Does ending deferred adjudication early remove the duty to register as a sex offender in Texas?

Plain-English summary

District Attorney E. Bruce Curry asked whether a person whose deferred adjudication was ended early still has to register as a sex offender under chapter 62 of the Code of Criminal Procedure. The defendant had pleaded guilty in 1986 to indecency with a child by contact and received two years of deferred adjudication community supervision. A judge later terminated that supervision early, under the version of article 42.12, section 5(c) in effect at the time, which let a court dismiss the proceedings and discharge the defendant before the probation term ended. The duty to register as a sex offender did not yet exist back then, but chapter 62 applies retroactively to reportable convictions or adjudications occurring on or after September 1, 1970.

The AG concluded the early termination did not erase the registration duty. The analysis turned on the difference between a "conviction" and an "adjudication." Section 5(c) expressly says an early dismissal or discharge under it "may not be deemed a conviction" for disqualifications or disabilities imposed by law, so the early termination was not a reportable "conviction." But chapter 62's definition of a reportable conviction or adjudication separately includes a "deferred adjudication" as an "adjudication," and section 5(c) is silent about whether an early discharge undoes a deferred adjudication for other laws. The AG found no authority that a section 5(c) discharge changes how chapter 62 applies to a deferred adjudication.

The AG reinforced this with two points. First, the Legislature is presumed to know existing law, and when it enacted chapter 62 the early-termination power already existed; yet chapter 62 defines a reportable adjudication to include a deferred adjudication whether it was terminated early, completed, or revoked. Second, the Legislature spelled out the only situations in which the registration duty does not apply, a conviction or adjudication set aside on appeal, or a pardon based on proof of innocence, and early termination is not one of them. So the AG concluded a court would likely hold that an early-termination order under section 5(c) does not affect the deferred adjudication's potential status as an "adjudication" subject to chapter 62 registration.

The AG drew a contrast with a different mechanism. Courts have held that "judicial clemency" for post-conviction community supervision under article 42.12, section 20(a) can effectively wipe away a conviction, and one court used that reasoning to find no duty to register. But the AG noted that section 20(a) applies only to post-conviction community supervision, not to the early termination of a deferred adjudication, so that line of cases did not control here. The AG also noted that whether this particular defendant could be prosecuted for failing to register is a fact question for a jury, not something an AG opinion decides.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. The sex-offender registration statutes and the deferred-adjudication provisions discussed here have been amended over time. 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

District Attorney Curry (as the opinion described it): The opinion concluded that a court would likely hold that an early-termination order under the former version of article 42.12, section 5(c) does not affect the deferred adjudication's potential status as an "adjudication" subject to chapter 62 registration. It described whether the specific defendant could be prosecuted for failing to register as a fact question for a jury, outside the scope of an opinion.

People with an early-terminated deferred adjudication for a registrable offense (as the opinion described it): The opinion described early termination under section 5(c) as meaning the matter is not a "conviction," but described chapter 62 as still reaching the underlying deferred adjudication as an "adjudication," so the opinion treated early termination as not removing the registration duty.

Defense attorneys and courts (as the opinion described it): The opinion described chapter 62 as applying on the mere occurrence of a reportable conviction or adjudication on or after September 1, 1970, with the only exceptions being a reversal on appeal or a pardon based on proof of innocence, and described the section 20(a) clemency cases as inapplicable to early termination of a deferred adjudication.

Common questions

Does ending deferred adjudication early get someone off the sex-offender registry in Texas?
The AG concluded it likely does not. Early termination under section 5(c) means the matter is not a "conviction," but chapter 62 also reaches the underlying deferred adjudication as an "adjudication," and the AG found nothing that erases that.

Why does it matter whether it's a "conviction" or an "adjudication"?
The AG explained that section 5(c) says an early discharge "may not be deemed a conviction," but chapter 62's registration trigger includes a deferred adjudication as an adjudication, not only a conviction. So escaping the "conviction" label does not escape the adjudication-based duty.

Doesn't a discharge wipe the slate clean?
The AG explained that, for a different mechanism (judicial clemency for post-conviction probation under section 20(a)), courts have said a discharge can wipe away a conviction. But section 20(a) does not apply to the early termination of a deferred adjudication, so that reasoning did not control.

Chapter 62 didn't exist in the 1980s, so how can it apply?
The AG explained that chapter 62 applies retroactively, reaching a reportable conviction or adjudication that occurred on or after September 1, 1970, so the timing of the original plea did not exempt the defendant.

When does the registration duty not apply?
The AG noted the Legislature listed only two situations: when the conviction or adjudication is set aside on appeal, or when the defendant receives a pardon based on proof of innocence. Early termination is not on that list.

Background and statutory framework

The defendant pleaded guilty to indecency with a child by contact (Tex. Penal Code Ann. § 21.11 (West 2011)) and received deferred adjudication that a court later terminated early under the then-current version of article 42.12, section 5(c) (Tex. Code Crim. Proc. Ann. art. 42.12, § 5(c) (West Supp. 2013); see also id. § 5(a)). Chapter 62 applies retroactively to a reportable conviction or adjudication occurring on or after September 1, 1970 (id. arts. 62.002(a), .051(a) (West Supp. 2013); Reynolds v. State, 385 S.W.3d 93, 95-99 (Tex. App.-Waco 2012), aff'd, 423 S.W.3d 377 (Tex. Crim. App. 2014)), and defines a "reportable conviction or adjudication" to include a deferred adjudication based on an enumerated offense such as indecency with a child by contact (id. art. 62.001(5)(A)).

Reading section 5(c) by its plain language (In re Lee, 411 S.W.3d 445, 451 (Tex. 2013)), the AG noted that the section says an early discharge "may not be deemed a conviction" for disqualifications or disabilities, so it is not a reportable "conviction," but that the section is silent on whether the discharge undoes a deferred adjudication for other laws. The AG distinguished cases holding that judicial clemency for post-conviction community supervision under section 20(a) can wipe away a conviction (Cuellar v. State, 70 S.W.3d 815, 818-19 (Tex. Crim. App. 2002); Hall v. State, 2013 WL 441007, at *1-3 (Tex. App.-Texarkana 2013, pet. denied)), because section 20(a) applies only to post-conviction community supervision, not to early termination of deferred adjudication (State v. Juvrud, 187 S.W.3d 492, 496 (Tex. Crim. App. 2006)). The AG reasoned that the Legislature knew how to erase a conviction but did not do the same for a deferred adjudication (FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000)), and is presumed to legislate with knowledge of existing law (Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990)). Because chapter 62 defines a reportable adjudication to include a deferred adjudication regardless of how it ended (id. art. 62.001(5)) and excuses the duty only on a reversal or innocence-based pardon (id. art. 62.002(c)), the AG concluded early termination does not affect the registration duty, while noting that whether this defendant committed a failure-to-register offense is a fact question (id. art. 62.102; Tex. Att'y Gen. Op. No. GA-0511 (2007) at 7).

Citations

Statutory provisions:

• Tex. Penal Code Ann. § 21.11 (West 2011) (indecency with a child by contact)
• Tex. Code Crim. Proc. Ann. art. 42.12, § 5(c) (West Supp. 2013) (early dismissal and discharge of deferred adjudication)
• Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (West Supp. 2013) (deferred adjudication community supervision)
• Tex. Code Crim. Proc. Ann. art. 42.12, § 20(a) (judicial clemency for post-conviction community supervision)
• Tex. Code Crim. Proc. Ann. arts. 62.002(a), .051(a) (West Supp. 2013) (retroactive application; duty to register)
• Tex. Code Crim. Proc. Ann. art. 62.001(5)(A) (West Supp. 2013) (reportable conviction or adjudication; enumerated offenses)
• Tex. Code Crim. Proc. Ann. art. 62.001(5) (West Supp. 2013) (definition includes a deferred adjudication)
• Tex. Code Crim. Proc. Ann. art. 62.002(c) (exceptions: reversal on appeal or innocence-based pardon)
• Tex. Code Crim. Proc. Ann. art. 62.102 (failure to comply with registration duty)

Cases:

• Reynolds v. State, 385 S.W.3d 93, 95-99 (Tex. App.-Waco 2012), aff'd, 423 S.W.3d 377 (Tex. Crim. App. 2014)
• In re Lee, 411 S.W.3d 445, 451 (Tex. 2013)
• Cuellar v. State, 70 S.W.3d 815, 818-19 (Tex. Crim. App. 2002)
• Hall v. State, 2013 WL 441007, at *1-3 (Tex. App.-Texarkana 2013, pet. denied)
• State v. Juvrud, 187 S.W.3d 492, 496 (Tex. Crim. App. 2006)
• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000)
• Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0511 (2007)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1077
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1077.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

August 18, 2014

The Honorable E. Bruce Curry Opinion No. GA-1077
216th Judicial District Attorney
200 Earl Garrett Street, Suite 202 Re: Whether the early termination of deferred
Kerrville, Texas 78028 adjudication is a reportable conviction or
adjudication for purposes of chapter 62 of the
Code of Criminal Procedure (RQ-1188-GA)

Dear Mr. Curry:

You ask whether the early termination of deferred adjudication community supervision is a "reportable conviction" for purposes of the duty to register as a sex offender under chapter 62 of the Code of Criminal Procedure.[1] You tell us that in 1986, the defendant in question pleaded guilty to the offense of indecency with a child by contact under section 21.11 of the Penal Code and received a sentence of two years of deferred adjudication community supervision.[2] Request Letter at 1; TEX. PENAL CODE ANN. § 21.11 (West 2011). You state that the court subsequently issued an order that terminated the deferred adjudication period early. Request Letter at 1-2. You indicate that the order was issued pursuant to the former version of article 42.12, section 5(c) of the Code of Criminal Procedure, which authorized a court to "dismiss the proceedings and discharge the defendant prior to the expiration of the term of probation." Id. at 3; see Act of May 7, 1975, 64th Leg., R.S., ch. 231, § 1, 1975 Tex. Gen. Laws 572, 573 (current version at TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(c) (West Supp. 2013)). Because section 5(c) is generally similar to the version of that statute in effect at the time the early termination order was made, we will refer to section 5(c) in this opinion.[3]

As you explain, the legal duty to register as a sex offender did not exist in 1987 when the early termination order was made. Request Letter at 2. But chapter 62 applies retroactively, requiring a person who has a "reportable conviction or adjudication" occurring on or after September 1, 1970 to register as a sex offender. TEX. CODE CRIM. PROC. ANN. arts. 62.002(a), .051(a) (West Supp. 2013). Consequently, the defendant you describe would have a duty to register as a sex offender if he or she has a "reportable conviction or adjudication" under chapter 62. See Reynolds v. State, 385 S.W.3d 93, 95-99 (Tex. App.-Waco 2012) (discussing the applicability of sex offender registration requirements to offenses that predate the enactment of chapter 62), aff'd, 423 S.W.3d 377 (Tex. Crim. App. 2014). A "reportable conviction or adjudication" is defined in chapter 62 as "a conviction or adjudication, including ... a deferred adjudication, that, regardless of the pendency of an appeal, is a conviction for or an adjudication for or based on" a violation of any one of an enumerated list of offenses, including indecency with a child by contact under section 21.11 of the Penal Code. TEX. CODE CRIM. PROC. ANN. art. 62.001(5)(A) (West Supp. 2013). You acknowledge that a deferred adjudication based on the offense of indecency with a child by contact, which the defendant was charged with in this instance, satisfies this definition. Request Letter at 2. But you ask whether chapter 62 still applies in light of the order that terminated the deferred adjudication early. Id. at 1-2. To answer your question we must examine the legal effect of an early termination order made under section 5(c).

Construction of any statute starts with a consideration of its plain language, which is the best indicator of the Legislature's intent. In re Lee, 411 S.W.3d 445, 451 (Tex. 2013) (orig. proceeding). Section 5(c) expressly provides that an early dismissal or discharge made under that section "may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense" except in certain instances not relevant here. Act of May 7, 1975, 64th Leg., R.S., ch. 231, § 1, 1975 Tex. Gen. Laws 572, 573 (current version at TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(c) (West Supp. 2013)). The early termination of deferred adjudication community supervision made under section 5(c) is therefore not a "reportable conviction" for purposes of chapter 62. But section 5(c) is silent on whether an early dismissal or discharge would constitute an adjudication for purposes of other laws, and we are unaware of any authority suggesting that a discharge made under that section affects the applicability of chapter 62 to a deferred adjudication. Cf. Cuellar v. State, 70 S.W.3d 815, 818-19 (Tex. Crim. App. 2002) (holding that the early termination of post-conviction community supervision made under the clemency mechanism provided in article 42.12, section 20(a) effectively "wipe[s] away" a conviction for purposes of a law requiring a conviction as an element of an offense); Hall v. State, 2013 WL 441007, at *1-3 (Tex. App.-Texarkana 2013, pet. denied) (relying on Cuellar to hold that a defendant who received an early discharge under article 42.12, section 20(a) has no "reportable conviction" and thus no duty to register under chapter 62); but see State v. Juvrud, 187 S.W.3d 492, 496 (Tex. Crim. App. 2006) (recognizing that subsection 20(a) applies only to the discharge or reduction of post-conviction community supervision, not to the early termination of deferred adjudication). The plain language of section 5(c) thus suggests that while the Legislature has allowed a discharge made under that section to erase a conviction for purposes of other laws, it did not intend the same effect for a deferred adjudication. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on principle of statutory construction that the Legislature knows how to enact laws effectuating its intent).

Furthermore, we presume that when the Legislature enacts or modifies a statute, it does so "with complete knowledge of the existing law and with reference to it." Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990). When chapter 62 was enacted, a court's authority to terminate a deferred adjudication early under section 5(c) already existed. Yet the definition of "reportable conviction or adjudication" under chapter 62 includes a deferred adjudication regardless of whether it was terminated early, completed, or revoked. See TEX. CODE CRIM. PROC. ANN. art. 62.001(5) (West Supp. 2013). In addition, the Legislature has provided the limited circumstances under which the duty to register under chapter 62 "on the basis of a reportable conviction or adjudication" does not apply, and neither of them involves the early termination of a deferred adjudication. See id. art. 62.002(c) (providing that chapter 62 does not apply if the conviction or adjudication is set aside on appeal by a court or the defendant receives a pardon based on proof of innocence). This indicates that the Legislature did not intend for the ultimate disposition of a deferred adjudication to affect the applicability of chapter 62.

By its plain language, chapter 62 applies on the mere occurrence of a "reportable conviction or adjudication" on or after September 1, 1970. Therefore, a court would likely conclude that an order issued under section 5(c) of article 42.12, granting a defendant an early termination of deferred adjudication community supervision, does not affect the deferred adjudication's potential status as an "adjudication" subject to the registration requirements of chapter 62.[4]

SUMMARY

A court would likely conclude that an order issued under a previous version of article 42.12, section 5(c) of the Code of Criminal Procedure, granting a defendant an early termination of deferred adjudication community supervision, does not affect the deferred adjudication's potential status as an "adjudication" subject to the sex offender registration requirements of chapter 62 of the Code of Criminal Procedure.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable E. Bruce Curry, Dist. Att'y, 216th Jud. Dist., to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Feb. 18, 2014), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] In 1986, article 42.12 of the Code of Criminal Procedure provided that a court may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on probation. Act of May 31, 1981, 67th Leg., R.S., ch. 544, § 1, 1981 Tex. Gen. Laws 2263, 2263 (current version at TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(a) (West Supp. 2013)).

[3] There is, however, an important difference between the current and former versions of section 5(c). Currently, section 5(c) expressly prohibits a judge from terminating a deferred adjudication early, dismissing the proceedings and discharging a defendant, for "a defendant charged with an offense requiring the defendant to register as a sex offender under Chapter 62." TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(c) (West Supp. 2013). That provision did not exist at the time of the events described in your request. We therefore note that the question raised in your request would not arise under section 5(c) as currently enacted.

[4] You state the defendant in this instance could be prosecuted for failing to register under chapter 62 "so long as there is evidence of mens rea," but that the defendant has never "been informed or notified previously of any duty to register." Request Letter at 2. Whether the defendant committed an offense under article 62.102 for failing to comply with the duty to register under chapter 62 involves questions of fact for determination by a jury, not an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0511 (2007) at 7.