                                ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT




                                                   April 7,2003



The Honorable Joe Crabb                                    Opinion No. GA-0056
Chair, Committee on Redistricting
Texas House of Representatives                             Re: Whether a local government may broadcast
P.O. Box 2910                                              information about registered sex offenders on a
Austin, Texas 78768-2910                                   local cable television channel (RQ-0623-JC)

Dear Representative      Crabb:

        Your predecessor as Chair of the House Committee on Redistricting asked whether a local
government may broadcast information about registered sex offenders on a local cable television
channel. ’

         The Sex Offender Registration Program is detailed in chapter 62 of the Texas Code of
Criminal Procedure. Chapter 62 requires the registration of every individual who has a “reportable
conviction or adjudication” for specified sexual offenses. See TEX. CODE GRIM.PROC. ANN. art.
62.02(a) (Vernon Supp. 2003); see also id. art. 62.01(5). The Texas Department of Public Safety
(“DPS”) is directed to “provide the Texas Department of Criminal Justice, the Texas Youth
Commission, the Texas Juvenile Probation Commission, and each local law enforcement authority,
county jail, and court with a form for registering” such persons. Id. art. 62.02(b). The registration
form must include:

                          (1) the person’s full name, each alias, date of birth, sex, race,
                  height, weight, eye color, hair color, social security number, driver’s
                  license number, shoe size, and home address;

                           (2) a recent color photograph or, if possible, an electronic
                  digital image of the person and a complete set of the person’s
                  fingerprints;

                           (3) the type of offense the person was convicted of, the age of
                  the victim, the date of conviction, and the punishment received;



           ‘See Letter fromHonorable Delwin Jones, Chair, Committee on Redistricting, Texas House of Representatives,
to Honorable John Cornyn, Texas Attorney General (received Oct. 18, 2002) (on file with Opinion Committee)
[hereinafter Request Letter].
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                          (4) an indication as to whether the person is discharged,
                  paroled, or released on juvenile probation, community supervision,
                  or mandatory supervision;

                           (5) an indication of each license, as defined               by Article
                  62.08(f), that is held or sought by the person; and

                            (6) any other information      required by [DPS].

Id. art. 62.02(b)(1)-(6).

        Article 62.08 requires DPS to “maintain a computerized central database containing only the
information required for registration.” Id. art. 62.08(a). Subsection (b) of the statute provides:

                           The    information   contained in the database               is public
                  information,    with the exception of any information:

                          (1) regarding the person’s social security number, driver’s
                  license number, or telephone number;

                            (2) that is required by [DPS] under Article 62.02(b)(6); or

                         (3) that would identify the victim of the offense for which the
                  person is subject to registration.

Id. art. 62.08(b). DPS must “maintain in the database, and . . . post on any department website
related to the database, any photograph of the person that is available through the process for
obtaining or renewing a personal identification certificate or driver’s license,” and must “update the
photograph in the database and on the website annually or as the photograph otherwise becomes
available.” Id. art. 62.08(c). Any local law enforcement authority is required to “release public
information described under Subsection (b) to any person who submits to the authority a written
request for the information.“* Id. art. 62.08(d). Thus, the information in the DPS database, with the
exception of that information listed in subsection (b) of section 62.08, is specifically deemed to be
“public information,” and is available to any person. The question at issue is whether a local
governmental body may broadcast public information from the DPS database on a local television
cable channel.

         The Public Information       Act, chapter 552 of the Government           Code, provides:



          2T~o versions of subsection (d) were enacted by the Seventy-seventh      Texas Legislature in separate bills.
Subsection (d) cited above was enacted by Senate Bill 1380. See Act of May 8, 2001, 77th Leg., R.S., ch. 211, 9 10,
2001 Tex. Gen. Laws 399, 401. The other subsection (d), enacted by Senate Bill 654, concerns notice to certain
licensing authorities and is not an issue in this opinion. See Act of May 24, 2001,77th Leg., R.S., ch. 932, $ 2,200l
Tex. Gen. Laws 1870,187 1.
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                         (a) This chapter does not prohibit a governmental body or its
                officer for public information from voluntarily making part or all of
                its information available to the public, unless the disclosure is
                expressly prohibited by law or the information is confidential under
                law.

TEX. GOV’T CODEANN. 8 552.007(a) (Vernon Supp. 2003). Thus, the Public Information            Act itself
implies that a governmental body may disclose any information that is not “expressly prohibited”
or “confidential” by law. See id. The information you specify is not only not confidential, the Texas
Code of Criminal Procedure affirmatively declares it to be “public information.” See TEX. CODE
CRIM.PROC.ANN. art. 62.08(b) (Vernon Supp. 2003). In addition, it is clear that a governmental
body has inherent authority, in the exercise of its own discretion, to make public any information that
constitutes “public information” and to do so in any format whatsoever, including the broadcast of
such information on a cable television station. See TEX. GOV’T CODEANN. 8 552.007(a) (Vernon
Supp. 2003).

         Moreover, article 62.09(b) of the Code of Criminal Procedure provides that “[ a]n individual,
agency, entity, or authority is not liable under Chapter 101, Civil Practice and Remedies Code, or
any other law for damages arising from” the release of public information under chapter 62. TEX.
CODECRIM.PROC.ANN. art. 62.09(b) (Vernon Supp. 2003). The Texas Supreme Court has declared
that “[olnce information is made a matter of public record, the protection accorded freedom of
speech and press by the First Amendment may prohibit recovery for injuries caused by any further
disclosure of and publicity given to such information, at least if the information is at all
newsworthy.” Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668,684 (Tex. 1976).

         In Hogan v. Hearst Corp., 945 S.W.2d 246,250 (Tex. App.-San Antonio 1997, no writ), a
person had committed suicide after a newspaper had published a report that listed his name and the
fact of his arrest for indecent exposure in a city park. In response, the individual’s family brought
an action against the newspaper.       The court, in finding that the newspaper had obtained the
information from a public record, said that “[tlhe state may not protect an individual’s privacy
interests by recognizing a cause of action in tort for giving publicity to highly private facts if those
facts are a matter of public record.” Hogan, 945 S.W.2d at 250 (citations omitted). With regard to
the victim, “the article simply printed what case law has previously determined to be public
information - [his] name, birth date, and the offense for which he was arrested.” Id. at 25 1; see also
Crumrine v. Harte-Hanks Television, Inc., 37 S.W.3d 124 (Tex. App.-San Antonio 2001, pet.
denied) (father in child custody dispute brought action against television station for broadcasting
stories asserting he was gay, HIV-positive police officer, and court entered summary judgment for
defendant noting that “the information broadcast was revealed during a judicial proceeding” and
because the information was obtained from a public record - a court proceeding - an action for
invasion of privacy could not be maintained).

        In the situation you pose, the information contained in the DPS database of registered sex
offenders is expressly declared to be “public information,” with limited exceptions.   TEX. CODE
GRIM.PROC.ANN. art. 62.08(b) (Vernon Supp. 2003). Accordingly, a local government is free to
broadcast that information on a local cable television channel.
The Honorable       Joe Crabb - Page 4                   (GA-0056)




         The second question is whether a local government that broadcasts information about
registered sex offenders may include the numeric risk level assigned to a particular individual under
article 62.03(a) of the Code of Criminal Procedure. See Request Letter, supra note 1, at 1. Article
62.035 requires the Texas Department of Criminal Justice to “establish a risk assessment review
committee,” whose duty it is, inter alia, to “develop or select from among existing tools a sex
offender screening tool to be used in determining the level of risk of a person subject to registration
under this chapter.” TEX. CODECRIM.PROC.ANN. art. 62.035(a)-(b)(l) (Vernon Supp. 2003). The
committee is required to “select a screening tool that may be adapted to use the following general
guidelines:

                            (1) level one (low): a designated range of points on the sex
                   offender screening tool indicating that the person poses a low danger
                   to the community and will not likely engage in criminal sexual
                   conduct;

                           (2) level two (moderate): a designated range of points on the
                   sex offender screening tool indicating that the person poses a
                   moderate danger to the community and may continue to engage in
                   criminal sexual conduct; and

                           (3) level three (high): a designated range of points on the sex
                   offender screening tool indicating that the person poses a serious
                   danger to the community and will continue to engage in criminal
                   sexual conduct.

Id. art. 62.035(c)(1)-(3). Article 62.03 of the Code of Criminal Procedure directs that “[blefore a
person who will be subject to registration . . . is due to be released from a penal institution, the Texas
Department of Criminal Justice or the Texas Youth Commission shall determine the person’s level
of risk to the community using the sex offender screening tool . . . and assign to the person a numeric
risk level of one, two, or three.” Id. art. 62.03(a).

          Because the numeric risk level of a particular individual is not part of the sex offender
registration form required by article 62.02(b), and consequently, is not part of the DPS database, the
numeric risk level is not deemed to be “public information” by virtue of article 62.08. On the-other
hand, chapter 62 provides that the numeric risk level does, under certain circumstances, constitute
information that must be made public. Article 62.03(e) requires a local law enforcement authority
to publish a notice in the newspaper of greatest paid circulation in the county in which the registrant
intends to reside “if the victim is a child younger than 17 years of age and the basis on which the
person is subject to registration is not an adjudication of delinquent conduct and is not a conviction
or a deferred adjudication for an offense under Section 25.02, Penal Code.” Id. art. 62.03(e).3 The
newspaper notice must include “the following information only”:


            3Article 62.03(e) concerns prerelease notification, and article 62.04(f) concerns change of address notification.
The notice requirements for both articles are very similar, except that article 62.04(f) excludes registrants with a risk
assessment level of 1. See TEX. CODEGRIM. PROC.ANN. art. 62.04(f) (Vernon Supp. 2003) (notice of change of address
must be published “if the victim is a child younger than 17 years of age, the basis on which the person is subject to
registration is not an adjudication of delinquent conduct and is not a conviction or a deferred adjudication for an offense
under Section 25.02, Penal Code, and theperson is not assigned a numeric risk level of one.“) (emphasis added).
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                            (1) the [registrant’s]     full name, age, and gender;

                           (2) a brief description       of the offense for which the person is
                   subject to registration;

                           (3) the municipality,  numeric street address or physical
                   address, if a numeric street address is not available, and zip code
                   number where the person intends to reside;

                           (4) either a recent photograph of the person or the Internet
                   address of a website on which the person’s photograph is accessible
                   free of charge; and

                           (5) the person’s numeric risk level assigned under this chapter
                   and the guidelines used to determine a person’s risk level generally.

Id. arts. 62.03(f),62.04(g).4

        Chapter 62 thus specifically requires that information about certain registered sex offenders
be published in a newspaper and that the information include the person’s numeric risk level
assigned by the Texas Department of Criminal Justice. In this case, the fact that the information is
provided in a newspaper means that the information is public and thus authorized to be republished.
Accordingly, we conclude that the registered sex offender’s numeric risk level constitutes public
information at any time after that information is published in a newspaper in accordance with chapter
62 of the Code of Criminal Procedure. It necessarily follows that the numeric risk level may be
broadcast on a local cable television channel only after it has been published in the newspaper in
accordance with chapter 62.




         4The notice must be published in “English and Spanish in the newspaper of greatest paid circulation in the
county in which the person subject to registration intends to reside or if there is no newspaper of paid circulation in that
county, in the newspaper of greatest general circulation in the county.” Id. arts. 62.03(e), 62.04 (f).
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                                        SUMMARY

                         A local government may broadcast on a local cable television
                station all information    about a registered sex offender that is
                contained in the registration form for sex offenders, except for
                information that is excepted by article 62.08(b). See TEX. CODE
                GRIM. PROC. ANN. art. 62.08(a), (b) (Vernon Supp. 2003).              A
                registrant’s numeric risk level is not public information until it first
                appears in a newspaper in accordance with the provisions of chapter
                62 of the Code of Criminal Procedure that require notice to be
                published.

                                               Very tr@y yours,




                                          AT&  GREG
                                               Attom
                                                           A     BOTT
                                                               era1 of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
