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Apr 17, 2009
The Scarlet Letter Of Juvenile Sex Offender Registration
Juvenile Sex Offender Registration: Necessary Information or High-Tech Scarlet Letter?
I. Overview and History of Texas Sex Offender Registration Laws
A. Every Jurisdiction Has Them.
There exists in every state and in the federal government sex offender registry laws. This type of information is currently available in more than thirty states online, including Texas.
B. History of Texas Sex Offender Registration.
Texas enacted a sex offender registration system in 1991 that applied to adults and juveniles alike. This original version of the sex offender statutes was meant to be confidential and only for use by law enforcement officers during criminal investigations.
A dramatic change occurred in 1995, and sex offender information in Texas became available to the general public, as well as law enforcement officers.
Although there are many differences in the duration of registration between adults and juveniles, the records of both are equally public, and juvenile sex offender information can be found on the internet and pursuant to a written request.
C. Continued Evolution of the Law.
In response to the new public nature of juvenile sex offender status, the Texas legislature enacted Code of Criminal Procedure Article 62.13 to allow juvenile courts to excuse adjudicated sex offenders from registration requirements, a process known as un-registration.
The new law further authorized judges to excuse further registration of juveniles who are already registered, a process known as de-registration. The de-registration process is retroactive and will apply to any offender, regardless of when the adjudication or conduct occurred.
The new law is applied by use of a balancing test that considers first whether requiring registration of a particular juvenile sex offender increases the protection to the public; and even if so, weighs it against harm to the offender and the offender’s family. The bulk of this paper will explore the application of that law, with tips for practitioners.
II. What Registration Involves
A. Art. 62.02. Registration.
None of these provisions apply to sex offenders convicted for conduct occurring while an adult.
(a) A person who has a reportable conviction or adjudication or who is required to register as a condition of parole, release to mandatory supervision, or community supervision shall register or, if the person is a person for whom registration is completed under this chapter, verify registration as provided by Subsection (d), with the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days.
If the person does not reside or intend to reside in a municipality, the person shall register or verify registration in any county where the person resides or intends to reside for more than seven days. The person shall satisfy the requirements of this subsection not later than the seventh day after the person’s arrival in the municipality or county.
(b) The department shall provide the Texas Department of Criminal Justice, the Texas Youth Commission, the Texas Juvenile Probation Commission, and each local law enforcement authority, county jail, and court with a form for registering persons required by this chapter to register.
The registration form shall require:
The person’s full name, each alias, date of birth, sex, race, height, weight, eye color, hair color, social security number, driver’s license number, shoe size, and home address.
A recent color photograph or, if possible, an electronic digital image of the person and a complete set of the person’s fingerprints.
The type of offense the person was convicted of, the age of the victim, the date of conviction, and the punishment received.
An indication as to whether the person is discharged, paroled, or released on juvenile probation, community supervision, or mandatory supervision.
An indication of each license, as defined by Article 62.08(f), that is held or sought by the person.
Any other information required by the department.
(c) Not later than the third day after a person’s registering, the local law enforcement authority with whom the person registered shall send a copy of the registration form to the department.
(d) A person for whom registration is completed under this chapter shall report to the applicable local law enforcement authority to verify the information in the registration form received by the authority under this chapter.
The authority shall require the person to produce proof of the person’s identity and residence before the authority gives the registration form to the person for verification.
If the information in the registration form is complete and accurate, the person shall verify registration by signing the form.
If the information is not complete or not accurate, the person shall make any necessary additions or corrections before signing the form.
(e) A person who is required to register or verify registration under this chapter shall ensure that the person’s registration form is complete and accurate with respect to each item of information required by the form in accordance with Subsection (b).
(f) If a person subject to registration under this chapter does not move to an intended residence by the end of the seventh day after the date on which the person is released or the date on which the person leaves a previous residence, the person shall:
Report to the juvenile probation officer, community supervision and corrections department officer, or parole officer supervising the person by not later than the seventh day after the date on which the person leaves a previous residence, as applicable, and provide the officer with the address of the person’s temporary residence.
Continue to report to the person’s supervising officer not less than weekly during any period of time in which the person has not moved to an intended residence and provide the officer with the address of the person’s temporary residence.
(g) If the other state has a registration requirement for sex offenders, a person who has a reportable conviction or adjudication, who resides in this state, and who is employed, carries on a vocation, or is a student in another state shall, not later than the 10th day after the date on which the person begins to work or attend school in the other state, register with the law enforcement authority that is identified by the department as the authority designated by that state to receive registration information.
B. Art. 62.08. Central Database; Public Information
(a) Maintenance of Centralized Database
The department shall maintain a computerized central database containing only the information required for registration under this chapter.
(b) Public Information
The information contained in the database is public information, with the exception of any information:
Regarding the person’s social security number, driver’s license number, or telephone number;
That is required by the department under Article 62.02(b)(6); or
That would identify the victim of the offense for which the person is subject to registration.
(c) Release of Public Information
A local law enforcement authority shall release public information described under Subsection (b) to any person who submits to the authority a written request for the information. The authority may charge the person a fee not to exceed the amount reasonably necessary to cover the administrative costs associated with the authority’s release of information to the person under this subsection.
(d) Licensing Authority Notification
The department shall provide a licensing authority with notice of any person required to register under this chapter who holds or seeks a license that is issued by the authority. The department shall provide the notice required by this subsection as the applicable licensing information becomes available through the person’s registration or verification of registration.
(e) Database and Website Photographs
Notwithstanding Chapter 730, Transportation Code, the department shall maintain in the database, and shall post on any department website related to the database, any photograph of the person that is available through the process for obtaining or renewing a personal identification certificate or driver’s license under Section 521.272, Transportation Code. The department shall update the photograph in the database and on the website annually or as the photograph otherwise becomes available through the renewal process for the certificate or license.
(f) Request for Public Information
A local law enforcement authority shall release public information described under Subsection (b) to any person who submits to the authority a written request for the information. The authority may charge the person a fee not to exceed the amount reasonably necessary to cover the administrative costs associated with the authority’s release of information to the person under this subsection.
(g) Licensing Authority Request for Information
On the written request of a licensing authority that identifies an individual and states that the individual is an applicant for or a holder of a license issued by the authority, the department shall release any information described by Subsection (a) to the licensing authority.
(h) Definitions for Licensing Authority
For the purposes of Subsections (d) and (e):
“License” means a license, certificate, registration, permit, or other authorization that:
(A) Is issued by a licensing authority; and
(B) A person must obtain to practice or engage in a particular business, occupation, or profession.
“Licensing authority” means a department, commission, board, office, or other agency of the state or a political subdivision of the state that issues a license.
III. Un-registration and De-registration of Juvenile Sex Offenders
A. Un-registration
1. Article 62.13 of the Texas Code of Criminal Procedure
Subsections (a) through (k) discuss un-registration:
(a) Exemption from Registration
A person who has an adjudication of delinquent conduct that would otherwise be reportable under Article 62.01(5) does not have a reportable adjudication of delinquent conduct for purposes of this chapter if the juvenile court enters an order under this article excusing compliance by the person with the registration requirements of this chapter.
(b) Juvenile Court Hearing for Un-registration
After disposition of a case under Section 54.04, Family Code, 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.
(c) Burden of Proof
The hearing is without a jury and the burden of persuasion is on the respondent to show by a preponderance of evidence that the criteria of Subsection (e) have been met. The court at the hearing may make its determination based on:
The receipt of exhibits;
The testimony of witnesses;
Representations of counsel for the parties; or
The contents of a social history report prepared by the juvenile probation department that may include the results of testing and examination of the respondent by a psychologist, psychiatrist, or counselor.
(d) Disclosure of Written Matter
All written matter considered by the court shall be disclosed to all parties as provided by Section 54.04(b), Family Code.
(e) Criteria for Excusing Registration
The court shall enter an order excusing compliance with the registration requirements of this chapter if the court determines:
That the protection of the public would not be increased by registration of the respondent under this chapter; or
That any potential increase in protection of the public resulting from registration is clearly outweighed by the anticipated substantial harm to the respondent and the respondent’s family that would result from registration under this chapter.
(f) Waiver of State’s Right to a Hearing
The prosecuting attorney may waive the state’s right to a hearing under this article and agree that registration under this chapter is not required. If the waiver is entered under a plea agreement, the court shall without a hearing enter an order excusing compliance with the registration requirements of this chapter or, under Section 54.03(j), Family Code, inform the respondent that the court believes a hearing under this article is required and give the respondent the opportunity to withdraw the respondent’s plea of guilty, nolo contendere, or true or to affirm the respondent’s plea and participate in the hearing. If the waiver is entered other than under a plea agreement, the court shall without a hearing enter an order excusing compliance with the registration requirements of this chapter.
The waiver must state whether or not it is entered under a plea agreement. The respondent may as part of a plea agreement promise not to file a motion seeking an order excusing registration, in which case the court may not recognize the motion.
(g) Notwithstanding Section 56.01, Family Code
On entry by a juvenile court of an order under Subsection (e) excusing registration under this chapter, the prosecuting attorney may appeal that order by giving notice of appeal within the time required under Rule 26.2(b), Texas Rules of Appellate Procedure.
The appeal is civil and the standard of review in the appellate court is whether the juvenile court committed procedural error or abused its discretion in excusing compliance with registration. The appeal is limited to review of the order excusing compliance with registration and may not include any other issues in the case.
(h) Respondent's Right to Appeal
The respondent may, under Section 56.01, Family Code, appeal the juvenile court’s order requiring registration in the same manner as the appeal of any other legal issue in the case.
The standard of review in the appellate court is whether the juvenile court committed procedural error or abused its discretion in not excusing compliance with registration.
(i) Exemption from Registration Requirement
If the juvenile court enters an order excusing registration, the respondent may not be required to register in this or any other state for the offense for which registration was excused.
(j) Deferred Decision on Registration
After a hearing under Subsection (b) or under a plea agreement under Subsection (f), the juvenile court may enter an order deferring decision on requiring registration until the respondent has completed a sex offender treatment program as a condition of probation or while committed to the Texas Youth Commission.
The court retains discretion to require or to excuse registration at any time during the treatment program or on its successful or unsuccessful completion. During the period of deferral, registration may not be required.
(k) Restriction of Public Access to Registration Information
After a hearing under Subsection (b) or under a plea agreement under Subsection (f), the juvenile court may enter an order requiring the respondent to register as a sex offender but provide that the registration information is not public information and is restricted to use by law enforcement and criminal justice agencies.
Information obtained under this subsection may not be posted on the Internet or released to the public.
2. Analysis
It is important to note that un-registration is possible in any case where sex offender registration has not yet occurred. Cases adjudicated but pending disposition, TYC cases where the juvenile has not yet been released on parole, and determinate sentence cases where registration has not yet been required because adult parole has not yet been granted. In any of these instances, it is possible to conduct a hearing before the adjudicating court to ask that registration not occur.
(a) What is a Reportable Adjudication
Subsection (a) defines reportable adjudication to exclude a person whose registration has been excused by court order. Therefore, that person is totally excused from any and all registration requirements.
(b) Un-registration Hearing
The juvenile court must hold a hearing upon motion seeking un-registration, under the same cause number as the original petition, and heard anytime following disposition. The hearing is to the court and a jury is not authorized. Testimony from experts, exhibits, and a social history report may be considered, as well as representations of counsel. If a social history report is prepared by probation, it must be disclosed to all parties.
The burden of proof at the hearing is a preponderance of the evidence, based on the balancing test of protection of the public versus harm to the respondent and the respondent’s family. In fact, even if there is some evidence that protection of the public would be increased by registration, if that is outweighed by harm to the respondent and the respondent’s family, then registration should not occur. The court can also adopt a middle ground and order a non-public registration. This means that the registration information is not disclosable over the internet and is not to be used except by law enforcement personnel conducting a criminal investigation (in effect the pre-1995 standard).
(c) Pursuant to Plea Bargain Agreement
This section enables the prosecutors and the defense attorney to strike a plea bargain that includes un-registration as part of the agreement. However, as with any plea agreement, the court is free to reject it, and may do so in regards to un-registration. However, if the adjudicating court accepts the plea bargain, then it must order un-registration without a hearing.
There are several permutations possible in this area. The court may choose to accept the plea bargain, but only on the condition that a subsection (1) hearing is held. In such instance, the juvenile should be allowed to withdraw the plea or to proceed with the understanding a hearing will be held on the registration issue. Another scenario allows the prosecution to waive its right to a registration hearing without a plea agreement. This waiver of hearing must state whether it is part of the plea bargain. If it is not, the court must grant un-registration.
The last wrinkle involves an agreement by the respondent not to file a motion for un-registration (or de-registration), and if the court accepts the same, respondent will have no recourse but to register as a sex offender as required by law.
(d) Appellate Rights
The state is authorized under subsection (g) to appeal if the Court excuses registration completely. The state cannot appeal a court’s decision granting non-public registration. The state’s notice of appeal must be filed within fifteen days of the order and is strictly limited to the registration issue.
The juvenile is also authorized to appeal, but only if the court orders full public registration.
B. De-registration
(1) De-registration Process
This type of hearing allows currently registered offenders to be excused from further compliance with the registration laws. The relevant text of Article 62.13 Texas Code of Criminal Procedure is as follows:
(2) Eligibility for De-registration
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 excusal from registration as provided by Subsection (e) or seeking under Subsection (k) an order that the registration become nonpublic.
(3) Filing a Motion
The person may file a motion under Subsection (l) in the original juvenile case regardless of whether the person is at the time of filing 18 years of age or older. Notice of the motion shall be provided to the prosecuting attorney. A hearing on the motion shall be provided as in other cases under this article.
(4) One-time Filing Restriction
A motion may be filed under Subsection (l) only if a previous motion under this article has not been filed concerning that case.
(5) Identifying Agencies with Registration Information
To the extent feasible, the motion under Subsection (l) shall identify those public and private agencies and organizations that possess sex offender registration information about the case.
(6) Possible Court Orders
The juvenile court, after a hearing, may:
Deny the motion;
Grant the motion to excuse all registration; or
Grant the motion to change the registration from public to nonpublic.
(7) Notification of Court Order
If the court grants the motion, a copy of the court’s order shall be sent to each public and private agency or organization that the court determines may be in possession of sex offender registration information. The order shall require the recipient to conform its records to the court’s orders either by deleting the information or changing its status to non-public, as the order requires.
(8) Compliance by Private Agencies
A private agency or organization that possesses sex offender registration information it obtained from a state, county, or local governmental entity is required to conform its records to the court’s order on or before the 30th day after the date of its entry. Failure to comply in that period automatically bars the agency or organization from obtaining sex offender registration information from any state, county, or local governmental entity in this state in the future.
2. Analysis
De-registration can be a much more time-consuming and expensive undertaking than un-registration. It requires an individual already registered, perhaps for years, to ask the adjudicating court to re-open the matter and excuse registration. This affects countless numbers of cases because there was no un-registration choice until the recent statutory changes. Even if the court can be convinced to order de-registration, it can still of course make it the limited, non-public type, a step short of total de-registration.
(a) Jurisdiction and Filing
Subsection (m) authorizes the motion to be filed in the original juvenile proceeding where the registration occurred. This jurisdiction extends even though, as will frequently be the case, the registrant is 18 years or older at the time of the hearing.
(b) De-registration is a One-Time Opportunity
If a previous un-registration or de-registration motion has been filed, the court has no jurisdiction to consider the request. Counsel must be extremely careful when requesting un-registration and de-registration, and realize that there is no second chance.
(c) Identification of Law Enforcement Agencies
The genie is already out of the bottle, unlike in un-registration requests, so it is incumbent upon counsel to identify and serve a de-registration order on all law enforcement agencies that may possess the information. This will include local, national, and internet groups that have accessed the data from DPS. Subsection (r) provides that 30 days from the court’s order, private databases must comply and delete the records or be automatically barred from receiving such records in the future.
IV. Practical Applications
(a) Know Your Respondent and Their Family
The legal test in these cases considers protection of the public but emphasizes that even if the public would receive some increased protection, it must be weighed against the anticipated harm to the respondent and their family. As a juvenile’s counsel, you must determine how the registration process, or in the case of un-registration, the anticipated process, impacts the respondent and their family.
Harm to the respondent and family may be easier to demonstrate in de-registration cases. For example, the respondent and family may have been forced to move due to registration requirements. Respondents and their siblings may have faced ridicule at school because their registration information was found online. It is critical to uncover and present such scenarios to the court.
Additionally, consider the respondent’s appearance at the time of the offense versus now. A 23-year-old seeking de-registration may look vastly different from their 13-year-old self. Providing a photo comparison can be impactful in court.
(b) Experts
It is essential to obtain psychological and psychiatric records for your client. Secure a medical and records release from your client or their parent if they are still a juvenile. Review these records to determine past treatment, success rates, and obtain expert opinions on the risk of re-offense. Hiring an independent expert to analyze records and provide an opinion may also be beneficial.
(c) Work with Prosecutors
Prosecutors may agree to un-registration or de-registration without requiring a formal hearing. Provide them with relevant records, opinions, and supportive community testimonies from teachers, coworkers, or neighbors. Since public protection is a factor, demonstrating that the respondent is not seen as a threat by their community can be persuasive.
In some cases, prosecutors may agree to limited (non-public) registration or deferred registration. It is essential to assess whether pursuing total un-registration or de-registration is worth the risk of full public registration if the request is denied. If the state waives a hearing and it is not part of a plea agreement, the court must approve the request.
(d) Know Your Probation Officer(s)
Multiple probation officers may have been involved in a respondent’s case. Identify them and gather their perspectives. Their opinions may differ, and social history reports prepared by probation officers for hearings must be disclosed to counsel. A favorable recommendation from a probation officer can significantly impact negotiations or hearings. Always review probation files and be prepared to address any negative factors they contain.
(e) Be Sensitive to the Victim and Their Family
Victims and their families are part of the public and can be called to testify when the court considers public protection. They should not rehash the offense, but if they have valid, current concerns about the respondent, this is relevant. Surprisingly, some victims' families may be forgiving, especially if the respondent was young at the time of the offense and has shown remorse and rehabilitation. Working with prosecutors can help gauge the victim’s stance and provide them with positive information about the respondent.
(f) Know Your Judge
Some courts are more registration-oriented than others. Emphasize the differences between juvenile and adult sex offenders, noting that juveniles are less likely to re-offend and can often be rehabilitated. Presenting a photograph of the respondent at the time of the offense versus their current appearance can be effective. Given the evolving nature of the law, be prepared to educate the court on legal precedents and statutes.
Remember, if the state waives its right to a hearing and no plea bargain is involved, the court must grant the request for un-registration or de-registration by statute.
(g) Sealing of Records
Section 58.003 of the Family Code allows limited sealing of sex offender registration records. However, Section 58.003(n) prohibits sealing while the duty to register exists. Once registration is no longer required due to de-registration, un-registration, or expiration, sealing may be possible if all statutory conditions are met. Note that determinate sentencing cases cannot be sealed under Section 58.003(b) of the Family Code.
V. Trends in Sex Offender Registration Laws
(a) U.S. Supreme Court Upholds Megan’s Law
The U.S. Supreme Court ruled that states do not punish convicted sex offenders twice—once through sentencing and again by publishing their photographs and personal details online. The debate was intense, with Justice Scalia arguing, “What is irrational or unconstitutional about warning people about others who may be dangerous?” while Justice Ginsburg compared it to public shaming akin to a scarlet letter.
(b) Juveniles Are Different
The Supreme Court ruling did not specifically address juvenile offenders. However, research supports that juvenile sex offenders can be rehabilitated. Texas legislation acknowledges this by allowing de-registration and un-registration, giving young offenders the chance to move forward without lifelong stigma. Counsel should vigorously advocate for these remedies.
By Admin | Published April 17, 2009 | Posted in Uncategorized
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