By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Sex offender registration requirement does
not violate due process or equal protection (00-2-19)
On April 20, 2000, the Fort Worth Court of Appeals held that the Texas sex
offender registration program, as applied to juveniles, does not violate due
process of law or equal protection of the laws.
00-2-19. In the Matter of M.A.H., ___ S.W.3d ___, No. 2-99-048-CV, 2000 WL
545895, 2000 Tex.App.Lexis ____ (Tex.App.-Fort Worth 4/20/00)[Texas Juvenile Law
194 (4th Edition 1996)].
Facts: We have considered "State's Motion To Publish." The motion is
GRANTED. It is ordered that the court's opinion of April 20, 2000 shall be
published. The clerk of this court is directed to transmit a copy of this order
to the attorneys of record and all interested parties.
After a hearing before the court, the trial court found that M.A.H., a juvenile,
engaged in delinquent conduct by committing two instances of indecency with a
child. As a result, M.A.H. was required to register as a sex offender pursuant
to the Sex Offender Registration Program under chapter 62 of the code of
criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 62.01(5)(H) (Vernon
Supp.2000). On appeal, M.A.H. complains the Sex Offender Registration Program
violates his constitutional rights to due process and equal protection of the
laws.
Held: Affirmed.
Opinion Text: TEXAS STATUTORY SCHEME
Pursuant to the relevant provisions of the Texas Sex Offender Registration
Program, a person with a reportable conviction or adjudication for certain sex-
related offenses must register with the local law enforcement authority where he
resides or intends to reside for more than seven days. See id. art. 62.02(a).
Registration requires an offender to provide, among other information, his full
name, date of birth, sex, race, physical description, social security number,
driver's license number, home address, photograph, and fingerprints. See id.
art. 62.02(b). After registration, the authority must send a copy of the
registration form to the Department of Public Safety (DPS). See id . art.
62.02(c).
If the victim is younger than 17 years of age and the basis on which the
offender is subject to registration is not an adjudication of delinquent
conduct, the authority must immediately publish notice in the most widely
circulated newspaper in the area. See id. art. 62.03(e). Because appellant
received an adjudication of delinquent conduct, this provision does not apply to
him. If the victim is younger than 17 years of age, regardless of the basis on
which the offender is subject to registration, the authority must immediately
provide notice by mail to the superintendent of the public school district and
to the administrator of any private primary or secondary school located in the
district in which the offender intends to reside. See id. The notice may include
any information the authority determines is necessary to protect the public,
except the offender's social security number, driver's license number, or
telephone number, and any information that would identify the victim. See id.
art. 62.03(g). Upon receipt of the notice, the superintendent must disclose the
information contained in the notice to appropriate school district personnel,
including peace officers and security personnel, principals, nurses, and
counselors. See id. art. 62.03(e).
The program also requires that DPS maintain a computerized central database
containing the information required for registration. See id. art. 62.08(a). The
information contained in the database is public information, available upon
written request. See id. art. 62.08(b)-(c). Public information does not include
the offender's social security number, driver's license number, and telephone
number. See id. art. 62.08(b). DPS and local law enforcement are immune from
liability for damages arising from release of public information. See id. art.
62.09.
A juvenile offender must comply with registration requirements until either ten
years from the date of the disposition of his case or ten years from the date of
his completion of the terms of the disposition, whichever is later. See id. art.
62.12(b)(1). Failure to comply with the registration requirements is punishable
as a criminal offense. See id. art. 62.10.
LEGISLATIVE INTENT
The State provides proof that in enacting the current registration and
notification plan, the legislature considered the unique threat sex offenders
present to public safety, the high rate of recidivism among sex offenders, the
low incidence of rehabilitation among sex offenders, and that sexual misconduct
often begins as a juvenile. The State provides further proof that the
legislature's goal in passing the registration and notification provisions was
to advance public safety objectives by facilitating law enforcement's monitoring
of sex offenders and by alerting members of the public who may be in an
especially vulnerable situation to take appropriate precautions which could
deter or prevent further crimes.
DUE PROCESS
Appellant raises his due process claims in points one through three.
Specifically, he contends the Sex Offender Registration Program, as applied to
him, violates his due process rights under the Texas Constitution because (1) it
requires notification without any preliminary determination that he constitutes
a continuing threat to society, (2) it does not restrict the dissemination of
information to law enforcement services only, and (3) it does not provide a
procedural mechanism to exempt him.
Appellant appears to rely on both due process provisions of the state
constitution in support of his argument under these points. See TEX. CONST. art.
1, §§ 13, 19. The "open courts" provision found in article 1,
section 13 provides in relevant part: "All courts shall be open, and every
person for an injury done him, in his lands, goods, person or reputation, shall
have remedy by due course of law." Id. art. 1, § 13. The "due course
of law" provision found in article 1, section 19 states: "No citizen
of this State shall be deprived of life, liberty, property, privileges or
immunities, or in any manner disfranchised, except by the due course of the law
of the land." Id. art. 1, § 19.
The due course of law clause provides general guaranties of due process and is
regarded as the traditional due process guaranty. See Odak v. Arlington Mem'l
Hosp. Found., 934 S.W.2d 868, 871 (Tex.App.--Fort Worth 1996, writ denied). The
open courts provision provides a specific guaranty of right of access to the
courts, and is implicated only where a party shows that he has a well-recognized
common law cause of action that is being restricted and that such restriction is
unreasonable or arbitrary when balanced against the statute's purpose. See
Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex.1990); Odak, 934 S.W.2d
at 871.
We agree with the State that appellant fails to identify any common law action
to which the open courts provision applies in his first three points. Thus, to
the extent appellant relies on the open courts provision in points one through
three, his points are overruled. Our analysis of appellant's due process
complaints is therefore predicated on the general due course of law clause.
In point one, appellant contends the registration statute, as applied to him
individually and in his capacity as a juvenile, violates due process because it
authorizes notification without any preliminary determination that he poses a
continuing threat to society. See TEX. CODE CRIM. PROC. ANN. arts. 62.03(e),
(g), 62.08. Appellant contends his reputation and good name are at stake and
that the blemish of being labeled a sex offender will impair his ability to
function and succeed in society and will follow him into adulthood when juvenile
records are typically sealed. He suggests that the nature of his misconduct
constitutes little more than the sexual experimentation of a 12- year-old child,
and that disclosure of registration information, absent some showing that
disclosure is necessary, serves no purpose but to subject him to humiliation and
ostracism from the community.
We begin with a presumption that a statute is constitutionally valid. See HL
Farm Corp. v. Self, 877 S.W.2d 288, 290 (Tex.1994). The burden is on the party
attacking the constitutionality of a statute to show the statute at issue is
unconstitutional. See City of Irving v. Dallas/Fort Worth Int'l Airport Bd., 894
S.W.2d 456, 466 (Tex.App.--Fort Worth 1995, writ denied). A statute that does
not affect a fundamental right or interest is valid if it bears a rational
relationship to a legitimate state interest. See City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254 (1985); Texas Worker's
Compensation Comm'n v. Garcia, 893 S.W.2d 504, 525 (Tex.1995); In re J.G., 905
S.W.2d 676, 680 (Tex.App.--Texarkana), writ denied, 916 S.W.2d 949 (Tex.1995).
Even where a fundamental right is implicated, some regulation of that right may
be justified by a compelling state interest. See Roe v. Wade, 410 U.S. 113, 155,
93 S.Ct. 705, 728 (1973) (citing Kramer v. Union Free Sch. Dist., 395 U.S. 621,
627, 89 S.Ct. 1886, 1889-90 (1969)); City of Sherman v. Henry, 928 S.W.2d 464,
477 (Tex.1996), cert. denied, 519 U.S. 1156 (1997).
To trigger the protections of the due process clause, appellant must show that
the notification requirements deprive him of some liberty or property interest.
See TEX. CONST. art. 1, § 19. In other words, appellant must point to a right
conferred by state law or the constitution that would justify nondisclosure of
the registration information. To this end, he asserts that his reputation or
good name constitutes a "cognizable liberty interest" for purposes of
triggering due process protection.
Mere injury to an adult sex offender's reputation alone has been held to be
insufficient to implicate a legitimate liberty interest under other state
statutory schemes. See Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir.1999),
cert. denied, ___ S.Ct. ___, 2000 WL 36203, 68 U.S.L.W. 3461 (U.S. Apr. 3, 2000)
(No. 99-1123); Russell v. Gregoire, 124 F.3d 1079, 1094 (9th Cir.1997), cert.
denied, 523 U.S. 1007 (1998); E.B. v. Verniero, 119 F.3d 1077, 1102-04 (3rd
Cir.1997), cert. denied, 522 U.S. 1110 (1998); Artway v. Attorney Gen. of New
Jersey, 81 F.3d 1235, 1268-69 (3rd Cir.1996); Doe v. Pataki, 3 F.Supp.2d 456,
467 (S.D.N.Y.1998); see also Paul v. Davis, 424 U.S. 693, 712, 96 S.Ct. 1155,
1165-66 (1976) (reputation alone is not a constitutionally protected liberty
interest); Alford v. City of Dallas, 738 S.W.2d 312, 317 (Tex.App.--Dallas 1987,
no writ) (reputation alone apart from a more tangible interest such as
employment is not a liberty interest that is protected by the due process
clause). And, in the absence of authority establishing a protectable liberty
interest in a child's reputation, we decline to establish such a right in favor
of the juvenile sex offender.
Although we are aware that the juvenile justice system is arranged with a
special emphasis on the welfare of the child, sex offenders present special
problems. In answer, the legislature enacted the registration and concomitant
notification requirements in an apparent attempt to strike a balance between the
goals of providing for the well-being of the child and protecting society from
both the adult as well as the youthful sex offender. We are also aware that
sexual offenses encompass a range of very different kinds of conduct implying
varying degrees of seriousness and that recidivism rates may change
significantly depending on the offender's circumstances. [FN1] However, whether
application of the program should be contingent upon the juvenile's age or the
seriousness of the offense is a question left to the legislature. After applying
the rational basis test, we conclude the registration and notification statutes
bear a rational relationship to the State's interests sought to be protected and
advanced by the legislation.
FN1. Appellant was evaluated as a "naive experimenter offender type,"
and placed in the "extreme low end of the moderate risk category" on
the O'Brien Risk Assessment Scale for Adolescent Sex Offenders.
To the extent disclosure of the information may result in damage to appellant's
reputation coupled with some additional interest--e.g ., appellant's community
relations or his educational or employment opportunities, such effects are
purely speculative on the present record. There is some evidence that appellant
was attending an "alternative school" as a result of "this law
violation," but no indication that he was attending the alternative program
as a result of registration and notification. Importantly, his enrollment in the
alternative program shows he has not been deprived entirely of educational
access, for whatever reason, stemming from the juvenile proceedings.
Although dissemination of the information contemplated by the program to the
community may be potentially harmful to appellant's personal reputation, we
conclude he has failed to articulate a liberty interest that entitles him to the
protection of due process. Therefore, the due process required in juvenile
proceedings was all the due process that was necessary. Appellant was found to
have engaged in delinquent conduct for indecency, conduct which he admittedly
inflicted upon a 7-year-old girl, thus triggering the registration and
notification requirements, only after a hearing where he had the opportunity to
call witnesses and present evidence in his defense. See Neal v. Shimoda, 131
F.3d 818, 831 (9th Cir.1997). Any additional requirement that an individualized
hearing be conducted for purposes of determining whether appellant presents a
continuing threat to society before dissemination of the information is not
warranted on the basis of deprivation of reputation. Point one is overruled.
In point two, appellant contends the dissemination of information beyond the law
enforcement community, particularly when there has been no showing that it is
necessary, is irrational. This court is cognizant that society has legislatively
adopted the view that children who violate the law should be treated
differently, i.e., less severely, than adults. For this reason, we assume the
legislature prohibited publication to the media in the case where the offender
is a juvenile. Notwithstanding this exception, the legislature clearly intended
to subject juveniles adjudicated for sexually-related offenses to the mandates
of the registration and notification provisions. Providing ready access to
information on known sex offenders is a reasonable method of accomplishing the
desired objectives of protecting the public and preventing sex offenses,
especially, in this context, those perpetrated against children by other
children in close proximity. A notified public may prevent crimes with greater
attention and caution. Accordingly, dissemination of registration information is
a rational means toward a legitimate state purpose. Point two is overruled.
In point three, appellant contends the program violates his due process rights
as applied to him because it does not provide a procedural mechanism to exempt
him, but does provide such a mechanism to exempt more serious offenders.
Appellant premises his argument on former article 62.12(c) of the code of
criminal procedure, which provided for exemption of offenders subject to
lifetime registration under specific circumstances. See Act of June 1, 1997,
75th Leg., R.S., ch. 668, § 1, 1997 Tex. Gen. Laws 2253, 2261. This argument
however is moot because article 62.12(c) was repealed effective September 1,
1999. See Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 25, 1999 Tex. Gen.
Laws 4831, 4841; Texas Educ. Agency v. Maxwell, 937 S.W.2d 621, 622 (Tex.App.--Eastland
1997, writ denied); Patton v. Saint Joseph's Hosp., 887 S.W.2d 233, 243 n. 10 (Tex.App.--Fort
Worth 1994, writ
denied). Point three is overruled.
EQUAL PROTECTION
Finally, appellant claims the registration and notification requirements violate
the equal protection clause of the Fourteenth Amendment to the United States
Constitution. The equal protection clause provides that no state shall
"deny to any person within its jurisdiction the equal protection of the
laws." U.S. CONST. amend. XIV, § 1. This means that "all persons
similarly situated should be treated alike." City of Cleburne, 473 U.S. at
439, 105 S.Ct. at 3254. Unless the legislation classification under attack
involves fundamental rights or a suspect class, the equal protection standard,
like due process, requires only that the classification be rationally related to
a legitimate government goal. See id. at 440, 105 S.Ct. at 3254.
In point four, appellant complains the program violates his equal protection
rights because he is required to register without a determination that he
constitutes a continuing threat to society, whereas other comparable state
schemes require some showing that the registrant poses some kind of threat to
the community or a finding that the registrant is a repeat or habitual sex
offender before dissemination of information to the community. Moreover,
appellant proposes that he is similarly situated to other juveniles and adult
offenders convicted or adjudicated for crimes that do not fall within the
purview of the program, but that, unlike those offenders, he is subject to
registration and accompanying notification.
Appellant concedes sex offenders are not a suspect class for equal protection
purposes. See Cutshall, 193 F.3d at 482. Nor are juveniles treated as a suspect
class for purposes of an equal protection analysis. See In re J.G., 905 S.W.2d
at 680. Accordingly, appellant relies on the argument that individually and in
his capacity as a juvenile, he has a constitutionally protected liberty interest
in his reputation. We have determined this issue against appellant. Therefore,
under the rational basis test, the legislature need only have a rational reason
for distinguishing sex offenders from those convicted of other crimes. See Lanni
v. Engler, 994 F.Supp. 849, 855 (E.D.Mich.1998).
We are sensitive to the fact that registration and the attendant notification
requirements may have a lasting and painful impact on appellant's life.
Nonetheless, given the particular concerns about law enforcement and public
safety with respect to sex offenses, we conclude the disparate treatment
afforded juvenile and adult sex offenders, alike, is justified. Because the
notification provisions are reasonably related to enhancing public awareness
that a sex offender may be living in the community, so that appropriate
precautions may be taken, we cannot say the notification requirements are
irrational. Therefore, this claim must also fail. Point four is overruled.
In point five, appellant asserts the program violates equal protection because
it provides an exemption procedure to lifetime registrants without providing a
similar exemption procedure for him. Appellant relies on former article 62.12(c)
of the code of criminal procedure which was, as previously noted, repealed
effective September 1, 1999. Consequently, as in appellant's point three, this
issue is moot. Point five is overruled.