Does the Texas Youth Commission's sex-offender registration rule conflict with a juvenile court's power to defer a juvenile's registration?

TX AG Opinion GA-0772: Does the Texas Youth Commission's sex-offender registration rule conflict with a court's power to defer registration?

Plain-English summary

A county criminal district attorney asked whether a Texas Youth Commission (TYC) rule on juvenile sex-offender registration conflicted with Code of Criminal Procedure article 62.352. Article 62.352 lets a juvenile court, after a hearing, defer a decision on whether to require a juvenile to register as a sex offender until the juvenile completes treatment, including treatment while committed to the TYC. Under article 62.352(c), the court keeps discretion during treatment, registration may not be required during the deferral period, and after successful completion of treatment the juvenile is exempt from registration unless the State moves for a hearing. The statute says what happens for a juvenile who succeeds in treatment, but it is silent about a juvenile who does not.

The TYC rule, section 87.85(g)(3), fills that gap. It says that if the duty to register was deferred and the youth is discharged from TYC without successfully completing treatment, the worker shall register the youth as required by another part of the policy. The district attorney's office thought that conflicted with article 62.352. But the opinion brought in a second statute, article 62.053(b), which requires TYC to register a person who is subject to registration about seven days before release. Texas courts try to read statutes in harmony, and reading these together resolved the tension.

The opinion concluded the rule is not facially inconsistent with the statute. Where there is no court order exempting the juvenile from registration or deferring the decision past the release date, the juvenile is "subject to registration," and article 62.053 requires TYC to register before release; section 87.85(g)(3) simply carries out that duty for a youth who did not complete treatment. But where a court order does exempt the juvenile, or defers the decision beyond release (for example, until further order of the court), the juvenile is not "subject to registration" within article 62.053(b), and the related parts of the rule do not apply. Because the rule has valid applications in the first situation, a court would likely hold it is not facially inconsistent with article 62.352. As a threshold matter, the opinion noted that the Attorney General does not opine on the validity of any particular court order, so it did not pass on any specific deferral order.

Currency note

This opinion was issued in 2010. 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.

Chapter 62 of the Code of Criminal Procedure and the TYC rules have changed since 2010; the Texas Youth Commission itself was later reorganized into the Texas Juvenile Justice Department. Confirm the current statutes and rules before relying on anything below.

Who this opinion affected (as of 2010)

The Texas Youth Commission and its staff: The opinion told them that their rule directing registration of a juvenile discharged without completing treatment was not facially inconsistent with the deferral statute, and that it operated only where no court order exempted the juvenile or deferred the decision past release.

Juvenile courts and prosecutors: The opinion described how a deferral order under article 62.352, or an order deferring the decision beyond release, takes a juvenile out of the "subject to registration" category for purposes of the TYC pre-release registration duty.

Juveniles in TYC sex-offense treatment: The opinion explained that a youth who did not complete treatment could be registered before release unless a court order exempted the youth or deferred the registration decision beyond the release date.

Common questions

Does the TYC rule override a court's deferral of a juvenile's registration?
No. The opinion read the rule and the statutes together: where a court order defers the decision past release or exempts the juvenile, the juvenile is not subject to registration and the rule does not apply.

What happens if a juvenile doesn't complete sex-offense treatment at TYC?
Under the rule, the juvenile is registered as required by the policy, unless a court order exempts the juvenile or defers the registration decision beyond release.

Did the AG say the rule is valid?
The opinion concluded a court would likely hold the rule is not facially inconsistent with article 62.352, because it has valid applications. It did not rule on the validity of any specific court order.

What does article 62.053 require?
It requires TYC to register a person who is subject to registration before release (about seven days before the release date).

Background and statutory framework

Article 62.352 lets a juvenile court, after a hearing under article 62.351 or under a plea agreement under article 62.355(b), defer a decision on requiring sex-offender registration until the respondent completes treatment, including while committed to TYC; during the deferral registration may not be required, and after successful completion the respondent is exempt unless the State moves for a hearing (Tex. Code Crim. Proc. Ann. art. 62.352, 62.351(a), 62.355(b) (Vernon 2006)). The statute is silent about a respondent who does not complete treatment. The TYC rule addresses that gap, directing registration of a youth discharged without successfully completing treatment, and applying full registration where a reportable adjudication exists and the duty to register has not been excused or deferred (37 Tex. Admin. Code § 87.85(g), (f) (2009)).

Article 62.053 requires TYC to register a person subject to registration before release (Tex. Code Crim. Proc. Ann. art. 62.053(a), (b) (Vernon Supp. 2009)). Reading article 62.352 in harmony with article 62.053 (La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984)), the opinion concluded that where no court order exempts the juvenile or defers the decision beyond release, section 87.85(g)(3) validly implements the pre-release registration duty, but where such an order exists, the juvenile is not "subject to registration" and the related rule does not apply (see also Tex. Code Crim. Proc. Ann. art. 62.353(a) (Vernon 2006)). Because the rule has valid applications, a court would likely hold it is not facially inconsistent with article 62.352. The opinion declined to address the validity of any extant court order.

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. arts. 62.352, 62.351(a), 62.355(b), 62.353(a) (Vernon 2006); art. 62.053(a), (b) (Vernon Supp. 2009)
• 37 Tex. Admin. Code § 87.85(g), (f) (2009)

Cases:

• La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558 (Tex. 1984)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0772
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0772.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

May 4, 2010

The Honorable Joe Shannon Jr.
Tarrant County Criminal District Attorney
401 West Belknap
Fort Worth, Texas 76196

Opinion No. GA-0772

Re: Authority of the Texas Youth Commission to require certain juveniles to register as sex offenders (RQ-0760-GA)

Dear Mr. Shannon:

Your predecessor as Tarrant County Criminal District Attorney asked whether a rule of the Texas Youth Commission (TYC) requiring the registration of certain juveniles as sex offenders is inconsistent with Texas Code of Criminal Procedure article 62.352, which authorizes a court to defer registration of a juvenile as a sex offender. TEX. CODE CRIM. PROC. ANN. art. 62.352 (Vernon 2006). In juvenile cases involving an offense for which registration as a sex offender is required, the court may conduct a hearing to determine whether the interests of the public require registration. See id. art. 62.351(a). After the hearing, a juvenile court may under certain circumstances enter an order "deferring decision on requiring registration under this chapter until the respondent has completed treatment for the respondent's sexual offense . . . while committed to the Texas Youth Commission." Id. art. 62.352(b)(1).

We observe as a threshold matter that the attorney general will not issue an opinion addressing the validity of a court order. See Tex. Att'y Gen. Op. Nos. GA-0182 (2004) at 3, JC-0346 (2001) at 4, O-1847 (1940) at 2. Accordingly, our discussion of the district attorney's question will not address the validity of an extant court order that defers a decision on requiring registration.

The TYC rule on sex offender registration provides as follows:

(1) If the duty to register has been deferred, the PSW [primary service worker] will send written notice certifying completion of treatment for the sex offense to the court and prosecuting attorney (that adjudicated the youth for the sex offense) within ten (10) days following verification of completion of treatment for the sex offense.

(2) If a youth successfully completes treatment for the sex offense the youth shall not be required to register as a sex offender unless additional orders are received from the court.

(3) If the duty to register has been deferred and the youth is discharged from TYC without successfully completing treatment for sex offense, the PSW shall register the youth as required in subsection (f) of this policy.

37 TEX. ADMIN. CODE § 87.85(g) (2009).

The request letter suggests that section 87.85(g)(3) is inconsistent with article 62.352(c). See Request Letter at 2. However, article 62.053, Code of Criminal Procedure, is also relevant to the validity of this rule. See TEX. CODE CRIM. PROC. ANN. art. 62.053(b) (Vernon Supp. 2009). Article 62.053(b) expressly requires TYC to register persons subject to registration as sex offenders on the seventh day before their release. Id. art. 62.053(b). We seek to read article 62.352(c) in harmony with article 62.053(b). See La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984) (courts are to construe statute to harmonize with other relevant laws, if possible).

Article 62.352 provides in part:

(b) After a hearing under Article 62.351 or under a plea agreement described by Article 62.355(b), the juvenile court may enter an order:

(1) deferring decision on requiring registration under this chapter until the respondent has completed treatment for the respondent's sexual offense as a condition of probation or while committed to the Texas Youth Commission; or

(2) [providing for non-public registration] . . . ;

(c) If the court enters an order described by Subsection (b)(1), the court retains discretion and jurisdiction to require, or exempt the respondent from, registration under this chapter at any time during the treatment or on the successful or unsuccessful completion of treatment, except that during the period of deferral, registration may not be required. Following successful completion of treatment, the respondent is exempted from registration under this chapter unless a hearing under this subchapter is held on motion of the state . . . .

TEX. CODE CRIM. PROC. ANN. art. 62.352(b)-(c) (Vernon 2006).

Article 62.352(c) provides an outcome for a respondent who successfully completes treatment, but it is silent as to a respondent who does not successfully complete treatment. See id. art. 62.352(c). Section 87.85(g)(3) addresses a situation where a respondent fails to successfully complete treatment. 37 TEX. ADMIN. CODE § 87.85(g)(3) (2009). It provides that "[i]f the duty to register has been deferred and the youth is discharged from TYC without successfully completing treatment for sex offense, the PSW shall register the youth as required in subsection (f) of this policy." Id. Under subsection (f), a respondent is subject to full registration when the respondent "has a reportable adjudication and the duty to register has not been excused or deferred." Id. § 87.85(f). TYC has a duty under article 62.053(a) to register persons "subject to registration under [chapter 62]" as sex offenders before they are released. See TEX. CODE CRIM. PROC. ANN. art. 62.053(a) (Vernon Supp. 2009). Section 87.85(g)(3) implements the TYC duty to register persons subject to registration under chapter 62.

However, in cases where a court order exempts a respondent from registration or defers a decision on registration beyond the respondent's release from TYC, for example, where registration is deferred until further order of the court, the respondent is not "a person who will be subject to registration" within the meaning of article 62.053(b). Id. art. 62.053(b). Likewise, section 87.85(f) does not apply when the duty to register has been excused or deferred beyond the release date. See 37 TEX. ADMIN. CODE § 87.85(f) (2009). Because volume 37, section 87.85(g)(3) of the Texas Administrative Code has valid applications when a court order has not exempted a respondent from registration or deferred a decision on registration beyond the respondent's release date, we conclude that a court would likely hold that section 87.85(g)(3) is not facially inconsistent with article 62.352.

[Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: See State Bar of Texas, Juvenile Law Section, "Order Deferring Sex Offender Registration" (providing that the juvenile respondent shall not register as a sex offender pursuant to Code of Criminal Procedure chapter 62 until (1) respondent's 18th birthday, or (2) further order of the court, whichever event occurs first), available at http://www.juvenilelaw.org/Forms.htm (last visited Apr. 23, 2010).]

[Footnote 3: The brief from TYC raises this section. See TYC Brief at 1.]

[Footnote 4: Code of Criminal Procedure article 62.053(b) provides as follows: (b) On the seventh day before the date on which a person who will be subject to registration under this chapter is due to be released from a penal institution, or on receipt of notice by a penal institution that a person who will be subject to registration under this chapter is due to be released in less than seven days, an official of the penal institution shall send the person's completed registration form and numeric risk level to the department and to: [the appropriate law enforcement agency]. TEX. CODE CRIM. PROC. ANN. art. 62.053(b) (Vernon Supp. 2009).]

[Footnote 5: Section 87.85(g)(1) provides for notice certifying the successful or unsuccessful completion of treatment to the court and prosecuting attorney that adjudicated the youth for the sex offense. See 37 TEX. ADMIN. CODE § 87.85(g)(1) (2009); see also Request Letter at 2, TYC Brief at 2.]

[Footnote 6: See also TEX. CODE CRIM. PROC. ANN. art. 62.353(a) (Vernon 2006) (person registered as a sex offender for delinquent conduct may seek exemption or nonpublic registration).]

SUMMARY

Pursuant to Code of Criminal Procedure article 62.352, a juvenile court may defer a decision on sex offender registration of certain juveniles pending treatment while in a Texas Youth Commission facility. Following successful completion of treatment, a juvenile is exempted from registration unless a hearing is held on motion of the State.

Code of Criminal Procedure article 62.053 requires the Texas Youth Commission to register juveniles as sex offenders seven days before their release if they are subject to registration. A juvenile who has not successfully completed treatment is subject to registration absent a court order exempting him from registration or deferring a decision on the respondent's registration beyond the respondent's release date. Because volume 37, section 87.85(g)(3) of the Texas Administrative Code has valid applications, we conclude that a court would likely hold that section 87.85(g)(3) is not facially inconsistent with article 62.352.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee