Steve McCraw v. Ricardo Valdez Gomez, Jr. ( 2014 )

Opinion issued December 30, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00573-CV
———————————
STEVE MCCRAW, Appellant
V.
RICARDO VALDEZ GOMEZ, JR., Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Case No. 94CR1573
MEMORANDUM OPINION
Steve McCraw, Director of the Texas Department of Public Safety (“DPS”),
appeals the trial court’s order granting Ricardo Valdez Gomez, Jr.’s petition for
writ of mandamus seeking to compel McCraw to delete Gomez from the state sex
offender registration list. In his first issue, McCraw contends that the original
order directing that Gomez be removed from the sex offender registration list was
void because Gomez failed to comply with statutory requirements and, thus, the
trial court acted without statutory authority. In his second issue, McCraw argues
that the trial court erred in issuing a writ of mandamus because he has no
ministerial duty to comply with a void order. We affirm.
Background
After he was indicted on a charge of indecency with a child in 1994, Gomez
pleaded guilty and the trial court placed him on deferred adjudication community
supervision for a period of five years.1 As a condition of his community
supervision, Gomez was required to register with the sex offender registration
program.2 He completed his community supervision and was discharged on June
15, 2000. Pursuant to Code of Criminal Procedure article 62.101, Gomez was
required to continue registering as a sex offender for ten years from the date of his
1
See TEX. PEN. CODE ANN. § 21.11(a)(1) (West 2009).
2
See TEX. CRIM. PROC. CODE ANN. art. 62.051 (West Supp. 2014) (formerly
VERNON’S ANN. CIV. ST. art. 6252-13c.1).
2
discharge from deferred adjudication, or June 15, 2010. See TEX. CRIM. PROC.
CODE ANN. art. 62.101(c)(2) (West Supp. 2014).3
On January 7, 2009, Gomez filed a supplemental motion to early terminate
his sex offender registration requirement.4 See TEX. CRIM. PROC. CODE ANN. art.
62.404 (West 2006) (governing procedure for filing motion for early termination of
sex offender registration). The trial court granted the motion. Notwithstanding the
order, Gomez’s name was not removed from the state’s sex offender registration
list.
On October 5, 2012, Gomez filed a petition for writ of mandamus requesting
that the trial court compel McCraw to remove Gomez’s name from the list.
Following a hearing, the trial court granted Gomez’s motion and, on June 5, 2013,
it issued a writ of mandamus directing McCraw to delete Gomez’s name. McCraw
timely filed this appeal.
Discussion
McCraw raises two issues on appeal. First, he contends that the original
order directing that Gomez be removed from the sex offender registration list was
3
Former article 62.12(b) relating to the expiration of the duty to register was in
effect at the time Gomez was discharged. It is currently codified as article 62.101.
See TEX. CRIM. PROC. CODE ANN. art. 62.101 (West Supp. 2014).
4
In his supplemental motion, Gomez asserted that “[t]he charged offense was
related to the Defendant’s relationship with a fifteen year old girl when he was
eighteen years old.”
3
void because Gomez failed to comply with statutory requirements and, thus, the
trial court acted without statutory authority. McCraw next argues that because the
order was void, he had no ministerial duty to comply with it and, therefore, the trial
court erred in issuing a writ of mandamus requiring him to do so.
A. January 7, 2009 Order
McCraw contends that the trial court acted without statutory authority when
it ordered him to remove Gomez’s name from the state’s sex offender registration
list because Gomez failed to comply with the statutory requirements. Thus, he
argues, the trial court’s January 7, 2009 order was void and he was under no duty
to comply.
1. Applicable Law
As relevant here, Chapter 62 of the Code of Criminal Procedure (“Sex
Offender Registration Program”) applies to a “reportable conviction or
adjudication,” which includes a deferred adjudication based on a violation of Penal
Code section 21.11 (Indecency with a Child). See TEX. CRIM. PROC. CODE ANN.
arts. 62.001(5)(A), 62.002 (West Supp. 2014 & West 2006). Under article 62.101,
expiration of the duty to register as a sex offender is determined by the type of
criminal conviction held by the individual. Id. art. 62.101 (West Supp. 2014).
Pursuant to article 62.402, DPS determines the minimum required registration
period for each reportable conviction or adjudication, and it compiles and
4
publishes a list of reportable convictions or adjudications for which a person must
register under Chapter 62 for a period that exceeds the minimum required
registration period under federal law. See id. art. 62.402(a), (b) (West Supp. 2014).
In 2005, the Texas Legislature added article 62.404 (“Motion for Early
Termination”), which provides as follows:
(a) A person required to register under this chapter who has requested
and received an individual risk assessment under Article 62.403 may
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 under this chapter.
(b) A motion filed under this article must be accompanied by:
(1) a written explanation of how the reportable conviction or
adjudication giving rise to the movant’s registration under this chapter
qualifies as a reportable conviction or adjudication that appears on the
list published under Article 62.402; and
(2) a certified copy of a written report detailing the outcome of an
individual risk assessment evaluation conducted under Article
62.403(b)(1).
Id. art. 62.404 (West 2006). Article 62.403 (“Individual Risk Assessment”), to
which article 62.404 refers, provides in relevant part:
(a) The [Council on Sex Offender Treatment] shall establish, develop, or
adopt an individual risk assessment tool or a group of individual risk
assessment tools that:
(1) evaluates the criminal history of a person required to register
under this chapter; and
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(2) seeks to predict:
(A) the likelihood that the person will engage in criminal
activity that may result in the person receiving a second or
subsequent reportable adjudication or conviction; and
(B) the continuing danger, if any, that the person poses to the
community.
(b) On the written request of a person with a single reportable
adjudication or conviction that appears on the list published under
Article 62.402(b), the council shall:
(1) evaluate the person using the individual risk assessment tool or
group of individual risk assessment tools established, developed, or
adopted under Subsection (a); and
(2) provide to the person a written report detailing the outcome of an
evaluation conducted under Subdivision (1).
(c) An individual risk assessment provided to a person under this
subchapter is confidential and is not subject to disclosure under
Chapter 552, Government Code.
Id. art. 62.403 (West 2006).
2. Analysis
McCraw contends that the trial court lacked authority to grant Gomez’s
motion for early termination because Gomez failed to comply with article
62.404(b)(2)—that is, he failed provide a copy of a written report detailing the
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outcome of an individual risk assessment evaluation using the assessment tools
established by the Council.5
Gomez attached as Exhibit D to his supplemental motion for early
termination a Static 99 Assessment6 performed by an assessor with the Galveston
County Community Supervision and Corrections Department. The assessment,
which considers a number of risk factors and assigns points to each category,
reflects a total score of “2” out of a possible 13 points and rates Gomez as the
lowest level moderate risk offender.7 McCraw argues that this assessment does not
meet the statutory guidelines because (1) it is not an individual risk assessment tool
5
McCraw also argues that there is nothing in the clerk’s record showing that the
prosecutor received notice of Gomez’s motion to early terminate his sex offender
registration requirement, or that a hearing was held as mandated by Code of
Criminal Procedure article 62.407. See TEX. CRIM. PROC. CODE ANN. art. 62.407
(West 2006). However, the certificate of service in Gomez’s supplemental motion
(attached in the appendix of McCraw’s brief) reflects that his attorney served the
parties with notice of the supplemental motion on January 7, 2009. Further, the
case summary that is part of the clerk’s record shows that after Gomez filed his
original motion, the trial court held two hearings before issuing its January 7, 2009
order granting the motion.
6
The Static 99 is an actuarial test widely used to evaluate a sexual offender’s risk of
recidivism. In re Bohannan, 388 S.W.3d 296, 301 (Tex. 2012).
7
In footnote 2 of his brief, McCraw notes that Gomez’s file-stamped supplemental
motion to early terminate his sex offender registration requirement does not appear
in the clerk’s record, and that the Galveston County District Clerk did not
supplement the clerk’s record despite his written request that it do so. McCraw
included the supplemental motion and its attachments as part of the appendix to
his brief.
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approved by the Council for use in evaluation for de-registration and (2) the
assessment was not performed by an approved provider.
In support of his argument, McCraw notes that the Council has created the
necessary assessment tools, as mandated by article 62.403, as well as compiled a
list of approved providers, and directs this Court to the Council’s home page.8 The
rules on the Council’s website related to the early termination of a person’s
obligation to register as a sex offender are codified in Title 22, Part 36, Chapter
810, Subchapter L of the Texas Administrative Code. A review of this subchapter,
however, reveals that the provisions governing the procedures relating to de-
registration, including the guidelines for conducting deregistration assessments,
became effective on April 24, 2011—more than two years after the trial court
issued its order granting Gomez’s motion for early termination. See 22 TEX.
ADMIN. CODE ANN. § 810.301. Thus, McCraw’s argument that Gomez failed to
comply with article 62.404(b)(2) because neither his assessment nor his evaluator
comported with rules that were not in effect at the time the assessment was
performed is without merit. Because McCraw has not shown that Gomez failed to
comply with statutory requirements in seeking early termination of his duty to
8
See https://www.dshs.state.tx.us/csot/default.shtm.
8
register as a sex offender, the trial court’s January 7, 2009 order is not void on this
ground.9 We overrule McCraw’s first issue.
9
In support of his argument that the district court’s order is void, McCraw relies
heavily on Hardy v. State, 297 S.W.3d 785 (Tex. App.—Texarkana 2009, pet.
ref’d). In Hardy, the defendant pleaded guilty to a charge of indecency with a
child and was placed on deferred adjudication community supervision for seven
years and required to register as a sex offender. See id. at 786. Three years later,
after suffering some degree of brain damage as a result of carbon monoxide
poisoning, Hardy filed a motion asking that he be discharged from both his
community supervision and his obligation to maintain registration as a sex
offender. See id. The trial court granted Hardy’s motions for early termination of
probation and sex offender registration. See id. at 786–87. The State later filed a
motion to reconsider in which it asked the trial court to rescind or set aside both of
its earlier orders. See id. at 787. After a hearing, the trial court set aside its earlier
rulings and reinstated Hardy’s probation and registration requirement. See id.
On appeal, Hardy argued that the trial court erred in granting the State’s motion to
reconsider its previous orders. See id. In examining the effect of the original
orders, the appeals court considered whether the trial court was authorized to issue
the original order discharging Hardy from community supervision (the validity of
which would be dispositive on the order addressing Hardy’s registration
requirements). See id. at 787–88. After noting that the trial court was specifically
prohibited by statute from granting Hardy early discharge from community
supervision, the court of appeals considered whether a violation of the statute in
question “would be an order which was outside of the jurisdiction of the court or
whether a violation would have been made without authority.” Id. at 788. The
court noted that the answer to that question would determine whether the original
order was void (and therefore subject to collateral attack at any time) or voidable
(and subject only to direct appeal). See id. at 789.
McCraw’s reliance on Hardy is misplaced. The Hardy court noted that “the
applicable statute clearly forbade the trial court from granting Hardy an early
discharge from deferred adjudication.” Id. at 790. Here, in contrast, we concluded
that Gomez did not violate article 62.404(b)(2) and, therefore, the trial court’s
order was not void.
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B. June 5, 2013 Order
In his second issue, McCraw contends that the trial court erred by issuing the
writ of mandamus without the statutory authority to do so. Specifically, he argues
that he had no ministerial duty to comply with the January 7, 2009 order because it
was void, and that Gomez had an adequate remedy at law.
1. Applicable Law
An original proceeding for a writ of mandamus initiated in a trial court
differs from an original proceeding for a writ of mandamus initiated in an appellate
court. Anderson v. City of Seven Points, 806 S.W.2d 791, 792 n.1 (Tex. 1991).
When initiated in a trial court, a mandamus proceeding is a civil action subject to
trial and appeal on substantive law issues and rules of procedure as any other civil
action. See id.
Texas law authorizes a trial court to grant mandamus relief to compel a
public official or body to either perform a ministerial duty or to correct a clear
abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). To
demonstrate entitlement to mandamus relief, typically a party must establish that
(1) a public official or body failed to perform a ministerial duty or committed a
clear abuse of discretion; and (2) there is no adequate remedy at law. See
Republican Party v. Dietz, 940 S.W.2d 86, 88 (Tex. 1997) (orig. proceeding). An
act is ministerial, or nondiscretionary, where “the law clearly spells out the duty to
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be performed with sufficient certainty that nothing is left to the exercise of
discretion.” See Anderson, 806 S.W.2d at 793. Where the public official or body
has a legal duty to perform a nondiscretionary act, a demand for performance of
that act has been made, and the official or body refused to perform, a party is
entitled to mandamus relief against the official or body. See id.; Sheppard v.
Thomas, 101 S.W.3d 577, 581 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).
2. Analysis
In his brief, McCraw contends that he had no ministerial duty to perform in
this case because the trial court’s January 7, 2009 order was void. Thus, he argues,
the trial court erred in issuing a writ of mandamus. However, in light of our
conclusion that the trial court’s order was not void, we reject this contention.
McCraw further asserts that article 62.251 demonstrates that he was not
under a ministerial duty to remove Gomez from the sex offender registry. Article
62.251, provides, in relevant part, as follows:
(a) When a person is no longer required to register as a sex offender
under this chapter, the department shall remove all information about
the person from the sex offender registry.
(b) The duty to remove information under Subsection (a) arises if:
....
(2) the court having jurisdiction over the case for which registration is
required requests removal and the department determines that the duty
to register has expired . . . .
11
TEX. CRIM. PROC. CODE ANN. art. 62.251(a), (b) (West 2006). McCraw argues that
because DPS never determined that Gomez’s duty to register had expired, McCraw
was under no duty to remove his name from the registry. This argument is
unavailing. Section 62.251, entitled “Removing Registration Information When
Duty to Register Expires,” addresses the duty to remove information from the
registry upon the expiration of a person’s duty to register. This situation is
distinguishable from one in which a trial court orders the early termination of a
person’s obligation to register under article 62.407. As such, we conclude that
article 62.251 is inapplicable here.
McCraw also contends that the trial court erred in granting mandamus relief
because Gomez had an adequate remedy at law. He argues that Gomez could
apply to the Council for a risk assessment under article 62.403 and that “if
Gomez’s risk assessment is positive, he can then apply for deregistration [and i]f
he complies with all the requirements for deregistration, the District Court could
properly grant his motion . . . .”
Mandamus will not lie where a petitioner has another clear and effective
remedy, adequate to obtain the relief to which he may be entitled. See Cont’l Cas.
Co. v. Rivera, 124 S.W.3d 705, 713 (Tex. App.—Austin 2003, pet. denied).
However, we do not believe that an adequate remedy is one that requires an
individual to do that which he has already done. Here, Gomez completed his
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deferred adjudication community supervision and was discharged on June 15,
2000. Gomez was then required to continue registering as a sex offender, which he
did. On January 7, 2009, he filed a supplemental motion to early terminate his sex
offender registration requirement, accompanied by a copy of his risk assessment
evaluation, which the trial court granted. Cf. Cont’l Cas. Co., 124 S.W.3d at 714
(concluding district court was without jurisdiction to grant mandamus relief where
petitioner failed to avail itself of administrative remedy available under worker’s
compensation act providing for appeals panel review of hearing officers’ decision).
After McCraw failed to remove Gomez’s name from the registry for more than
three years after the trial court issued its order terminating Gomez’s duty to
register, despite numerous requests, Gomez filed his petition for writ of
mandamus. We conclude that the trial court did not err in granting mandamus
relief. Accordingly, we overrule McCraw’s second issue.
Conclusion
We affirm the trial court’s order granting Gomez’s petition for writ of
mandamus.
Jim Sharp
Justice
Panel consists of Justices Higley, Bland, and Sharp.
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