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Six years ago, the legislature allowed early termination of an adult’s obligation to register retroactively. The idea is that there are many young, first-time offenders engaged in consensual sexual activity with an underage person (statutory rape) that should be treated differently than sexual predators. However, in order for this to occur the Council on Sex Offender Treatment must create an Individual Risk Assessment in order to determine who would be eligible for early termination. As of this date, the Council has not developed a risk assessment tool:

During the 79th Regular session of the Texas Legislature, two companion bills became law which potentially impact deregistration of some sex offenders in Texas. First, H.B. 867 amended Chapter 62, Code of Criminal Procedure, by adding Subchapter I, Art. 62.401 et seq., thereby creating a potential deregistration exemption for certain non-aggravated first-time sex offenders, after those offenders have been registered for a minimum of ten (10) years. This delayed exemption is limited to those sex offenders which currently require lifetime registration under Texas law, but who are only subjected to a ten (10) year registration requirement under Federal law.

The five specific penal code offenses which are subject to deregistration under Art. 62.404 are: Indecency with a Child (Section 21.11(a)(1); Promotion and Distribution of Child Pornography (Section 43.26); Burglary with Intent (Section 30.02); Sexual Performance of a Child (Section 43.25); and Compelling Prostitution of a Child under 17 (Section 43.05(a)(2). The Legislature did not consider the deregistration of other sexual offenses to avoid violating the Jacob Wetterling Act which would cause the state to risk losing 10% of the annual federal grants it receives in the form of Edward Byrne Memorial funds.

The provisions of H.B. 867, however, cannot be implemented without a consideration of H.B. 2036. In amending Chapter 110, Occupations Code, the Legislature charged the Council on Sex Offender Treatment with “developing, researching, implementing, and deploying dynamic risk assessment tools and protocols for the use of individuals licensed under this chapter for the purpose of determining a sex offender’s risk to the community”. Similarly, H.B. 867 requires the Council by rule to “establish, develop, and/or adopt an individual risk assessment and/or a group of individual risk assessment tools and to evaluate persons using those tools”. Thus, Occupations Code § 110.501, and Art. 62.403, Code of Criminal Procedure, are to be read in conjunction with each other regarding the issue of sex offender risk assessment tools and protocols in Texas.

In October 2005, the Council began its Dynamic Risk Assessment Research project. The goal of this project is to collect research data from a variety of risk assessment tools which in turn can be used when considering deregistration issues. While the Council’s research project is well underway, deregistration as contemplated by the Legislature under H.B. 867 will not occur immediately. On July 2006, the President signed into law House Resolution 4476 (Adam Walsh Act) pertaining to sex offender registration. This broadened sex offender registration nationally and impacted the above referenced offenses from consideration for deregistration under Texas law. The Adam Walsh Act does allow Tiered 1 offenders to potentially deregister after 10 years, and Tiered 3 offenders to deregister after 25 years with a clean record and having completed sex offender treatment. There is no deregistration for Tiered II offenders who must register for 25 years.

H.B. 867 cannot be implemented until the Council’s research has been completed to statistically support the assessment tool(s) utilized in determining a sex offender’s risk to the community and the administrative rules promulgated. Upon concluding the research project and pursuant to Article 62.403(b)(1-2), the Council shall evaluate the person using the individual risk assessment tool or group of individual risk assessment tools and provide to the person a written report detailing the outcome of the evaluation conducted. Under Art. 62.404, that person may then file with the sentencing trial court a petition for early termination of his/her obligation to register. There remains an enormous amount of work to be completed by the Council before this process can be implemented in Texas, not to mention the possibility of a federal law negating the Council’s work altogether.

Please know that the Council takes this responsibility very seriously and is working diligently and expeditiously to complete the project with the goal of allowing individuals the potential opportunity to seek deregistration at some later date.

Last Updated March 21, 200. Texas Department of State Health Services, Council on Sex Offender Treatment website at http://www.dshs.state.tx.us/csot/csot_sodregis.shtm

The federal law mentioned is SORNA, and it appears that the Council is waiting until after July 27, 2009 to determine whether Texas will comply with all provisions. Until then, this may be fertile ground for a test case for a plaintiff looking to challenge the failure of a governmental agency to comply with a direct legislative mandate.

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