                              ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                             September 13.2006



 Colonel Thomas A. Davis, Jr.                          Opinion No. GA-0454
 Director
 Texas Department of Public Safety                     Re: Whether a sex offender with a reportable
 5805 North Lamar Blvd.                                conviction based on an out-of-state offense prior to
 Post Offtce Box 4087                                  September 1, 1995, must register as a sex offender
 Austin, Texas 78773-0001                              if he resides in Texas even though he was not under
                                                       the supervision and control of a Texas-based penal
                                                       institution, probation department, or parole office
                                                       for the offense (RQ-0453-GA)

Dear Colonel Davis:

         You seek an opinion about Code of Criminal Procedure chapter 62, which requires sex
offenders who have a “reportable conviction or adjudication” to register with the local law
enforcement entity in the municipality or county where that person resides or intends to reside.’ See
TEX. CODE GRIM. PROC. ANN. art. 62.051 (Vernon Supp. 2006). A “reportable conviction or
adjudication” includes those arising from not only a violation of specified Texas laws, but also “a
violation of the laws of another state, federal law, the laws of a foreign country, or the Uniform Code
of Military Justice for or based on the violation of an offense containing elements that are
substantially similar to the elements” of the Texas offenses subject to reporting under chapter
62. See id. art. 62,001(5)(H), (J)? Chapter 62 requires the Department of Public Safety (the
“department”) to maintain a computerized central database of all the information that a person who
is required to be registered provides to a local law enforcement agency. See id. art. 62.005.

        Your question is as follows:

                          Does a sex offender with a reportable conviction based on an
                 out-of-state conviction occurring before September 1,1995, who was



         ‘Letter fkom Thomas A. Davis, Jr., Director, Texas Department of Public Safety, to Honorable Greg Abbott,
Attorney General of Texas (Feb. 15,2006) (on tile with the Opinion Committee, also availabk at http://www.oag.State
.xus) [hereinafter Request Letter].

          “This provision was designated as article 62.001(5)(H) by the Act of May 26,2005,79th   Leg., RX, ch. 1008,
5 1.01, 2005 Tex. Gen. Laws 3386, 3387, which reenacted and amended chapter 62. It was designated article
62.001(5)(J) bytbeActofMay25,2005,79thLeg.,R.S.,           ch. 1273,§ 2,2005 Tex. Gen. Laws4049,4051,    whichcreated
a new reportable offense of online solicitation of a minor.
Colonel Thomas A. Davis, Jr. - Page 2          (GA-0454)




               still under supervision in the other state on or after September 1,
               1997, have a duty to register as a sex offender in Texas if the offender
               resides in Texas but was at no point under the supervision and control
               of a Texas-based penal institution, probation department, or parole
               office for the out-of-state conviction?

Request Letter, supra note 1, at 1

         Your question relates to certain amendments to chapter 62 and its predecessor. The sex
offender registration law was adopted in 1991 as former article 6252-13c.1, Revised Civil Statutes.
See Act ofMay26,1991,72d       Leg., RX, ch. 572, 5 1,199l Tex. Gen. Laws 2029. The legislature
amended article 6252-13c.l in 1995 to require sex offenders to register based on out-of-state
convictions. See Act of May 19,~1995, 74th Leg., R.S., ch. 258, 5 1, 1995 Tex. Gen. Laws 2197.
The amendment applied prospectively only, stating that article 6252-13~1 would apply only to a
reportable conviction or adjudication for specific offenses, including an out-of-state offense that
occurred on or after September 1, 1995, the effective date of the bill. See id. 5 8 at 2202. This
provision was codified as former article 6252-13c.1, section S(a), Revised Civil Statutes.

         In 1997, the legislature redesignated article 6252-13c.l as Code of Criminal Procedure
chapter 62, effective September 1,1997. See Act of June 1,1997,75th Leg., R.S., ch. 668, § 10,
1997 Tex. Gen. Laws 2253,2264. The enactment recodified former section S(a) as article 62.11 and
amended it to apply to earlier violations, stating that “[tlhis chapter applies only to a reportable
conviction or adjudication occurring on or after September 1, 1970.” Id. § 1, at 2260. It also
included the following savings clause:

                        (a) The change in law made by this Act to Article 62.11,
               Code of Criminal Procedure [providing chapter 62 applies only to a
               reportable conviction on or after September 1,1970]        applies only
               to a defendant who, with respect to an offense listed in Subdivision
               (5), Article 62.01, Code of Criminal Procedure, as redesignated and
               amended by this Act      , on or after the effective date of this Act:

                           (1) is confined in a penal institution, as that term is
               defined by Subdivision (3), Article 62.01, Code of Criminal
               Procedure, as redesignated and amended by this Act (formerly
               Subdivision (3), Section 1, Article 6252-13c.1, Revised Statutes); or

                            (2) is under the supervision and control of a juvenile
               probation office or an agency or entity operating under contract with
               a juvenile probation office, a community supervision and corrections
               department, or the pardons and paroles division of the Texas
               Department of Criminal Justice.

                        (b) A defendant who, on the effective date of this Act, is not
                described by Subdivision (1) or (2) of Subsection (a) of this section
Colonel Thomas A. Davis, Jr. - Page 3                (GA-0454)




                is covered by the law in effect under Subsection (a), Section 8, Article
                6252-13c.1, Revised Statutes, before that section was redesignated
                and amended by this Act, and the former law is continued in effect for
                that purpose.

Id. § 11, at 2264. This provision was not codified.

         Subsection (b) applies to offenders not confined in a penal institution or under the
supervision and control of a probation or parole agency on or after September 1,l 997,3 preserving
for such persons the 1995 provision that required registration only for conviction or adjudication of
certain offenses, including out-of-state offenses, that occurred on or after September, 1, 1995. See
Act of May 19, 1995,74th Leg., R.S., ch. 258, 5 1, 1995 Tex. Gen. Laws 2197.

        You wish to know whether the provision mandating prospective operation of the 1995
amendments and the savings clause in the 1997 amendment are still in effect. See Request Letter,
supra note 1, at 3&-l. The 1995 provision was repealed in 2005 and no longer applies to reporting
duties under chapter 62. See Act of May 26,2005,79th Leg., R.S., ch. 1008, 5 1.Ol, 2005 Tex. Gen.
Laws 3385,3412.

          You point out that the 1997 savings clause provides in section (a)( 1) that the change in the
law applies only to persons confined on or after September 1,1997, in a Texas penal institution. See
Act of June 1, 1997,75th Leg., R.S., ch. 668, $ 1, 1997 Tex. Gen. Laws 2253 (definition of “penal
institution” in 1997); TEX. CODE CRIM. PROC. ANN. art. 62.001(3) (Vernon Supp. 2006) (current
definition of “penal institution”). Section (a)(2) ofthe clause expressly applies to a defendant under
supervision of the pardons and paroles division of the Texas Department of Criminal Justice, as well
as defendants under probation or community supervision. Act of June 1, 1997,75th Leg., R.S., ch.
668, § 11,1997 Tex. Gen. Laws 2253,2264. You state that local law enforcement authorities submit
registrations to the department for sex offenders with a reportable conviction in another state who
were under state supervision for the offense on or after September 1, 1997. See Request Letter,
sugra note 1, at 3. However, “their entire incarceration, probation, and/or parole was served under
the supervision and control of an entity in the convicting state,” not in Texas. Id. Thus you suggest
that the 1997 amendment to chapter 62 making registration retroactive to September 1,1970, may
not apply to an offender convicted of a sex offense in another state who is never under the
 supervision and control of a Texas penal institution, parole department, or probation office for the
 offense. See id. at 34.

        In our opinion, the legislature’s adoption of House Bill 867 in 2005 repealed the 1997
savings clause. See Act of May 26,2005,79th Leg., R.S., ch. 1008, § 1 .Ol, 2005 Tex. Gen. Laws
3385,3387. House Bill 867 “reenacted and amended” chapter 62, reorganizing it to make it more
easily understood by persons required to administer it. See HOUSERESEARCHORGANIZATION,BILL
ANALYSIS, Tex. C.S.H.B. 867, 79th Leg., R.S. (2005). The bill included the following transition
clause:


        ‘See Request   Letter, supra Nate 1, at 3,
Colonel Thomas A. Davis, Jr. - Page 4                  (GA-0454)




                            (a) Except as provided by Subsection(b) of this section, the
                    changes in law made by this Act in amending Chapter 62, Code of
                    Criminal Procedure, apply to a person subject to Chapter 62, Code of
                    Criminal Procedure, for an offense or conduct committed or engaged
                    in before, on, or after the effective date of this Act.

                            (b) To the extent that the changes in law made by this Act to
                    Chapter 62, Code of Criminal Procedure, change the elements of or
                    punishment for conduct constituting aviolation~of Chapter 62: those
                    changes apply only to conduct engaged in, on, or after the effective
                    date of this Act. Conduct engaged in before the effective date of this
                    Act is governed by the law in effect at the time the conduct was
                    engaged in, and that law is continued in effect for that purpose.

Act of May 26, 2005,79th Leg., R.S., ch. 1008, 5 4.01,2005 Tex. Gen. Laws 3385, 3422. Thus,
House Bill 867 provides that changes in chapter 62 would be retroactive, with certain exceptions.
While the legislature may have hesitated in 1995 and 1997 to apply a sex offender registration
provision retroactively, the courts have determined since then that the retroactive application of such
provisions does not violate the ex post facto clause. See Smith v. Doe, 538 U.S. 84, 93 (2003)
(holding Alaska’s retroactive sex offender registration statute not violative of the ex post facto
clause); Rodriguez v. State, 93 S.W.3d 60,69 (Tex. Crim. App. 2002) (holding Texas’ retroactive
amendments to sex offender registration statute not violative of the ex post facto clause).

         House Bill 867 amended and reenacted the provisions defining a reportable conviction to
include a conviction based on a violation of the laws of another state. See TEX. CODE CRM PROC.
ANN. art. 62.001(H), (J) (Vernon Supp. 2006); see also id art. 62.001(I), (L)5 (second conviction
“under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of
Military Justice”). It is clear that the legislature intended chapter 62 to apply to sex offenders
convicted of certain offenses in another state if they reside in Texas. The 1997 savings clause is thus
inconsistent with chapter 62. Morever, the 1997 savings clause has not been adopted or carried
forward by House Bill 867 or earlier amendments to chapter 62.

        “A statute may be repealed expressly or by implication.” Gordon V.Lake, 356 S.W.2d 138,
139 (Tex. 1962). Because repeals by implication are not favored, laws relating to the same subject
will be harmonized if possible and considered as though incorporated in the same act. See Achzr v.
Tex. Watei Comm’n, 790 S.W.2d 299,301 (Tex. 1990); Standard v. Sadler, 383 S.W.2d 391,395
(Tex. 1964). However, a new statute that cannot be reconciled with an old statute impliedly repeals
the old statute. See Gordon, 356 S.W.2d at 139. Government Code chapter 331 provides the
following rule for irreconcilable statutes and amendments:



             ‘See, e.g., TEX. CODE GRIM. PROC. ANN. art. 62.102   (Vernon Supp. 2006) (criminal penalty for failure to
register).
Colonel Thomas A. Davis, Jr. - Page 5                 (GA-0454)




                 Except as provided by Section 3 11.03 l(d): if statutes enacted at the
                 same or different sessions of the legislature are irreconcilable, the
                 statute latest in date of enactment prevails.

TEX. GOV’T CODEANN. 3 3 11.025(a) (Vernon 2005). See Conley v. Daughters of the Republic, 157
S.W. 937 (Tex. 1913). The 1997 savings clause and House Bill 867 cannot be reconciled.
Accordingly, House Bill 867 as the more recent enactment prevails.

          We also note that House Bill 867 was adopted after a select interim committee met to
consider and recommend changes in chapter 62. See HOUSE SELECT INTERIM Corn.. ON SEX
OFFENDERSTATUTES, TEXAS HOUSE OF REPRESENTATIVES,INTERIMREPORT (2004). AS a result
of numerous amendments to chapter 62 over the years, there was “a very real concern that the
registration program has proved to be cumbersome and difficutt to manage.” Id. at 1. “For this
reason, the Speaker created this select interim committee to examine Chapter 62 to determine what
changes, if any, are needed to streamline and clarify the provisions.” Id. House Bill 867 was
adopted to deal with the problems addressed by the interim committee. See HOUSE COMM. ON
CRIMINALJURISPRUDENCE,BILL ANALYSIS,Tex. C.S.H.B. 867,79th Leg., R.S. (2005) (committee
report). It dealt with chapter 62 in its entirety, expressly repealing and reenacting many provisions
of the chapter. As alaw designed to deal with chapter 62 comprehensively, it impliedly repealed the
uncodified 1997 savings clause. See Motor Znv. Co. v. City of Hamlin, 179 S.W.2d 278,281 (Tex.
 1944) (a comprehensive enactment that is intended to include all the law on the subject with which
it deals evidences a legislative intent to repeal former statutory law); Tex. Att’y Gen. Op. Nos.
JM-474 (1986) at 4, H-l 107 (1977) at 3. Pursuant to the 2005 bill reenacting and amending chapter
62, this chapter “applies only to a reportable conviction or adjudication occurring on or after
 September 1, 1970.” See Act of May 26,2005, 79th Leg., R.S., ch. 1008, 5 1.01,2005 Tex. Gen.
Laws 3385,338s (codified at TEX. CODE Cm.            PROC. ANN. art. 62.002).


         The 1997 savings clause limiting the application of the 1997 amendments to persons
confined in a Texas penal institution on or after September 1, 1997, has been impliedly repealed by
House Bill 867. Thus, a sex offender’s duty to register now relates to convictions occurring on or
after September 1,1970, and the duty to report is controlled by chapter 62 without reference to the
conditions stated in the 1997 savings clause. In answer to YOLK   specific question, a sex offender with
a reportable conviction based on an out-of-state offense occurring before September 1, 1995, must
register as a sex offender in Texas if the offender resides in Texas, even though the offender has not
been under the supervision and control of a Texas-based penal institution, probation department, or
parole office for the out-of-state conviction.




          6GovemmentCode section3 11.03 I (d)provides that “[i]fanyprovisionofacode     conflicts with astatuteenacted
by the fame legislature that enacted the code, the statute controls.” TEX. GOV’TCODE ANN. $3 11.03 l(d) (Vernon 2005).
Colonel Thomas A. Davis, Jr. - Page 6         (GA-0454)




                                       SUMMARY

                        Code of Criminal Procedure chapter 62 requires a sex
               offender who has a reportable out-of-state conviction occurring on or
               after September 1, 1970 to register as a sex offender in the Texas city
               or county where he resides or intends to reside, even though the
               offender has not been under the supervision and control of a Texas-
               based penal institution, probation department, or parole office for the
               out-of-state conviction.    The savings clauses of amendments to
               chapter 62 and its predecessor adopted in 1995 and 1997 do not
               govern the duty to register based on a reportable out-of-state
               conviction.




RENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
