, labeling R.A. as a sex
offender and requiring him to register would unnecessarily prevent him from
success. She believed R.A. would have a hard enough time in life because of his
intellectual limitations. R.A.’s grandfather testified that R.A. had matured and had
learned to cope with the issues by following the methods the doctor prescribed.
R.A.’s grandfather stated that he thought R.A.’s life and career would be hampered
by registration.
In her testimony R.A.’s mother described the teamwork put into place during
R.A.’s probation, explaining how she had replaced the probation officer to
continue the teamwork with R.A.’s school and counselor. She described R.A.’s
progress at his school and the increasing freedoms he had gained because of that
progress. She stated that recently R.A. had become very dependable and was
taking pride in his schoolwork, especially in the culinary field. R.A.’s mother
testified that R.A. now has career goals and has taken responsibility for his life.
She stated that registration would hurt him by affecting his career and limiting
where he attends school.
R.A.’s individual therapist described R.A.’s progress in therapy. He
explained that R.A. had learned to identify how other people felt based on their
emotions and had begun to learn how to relate to other human beings. He said
24
R.A.’s social skills had improved significantly and that R.A. had demonstrated
good judgment in staying away from problems. According to the therapist, R.A.
has identified his thinking errors. R.A.’s therapist opined that requiring
registration could “destroy him.” In his opinion, it would be an upward struggle
for R.A. to become a semi-self-sustaining adult. The therapist thought that
combining that struggle with the burden of being registered as a sex offender
would erode R.A.’s motivation and would eradicate the progress made toward
improving R.A.’s self-image. R.A.’s therapist stated that, in his professional
judgment, requiring registration would be cruel. R.A.’s therapist stated, “I do not
feel now or in the future he will be a threat to society. I really do not feel that.”
R.A. argues that (1) the evidence did not show he was a current threat to the
public, (2) the evidence supporting registration came from the beginning of his
detention period, (3) the evidence presented did not outweigh evidence that
registration would harm R.A., (4) ordering private registration negated the only
argument that registration would protect the public, and (5) private registration
does not increase protection to the public because the police database exists
whether or not R.A. is required to register. In 2008, R.A. was adjudicated for
having committed a serious sexual offense against a child. The State presented
evidence that since that time there had been troubling incidents at school and a
separate incident in which R.A. relapsed at his group-therapy treatment center.
While the relapse occurred two years before the hearing, it is evidence that R.A.
struggles with predatory behavior. This evidence is sufficient under the first
inquiry to prove that R.A. is at risk to relapse and therefore registration will
increase the public’s protection. See In the Matter of S.M., No. 12-12-00264-CV,
2013 WL 1046891, at *3 —S.W.3d—,— (Tex. App.—Tyler Mar. 13, 2013) (mem.
op.) (finding sufficient evidence to require registration where juvenile relapsed).
25
R.A. presented compelling evidence that he has made significant progress,
but the evidence also showed that R.A. has more progress to make. For example,
the State presented testimony that an important component of treating sexual
offenders is helping them to develop victim empathy. While R.A.’s therapist
testified that he had made substantial social progress, including learning to identify
people’s emotions based on their facial expressions and learning how to greet
people, the therapist also suggested that R.A. had further progress to make. He did
not testify that R.A. had the ability to empathize with his victims. R.A.’s family
members also conceded that R.A. has limitations that will make life extremely
difficult. Everyone agreed that R.A. needed to continue therapy. While these
limitations may make the requirement that he register as a sexual offender more
difficult on R.A., they also show that R.A. is at an increased risk to reoffend and
that makes the need to protect the public greater. See In the Matter of B.M., No.2-
07-153-CV, 2008 WL 281275, at *4 (Tex. App.—Fort Worth Jan. 31, 2008)
(concluding there was sufficient evidence to support registration where juvenile’s
psychological evaluations showed high likelihood to reoffend and juvenile did not
successfully complete treatment) (mem. op).
R.A. argues that the State did not refute his evidence that registration would
hamper him and that the State did not show how private registration would protect
the public. We do not doubt that registration will pose a hardship to R.A. At the
same time, private registration restricts the information to use only by law-
enforcement and criminal-justice agencies, the Council on Sex Offender
Treatment, and public or private institutions of higher education. R.A. argues that
private registration does not protect the public. But, private registration does
provide notice to institutions of higher education. Given the concerns about
incidents at R.A.’s high school and the evidence that he has further progress to
26
make, we conclude that the trial court did not abuse its discretion in implicitly
determining that the protection of the public would be increased by registration and
that any potential increase in protection of the public from registration was not
clearly outweighed by the anticipated substantial harm to R.A. and R.A.’s family
that would result from registration. 8 See id. Accordingly, R.A’s second issue is
overruled.
8
R.A. argues that he is entitled to a reversal because there is no reporter’s record from
proceedings related to potential disciplinary issues that occurred during R.A.’s probation. He
cites Robinson v. Robinson, 487 S.W.2d 713, 715 (Tex. 1972) and Rogers v. Rogers, 561 S.W.2d
172 (Tex. 1978), as standing for the proposition that an appellate court should reverse a
judgment if a party, through no fault of his own, cannot obtain a record of prior proceedings.
Under the Rogers line of cases, a party is at fault for the lack of a record if the party is present at
a hearing and fails to object. See Henning v. Henning, 889 S.W.2d 611, 612–13 (Tex. App.—
Houston [14th Dist.] 1994, writ denied). R.A. was present at the hearings and did not object to
the failure to make a record. Accordingly, R.A. is not entitled to reversal on this ground.
27
IV. CONCLUSION
We have jurisdiction over R.A.’s appeal from the First Order. But, R.A. did
not appeal the Second Order, and we lack jurisdiction to review that order. The
trial court had jurisdiction to render the First Order, and the State did not violate
any agreement in filing its motion seven and a half months after R.A. completed
probation. R.A. has not shown that the trial court committed procedural errors or
abused its discretion in rendering the First Order.
The First Order is affirmed.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Donovan and Brown.
28