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Juvenile Sex Offender Registration – Exemption

The procedure for exemption from registration is set forth in Article 62.351:

During or after disposition of a case under Section 54.04, Family Code, for adjudication of an offense for which registration is required under this chapter, the juvenile court on motion of the respondent shall conduct a hearing to determine whether the interests of the public require registration under this chapter.  The motion may be filed and the hearing held regardless of whether the respondent is under 18 years of age. Notice of the motion and hearing shall be provided to the prosecuting attorney.

The hearing is without a jury and the burden of persuasion is on the respondent to show by a preponderance of evidence that:

(1) that the protection of the public would not be increased by registration of the respondent under this chapter; or

(2) that any potential increase in protection of the public resulting from registration of the respondent is clearly outweighed by the anticipated substantial harm to the respondent and the respondent’s family that would result from registration under this chapter.

The court at the hearing may make its determination based on:

(1) the receipt of exhibits;

(2) the testimony of witnesses;

(3) the representations of counsel for the parties; or,

(4) the contents of a social history report prepared by the juvenile probation department that may include the results of testing and examination of the respondent by a psychologist, psychiatrist, or counselor.

All written matter considered by the court shall be disclosed to all parties as provided by Sec. 54.04(b), Family Code.

The Four Options at the Conclusion of the Hearing

At the conclusion of the Motion to Exempt Sex Offender Registration, the juvenile court can issue an order for one of the following options:

  1. Grant the Motion

The respondent is exempted from registration, but the State can appeal the juvenile court’s decision under an abuse of discretion standard or whether the juvenile court committed procedural error.

A person who has an adjudication of delinquent conduct that would otherwise be reportable under Art. 62.001(5) does not have a reportable adjudication of delinquent conduct for purposes of this chapter if the juvenile court enters an order under this subchapter exempting the person from the registration requirements of this chapter.

If the juvenile court enters an order exempting a person from registration under this chapter, the respondent may not be required to register in this or any other state for the offense for which registration was exempted.

  1. Defer decision on requiring registration until the respondent has completed treatment as a condition of probation or while committed to the Texas Youth Commission

If the court enters an order deferring its decision on requiring registration, the court retains discretion and jurisdiction to require, or exempt the respondent from, registration under this chapter at any time during the treatment or on the successful or unsuccessful completion of treatment, except that during the period of deferral, registration may not be required.  Following successful completion of treatment, the respondent is exempted from registration under this chapter unless a hearing under this subchapter is held on motion of the state, regardless of whether the respondent is 18 years of age or older, and the court determines the interests of the public require registration.  Not later than the tenth day after the date of the respondent’s successful completion of treatment, the treatment provider shall notify the juvenile court and prosecuting attorney of the completion. Article 62.352(c).

Upon the State’s motion and an evidentiary hearing, the Court can require registration based solely upon whether the interests of the public require registration. Unlike the initial inquiry of anticipated substantial harm that would result from registration, the Court does not revisit the balancing test. Furthermore, there are no guidelines as to when or why the State can file a motion for the juvenile court to require registration. Although one would assume that the State would only file a motion if the respondent was unsuccessful in treatment, there is no restriction in the statute. If the court or the elected District Attorney believes that it is always in the public’s interest to require registration, agreeing to defer registration and then subsequently mandating registration is a statutorily permissible way around the balancing test.

While the legislature does not specifically address the right to appeal this decision, Professor Robert Dawson believes that neither the State nor the respondent have the right to appeal this decision. See Robert O. Dawson, Texas Juvenile Law, p. 228 (Texas Juvenile Probation Commission, 6th ed. Sept. 2004) (“this right [to appeal] does not extend to less sweeping decisions refusing to excuse all registration in favor of deferred or non-public registration.”).

  1. Require the respondent to register as a sex offender but restrict the public access to the information

If the respondent is required to register as a sex offender but the registration information is not public, it may still be accessed by law enforcement and criminal justice agencies, the Council on Sex Offender Treatment and public or private institutions of higher education. However, the information may not be posted on the Internet or released to the public. Article 62.352(d).

As discussed above, the respondent may not have a right to appeal this decision.

  1. Deny the motion and require the juvenile to register as a sex offender

Under Article 62.357, the respondent may appeal the court’s ruling. The standard of review is whether the juvenile court committed procedural error or abused its discretion in requiring registration.

A better option may be to have the respondent proceed through sex offender treatment, obtain a successful evaluation, and then file a motion for deregistration. Before 2005 a respondent only had one shot, but the change to Article 62.353(c) allows two motions for deregistration to be filed.

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