               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                     NOS. AP-76,092 AND AP-76,093


                               EX PARTE PHILLIP HARBIN, Applicant


                     ON APPLICATION FOR WRITS OF HABEAS CORPUS
                      FROM THE 211th JUDICIAL DISTRICT COURT OF
                               DENTON COUNTY, TEXAS

       MEYERS, J., delivered the opinion of the Court, in which PRICE, WOMACK ,
JOHNSON , KEASLER , HERVEY , HOLCOMB, and COCHRAN , JJ., joined. KELLER , P.J.,
dissented.

                                                OPINION


       Applicant, Phillip Harbin, was charged with two counts of failure to register as a

sex offender. The charges originated from convictions in the State of California for a

1988 offense of lewd and lascivious acts with a child under the age of 14,1 and annoying

and molesting a child 2 in 1994.3 He pled guilty and was sentenced to ten years for each

       1
           California Penal Code § 288 (West 1987).

       2
           California Penal Code § 647.6 (West 1987).

       3
        The indictment does not mention Applicant’s other convictions for annoying and
molesting a child and indecent exposure in 1996 or a 1995 conviction for sexual battery.
Therefore, our inquiry here is limited to whether Applicant was required to register for the 1988
                                                                               Harbin–Page 2

count, to be served concurrently. He filed an application for writ of habeas corpus

claiming that he did not have a duty to register for the offenses listed in the indictment

and thus he is actually innocent. We hold that Applicant did not have a duty to register

for the offenses listed in the indictment. Relief is granted.

                                                FACTS

       Applicant was incarcerated in California for the 1996 offense of annoying or

molesting a child under 18. After his release in 2000, Applicant left the California Patton

State Hospital and moved to Texas to live with his brother, Brian. A California official

told Applicant to have Texas authorities call him, so when Applicant arrived in Texas, he

went to the police department to register, but was told to wait for the department to

determine whether he was required to register in Texas. Before that determination was

made, Texas Department of Public Safety (DPS) notified the management of Brian’s

apartment that Applicant was a sex offender, and Brian was informed that his family

would be evicted if Applicant was seen on the premises. Applicant temporarily moved to

a hotel in Lewisville. The next day Applicant went to the Lewisville Police Department,

where he used his California State Hospital identification card to register as a sex

offender.

       A week later, Applicant was forced to leave his registered address at the hotel and

move in with his mother. He continued his communications with the Lewisville Police



or 1994 convictions listed in the indictment.
                                                                              Harbin–Page 3

and was informed that he would be arrested if he did not register with a residential

address. Although he lived with his mother at the time, Applicant did not register at that

address because his mother lived in the same complex that had threatened to evict his

brother. As a result, Applicant was arrested for failing to notify the Lewisville Police

Department of his new address. After Applicant was released on bail, he moved into a

hotel in Plano and registered with the Plano Police Department using his California State

Hospital identification card. The next day, he was asked to leave the Plano hotel, so he

moved in with his mother at her new apartment in Dallas.

       The same day, Applicant called the Plano Police Department to notify them that he

had been evicted and had relocated to his mother’s apartment. The following week,

Applicant and his brother contacted DPS to inform them of Applicant’s registration

problems and intent to register.

       Applicant then attempted to register with Detective Lewis Carter of the Dallas

Police Department. Detective Carter initially refused to register Applicant without proper

Texas identification, but after contacting the Lewisville Police Department, Carter

informed Applicant that he needed to bring documentation from his mother stating that he

lived with her. Applicant and his mother returned to the Dallas Police Department, and

Detective Carter entered Applicant’s proof of residence and hospital identification

information into the computer. However, Detective Carter instructed Applicant and his

mother to return with an affidavit from the apartment manager stating that it was okay for
                                                                               Harbin–Page 4

Applicant to live there. Applicant requested a registration receipt, but Detective Carter

told Applicant to use the receipt of registration from the Plano Police Department and to

call him if he had any problems.

       The following day, Applicant was arrested by DPS at his mother’s apartment for

failure to provide proper notice of his change of address.

       Applicant accepted a plea bargain and pled guilty to two second-degree felony

offenses for failure to register under the sex-offender registration statute. He was

sentenced to ten years in the Institutional Division of the Texas Department of Criminal

Justice for each offense, to be served concurrently. He filed previous applications for

writs of habeas corpus raising issues regarding the constitutionality of the statute,

ineffective assistance of counsel, and the voluntariness of his plea. We denied the

applications without written order.

                                      ISSUES RAISED

       Applicant filed this subsequent writ, claiming that newly discovered evidence of

actual innocence was unavailable at the time of his initial applications. Specifically,

Applicant asserts that a 2008 determination by DPS conclusively establishes that

California Penal Code §647.6 is not substantially similar to a Texas offense requiring

registration under the Sex Offender Registration Act (SORA). Applicant alleges that,

since California Penal Code §647.6 was not substantially similar to a Texas offense

requiring registration in 2000, he had no duty to register as a sex offender in Texas based
                                                                                  Harbin–Page 5

on his California Penal Code §647.6 conviction. Applicant also asserts that uncodified

language in the 1997 amendments to SORA precluded any of his convictions prior to

September 1, 1995, from establishing a duty to register as a sex offender in Texas in

2000. Since he did not have a duty to register for either of the offenses listed in the

indictment, Applicant asserts that he is actually innocent of the crimes charged.

       This case raises two questions: 1) whether, based on the statute in place at the time

of Applicant’s failure to register, Applicant had a reportable conviction and therefore a

duty to register and 2) whether, at the time of Applicant’s offenses, the California

misdemeanor offense of “annoy or molest a child” was substantially similar to a Texas

offense that would have required Applicant to register as a sex offender in Texas.

                           STATUTORY HISTORY OF SORA

       At the time of Applicant’s arrest and conviction in 2000, under article 62.01(5)(J),

an offender was required to register for an out-of-state conviction if the the offense

contained “elements that are substantially similar to the elements of an offense listed

under Paragraph (A), (B), (C), (D), (E), or (G).” See Code of Criminal Procedure Article

62.01(5)(J) (Vernon 1999). Although Article 62.11, which delineated the applicability of

the sex-offender registration program, was amended in 1999, that version of the statute

retained an uncodified “savings clause” that was first added in 1997.4 Tex. H.B. 2145,


       4
        See Act of June 19, 1999, 76th Leg., R.S., ch. 1415, §26, 1999 Tex. Sess. Law Serv.
4831, 4842.

(a) The change in law made by this Act to Article 62.11, Code of Criminal Procedure, as
                                                                                       Harbin–Page 6

§26, 76 th Leg., R.S. (1999). The “savings clause” applied to an offender who was not in a

Texas penal institution or under the supervision and control of a juvenile probation office,

a community supervision and corrections department, or the pardons and paroles division

of Texas Department of Criminal Justice on or after September 1, 1997, as a result of the

offense in question. Offenders subject to the savings clause need not register under the

1999 version of SORA because the version of the statute passed on May 19, 1995 (former

Section 8, Article 6252-13c.1, Revised Statutes), applies to them instead. Under the 1995

version of SORA, out-of-state convictions before September 1, 1995, were not considered



redesignated and amended by the Act (formerly Subsection(a), Section 8, Article 6252-13c.1,
Revised Statutes), 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 (formerly Subdivision (5), Section 1, Article 6252-13c.1, Revised Statutes), on or after
September 1, 1997:

       (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) [a
       confinement facility in Texas]; 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.

In its 1997 form, the section also provided this additional clause:

(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 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.

See Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 11, 1997 Tex. Gen. Laws 2253, 2264.
                                                                              Harbin–Page 7

reportable offenses, and offenders did not need to register for out-of-state convictions

occurring before that date.

       If the “savings clause” did not apply to an offender, the codified portion of the

1999 version of SORA would apply. Then, any conviction or adjudication that occurred

on or after September 1, 1970, needed to be reported under all applicable provisions of

chapter 62 except those involving newspaper publication in articles 62.03 and 62.04. Act

of June 1, 1997, 75 th Leg., R.S., ch. 668, § 1, 1997 Tex. Gen. Laws 2253, 2260.

                      SORA’S APPLICATION TO APPLICANT

       Since Applicant’s 1988 and 1994 out-of-state convictions occurred before

September 1, 1995, he would have to register under SORA only if he was in a Texas

penal institution or under the supervision and control of a community supervision and

corrections department on or after September 1, 1997, as a result of these convictions.

       For his 1988 conviction, Applicant was placed on probation for three years.

During this time, Applicant was ordered to participate in two different rehabilitation

programs and was then sent to prison in October 1989. In December 1990, Applicant was

placed on parole. He violated parole and went to prison until September 1993. Thus, all

punishment for this offense ended before September 1, 1997.

       For his 1994 conviction, Applicant was sentenced to three years of probation with

credit for 180 days of time already served. In June 1995, his probation was revoked, but

he was released to another rehabilitation program later that month. He did not complete
                                                                                   Harbin–Page 8

this rehabilitation program and returned to jail for two years. He was released and placed

back on probation in February 1996. His probation appears to have ended in August

1997. As a result, any probation, parole, or incarceration for his 1988 and 1994 offenses

ended prior to September 1, 1997.

       At the time Applicant was charged in 2000, under the savings clause, Applicant

did not have to register for either the 1988 or 1994 offenses listed in the indictment.

       We note that SORA’s “savings clause” is applicable in a limited number of cases.

The 2005 amendments to SORA repeal all of article 62.11, including the uncodified

“savings clause.” 5 Effective September 1, 2005, offenders must register for all offenses

listed in article 62.001(5) that occurred on or after September 1, 1970. Act of May 26,

2005, 79 th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385. Therefore, the

“savings clause” may apply only to offenders who failed to register between September 1,

1997, and August 31, 2005.

                              SUBSTANTIAL SIMILARITY

       Although we have determined that Applicant did not have a duty to register for the

1994 conviction for annoying or molesting a child as listed in the indictment, we will

examine Applicant’s additional issue of whether California Penal Code §647.6 is



       5
         Technically, only the codified portion of article 62.11 was removed in House Bill 867.
However, since there is no indication that the legislature wished to retain or relocate the
uncodified portion and since the “savings clause” appears to be inconsistent with the 2005
statute’s amendments and retroactive application, the uncodified portion has effectively been
repealed.
                                                                                Harbin–Page 9

substantially similar to a Texas offense requiring registration.

       When Applicant was charged with failure to register as a sex offender In 2000, the

statutory language of SORA did not delineate the role of law-enforcement agencies in

determining substantial similarity for out-of-state convictions. However, in 2001, the

Texas Legislature created Code of Criminal Procedure Article 62.0101, which assigns to

DPS the responsibility to determine whether an offense under the laws of another state are

substantially similar to an offense requiring registration under the laws of Texas. Act of

May, 8 2001, 77 th Leg., R.S., ch. 211, §2, 2001 Tex. Gen. Laws 399, 400. Importantly,

the Legislature clarified, as part of the 2001 amendment, that DPS’s responsibility to

determine substantial similarity applied retroactively, stating in pertinent part:

       The change in law made by this Act in adding Article 62.0101 and
       Subsection (e), Article 62.06, Code of Criminal Procedure, and in amending
       Article 62.021, Code of Criminal Procedure, applies to a person required to
       register as a sex offender under Chapter 62, Code of Criminal Procedure,
       under the laws of another state, under federal law, or under the Uniform
       Code of Military Justice before, on, or after the effective date of this Act.

Act of May, 8 2001, 77 th Leg., R.S., ch. 211, §19, 2001 Tex. Gen. Laws 399 (emphasis

added).

       The record indicates that DPS has not determined that a conviction under

California Penal Code §647.6 is substantially similar to any offense requiring registration

in Texas.

       Under the current version of SORA, Applicant will need to register for his 1988

conviction for lewd or lascivious acts and his 1995 conviction for sexual battery. The
                                                                            Harbin–Page 10

Department of Public Safety determined in 2006 that both of these constitute reportable

convictions in Texas. Lewd and lascivious acts with a child under the age of 14 under

California Penal Code § 288(a) is considered substantially similar to indecency with a

child by contact under Texas Penal Code § 22.011(a)(1). Sexual battery under California

Penal Code § 243.43 is considered substantially similar to sexual assault under Texas

Penal Code § 22.011(a)(1). Applicant will not need to register for his 1994 and 1996

convictions for annoying or molesting a child because, as indicated above, the

Department of Public Safety does not list California Penal Code § 647.6 as a reportable

conviction. Additionally, Applicant’s conviction for indecent exposure under California

Penal Code § 314(1) is considered substantially similar to the provision for indecent

exposure under Texas Penal Code § 21.08. However, the offense currently requires

registration only upon a second offense and the record indicates that Applicant has been

convicted of violating this provision only once.

                                     CONCLUSION

       Applicant’s California Penal Code §647.6 convictions are not eligible for

consideration as reportable offenses under SORA. Additionally, the savings clause from

the 1997 amendment to SORA precluded any conviction prior to September 1, 1995, from

consideration as a reportable conviction. Therefore, neither Applicant’s 1988 conviction

for lewd and lascivious act nor his 1994 conviction for annoying and molesting a child

created a duty to register as a sex offender in Texas in 2000. Applicant was not required
                                                                              Harbin–Page 11

to register for either of the offenses listed in the indictment at the time he was charged

and convicted. Relief is granted. Applicant’s convictions in 2000 for failure to register

as a sex offender are vacated.

                                                          Meyers, J.




Delivered: September 16, 2009

Publish
