                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00079-CR


EX PARTE BRYAN SCOTT
CHAMBERLAIN


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                          OPINION ON REMAND
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      This appeal is before us on remand from the court of criminal appeals.

See Ex parte Chamberlain, 335 S.W.3d 198, 200 (Tex. Crim. App. 2011)

(vacating our judgment, but not our opinion, and remanding the appeal).1 In our

initial opinion, we overruled Chamberlain’s two issues arguing that (1) the trial

court in this case was required to conduct an evidentiary hearing on

Chamberlain’s article 11.072 application for a writ of habeas corpus, and (2) the


      1
       See Tex. R. App. P. 78.1(f) (stating that court of criminal appeals may
vacate lower court’s judgment and remand case for further proceedings in light of
changes in law).
Texas Sex Offender Registration Program’s (SORP) lifetime registration

requirement as applied to Chamberlain violated the substantive due process

rights guaranteed to him under the Fourteenth Amendment to the United States

Constitution. See Ex parte Chamberlain, 306 S.W.3d 328, 332–38 (Tex. App.—

Fort Worth 2009), vacated and remanded, 335 S.W.3d at 198.               In our prior

opinion, we first held that Chamberlain’s interest in his reputation did not

constitute a fundamental right or liberty interest as required to trigger heightened

substantive due process protection. Id. at 334. Accordingly, applying the rational

basis test, we secondly held that the SORP’s registration requirement bore a

rational relationship to Texas’s legitimate interest in protecting its citizens from

sexual predators. Id. at 334–35. We also thirdly held that because the SORP

required Chamberlain’s compulsory registration based on his conviction of a

crime that met the SORP’s definition of a ―sexually violent offense,‖ the SORP’s

initial registration requirement was rationally related to the legitimate state

interest of protecting citizens from sexual predators.     Id. at 336.    Finally, in

rejecting Chamberlain’s argument that the SORP as applied to him violated

substantive due process because it required him to continue to register for his

entire life and provided no mechanism for a determination that, at some point in

his life, he was no longer dangerous or a recidivism risk, we pointed out that in

fact ―the SORP[] reveals that a statutory mechanism does exist for persons

subject to lifetime registration to seek early termination of their obligation to

register.‖ Id. at 337 (citing Texas Code of Criminal Procedure articles 62.401–


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.408 (West 2006)). We thus fourthly held that ―the SORP contains a mechanism

that allows sex offenders who are purportedly not dangerous and who pose a low

risk of re-offending to petition for early termination of the registration

requirements.‖ Id. at 338.

      The court of criminal appeals granted Chamberlain’s petition for review to

decide the following issue:   ―Did the court of appeals err in holding that the

lifetime registration requirement imposed on [Chamberlain] did not violate his

substantive due process rights because there is a statutory mechanism by which

[Chamberlain] can seek to be excused from further registration?‖           Ex parte

Chamberlain, 335 S.W.3d at 200. After the court of criminal appeals granted

review but before the case was submitted, the Council on Sex Offender

Treatment (CSOT) published a list as mandated by code of criminal procedure

article 62.402, which the court of criminal appeals stated in its opinion ―altered

the legal landscape for individuals eligible for early termination from the sex

offender registration requirements.‖ 2 See id. Accordingly, the court of criminal


      2
       The list states,

      [I]t is very important to note that not all Registered Sex Offenders are
      eligible to pursue deregistration at this time. The amendments to the
      Code of Criminal Procedure, Chapter 62 allow sex offenders who
      have been convicted or placed on deferred adjudication for the
      following offenses to pursue deregistration:

             Compelling prostitution
             Compelling prostitution (victim under 17 years old)
             Indecent exposure (two or more convictions)
             Unlawful restraint (victim under 17 years old)

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appeals vacated our judgment and remanded the case to us to reconsider

Chamberlain’s substantive due process claim3 ―in light of this new information.‖

Id.

      For the reasons set forth in our prior opinion, we reaffirm and readopt the

first three holdings we made, as referenced above.             Concerning our fourth

holding—that ―the SORP[] reveals that a statutory mechanism does exist for

persons subject to lifetime registration to seek early termination of their obligation

to register,‖ this is still true.   The list promulgated by the CSOT, however,

specifically excludes individuals who have been convicted of sexual assault from

deregistration ―at this time.‖      See Deregistration for Certain Sex Offenders,

www.dshs.state.tx.us/csot/csot_dregupdate.doc.            Thus,    Chamberlain,       who


             Indecency with a child by exposure
             Possession or promotion of child pornography
             Online solicitation of a minor
             Sexual performance of a child
             Indecency with a child (victim 13 to 17 years old)
             Any attempts, conspiracies, and solicitations of any of the
             above listed.

      Thus individuals who have been convicted of other sex offenses like
      . . . Sexual Assault, . . . are not eligible for deregistration at this time.
      This determination is mandated under current law . . . .

      See Deregistration for Certain Sex Offenders, December 14, 2010,
available at www.dshs.state.tx.us/csot/csot_dregupdate.doc.
      3
       Thus, Chamberlain’s first issue—whether the trial court was required to
conduct a hearing—is not before us on remand. See Lopez v. State, 57 S.W.3d
625, 629 (Tex. App.—Corpus Christi 2001, pet. ref’d) (limiting issues on remand
to those raised by court of criminal appeals’s opinion).


                                           4
pleaded guilty to sexual assault, a second-degree felony,4 is not eligible at this

time to petition for deregistration.

      The fact that Chamberlain is not eligible to petition for deregistration,

however, does not mean that the SORP’s lifetime registration requirement is not

rationally related to a legitimate state interest or that it violates substantive due

process as applied to Chamberlain.                  As we noted in our original opinion,

complaints    about    whether      the   application       of   the   SORP’s   registration

requirements should be contingent on the seriousness of the offense or whether

registration for nonviolent sex offenders should be limited in duration are

questions better left for the legislature. Ex parte Chamberlain, 306 S.W.3d at

337 n.9.     To the extent that the SORP’s rational relationship to the State’s

legitimate interest in protecting its citizens from sex offenders diminishes as a

sex offender over time establishes his lack of dangerousness and low risk of

recidivism, the SORP does provide a vehicle for such an offender (with a single

reportable    adjudication)    to      obtain        an   individualized   assessment    of

dangerousness and risk of recidivism and to possibly obtain an early release

from his obligation to register as a sex offender. See Tex. Code Crim. Proc. Ann.

arts. 62.401–.408. The fact that Chamberlain is not eligible at this time to pursue

deregistration because he pleaded guilty to and was convicted of an offense that

is not included on the CSOT’s list does not create a violation of Chamberlain’s

      4
       See Tex. Penal Code Ann. § 22.011(f) (West 2011) (categorizing sexual
assault as a second-degree felony).


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substantive due process rights; it simply means that the legislature, via the

CSOT, in consideration of the category of offense committed by Chamberlain,

has determined that Texas’s citizens should continue to be protected from

perpetrators of this type of sexual offense. To hold otherwise would judicially

mandate inclusion of all offenses on the CSOT’s list in order to make the statute

pass substantive due process constitutional muster. The determination of which

offenses should be eligible for deregistration is a matter best left for the

legislature or its designees, like the CSOT. See Flores v. State, 904 S.W.2d 129,

131 (Tex. Crim. App. 1995) (rejecting defendant’s disparate treatment argument

because accepting it would lead to unintended consequences better left for the

legislature to decide), cert. denied, 516 U.S. 1050 (1996); accord Safety Nat’l

Cas. Corp. v. State, 273 S.W.3d 157, 165 (Tex. Crim. App. 2008) (Cochran, J.,

concurring) (explaining that statutory inadequacies are best left to the legislature

to remedy); see also In re M.A.H., 20 S.W.3d 860, 865–66 (Tex. App.––Fort

Worth 2000, no pet.); In re J.W., 787 N.E.2d 747, 760 (recognizing that rational

basis test does not require that statute be best means of protecting public and

that it is up to the legislature and not courts to determine whether statute is best

means for achieving desired results), cert. denied sub nom., J.W. v. Illinois, 540

U.S. 873 (2003). Because the Texas SORP does provide a mechanism for early

deregistration for certain offenses and under certain circumstances dictated by

the legislature and the CSOT, the lifetime registration requirement is rationally




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related to Texas’s legitimate interest in protecting its citizens from sexual

predators. We overrule Chamberlain’s second issue.

      Having overruled the sole issue before us on remand, we affirm the trial

court’s order denying habeas corpus relief.



                                              SUE WALKER
                                              JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

PUBLISH

DELIVERED: August 30, 2011




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