Hearing not required for trial court to order sex offender
registration where respondent failed to successfully complete treatment.
[Adams v. State](11-4-5A)
On November 7, 2011, the Dallas Court of Appeals held that, although
originally deferring a decision to require registration, trial court was
not mandated to hold a hearing before requiring respondent to register
as a sex offender where respondent did not successfully complete sex
offender treatment.
¶ 11-4-5A. Adams v. State, No. 05-10-01056-CR, --- S.W.3d ----, 2011 WL
5311099 (Tex.App.-Dallas, 11/07/11).
Facts: In 2005, a juvenile court found that appellant engaged in
delinquent conduct for committing the offense of aggravated sexual
assault of a child. See Tex. Fam.Code Ann. § 51.03(a)(1) (West
Supp.2010) (delinquent conduct); Tex. Penal Code Ann. § 22.021(a)(1)(B),
(2)(B) (West 2011). The juvenile court sentenced appellant to ten years'
confinement with the Texas Youth Commission, probated for ten years, and
also deferred its decision on whether appellant would be required to
register as a sex offender while he participated in a sex offender
treatment program. See Tex.Code Crim. Proc. Ann. art. 62.352(b)(1) (West
2006); see also id. art. 62.001(5)(A) (requiring sex offender
registration for conviction based on aggravated sexual assault).
When appellant turned eighteen in 2008, the district court accepted
transfer of appellant's case from the juvenile court and placed him on
adult community supervision for the remainder of his ten-year term. See
Tex. Fam.Code Ann. § 54.051 (West 2006). As part of his probation,
appellant was subject to numerous terms and conditions, including the
requirement that he "participate fully in [sex offender] counseling,
comply with the rules and regulations of the approved agency, ... and
continue in treatment/counseling for sex offenders until released by the
Court." According to the conditions of his community supervision,
appellant was instructed to report to the "Sex Offender Supervision
Unit" to schedule an appointment.
The State filed a motion to revoke appellant's probation in June 2009,
alleging appellant violated four conditions of his probation. The State
subsequently withdrew its motion, and appellant was continued on
probation. The trial court ordered that appellant be released to the
staff of the Wayback House for treatment and also modified the
conditions of appellant's probation to include a requirement that
appellant faithfully comply with all rules, regulations, and treatment
programs at the Wayback House. One year later, the State filed a second
motion to revoke. Among the alleged violations included in the motion
was appellant's "unsuccessful[ ] discharge from [the] Wayback House."
Appellant pleaded true to the State's allegations at a hearing on the
State's second motion to revoke. During the hearing, the trial court
heard testimony from Mark Brandon, appellant's case manager at the
Wayback House, and from appellant. Brandon described the Wayback House
as a facility that provided general supervision and assistance with the
requirements of probation and explained the "majority of the residents
that [had] been referred there" during his tenure were registered sex
offenders. Brandon testified that appellant had made no progress in his
treatment, did not take his probation seriously, and had not
demonstrated an ability to follow the rules. He said appellant had
committed at least fourteen infractions during his time at the Wayback
House and described specific examples of appellant's disregard for
authority; Brandon stated he could "see no justification for wanting to
continue [appellant's probation] by the basis of his actions." Brandon
also testified that appellant was untrustworthy, appellant's "arrogance
[was] just totally irrational," and that appellant had a "total
disregard for any authority figure whatsoever."
Appellant admitted he was a sex offender, that he pleaded guilty to
raping his young nieces, and that he had thirteen child victims since he
was fourteen years old. He also admitted he committed the various
infractions described by Brandon and that he received an unsuccessful
discharge from the Wayback House. Yet he hoped to continue his
probation, explaining that he "let [his] pride get in the way" and had
"[a] lot of learning" to do.
The trial court accepted appellant's plea of true, found he violated the
terms and conditions of his probation as alleged by the State, and
revoked appellant's probation. The trial court assessed punishment at
ten years' imprisonment. The trial court also set aside the prior order
excusing appellant from sex offender registration and ordered appellant
to register to as a sex offender under Texas Code of Criminal Procedure
article 62.352(c) because appellant's "treatment was terminated." See
Tex.Code Crim. Proc. Ann. art. 62.352(c).
Held: Affirmed
Opinion: In his first point of error, appellant contends the trial court
erred by requiring him to register as a sex offender without first
holding a hearing, which he contends is required by code of criminal
procedure article 62.352(c). See id. He claims that when the trial court
did not hold a hearing before requiring him to register, he was deprived
of a "state-created liberty interest" in violation of his due process
rights.
An adjudication of delinquent conduct for aggravated sexual assault of a
child requires the juvenile to register as a sex offender. See id. art.
62.001(5)(A). Under article 62.352(b)(1), however, a court may defer
making a decision on requiring a juvenile to register as a sex offender
until the juvenile has completed treatment for the sexual offense as a
condition of probation or while the juvenile is committed to the Texas
Youth Commission. Id. art. 62.352(b)(1). If the court enters an order
under article 62.352(b)(1), the court "retains discretion and
jurisdiction" to require, or exempt the juvenile from, registration on
the successful or unsuccessful completion of treatment. Id. art.
62.352(c). Before the court may require registration of one who
successfully completed treatment, subsection (c) provides the court must
hold a hearing on the State's motion and determine that the interests of
the public require registration. Id.
Appellant asserts subsection (c) affords him a "mandatory opportunity to
be heard prior to the imposition of sex offender registration." Under
subsection (c), however, the requirement of a hearing before being
required to register as a sex offender is conditioned upon whether the
person successfully completed treatment for his sexual offense. Id.
Specifically, the subsection provides: "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." Id. (emphasis added). Nothing in the statute mandates the
trial court hold a hearing before requiring registration of a person who
does not successfully complete treatment. Rather, the trial court
retains the discretion to require the person to register on the
unsuccessful completion of treatment. Id.
Appellant does not claim he successfully completed treatment for his
sexual offense. Instead, he maintains the programs assigned by the
Wayback House were not "sex of-fender-specific," but were general
meetings, life skills meetings, or behavioral classes. He described his
infractions as involving "relatively mundane issues" and argues that
because none of his fourteen infractions were related to sex offender
treatment programs, his discharge from the Wayback House was "not an
unsuccessful discharge from sex offender treatment" under article
62.352(c). Contrary to appellant's assertion, the type of treatment he
received at the Wayback House is irrelevant for purposes of this appeal.
A condition of appellant's probation was to participate fully in sex
offender counseling and treatment until released by the court, and
nothing in this record suggests he was successful in completing the
required treatment.
Conclusion: Thus, we conclude the trial court did not abuse its
discretion when it ordered appellant to register as a sex offender
without holding a separate hearing. See id. art. 62.357(b) (providing
appellate court reviews court's order requiring registration for
procedural error or an abuse of discretion). We overrule appellant's
first point of error.