Do I have to register as a sex offender in Texas for an out-of-state conviction if I was never on Texas probation or parole?

TX AG Opinion GA-0454: Must out-of-state offenders register in Texas without ever being on Texas supervision?

Plain-English summary

The Director of the Texas Department of Public Safety asked the Attorney General to untangle a question about who has to register under the Texas sex-offender registration law, Code of Criminal Procedure chapter 62. Chapter 62 requires a person with a "reportable conviction or adjudication" to register with local law enforcement where they live, and a reportable conviction includes one from another state for an offense whose elements are substantially similar to a Texas reportable offense.

The hard part was the law's history of effective dates and savings clauses. The registration law started in 1991. A 1995 amendment added out-of-state convictions but applied only going forward, to out-of-state offenses on or after September 1, 1995. In 1997 the law was recodified as chapter 62 and made to reach convictions back to September 1, 1970, but a savings clause limited that retroactive reach to defendants who, on or after September 1, 1997, were confined in a Texas penal institution or under the supervision of a Texas probation or parole agency. The Director's concern: a person who was convicted of a sex offense in another state, served the whole sentence under that state's supervision, and later moved to Texas would never have been under Texas supervision. Did the 1997 savings clause excuse that person from registering?

The Attorney General said no, the person must register. The key was House Bill 867, passed in 2005, which reenacted and amended chapter 62 in its entirety to simplify it. That bill said its changes apply to offenses committed before, on, or after its effective date (with narrow exceptions for changes to elements or punishment). Because the 1997 savings clause could not be reconciled with the comprehensive 2005 reenactment, the savings clause was impliedly repealed. Texas law provides that when two statutes are irreconcilable, the later one prevails, and a comprehensive enactment meant to cover the whole subject repeals inconsistent earlier law. The opinion also noted that courts had by then upheld retroactive sex-offender registration against ex post facto challenges. So chapter 62 now reaches reportable convictions on or after September 1, 1970, without the supervision conditions in the old savings clause. A Texas resident with a qualifying out-of-state conviction must register even if Texas never supervised them for it.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Texas's sex-offender registration program (Code of Criminal Procedure chapter 62) has been amended many times since 2006, and federal registration requirements have also changed. Anyone trying to determine a current registration duty, deadline, or the offenses that trigger registration should check current law and consult counsel rather than rely on the specific provisions described here.

Who this opinion affected (as of 2006)

The Department of Public Safety: The opinion told DPS that chapter 62, after the 2005 reenactment, reached reportable convictions back to September 1, 1970, without the 1997 savings clause's supervision conditions, so registrations for qualifying out-of-state offenders had to be processed accordingly.

Local law enforcement registration officials: The opinion clarified that a person's lack of Texas supervision history for an out-of-state conviction did not exempt them from the duty to register where they reside.

People with out-of-state sex-offense convictions living in Texas: The opinion explained that, under chapter 62 as reenacted in 2005, a reportable out-of-state conviction occurring on or after September 1, 1970 triggered a Texas registration duty even if the person served their entire sentence under another state's supervision.

Common questions

Did the opinion say out-of-state convictions count for Texas registration?
Yes. The opinion explained that a "reportable conviction or adjudication" under chapter 62 includes convictions under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice for an offense with elements substantially similar to a Texas reportable offense.

Did it matter that the person was never on Texas probation or parole?
No, not by the time of the opinion. The opinion concluded the 1997 savings clause, which had tied retroactive registration to Texas confinement or supervision, was impliedly repealed by the 2005 reenactment, so the supervision condition no longer controlled the duty to register.

How far back do the covered convictions go?
The opinion stated that, under the 2005 bill, chapter 62 "applies only to a reportable conviction or adjudication occurring on or after September 1, 1970."

Isn't applying registration to old convictions an ex post facto problem?
The opinion noted courts had rejected that argument, citing the U.S. Supreme Court's decision upholding Alaska's retroactive registration law and a Texas Court of Criminal Appeals decision upholding Texas's retroactive amendments.

Background and statutory framework

Chapter 62 requires a person with a reportable conviction or adjudication to register where they reside (Tex. Code Crim. Proc. Ann. art. 62.051 (Vernon Supp. 2006)), and a reportable conviction includes out-of-state, federal, foreign, or military convictions for substantially similar offenses (art. 62.001(5)(H), (J)); DPS maintains the central database (art. 62.005). The registration law began in 1991 as former article 6252-13c.1, Revised Civil Statutes (Act of May 26, 1991, 72d Leg., R.S., ch. 572, 1991 Tex. Gen. Laws 2029), was amended in 1995 to add out-of-state convictions prospectively from September 1, 1995 (Act of May 19, 1995, 74th Leg., R.S., ch. 258, 1995 Tex. Gen. Laws 2197), and was recodified as chapter 62 in 1997 with a savings clause limiting retroactive reach to persons confined or supervised in Texas on or after September 1, 1997 (Act of June 1, 1997, 75th Leg., R.S., ch. 668, 1997 Tex. Gen. Laws 2253).

The 2005 reenactment, House Bill 867, reorganized chapter 62 comprehensively and provided that its changes apply to offenses before, on, or after its effective date, with narrow exceptions (Act of May 26, 2005, 79th Leg., R.S., ch. 1008, 2005 Tex. Gen. Laws 3385). Courts had upheld retroactive registration against ex post facto challenges (Smith v. Doe, 538 U.S. 84, 93 (2003); Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)). On repeal, the opinion applied the rules that a statute may be repealed by implication, that irreconcilable laws are harmonized if possible but otherwise the later enactment prevails, and that a comprehensive enactment covering the whole subject repeals inconsistent earlier law (Gordon v. Lake, 356 S.W.2d 138, 139 (Tex. 1962); Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990); Standard v. Sadler, 383 S.W.2d 391, 395 (Tex. 1964); Tex. Gov't Code Ann. § 311.025(a) (Vernon 2005); Conley v. Daughters of the Republic, 157 S.W. 937 (Tex. 1913); Motor Inv. Co. v. City of Hamlin, 179 S.W.2d 278, 281 (Tex. 1944); Tex. Att'y Gen. Op. Nos. JM-474 (1986), H-1107 (1977); see also Tex. Gov't Code Ann. § 311.031(d) (Vernon 2005)). The opinion concluded the 1997 savings clause was impliedly repealed and chapter 62 now applies to reportable convictions on or after September 1, 1970 (art. 62.002).

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. arts. 62.051, 62.001(5)(H), (J), 62.005, 62.001(3), 62.001(H), (J), (I), (L), 62.102, 62.002 (Vernon Supp. 2006)
• Tex. Gov't Code Ann. §§ 311.025(a), 311.031(d) (Vernon 2005)
• Former art. 6252-13c.1, Revised Civil Statutes
• Act of May 26, 2005, 79th Leg., R.S., ch. 1008 (House Bill 867), 2005 Tex. Gen. Laws 3385; Act of June 1, 1997, 75th Leg., R.S., ch. 668, 1997 Tex. Gen. Laws 2253; Act of May 19, 1995, 74th Leg., R.S., ch. 258, 1995 Tex. Gen. Laws 2197; Act of May 26, 1991, 72d Leg., R.S., ch. 572, 1991 Tex. Gen. Laws 2029

Cases and prior opinions:

• Smith v. Doe, 538 U.S. 84, 93 (2003)
• Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)
• Gordon v. Lake, 356 S.W.2d 138, 139 (Tex. 1962)
• Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990)
• Standard v. Sadler, 383 S.W.2d 391, 395 (Tex. 1964)
• Conley v. Daughters of the Republic, 157 S.W. 937 (Tex. 1913)
• Motor Inv. Co. v. City of Hamlin, 179 S.W.2d 278, 281 (Tex. 1944)
• Tex. Att'y Gen. Op. Nos. JM-474 (1986), H-1107 (1977)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0454
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0454.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

September 13, 2006

Colonel Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
5805 North Lamar Blvd.
Post Office Box 4087
Austin, Texas 78773-0001

Opinion No. GA-0454

Re: Whether a sex offender with a reportable conviction based on an out-of-state offense prior to September 1, 1995, must register as a sex offender if he resides in Texas even though he was not under the supervision and control of a Texas-based penal institution, probation department, or parole office for the offense (RQ-0453-GA)

Dear Colonel Davis:

You seek an opinion about Code of Criminal Procedure chapter 62, which requires sex offenders who have a "reportable conviction or adjudication" to register with the local law enforcement entity in the municipality or county where that person resides or intends to reside. See TEX. CODE CRIM. PROC. ANN. art. 62.051 (Vernon Supp. 2006). A "reportable conviction or adjudication" includes those arising from not only a violation of specified Texas laws, but also "a violation of the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice for or based on the violation of an offense containing elements that are substantially similar to the elements" of the Texas offenses subject to reporting under chapter 62. See id. art. 62.001(5)(H), (J). Chapter 62 requires the Department of Public Safety (the "department") to maintain a computerized central database of all the information that a person who is required to be registered provides to a local law enforcement agency. See id. art. 62.005.

Your question is as follows:

Does a sex offender with a reportable conviction based on an out-of-state conviction occurring before September 1, 1995, who was still under supervision in the other state on or after September 1, 1997, have a duty to register as a sex offender in Texas if the offender resides in Texas but was at no point under the supervision and control of a Texas-based penal institution, probation department, or parole office for the out-of-state conviction?

Request Letter, supra note 1, at 1.

Your question relates to certain amendments to chapter 62 and its predecessor. The sex offender registration law was adopted in 1991 as former article 6252-13c.1, Revised Civil Statutes. See Act of May 26, 1991, 72d Leg., R.S., ch. 572, § 1, 1991 Tex. Gen. Laws 2029. The legislature amended article 6252-13c.1 in 1995 to require sex offenders to register based on out-of-state convictions. See Act of May 19, 1995, 74th Leg., R.S., ch. 258, § 1, 1995 Tex. Gen. Laws 2197. The amendment applied prospectively only, stating that article 6252-13c.1 would apply only to a reportable conviction or adjudication for specific offenses, including an out-of-state offense that occurred on or after September 1, 1995, the effective date of the bill. See id. § 8 at 2202. This provision was codified as former article 6252-13c.1, section 8(a), Revised Civil Statutes.

In 1997, the legislature redesignated article 6252-13c.1 as Code of Criminal Procedure chapter 62, effective September 1, 1997. See Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 10, 1997 Tex. Gen. Laws 2253, 2264. The enactment recodified former section 8(a) as article 62.11 and amended it to apply to earlier violations, stating that "[t]his chapter applies only to a reportable conviction or adjudication occurring on or after September 1, 1970." Id. § 1, at 2260. It also included the following savings clause:

(a) The change in law made by this Act to Article 62.11, Code of Criminal Procedure [providing chapter 62 applies only to a reportable conviction on or after September 1, 1970] applies only to a defendant who, with respect to an offense listed in Subdivision (5), Article 62.01, Code of Criminal Procedure, as redesignated and amended by this Act . . . , on or after the effective date of this Act:

(1) is confined in a penal institution, as that term is defined by Subdivision (3), Article 62.01, Code of Criminal Procedure, as redesignated and amended by this Act (formerly Subdivision (3), Section 1, Article 6252-13c.1, Revised Statutes); or

(2) is under the supervision and control of a juvenile probation office or an agency or entity operating under contract with a juvenile probation office, a community supervision and corrections department, or the pardons and paroles division of the Texas Department of Criminal Justice.

(b) A defendant who, on the effective date of this Act, is not described by Subdivision (1) or (2) of Subsection (a) of this section is covered by the law in effect under Subsection (a), Section 8, Article 6252-13c.1, Revised Statutes, before that section was redesignated and amended by this Act, and the former law is continued in effect for that purpose.

Id. § 11, at 2264. This provision was not codified.

Subsection (b) applies to offenders not confined in a penal institution or under the supervision and control of a probation or parole agency on or after September 1, 1997, preserving for such persons the 1995 provision that required registration only for conviction or adjudication of certain offenses, including out-of-state offenses, that occurred on or after September 1, 1995. See Act of May 19, 1995, 74th Leg., R.S., ch. 258, § 1, 1995 Tex. Gen. Laws 2197.

You wish to know whether the provision mandating prospective operation of the 1995 amendments and the savings clause in the 1997 amendment are still in effect. See Request Letter, supra note 1, at 3-4. The 1995 provision was repealed in 2005 and no longer applies to reporting duties under chapter 62. See Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385, 3412.

You point out that the 1997 savings clause provides in section (a)(1) that the change in the law applies only to persons confined on or after September 1, 1997, in a Texas penal institution. See Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1, 1997 Tex. Gen. Laws 2253 (definition of "penal institution" in 1997); TEX. CODE CRIM. PROC. ANN. art. 62.001(3) (Vernon Supp. 2006) (current definition of "penal institution"). Section (a)(2) of the clause expressly applies to a defendant under supervision of the pardons and paroles division of the Texas Department of Criminal Justice, as well as defendants under probation or community supervision. Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 11, 1997 Tex. Gen. Laws 2253, 2264. You state that local law enforcement authorities submit registrations to the department for sex offenders with a reportable conviction in another state who were under state supervision for the offense on or after September 1, 1997. See Request Letter, supra note 1, at 3. However, "their entire incarceration, probation, and/or parole was served under the supervision and control of an entity in the convicting state," not in Texas. Id. Thus you suggest that the 1997 amendment to chapter 62 making registration retroactive to September 1, 1970, may not apply to an offender convicted of a sex offense in another state who is never under the supervision and control of a Texas penal institution, parole department, or probation office for the offense. See id. at 3-4.

In our opinion, the legislature's adoption of House Bill 867 in 2005 repealed the 1997 savings clause. See Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385, 3387. House Bill 867 "reenacted and amended" chapter 62, reorganizing it to make it more easily understood by persons required to administer it. See HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. C.S.H.B. 867, 79th Leg., R.S. (2005). The bill included the following transition clause:

(a) Except as provided by Subsection (b) of this section, the changes in law made by this Act in amending Chapter 62, Code of Criminal Procedure, apply to a person subject to Chapter 62, Code of Criminal Procedure, for an offense or conduct committed or engaged in before, on, or after the effective date of this Act.

(b) To the extent that the changes in law made by this Act to Chapter 62, Code of Criminal Procedure, change the elements of or punishment for conduct constituting a violation of Chapter 62, those changes apply only to conduct engaged in, on, or after the effective date of this Act. Conduct engaged in before the effective date of this Act is governed by the law in effect at the time the conduct was engaged in, and that law is continued in effect for that purpose.

Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 4.01, 2005 Tex. Gen. Laws 3385, 3422. Thus, House Bill 867 provides that changes in chapter 62 would be retroactive, with certain exceptions. While the legislature may have hesitated in 1995 and 1997 to apply a sex offender registration provision retroactively, the courts have determined since then that the retroactive application of such provisions does not violate the ex post facto clause. See Smith v. Doe, 538 U.S. 84, 93 (2003) (holding Alaska's retroactive sex offender registration statute not violative of the ex post facto clause); Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) (holding Texas' retroactive amendments to sex offender registration statute not violative of the ex post facto clause).

House Bill 867 amended and reenacted the provisions defining a reportable conviction to include a conviction based on a violation of the laws of another state. See TEX. CODE CRIM. PROC. ANN. art. 62.001(H), (J) (Vernon Supp. 2006); see also id. art. 62.001(I), (L) (second conviction "under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice"). It is clear that the legislature intended chapter 62 to apply to sex offenders convicted of certain offenses in another state if they reside in Texas. The 1997 savings clause is thus inconsistent with chapter 62. Moreover, the 1997 savings clause has not been adopted or carried forward by House Bill 867 or earlier amendments to chapter 62.

"A statute may be repealed expressly or by implication." Gordon v. Lake, 356 S.W.2d 138, 139 (Tex. 1962). Because repeals by implication are not favored, laws relating to the same subject will be harmonized if possible and considered as though incorporated in the same act. See Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990); Standard v. Sadler, 383 S.W.2d 391, 395 (Tex. 1964). However, a new statute that cannot be reconciled with an old statute impliedly repeals the old statute. See Gordon, 356 S.W.2d at 139. Government Code chapter 311 provides the following rule for irreconcilable statutes and amendments:

Except as provided by Section 311.031(d), if statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails.

TEX. GOV'T CODE ANN. § 311.025(a) (Vernon 2005). See Conley v. Daughters of the Republic, 157 S.W. 937 (Tex. 1913). The 1997 savings clause and House Bill 867 cannot be reconciled. Accordingly, House Bill 867 as the more recent enactment prevails.

We also note that House Bill 867 was adopted after a select interim committee met to consider and recommend changes in chapter 62. See HOUSE SELECT INTERIM COMM. ON SEX OFFENDER STATUTES, TEXAS HOUSE OF REPRESENTATIVES, INTERIM REPORT (2004). As a result of numerous amendments to chapter 62 over the years, there was "a very real concern that the registration program has proved to be cumbersome and difficult to manage." Id. at 1. "For this reason, the Speaker created this select interim committee to examine Chapter 62 to determine what changes, if any, are needed to streamline and clarify the provisions." Id. House Bill 867 was adopted to deal with the problems addressed by the interim committee. See HOUSE COMM. ON CRIMINAL JURISPRUDENCE, BILL ANALYSIS, Tex. C.S.H.B. 867, 79th Leg., R.S. (2005) (committee report). It dealt with chapter 62 in its entirety, expressly repealing and reenacting many provisions of the chapter. As a law designed to deal with chapter 62 comprehensively, it impliedly repealed the uncodified 1997 savings clause. See Motor Inv. Co. v. City of Hamlin, 179 S.W.2d 278, 281 (Tex. 1944) (a comprehensive enactment that is intended to include all the law on the subject with which it deals evidences a legislative intent to repeal former statutory law); Tex. Att'y Gen. Op. Nos. JM-474 (1986) at 4, H-1107 (1977) at 3. Pursuant to the 2005 bill reenacting and amending chapter 62, this chapter "applies only to a reportable conviction or adjudication occurring on or after September 1, 1970." See Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385, 3388 (codified at TEX. CODE CRIM. PROC. ANN. art. 62.002).

The 1997 savings clause limiting the application of the 1997 amendments to persons confined in a Texas penal institution on or after September 1, 1997, has been impliedly repealed by House Bill 867. Thus, a sex offender's duty to register now relates to convictions occurring on or after September 1, 1970, and the duty to report is controlled by chapter 62 without reference to the conditions stated in the 1997 savings clause. In answer to your specific question, a sex offender with a reportable conviction based on an out-of-state offense occurring before September 1, 1995, must register as a sex offender in Texas if the offender resides in Texas, even though the offender has not been under the supervision and control of a Texas-based penal institution, probation department, or parole office for the out-of-state conviction.

SUMMARY

Code of Criminal Procedure chapter 62 requires a sex offender who has a reportable out-of-state conviction occurring on or after September 1, 1970 to register as a sex offender in the Texas city or county where he resides or intends to reside, even though the offender has not been under the supervision and control of a Texas-based penal institution, probation department, or parole office for the out-of-state conviction. The savings clauses of amendments to chapter 62 and its predecessor adopted in 1995 and 1997 do not govern the duty to register based on a reportable out-of-state conviction.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes

1. Letter from Thomas A. Davis, Jr., Director, Texas Department of Public Safety, to Honorable Greg Abbott, Attorney General of Texas (Feb. 15, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. This provision was designated as article 62.001(5)(H) by the Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3386, 3387, which reenacted and amended chapter 62. It was designated article 62.001(5)(J) by the Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 2, 2005 Tex. Gen. Laws 4049, 4051, which created a new reportable offense of online solicitation of a minor.

3. See Request Letter, supra note 1, at 3.

4. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 62.102 (Vernon Supp. 2006) (criminal penalty for failure to register).

5. Government Code section 311.031(d) provides that "[i]f any provision of a code conflicts with a statute enacted by the same legislature that enacted the code, the statute controls." TEX. GOV'T CODE ANN. § 311.031(d) (Vernon 2005).