            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-0076-10



               EX PARTE BRYAN SCOTT CHAMBERLAIN, Appellant



          ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE SECOND COURT OF APPEALS
                           TARRANT COUNTY

       K EASLER, J., delivered the opinion for a unanimous Court.

                                       OPINION

       In October 1997, Bryan Scott Chamberlain pled guilty to sexual assault, a third-degree

felony. The trial judge deferred adjudicating guilt and placed Chamberlain on community

supervision for four years. Chamberlain successfully completed the four-year community

supervision term in October 2001.

       As a result of this offense, Chamberlain is required to register as a sex offender for

the remainder of his life.1 In October 2008, Chamberlain filed an application for a writ of

habeas corpus under Texas Code of Criminal Procedure Article 11.072. Among other


      1
          T EX. C ODE C RIM. P ROC. A NN. art. 62.101 (Vernon 2006).
                                                                        CHAMBERLAIN—2

grounds for relief, Chamberlain alleged that the lifetime registration requirement violates his

substantive due process rights because there is no mechanism to permit any future risk

reassessment concerning the probability or likelihood of recidivism. Adopting the State’s

proposed findings of fact and conclusions of law, the trial judge denied relief.

       Chamberlain appealed to the Fort Worth Court of Appeals.2 The court of appeals

rejected Chamberlain’s claim, concluding that Chamberlain’s due process rights are not

violated because there is a statutory mechanism that allows a person subject to the lifetime

registration requirement to seek early termination.3 The court pointed to Texas Code of

Criminal Procedure Articles 62.401 through 62.408. Article 62.401, enacted in 2005,

established the Council on Sex Offender Treatment (CSOT). Article 62.402 sets out part of

the CSOT’s duties:

       (a) The council by rule shall determine the minimum required registration
       period under 42 U.S.C. Section 14071 . . . for each reportable conviction or
       adjudication under this chapter, if this state is to receive the maximum amount
       of federal money available to a state as described by that law.
       (b) After determining the minimum required registration period for each
       reportable conviction or adjudication under Subsection (a), the council shall
       compile and publish a list of reportable convictions or adjudications for which
       a person must register under this chapter for a period that exceeds the
       minimum required registration period under federal law.
       (c) To the extent possible, the council shall periodically verify with the Bureau
       of Justice Assistance or another appropriate federal agency the accuracy of the
       list of reportable convictions or adjudications described by Subsection (b).4


       2
           Ex parte Chamberlain, 306 S.W.3d 328, 336 (Tex. App.—Fort Worth 2009).
       3
           Id.
       4
           T EX. C ODE C RIM. P ROC. A NN. art. 62.402 (Vernon 2006).
                                                                         CHAMBERLAIN—3

       Article 62.403 provides for individual risk assessment by the CSOT:

       (b) On the written request of a person with a single reportable adjudication or
       conviction that appears on the list published under Article 62.402(b), the
       council shall:
       (1) evaluate the person using the individual risk assessment tool or group of
       individual risk assessment tools established, developed, or adopted under
       Subsection (a); and
       (2) provide to the person a written report detailing the outcome of an
       evaluation conducted under Subdivision (1).5

       Once an individual has received an individual risk assessment under Article 62.403,

the individual may file a motion in the trial court requesting early termination from the

applicable registration requirements.6

       After considering these statutes, the court of appeals held that:

       To the extent that the [sex-offender registration requirement’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 [law] 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
       possibly obtain early release from his obligation to register as a sex offender.7

The court then concluded that, as applied to Chamberlain, the lifetime registration

requirement does not violate his substantive due process rights.8

       We granted Chamberlain’s petition for discretionary review to decide the following


       5
           T EX. C ODE C RIM. P ROC. A NN. art. 62.403(b) (Vernon 2006).
       6
           T EX. C ODE C RIM. P ROC. A NN. art. 62.404 (Vernon 2006).
       7
           Ex parte Chamberlain, 306 S.W.3d at 337.
       8
           Id. at 338.
                                                                      CHAMBERLAIN—4

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?”

       Shortly before this case was submitted, but after we granted review, the CSOT

published its list as mandated by Article 62.402.9 It makes clear that individuals who have

been convicted of sexual assault, like Chamberlain, are not eligible for de-registration.10

       The CSOT’s list has altered the legal landscape for individuals eligible for early

termination from the sex offender registration requirements. The court of appeals did not

have the benefit of this information before it when addressing Chamberlain’s due process

claim. The court therefore proceeded under the theory that Chamberlain would be able to

avail himself of the Code’s mechanism for early termination from the lifetime registration

requirement. This was the court’s sole basis for concluding that Chamberlain’s substantive

due process rights were not violated.11 As a result, we determine that the court of appeals

should be given an opportunity to reconsider Chamberlain’s claim in light of this new

information.      We vacate the court of appeals’s judgment and remand this case for

proceedings consistent with this opinion.


       9
         Deregistration for Certain Sex Offenders, December 14, 2010, available at
http://www.dshs.state.tx.us/csot/csot_sodregis.shtm.
       10
            Id.
       11
            Ex parte Chamberlain, 306 S.W.3d at 337-38.
                                   CHAMBERLAIN—5



DATE DELIVERED: February 2, 2011
PUBLISH
