                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                             ________________________

                                  No. 07-15-00444-CV
                              ________________________


                           BILLY JOE GARZA, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE



                          On Appeal from the 106th District Court
                                    Garza County, Texas
            Trial Court No. 88-1584; Honorable Carter T. Schildknecht, Presiding


                                    December 28, 2016

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant, Billy Joe Garza, filed a notice of restricted appeal from the trial court’s

order denying his Motion for Exemption from [Sex Offender] Registration. In 1988,

Garza was charged with “intentionally and knowingly, with the male sex organ . . .

[causing] the penetration of the female sexual organ of [the victim], a child younger than

17 years of age” and not Garza’s spouse. Pursuant to a plea bargain, he was convicted
of sexual assault under section 22.011 of the Texas Penal Code and sentenced to

seven years confinement.1 At the time of the offense, according to Garza’s sworn

motion, he was seventeen and the victim was fourteen years old. By a sole issue, he

maintains the trial court abused its discretion in denying his motion for exemption from

registration without holding a hearing. We affirm.


        JURISDICTION

        The State asserts this court is without jurisdiction to entertain Garza’s appeal.

Under the circumstances of the case before us, we disagree.


        PETITION FOR EXEMPTION—APPLICABLE LAW

        In 2001, the Legislature enacted article 42.017 of the Texas Code of Criminal

Procedure entitled “Finding Regarding Age-Based Offense.” The statute requires the

trial court to make an affirmative finding of fact and enter it in the judgment of conviction

in cases tried under section 21.11 or 22.011 of the Texas Penal Code. TEX. CODE CRIM.

PROC. ANN. art. 42.017 (West Supp. 2016). The affirmative finding is contingent on the

defendant not being more than four years older than the victim or intended victim. It

also requires that the victim or intended victim be at least fifteen years of age. Finally,

the conviction must be based solely on the ages of the defendant and the victim or the

intended victim at the time of the offense. Id. at (1), (2).




        1
          TEX. PENAL CODE ANN. § 22.011. At the time of the offense, “child” was defined as a person
younger than seventeen years of age who was not the spouse of the actor. See Act of May 29, 1983,
68th Leg., R.S., ch. 977, § 3, 5311 Tex. Gen. Laws 5314. Under the statute, it was an affirmative defense
to prosecution that the actor was not more than two years older than the victim. See id.

                                                   2
        Under article 62.301 of the Texas Code of Criminal Procedure, at any time, a

person required to register as a sex offender may petition the court for an exemption

from sex offender registration if he establishes his eligibility to do so. TEX. CODE CRIM.

PROC. ANN. art. 62.301(a) (West Supp. 2016). As applicable to the facts of this case, a

person is eligible to petition for an exemption from sex offender registration if (1) the

person is required to register only as a result of a single reportable conviction or

adjudication and (2) the court has entered an affirmative finding described by article

42.017. Id. at (b). The trial court having jurisdiction over the petition may then hold a

hearing to determine whether a preponderance of the evidence establishes the criteria

entitling a defendant to exemption from sex offender registration. (Emphasis added).

Id. at (c-1), (d).


        ANALYSIS

        Garza was convicted in 1988 and sentenced to confinement for seven years. By

his sworn admission in his motion for exemption, Garza recites that his victim was only

fourteen at the time of the offense. To be entitled to an affirmative finding that the

offense was age-based, Garza’s victim would have had to have been at least fifteen

years old at the time of the offense. The age of the victim in this case precludes Garza

from being eligible for an exemption from sex offender registration under article 42.017

of the Code. Because Garza’s own motion established that he was not eligible for an

exemption, the trial court did not err by denying his motion for exemption from

registration without a hearing. Garza’s sole issue is overruled.



                                            3
CONCLUSION

The order of the trial court denying an exemption from registration is affirmed.




                                          Patrick A. Pirtle
                                              Justice




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