“Does the defendant have to register?”

As the defense attorney walked toward me with widened eyes, Code of Criminal Procedure in hand, I knew what was coming. “How do I explain to him that what he is charged with requires lifetime sex offender registration?” she asked on her client’s behalf. “Is there something I can point to in the code?” This was not the first (nor would it be the last) time I’ve fielded such questions from a criminal defense attorney. I’m sure many prosecutors have been in the same position many times. Having tiptoed through the minefields that are the sex-offender registration laws, I thought I would share what I have learned for the day that you find yourself in just such a situation.

Where to start
There are two steps to figuring out if an offense requires sex offender registration and for how long. First, it is important to understand what offenses fall under the registration requirement, which is found in Code of Criminal Procedure Art. 62.001(5). See the chart below (as a PDF attachment) for an at-a-glance list of offenses and their registration requirements.
    A reportable conviction does not have to be a final conviction or result in a prison sentence. Offenders given deferred adjudication for any offense listed in this section are subject to the registration requirements except with regard to the second violation of Indecent Exposure and any out-of-state offenses (as noted in the chart). This includes an adjudication of delinquent conduct as a juvenile offender.

When does the registration expire?
The rules about when registration requirements expire are found in Code of Criminal Procedure Art. 62.101. An adjudication of delinquency will have a 10-year registration requirement. Offenses that have a lifetime registration requirement are either Sexually Violent Offenses (that list is set out in CCP Art. 62.001(6)) or specifically enumerated offenses under Code of Criminal Procedure Art. 62.101(a). All other offenses that are designated as reportable convictions or adjudications in Art 62.001(5) that do not fall into the lifetime registration requirement list will have a 10-year registration requirement. The 10 years begins at the conclusion of the latest part of an offender’s sentence—in other words, the duty expires on the 10th anniversary of the offender’s release from a penal institution, discharge from community supervision, or dismissal of the proceedings and offender’s release, whichever is latest in time. For a juvenile, the duty expires on the 10th anniversary of the case’s disposition or the completion of the terms of that disposition, whichever is later in time.
    Note: Second-degree obscenity is laid out as a lifetime registration offense under CCP Art. 62.101(a)(5), but it is not listed in Art. 62.001(5) as a reportable conviction or adjudication. A reasonable conclusion based on the detailed list of reportable convictions and adjudications is that this offense does not require sex offender registration. But let’s keep an eye on this one to see if the legislature reconciles this discrepancy in the future.

Charges not requiring registration
One might guess that any offense involving sexual conduct and a minor would have a registration requirement, but that is not the case. In fact, some cases involving prostitution and children fall under the category of reportable convictions or adjudications, and some do not. Here are some (but not all) of the Penal Code offenses that do not have any registration requirement (i.e., they are not specifically enumerated in CCP Art. 62.001(5)):
•    §20A.03 Continuous Trafficking of Persons (even though 20A.02(3), (4), (7), and (8) Trafficking of Persons offenses have a lifetime registration requirement),
•    §21.12 Improper Relationship between Educator and Student (even if the student is a child),
•    §39.04 Improper Sexual Activity with Person in Custody (even if the person in custody is a juvenile),
•    §21.15 Improper Photography or Visual Recording (even if the complainant is a child),
•    §43.03 Promotion of Prostitution (even involving a person under 18 engaging in prostitution),
•    §43.04 Aggravated Promotion of Prostitution (even when using as a prostitute one or more persons younger than 18 years of age), and
•    §43.23(h) Obscenity, when the obscene material depicts or describes activities engaged in by a child under 18, a person indistinguishable from a child under 18, or an image depicting an identifiable child (see the note above about obscenity).
    It could be important to note these distinctions in the code when reviewing a case pre-indictment to determine whether the appropriate offense is being alleged. They can also be useful bargaining chips in plea negotiations.

Charging strategies
Often, the sticking point of a plea for a reportable conviction or adjudication offense ends up being the sex offender registration requirement. Attorneys will try to negotiate for a 10-year registration instead of lifetime—or for none at all. Sex offender registration will apply to all of the offenses listed in CCP Art. 62.001(5) even if the outcome is deferred adjudication.
    Occasionally the facts of an offense will merit an indictment for an attempt of a sexually violent offense. While this lowers the punishment range one level, it will also remove that offense from the list of sexually violent offenses which are enumerated in CCP Art. 62.001(5)(G). Therefore, because attempted offenses are not otherwise listed in CCP Art. 62.101(a), the lifetime registration requirement would not apply. An attempt of an offense requiring sex offender registrationwould then fall under CCP Art. 62.101(b), which is the 10-year registration requirement.
    Sometimes we might look to a lesser-included offense of a report-able conviction or adjudication when making charging decisions. For instance, when it comes to Penal Code §20A.02 (Trafficking of Persons) and §43.03 (Compelling Prostitution), there are many such possibilities, and taking into consideration whether sex offender registration will apply can make all the difference in charging different parties to an offense, trial strategy, or plea negotiations. Trafficking involving prostitution is a lifetime registration offense no matter the age of the victim. Compelling prostitution also requires lifetime registration if the victim is under 18 but requires only a 10-year registration for an adult victim. Both Aggravated Promotion of Prostitution (§43.04) and Promotion of Prostitution (§43.03) can be lesser-included offenses for both Trafficking and Compelling Prostitution, neither of which have a registration requirement regardless of the age of the victim or victims. However, a §43.02 Prostitution offense involving a minor child (a second-degree felony) does have a 10-year registration requirement as of September 1, 2015. Because there are a vast number of options, it is worth combing through the code book and considering the registration requirements of different charges and lesser-included offenses to find the most appropriate charge for your case.

Admonishment
Texas law requires that trial courts admonish defendants of Chapter 62’s registration requirements if they are convicted of or placed on deferred adjudication for an offense for which a person is subject to registration under that chapter. The admonishment must be done prior to the court accepting the defendant’s plea of guilty or nolo contendere, and it can be either oral or written. If the admonishment is in writing, the court must receive a signed statement from the defendant and his attorney that the admonishment and consequences of the plea are understood. If the defendant is unable to or refuses to sign, the court must perform the admonishment orally. Failure to comply with the admonishment rule is not a ground for the defendant to set aside the conviction, sentence, or plea. Nor would it be considered a violation of due process or render the defendant’s plea involuntary.
    Many of you may be familiar with the Adam Walsh Act, which went into effect in June 2015. This federal act includes the early termination law with regard to sex offender registration and can be found in Code of Criminal Procedure Chapter 62 Subchapter I. This law allows an offender whose minimum required registration period exceeds the one under federal law for the same offense to petition the trial court for early termination after an individual risk assessment is completed. The admonishment rule about sex offender registration does not, at this time, require that the defendant be made aware of this law or the possibility of early termination of the duty to register. This is true even though the hearing as to whether the early termination should be granted or denied would take place in the same trial court as that which sentenced the defendant.

Conclusion
Whether it is for plea-bargain negotiations, indictment strategy, or showing off at cocktail parties, knowing your way around the sex offender registration laws is a big help to prosecutors and criminal defense lawyers alike. If it is difficult for an attorney to comprehend, you can imagine how hard it might seem to a defendant. My hope is that this article and the accompanying chart will guide you past the minefields on a safe path through this treacherous ground.

Endnotes

[1] Tex. Code Crim. Proc. Art. 62.101(b).

[2] Tex. Penal Code §43.23(h).

[3] Tex. Code Crim. Proc. Art. 26.13(2)(5).

[4] Id. at Art. 26.13(h).

[5] Thomas v. State, 365 S.W.3d 537 (Tex. App.—Beaumont 2012, pet. ref’d).