Imagine being told that you must register as a sex offender for life for something that is not a even a crime in Texas, let alone a registerable offense. Well, that is exactly what happened to a client of mine when he moved from out-of-state to Texas to live near his mother. When I consulted with this young man I thought surely this is a beaurocratic mix-up with Texas Department of Public Safety that can be resolved with a few phone calls right? Wrong. What ensued was a series of Kafka-esque conversations with DPS employees, culminating in a year of litigation after we had to sue DPS to have our client removed from the sex offender registry.

The situation all started when my client was convicted of a misdemeanor in his home state for having consensual sex with his seventeen year old girlfriend when he was twenty-one (the longer back story was that the girlfriend's father was upset so he called the cops to report this "crime"). Unlike Texas, where the age of consent is seventeen, in my client's homestate, the age of consent was eighteen. When he moved to Texas, however, authorities told him that because his "offense" was "substantially similar" (more on that in a second) to the Texas offense of Sexual Assault of a Child, he would have to register as a sex offender for life. Despite the fact that courts have held that sex offender registration is a "collateral consequence," and "non-punitive", having to register as a sex offender is as close as you can get to a lifetime sentence if you ask me.

The legal basis DPS was relying on to make my client register was a provision under Article 62.003 of the Code of Criminal Procedure which allows DPS to make a determination whether an out-of-state offense is "substantially similar" to an offense here in Texas. If they say yes, then you will be forced, with threat of prosecution for the third-degree felony of failure to register as a sex offender, for the rest of your life. Thankfully, 62.003 also contains a provision that allows a person to appeal this determination by DPS. As I mentioned, this is exactly what we had to do in this case.

The result? The Court thankfully sided with us and found that my client's previous offense was not "substantially similar" to any offense in Texas (imagine that, something that is not a crime in Texas is not "substantially similar" to a crime in Texas). Moreover, the Court ordered DPS to immediately remove my client from the sex offender registry and to contact all agencies that they have previously disseminated this information to.

Interestingly, in some logistical discussions with DPS post-hearing, I was told that this was the first case ever brought successfully in Texas under 62.003. What this tells me anecdotally is that my client can't be the only one in this situation. If I had to guess, I would suspect that there must be hundreds, if not thousands, of people in Texas who are currently on the sex offender registry that should not be.

Labels: dps, public perception, sex offender registration

posted by Kristin Etter   permalink   0 Comments