    OFPKE   OF THE ATTORNEY    GENERAL.   STATE OP TEXAS

   JOHN      CORNYN




                                                   October 22, 1999



The Honorable Florence Shapiro                              Opinion No. JC-0129
Chair, State Affairs Committee
Texas State Senate                                          Re: Whether a law enforcement authority may
P.O. Box 12068                                              register a parolee who is not required by statute
Austin, Texas 7871 l-2068                                   to register as a sex offender, and related
                                                            questions (RQ-0046-JC)


Dear Senator Shapiro:

         For at least ten years after a person has been adjudicated delinquent based upon certain sex-
related offenses, the local law enforcement authority in the community where the parolee resides is
requiredtoregisterthatparolee       as asex offender. S~~TEX.CODECRIM.PROC.ANN.~~~S.~~.O~(~),
62.02,62.06,62.12       (Vernon Supp. 1999) (defining “reportable adjudication” and establishing duty
to register). You ask three questions regarding a local law enforcement authority’s discretion to
register, under chapter 62 of the Code of Criminal Procedure, a sex offender who reports to the
authority for registration:

                  1.          Whether the law precludes a local law enforcement authority
                              from registering a parolee when they have been required to
                              register as a condition of parole.

                  2.          Whether the parolee’s prior juvenile adjudication constitutes
                              a reportable conviction or adjudication, and, if so, whether a
                              law enforcement agency has any discretion in registering that
                              person as a sex offender.

                  3.          Whether a law enforcement authority may register a parolee
                              who otherwise is not required by statute to register as a sex
                              offender under Chapter 62 and what the liabilities might be,
                              if any, for doing so.

In this opinion we will refer to a sex offender’s actual registration with a law enforcement authority
and report to a law enforcement authority to verify a previous registration as “registration.”
Additionally, in this opinion a law enforcement authority’s duty to register a parolee as a sex
offender refers to the authority’s duty to forward an individual’s completed registration form to the
Department of Public Safety, see TEX.CODE GRIM.PROC.ANN. art. 62.02(c) (Vernon Supp. 1999),
The Honorable Florence Shapiro      - Page 2        (JC-0129)




and in certain cases to publish notice of the individual’s   name and intended residence, see id. art.
62.03(e), (f).

        You indicate that you seek to clarify Attorney General Opinion JC-0010. See Letter from
Honorable Florence Shapiro, Chair, State Affairs Comm., Texas State Senate, to Attorney General
John Comyn, Office of the Attorney General (Mar. 19, 1999) (on tile with Opinion Committee).
That opinion concludes that a local law enforcement authority is not required “as a matter of law
to register a parolee as a sex offender on the sole ground that the parolee’s parole contract
mandates that he or she ‘comply with the Sex Offender Registration Program.“’ Tex. Att’y Gen. Op.
No. JC-0010 (1999) at 1. Attorney General Opinion JC-0010 assumes that the parolee’s previous
juvenile adjudication was not a reportable conviction or adjudication. See id. at 3.

        You aver that your current questions stem from

                a criminal case in Arlington, Texas. An individual serving a sentence
                for burglary was reviewed by the Board of Pardons and Paroles in
                April of 1997. Because of the individual’s history as a juvenile sex
                offender, the Board required he register as a sex offender as a
                condition of parole. However, when he presented himself to register
                at the Arlington Police Department, the law enforcement agency
                refused to register the parolee.

Letter from Honorable Florence Shapiro, Chair, State Affairs Comm., Texas State Senate, to
Honorable John Comyn, Attorney General (Mar. 19,1999) (on file with Opinion Committee). These
facts suggest, to contradistinguish the facts here from those specified in Attorney General Opinion
JC-00 10, that the individual’s juvenile sex offense warranted a parole requirement that the individual
register as a sex offender.     See in@ pp. 4-5 (discussing whether prior adjudication is in fact
reportable). These facts also suggest that the individual’s burglary conviction was not reportable,
although burglary may constitute a reportable conviction in certain circumstances. See TEX.CODE
CRIM. PROC.ANN.art. 62.01(5)(D) (Vernon Supp. 1999) (listing burglary with intent to commit sex-
related felony as reportable conviction).

         Chapter 62 of the Code of Criminal Procedure, adopted by Act of May 26, 1991,72d Leg.,
R.S., ch. 572, § 1, 1991 Tex. Gen. Laws 2029, 2029-30, establishes a sex offender registration
program for persons convicted of or adjudicated for certain sex-related offenses. Under the statute,
a “person who has a reportable conviction or adjudication shall register . . with the local law
enforcement authority in any municipality where the person resides or intends to reside for more than
seven days.” TEX. CODE GRIM.PROC.ANN. art. 62.02(a) (Vernon Supp. 1999). A person with a
reportable conviction or adjudication who is being released from a penal institution is to register
prior to leaving the institution and, upon release, report to the local law enforcement authority where
the registrant intends to reside to verify the registration information. See id. art. 62.03(a)-(e). Failure
to register, among other things, is a state jail felony. See id. art. 62.10(a), (b).
The Honorable     Florence Shapiro    - Page 3       (X-0129)




         Chapter 62 imposes several concomitant duties upon local law enforcement agencies. Using
a registration form provided by the Department of Public Safety, see id. art. 62.01(l) (defining
“Department”), the local law enforcement authority must obtain certain information from an
individual with a reportable conviction or adjudication, such as the registrant’s identifying
characteristics; the type of reportable offense the registrant committed; and whether the registrant
is discharged or conditionally released. See id. art. 62.02(b). The local law enforcement authority
must forward a copy of the completed form to the Department ofPublic Safety, see id. art. 62.02(c),
for inclusion into its central data base, see id. art. 62.08. The local law enforcement authority also
must publish notice if the registrant’s victim in the sex offense was less than seventeen years old,
Id. art. 62.03(e). In certain circumstances, the local law enforcement authority must notify local
school officials as well. See id.

         An   individual’s duty to register and a local law enforcement authority’s corresponding duty
to forward    the registration or to publish notice hinge on whether the individual has a “reportable
conviction     or adjudication” that occurred on or after September 1, 1970. The phrase “reportable
conviction    or adjudication” is specifically defined to include numerous sex-related offenses:

                          “Reportable conviction or adjudication” means a conviction
                  or adjudication, regardless of the pendency of an appeal, that is:


                         (4       a conviction    for a violation of Section 21.11
                  (Indecency with achild), 22.011 (Sexual assault), 22.021 (Aggravated
                  sexual assault), or 25.02 (Prohibited sexual conduct), Penal Code;


                         (W a conviction for a violation of Section 43.05
                  (Compelling prostitution), 43.25 (Sexual performance by a child), or
                  43.26 (Possession or promotion of child pornography), Penal Code;

                          (C)     a conviction for a violation of Section 20,04(a)(4)
                  (Aggravated kidnapping), Penal Code, ifthe defendant committed the
                  offense with intent to violate or abuse the victim sexually;

                           CD) a conviction for a violation of Section 30.02
                  (Burglary), Penal Code, if the offense is punishable under Subsection
                  (d) of that section and the defendant committed the offense with
                  intent to commit a felony listed in Paragraph (A) or (C);

                          (El    the second conviction for a violation of Section 21.08
                  (Indecent exposure), Penal Code;

                          (F)     a conviction for an attempt, conspiracy, or solicitation,
                  as defined by Chapter 15, Penal Code, to commit an offense listed in
                  P=waph     (A), W, 0, or(D);
The Honorable Florence Shapiro      - Page 4       (JC-0129)




                         ((3    an adjudication of delinquent conduct based on a
                violation of one ofthe offenses listed in Paragraph (A), (B), (C), (D),
                or(F) or for which two violations of the offense listed in Paragraph
                (E) are shown.

Id. art. 62.01(5)(A)-(G).

         An individual with a reportable conviction or adjudication generally has a duty to register
for at least ten years following the conviction or adjudication.    See id. art. 62.12(b). Thus, “if the
person’s duty to register is based on an adjudication of delinquent conduct, [the duty to register
expires] on the 10th anniversary of the date on which the disposition is made or the person completes
the terms of.the disposition, whichever date is later.” Id. art. 62.12(b)(l).        But an individual
convicted of or adjudicated for a sexually violent offense or an offense under section 25.02,
43,05(a)(2), or 43.26 of the Penal Code has a duty to register until his or her death. See id. art.
62.12(a); see also TEX.PEN.CODE ANN. $5 25.02,43.05(a)(2), 43.26 (Vernon 1994 & Supp. 1999)
(prohibiting, respectively, incest, compelling prostitution, and possession or promotion of child
eomograehy).

         With this brief explanation of the sex offender registration program established by chapter
62 of the Code of Criminal Procedure, we turn to your questions. You ask first whether a local law
enforcement authority has discretion to register a parolee or adjudication who is required to register
solely as a condition of parole. Nothing in chapter 62 forbids a local law enforcement authority to
register as a sex offender such a parolee. Although a local law enforcement authority is not required
to register an individual who does not have a reportable conviction or adjudication, regardless of the
parole conditions to which the person has agreed, see Tex. Att’y Gen. Op. No. JC-0010 (1999) at
3, chapter 62 does not preclude it from doing so in the absence of such a requirement.

         While a local law enforcement agency may register a parolee who is not otherwise required
by chapter 62 to register, it is less clear that the registration can be effectuated with the Department
of Public Safety. In this regard, we note that article 6208(a) of the Code of Criminal Procedure
permits the .Department to “maintain a computerized               central database containing only the
information requiredfor registration under this chapter.” TEX.CODECRIM.PROC.ANN.art.             62.08(a)
(Vernon Supp. 1999) (emphasis added). Arguably, based upon article 62.08(a), the Department of
Public Safety may not enter information into its central database on an individual who does not have
a reportable conviction or adjudication.

        You next ask about the duties of a parolee with a reportable conviction or adjudication and
the corresponding duties of the local law enforcement authority. Initially, you ask whether the
parolee’s prior juvenile adjudication is reportable. Because we have not been informed as to the
nature of the parolee’s juvenile adjudication, we cannot determine whether it is in fact a reportable
adjudication as that term is defined in article 62.01(5) of the Code of Criminal Procedure. You
suggest that the parolee was required to register as a condition of parole because he had a history as
The Honorable     Florence Shapiro   - Page 5      (X-0129)




a sex offender,   and we will therefore assume for purposes of this opinion that the adjudication     is
reportable.

          Given this assumption, you ask whether a local law enforcement authority has any discretion
in registering a parolee with a reportable adjudication. It does not. The law enforcement agency
must register a person as a sex offender if that person has a statutory duty to register with the law
enforcement agency. A sex offender has a duty to register for at least ten years following the
disposition of a juvenile adjudication, see id. art. 62.12(b)(l), or until death, see id. art. 62.12(a).
Thus, for example, if the parolee described in Attorney General Opinion JC-0010 had a reportable
adjudication, he had a duty to register because of that adjudication for at least ten years following
the date of the disposition of the adjudication or the date he completed the terms of the disposition,
see id. art. 62.12(b)(l), which we were informed was approximately March 1991. Accordingly, the
individual described in that opinion would have had a duty to register as a sex offender until at least
March 2001 if his adjudication had been reportable. In addition, if the individual described in
Attorney General Opinion JC-0010 had a reportable adjudication under article 62.01(5) of the Code
of Criminal Procedure, but had most recently been convicted of a nonreportable offense, he still
would have a duty to register as a sex offender based upon the previous adjudication. As long as an
individual’s duty to register has not yet expired, a law enforcement authority has no discretion to
decide whether to register the individual. It must register all persons who are required by statute to
register.

        Finally, you ask whether a law enforcement authority may register a parolee whom the statute
does not require to register as a sex offender and what liability the law enforcement authority may
face for registering the individual in these nonmandatoly circumstances. As we stated in answer to
your first question, we know of no statute that forbids a local law enforcement authority to register
an individual who is not statutorily required to register. Conversely, nothing in the law requires the
law enforcement authority to register the individual. See Tex. Att’y Gen. Op. No. JC-0010 (1999)
at 3.

         A local law enforcement authority that registers a parolee who need not register under the
statute does not commit an offense under chapter 62. The only offense listed in that chapter is for
a sex offender’s failure to comply with registration requirements. See TEX.CODE GRIM.PROC.ANN.
art. 62.10 (Vernon Supp. 1999). Consequently, a local law enforcement authority that registers a
parolee who need not register faces no liability under chapter 62. Depending upon the facts of a
particular situation, we can imagine that other actions might lie against the local law enforcement
agency for libel, defamation of character, invasion ofprivacy, equal protection violations, or similar
actions. Given that the parolee registered in spite of the fact that he or she was not required by
statute to do so, however, we think the parolee’s chance of succeeding in such an action is small
absent bad-faith conduct on the law enforcement agency’s part.
The Honorable Florence Shapiro     - Page 6      (X-0129)




                                       SUMMARY

                        Nothing in chapter 62 of the Code of Criminal Procedure
              precludes a local law enforcement authority from registering as a sex
              offender a parolee who does not have a reportable conviction or
              adjudication but who is required as a condition of his or her parole to
              register. A parolee’s juvenile adjudication, which occurred prior to
              the parolee’s most recent conviction, is a reportable adjudication if it
              is “an adjudication of delinquent conduct based on a violation of one
              of the offenses listed in” article 62.01(5)(A) - (D), (F) of the Code of
              Criminal Procedure or based on two violations of the offense listed
              in article 62.01(5)(E). The parolee’s duty to register as a sex offender
              for that reportable adjudication continues until the duty expires
              as specified in article 62.12(a), (b) ofthe Code of Criminal Procedure,
              regardless of the nature of any subsequent             adjudications   or
              convictions. If the parolee has a duty to register under chapter 62, the
               local law enforcement authority in the community in which the
              parolee intends to reside is required to register the parolee. A law
               enforcement authority that registers as a sex offender an individual
               who registers him- or herself as such, although the individual does
               not have a reportable conviction or adjudication, is not subject to
               liability under chapter 62 of the Code of Criminal Procedure, but
               may, depending upon the facts, face liability for various civil causes
               of action.

                                               Yours very trul ,


                                              4JGT-
                                               JO&N     CO\RNYN
                                               Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

 CLARK KENT ERVIN
 Deputy Attorney General - General Counsel

 ELIZABETH ROBINSON
 Chair, Opinion Committee

 Kymberly K. Oltrogge
 Assistant Attorney General - Opinion Committee
