Does a sex offender in Texas register with the city police or the county sheriff?

Plain-English summary

District Attorney Kathryn Gurley asked the Attorney General whether a home-rule city could require sex offenders who live inside the city to register with the county sheriff rather than with the city's own chief of police. The question came from a long-standing arrangement: for many years the City of Muleshoe police department and the Bailey County Sheriff's Office had agreed that the sheriff's office would act as the registration authority for both the city and the county, and offenders living inside Muleshoe were told to register with the sheriff.

Chapter 62 of the Code of Criminal Procedure runs the sex offender registration program. Article 62.051(a) requires a person with a reportable conviction (or who must register as a condition of parole, mandatory supervision, or community supervision) to register "with the local law enforcement authority in any municipality where the person resides," and, if the person does not live in a municipality, to register in the county where the person lives. The statute defines "local law enforcement authority" as the chief of police of a municipality, the sheriff of a county, or a centralized registration authority. Reading that plain language, the opinion concluded the Legislature required cities like Muleshoe to provide registration through the office of the chief of police, so a city may not make a resident sex offender register with the county sheriff instead.

The opinion then turned to article 62.0045, enacted in 2009, which lets a commissioners court in a county with a population of 100,000 or more designate the sheriff (or, by interlocal agreement, a city police chief) as a single mandatory countywide registration location. Because Bailey County's population was far under 100,000 (about 7,165 as of 2010), it was not authorized to establish a centralized registration authority. And because no statute authorized any county to create a centralized registration authority before article 62.0045 existed, the opinion concluded no court would likely find that a county could have lawfully done so before 2009.

Finally, the opinion addressed whether an offender who registered with the wrong authority could be prosecuted. Article 62.102 makes it an offense to fail to comply with any chapter 62 requirement, but the opinion explained that a prosecutor "has great discretion in deciding whether, and which offenses, to prosecute." The fact that an offender might raise the defense that a parole or probation officer told him to register elsewhere was just one factor in the prosecutor's assessment of the case. The opinion also noted Penal Code section 8.03(b), which gives an affirmative defense of reasonable reliance on an official written statement of the law by an agency charged with interpreting it.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Cities and their police departments (as the opinion described it): The opinion concluded that a municipality must provide sex offender registration through its chief of police and may not require a resident offender to register with the county sheriff instead, unless a valid centralized registration authority exists.

Counties under 100,000 in population (as the opinion described it): The opinion held such a county was not authorized to establish a centralized countywide registration authority under article 62.0045, and that no county could have lawfully done so before that 2009 statute.

Prosecutors (as the opinion described it): The opinion treated the decision whether to prosecute an offender who registered with the wrong authority as squarely within prosecutorial discretion, and noted an offender might have an affirmative defense under Penal Code section 8.03(b).

Offenders directed to register with the sheriff (as the opinion described it): The opinion stated that a directive from a parole or probation officer to register with a different authority "cannot overcome the provisions of the statute," though it could bear on a prosecutor's charging decision and a possible reliance defense.

Common questions

If I live inside a Texas city, do I register with the city police or the county sheriff?
The opinion read article 62.051 to require registration with the city's chief of police for someone living inside a municipality, and with the county sheriff for someone living outside any municipality.

Can a city and a county just agree to let the sheriff handle everyone?
Not on their own, under this opinion. The opinion found the statute requires city residents to register with the chief of police, and that a single countywide authority is allowed only where article 62.0045 applies.

When can a county set up one central registration office?
Only when the county's population is 100,000 or more, under article 62.0045 (enacted in 2009). The opinion found Bailey County, far below that threshold, could not.

Can someone be prosecuted for registering with the wrong office?
The opinion said that is a matter of prosecutorial discretion. It also pointed to Penal Code section 8.03(b)'s affirmative defense of reasonable reliance on an official written statement of the law.

Background and statutory framework

The Texas sex offender registration program lives in chapter 62 of the Code of Criminal Procedure. Article 62.051(a) directs where a person registers (the municipality's local law enforcement authority if the person lives in a city, otherwise the county), and article 62.001(2) defines "local law enforcement authority" as a city chief of police, a county sheriff, or a centralized registration authority. Article 62.004 has the Department of Public Safety determine a person's primary registration authority based on where the person resides, following article 62.051(a)'s requirements.

Article 62.0045, added in 2009, authorizes a commissioners court in a county of 100,000 or more to designate a single mandatory countywide registration location. Article 62.102 makes failure to comply with any chapter 62 requirement an offense. Penal Code section 8.03(b) provides an affirmative defense of reasonable reliance on an official written statement of the law.

The opinion applied the plain-meaning rule from Wind Mountain Ranch, LLC v. City of Temple and Omaha Healthcare Center v. Johnson, used the expressio unius canon discussed in United Services Automobile Association v. Brite to reject the argument that the interlocal cooperation statute (chapter 791 of the Government Code) authorized the Muleshoe arrangement, and drew its prosecutorial-discretion discussion from its earlier opinion GA-0765 (2010), which cited U.S. v. Molina and Neal v. State.

Citations

Cases:

• Wind Mountain Ranch, LLC v. City of Temple, 333 S.W.3d 580, 581 (Tex. 2010)
• Omaha Healthcare Ctr. v. Johnson, 344 S.W.3d 392, 395 (Tex. 2011)
• United Servs. Auto. Ass'n v. Brite, 215 S.W.3d 400, 403 (Tex. 2007)
• U.S. v. Molina, 530 F.3d 326, 332 (5th Cir. 2008)
• Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004)

Texas Attorney General opinions referenced:

• Tex. Att'y Gen. Op. No. GA-0765 (2010)
• Tex. Att'y Gen. Op. No. GA-0246 (2004)
• Tex. Att'y Gen. Op. No. GA-0189 (2004)
• Tex. Att'y Gen. Op. No. GA-0150 (2004)
• Tex. Att'y Gen. Op. No. JC-0219 (2000)
• Tex. Att'y Gen. Op. No. JM-191 (1984)

Statutes:

• Tex. Code Crim. Proc. Ann. arts. 62.001(2), 62.004, 62.051(a), 62.0045 (West Supp. 2012)
• Tex. Code Crim. Proc. Ann. art. 62.102 (West 2006)
• Tex. Penal Code Ann. § 8.03(b) (West 2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0976
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0976.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 20, 2012

The Honorable Kathryn H. Gurley Opinion No. GA-0976
287th Judicial District Attorney
Bailey and Parmer Counties Re: Whether a home-rule municipality may
Post Office Box 729 require sex offenders who reside within the city to
Friona, Texas 79035 register with the sheriff rather than with the chief
of police (RQ-1064-GA)

Dear Ms. Gurley:

You ask whether a home-rule municipality may require sex offenders who reside within the city to register with the county sheriff rather than with the municipality's chief of police.[1]

Chapter 62 of the Code of Criminal Procedure establishes and describes the sex offender registration program. Article 62.051 thereof provides that "[a] person who has a reportable conviction or adjudication[2] or who is required to register as a condition of parole, release to mandatory supervision, or community supervision shall register ... with the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days." TEX. CODE CRIM. PROC. ANN. art. 62.051(a) (West Supp. 2012). "If the person does not reside or intend to reside in a municipality," the person must register "in any county where the person resides or intends to reside for more than seven days." Id. The statute defines "local law enforcement authority" as "the office of the chief of police of a municipality, the office of the sheriff of a county in this state, or a centralized registration authority." Id. art. 62.001(2). You explain that, for many years, the police department of the City of Muleshoe and the Bailey County Sheriff's Office have agreed that the sheriff's office "will act as the registration authority for both the City of Muleshoe and for Bailey County," and that "[s]ex offenders who reside within the city limits of Muleshoe are instructed to register with the Bailey County Sheriff's Office." Request Letter at 1.

It is well established that, when the words of a statute are clear and unambiguous, a court, and by extension this office, will construe them according to their plain and common meaning. Wind Mountain Ranch, LLC v. City of Temple, 333 S.W.3d 580, 581 (Tex. 2010). Unless a strict interpretation of statutory language according to its plain meaning "yields an absurd or nonsensical result," courts will honor the Legislature's intent and reduce confusion "by giving legislators, the bar, and ordinary persons confidence that courts will interpret statutes to mean what they say." Omaha Healthcare Ctr. v. Johnson, 344 S.W.3d 392, 395 (Tex. 2011). It is evident from the plain language of article 62.051 that the Legislature has required cities, such as Muleshoe, to provide sex offender registration only in the office of the chief of police.[3] Thus, a municipality may not require a sex offender who resides within the limits of that municipality to register with the county sheriff rather than with the chief of police of the municipality.

You also ask whether article 62.0045 is applicable in the present instance. Request Letter at 2. That article, enacted in 2009, authorizes a commissioners court in a county with a population of 100,000 or more to designate the county sheriff, or, by interlocal agreement, the chief of police of a municipality within the county, to serve as a mandatory countywide registration location. See TEX. CODE CRIM. PROC. ANN. art. 62.0045 (West Supp. 2012). The population of Bailey County is significantly less than 100,000.[4] Thus, Bailey County is not authorized to establish a centralized registration authority. Likewise, in answer to the second part of your second question, because no statute authorized any county to establish a centralized registration authority prior to the enactment of article 62.0045, no court is likely to find that a county could have lawfully established a centralized registration authority prior to 2009.[5]

Finally, you inquire whether an offender may be prosecuted for failure to comply with the registration requirements designated in article 62.051(a): to register with the chief of police if a person resides within a municipality, or with the sheriff if the person resides outside a municipality. See Request Letter at 2. Although, as we have stated, you indicate that offenders living within the city limits of Muleshoe have been directed by their parole or probation officers to register with the office of the county sheriff, such a directive cannot overcome the provisions of the statute. Article 62.102 provides that "[a] person commits an offense if the person is required to register and fails to comply with any requirement of [chapter 62]." TEX. CODE CRIM. PROC. ANN. art. 62.102 (West 2006). As we have noted in an earlier opinion, "[a] prosecuting attorney 'has great discretion in deciding whether, and which offenses, to prosecute.'" Tex. Att'y Gen. Op. No. GA-0765 (2010) at 1 (citing U.S. v. Molina, 530 F.3d 326, 332 (5th Cir. 2008); Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004)). In that opinion, we stated the following:

Courts recognize that prosecutorial decisions are ill-suited to judicial review because such decisions include consideration of factors involved in initiating a criminal case[, such as] the strength of the case, the case's deterrent value, and the government's enforcement priorities. Accordingly, courts afford prosecutorial decisions substantial deference.

Id. (citations omitted). The possibility that an individual will raise the defense that he was directed by his probation or parole officer to register with a law enforcement authority different from the one prescribed by statute is merely one factor involved in a prosecutor's determination about the strength of the case and thus falls within the scope of prosecutorial discretion. See id. at 2; see also Tex. Att'y Gen. Op. No. GA-0246 (2004) at 3 (recognizing difficulty in proving intent in circumstances of possible criminal offense under section 143.006, Local Government Code, and noting that "whether to proceed in such a case is a matter squarely within prosecutorial discretion"). We note, however, that, pursuant to section 8.03 of the Penal Code, it is an "affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon," inter alia, "(1) an official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question." TEX. PENAL CODE ANN. § 8.03(b) (West 2011).

SUMMARY

A sex offender who resides within a municipality should register with the office of chief of police of the municipality, and a sex offender who resides outside the limits of a municipality should register with the county sheriff. A home-rule municipality may not require otherwise, unless the municipality is in a county with a centralized registration authority. A county with a population of less than 100,000 persons is not authorized to establish a centralized registration authority. Whether an offender may be prosecuted for failure to comply with sex registration requirements is a matter within a prosecutor's discretion.

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Kathryn H. Gurley, 287th Judicial Dist. Att'y, Bailey & Parmer Cntys., to Honorable Greg Abbott, Tex. Att'y Gen. (May 24, 2012), http://texasattorneygeneral.gov/opin ("Request Letter").

[2] Article 62.001 defines "reportable conviction or adjudication" and refers to eleven violations of the Penal Code encompassed within that definition. TEX. CODE CRIM. PROC. ANN. art. 62.001(5) (West Supp. 2012).

[3] We note that another provision of chapter 62 requires the Department of Public Safety to "determine which local law enforcement authority serves as the person's primary registration authority based on the municipality or county in which the person resides." TEX. CODE CRIM. PROC. ANN. § 62.004 (West Supp. 2012). In making those determinations, however, the Department must follow the specific registration requirements of article 62.051(a).

[4] See U.S. DEP'T OF COMMERCE, U.S. CENSUS BUREAU, State and County QuickFacts, at http://quickfacts.census.gov/qfd/states/48/48017.html (Bailey County's population as of 2010 is 7,165).

[5] A brief submitted in response to this request contends that chapter 791 of the Government Code, which relates to interlocal cooperation contracts, would authorize the kind of agreement contemplated here. See Brief from John B. Dahill, Texas Conference of Urban Counties (July 24, 2012) (on file with Opinion Committee). But the mere existence of article 62.0045, authorizing interlocal agreements in counties with a population of 100,000 or more, indicates that the Legislature believes that express authority is required for such an agreement. See United Servs. Auto. Ass'n v. Brite, 215 S.W.3d 400, 403 (Tex. 2007) (citing the "doctrine of expressio unius est exclusio alterius - the inclusion of a specific limitation excludes all others"). Moreover, this office has frequently stated that chapter 791 "does not extend a local government's criminal law enforcement authority beyond its jurisdiction." See Tex. Att'y Gen. Op. No. GA-0189 (2004) at 5-6; accord Tex. Att'y Gen. Op. Nos. GA-0150 (2004) at 5-6, JC-0219 (2000) at 5, JM-191 (1984) at 1.