                                                             FILED !N COURT OF APPEALS
                                                               12th Court of Appeals District




                                                                     TYLER TEXAS
                                                               CATHY S. LIJSK, OLEfiK


            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS

                                        NO.PD-0645-11




                          MARK ALAN CRABTREE, Appellant

                                                v.




                                  THE STATE OF TEXAS


                       ON STATE'S MOTION FOR REHEARING


      Cochran, J., filed an opinion dissenting to the denial of the State's Motion
for Rehearing in which Johnson and Alcala, JJ., joined.

                                           OPINION


       I would grant the State's Motion for Rehearing and affirm appellant's conviction for

failing to comply with sex offender registration requirements based on critical trial testimony

and statutes that the State has brought to our attention.1 Appellant's Washingtonstateparole


       ' The State's grounds for rehearing are as follows:
(1)   The record contained an abundance of proof that Appellant's Washington conviction for
      Rape of a Child was substantially similar to the Texas offense of Aggravated Sexual
      Assault of a Child before the Court imposed a new element not listed in the statute
      criminalizing the failure to register as a sexual offender.
(2)   The Court below correctly determined that Article 62.003(a) of the Code of Criminal
      Procedure does not impose a new element of proof in failure to register as a sexual
                                                             Crabtree Dissenting Opinion     Page 2

officer testified that appellant had received both oral and written notification that, based on

his first-degree rape-of-a-child conviction, he had a lifetime sex-offender registration

requirement in Washington state and in "any county" to which he might move. Appellant

was on notice that he was required to register as a sex offender in Washington and in Texas,

but he failed to register in either state. He violated not only the Washington and Texas sex-

offenderregistration laws, but the federal SORNA law as well.2 Furthermore, underArticle

62.0523 a person may be required to register as a sex offender even when his out-of-state

conviction is not "substantially similar"to a sexoffenseinTexas.4 The "DPS determination"

provision5 is an administrative-proceeding statute that ensures a due-process forum and

hearing for a person who contends that his out-of-state conviction is not "substantially

similar" to a Texas sex-offender statute. A DPS determination of substantial similarity is

neither a condition precedent to registration or prosecution, nor is it an element of any

criminal offense under Chapter 62.



       offender offenses. The Legislative history of the articles establishing a duty to report and
       proscribing the failure to do so does not show that the intent of Art. 62.003 was to add a
       new element to the crime of failure to register as a sex offender.

       2See 18 U.S.C. § 2250(a) (setting out penalty for violating federal Sex Offender
Registration and Notification Act of 42 U.S.C. § 16913).

       3 Tex. Code Crim. Proc. art. 62.052.

       4The court of appeals noted that Article 62.052 "is not implicated in this case," but that is
only because the State proceeded on the equally sound theory that applicant's Washington State
conviction was a "reportable" one. See Crabtree v. State, No. 12-09-00322-CR, 2011 WL
1204332, at *7 n.12 (Tex. App.-Tyler March 31, 2011) (not designated for publication).

       5 Tex. Code Crim. Proc. art. 62.003.
                                                              Crabtree Dissenting Opinion     Page 3

                                                  I.


        Immediately before trial began in this case, the prosecutor gave the trial judge a copy

of the Washington Supreme Court opinion upholding appellant's sentence for two 1988 sex

crimes against children.6 That opinion, of which we-as well as the trial judge-may take

judicial notice, states that Crabtree was originally

        charged with five sexual assaults against children. On April 18, 1989, he
        entered guilty pleas to charges of first degree child rape (count II), first degree
        child molestation (count IV), and first degree statutory rape (count V)... The
        court sentenced Crabtree to concurrent terms of 89 months (count II), 41
        months (count IV), and 61 months (count V). A one-year term of community
        placement was imposed as part of his sentence for counts II and IV ... .7

The Washington Supreme Court noted that Crabtree admitted to sexually assaulting Jessica,

age eight, and David, age seven, while he was babysitting them in August, 1988.8 Also

before trial, both the State and defense agreed to take judicial notice ofthe Washington rape-

of-a-child statute which provides that a person is guilty ofa Class A felony "when the person

has sexual intercourse with another who is less than twelve years old and not married to the

perpetrator and the perpetrator is at least twenty-four months older than the victim."9

       At trial, Detective Noel Martin with Smith County Sheriffs Office testified that



       6In re Crabtree, 9 P.3d 814 (Wash. 2000).

       7Id. at 816.

       8Id. at 819; State's Exhibit 2.

       9Rev. Code Wash. § 9A.44.073; see State v. Bishop, 816 P.2d 738, 742 (Wash. Ct. App.
1991) (under rape-of-a-child statute, "the State must prove that the defendant penetrated, at a
minimum, the lips of the victim's sexual organs.").
                                                                                                V




                                                         Crabtree Dissenting Opinion   Page 4

appellant was the person whose fingerprints matched the fingerprints on the Washington state

judgment of Mark Crabtree.       Det. Martin explained the various pages of appellant's

Washington certified penitentiary packet, including the 1989 "Order of Release and/or

Transfer to Community Custody." That document set out the numerous sex-offender

provisions, including the requirement to enter sexual deviancy treatment, "no-contact with

children" and "no contact with the victims" without therapist permission provisions, as well

as a requirement of approval of his residence by the community corrections officer.

Appellant signed the order and initialed the box stating, "I have read or have had read to me

the 'Registration Notification' and the foregoing conditions and requirements. Each ofthese

conditions/requirements have been explained to me and I hereby agree to comply with them."

On the certified judgment itself, appellant had initialed the box stating, "I have been

registered with the Department of Corrections and informed ofthe registration requirements

with my county of residence.        I have signed and received a copy of the DOC

Registration/Notification, DOC 05-444A."

       The Washington pen packet also contains a copy of the information. Count II, the

rape-of-a-child offense, read, in pertinent part, "That the defendantMark Alan Crabtree, in

King County, Washington, during a period of time intervening between June 1, 1988, and

August 31, 1988, being at least 24 months older than Jessica                   , had sexual

intercourse with Jessica     , who was less than 12years old and was not married to Mark
                                                            Crabtree Dissenting Opinion    Page 5

Alan Crabtree."10 Appellant was, at the time, twenty-six years old.

        Det. Martin testified that, if someone who is twenty-six has sexual intercourse with

somebody who's less than 12 years old and not married to that person, that would be the

offense ofaggravated sexual assault ofa child under Texas law-a first degree felony offense.

And that offense is "substantially similar" to the Washington rape-of-a-child offense.

        Officer Jeri Lynn Scott testified that she is in the sex-offender registration department

of the sheriffs office. She said that she determined that the crime of first degree rape of a

child in Washington is substantially similar to aggravated sexual assault of a child in Texas

based on the title of the offense, "Rape of a Child" and because appellant's Washington

criminal judgment records "said he was a registered sex offender nonexpiring." Officer Scott

was "confident" that the Washington sex offenses were substantially similar to the Texas sex

offenses of aggravated sexual assault and indecency with a child. Therefore, appellant was

required to register as a sex offender for life because first-degree rape of a child is a sexually

violent offense. Because appellant was also convicted of a second sex offense, he was

required to register on a quarterly basis. Officer Scott testified that if she's unsure as to

whether out-of-state statutes are substantially similar to Texas offenses, she can contact DPS

because DPS makes the final determination on whatever the registration requirements are.

       Jefferson Overholser, a Washington parole officer, testified that he supervised


       10 Count IV of the Washington information, to which appellant also pled guilty, stated
that Mark Alan Crabtree, "being at least 36 months older than David       had sexual contact
with David     (by directing Jessica         's hand) who was less than 12 years old and was not
married to Mark Alan Crabtree."
                                                               Crabtree Dissenting Opinion     Page 6

 appellant in Washington and advised him of the need to register as a sex offender. Mr.

 Overholser said that appellant was required to certify that he had received a written copy of

the DOC sex offender notification requirements and that he did so.11 Mr. Overholser tells

his parolees of the need to register with the sheriffs department in whatever county they

reside. But appellant did not register even though Mr. Overholser personally informed him

that he was required to do so at a community correction hearing in 2000 after appellant was

arrested for noncompliance. State's Exhibit 3 is the DOC 05-444 form that appellant, in the

Washington certified judgment, initialed having received a copy of. That form explains the

registration and reporting requirements, including the following: "If you move to a new

county, you must register in person with the sheriff of the new county within ten (10) days.

You must also send a written notice to the sheriff in the county you moved from within the

same ten (10)dayperiod."12 The form ends withthe following advisory, written in all capital

letters:


           Remember, it is a new criminal offense for you to fail to register unless you are
           relieved of the registration requirement as described above. It is your
           responsibility to understand and obey this law.

When officers went to arrest appellant for failure to register as a sex offender, appellant said,




           1' Mr. Overholster saidthat rape of a child is a Class A felony in Washington and requires
lifetime registration.

           12 Appellant's sister told Officer Scott that appellant moved to Smith Countyin about
2002. Thus, the evidence showed that appellant ignored his legal duty to register in Washington
State in 2000, and ignored his duty, under both Washington and Texas law, to register when he
moved to Smith County.
                                                            Crabtree Dissenting Opinion    Page 7

"I've been expecting it."

        The jury instructions in this case contained the following application paragraph:

        Now ifyou find from the evidence beyond a reasonable doubt that on or about
        the 12th day of January, 2009, in Smith County, Texas, the defendant, Mark
        Crabtree, did then and there, while being a person required to register with the
        local law enforcement authority in the county where the Defendant resided or
        intended to reside for more than seven days, to-wit, Smith County, Texas,
        because of a reportable conviction for Rape of a Child in the First Degree,
        intentionally or knowingly failed to register with the local law enforcement
        authority in said county, then you will find the Defendant guilty of Failure to
        Register as a Sex Offender as charged in the indictment.13

       The prosecutor's closing focused on common sense:

       So the only question is, what evidence have you heard in trial, and what does
       the indictment require us to prove, okay? ... And what is that? "While being
       a person required to register with local law enforcement in the county where
       the defendant resided or intended to reside for more than seven days because
       of a reportable conviction for rape of a child in the first degree, intentionally
       or knowingly failed to register with local law enforcement in that county."
       That's it, all we have to prove. . . . There's not some little something you're
       missing. That's it. That's common sense, That's the law. .. . You don't get
       much more similar to aggravated sexual assault ofa child than intercourse with
       a child under 12. . . . Mr. Perkins says there's not penetration in there. Well,
       it's intercourse. Give me a break. So those are similar.

       The jury found appellant guilty of failing to register and sentenced him to eighteen

years' imprisonment and a $10,000 fine.

       On appeal, appellant argued that the evidence was legally insufficient to support his




         13 The trial judge had already takenjudicial notice of the Washington rape-of-a-child
statute and determined, as a matter of law, that the Washington Class A felony was "substantially
similar" to the Texas statute of aggravated sexual assault of a child under Tex. Penal Code §
22.021(a)(1)(b). This is not a fact question for the jury, but a legal question for the judge.
                                                                Crabtree Dissenting Opinion    Page 8

conviction because the State failed to show that, under Article 62.003(a),14 the Department

ofPublic Safety (DPS) had determined that the Washington statute was substantially similar

to a Texas offense for purposes of Chapter 62. The court of appeals disagreed with

appellant's reading ofthe statute-a reading that would require DPS to survey every past and

present law from every domestic and foreign jurisdiction.15 The courtof appeals explained,

        If the legislature wished to define out of state convictions as the same or
        substantially similar to certain offenses only if the Department had made such
        a determination, it would have defined substantially similar offenses in that
        way. Instead, the legislature defined reportable and sexually violent offenses
        as specific Texas offenses and offenses under the laws of other jurisdictions
        without regard to a vetting or verification process by the Department.16

Because the records of appellant's prior Washington convictions showed that he had


        14 Article 62.003, the "DPS determination" statute provides the following:
(a)     For the purposes of this chapter, the department [of public safety] is responsible
        for determining whether an offense under the laws of another state, federal law,
        the laws of a foreign country, or the Uniform Code of Military Justice contains
        elements that are substantially similar to the elements of an offense under the laws
        of this state.
(b)     The department annually shall provide or make available to each prosecuting attorney's
        office in this state:
        (1)        the criteria used in making a determination under Subsection (a); and
        (2)        any existing record or compilation of offenses under the laws of another state,
                   federal law, the laws of a foreign country, and the Uniform Code of Military
                   Justice that the department has already determined to contain elements that are
                   substantially similar to the elements of offenses under the laws of this state.
(c)     An appeal of a determination made under this article shall be brought in a district court in
        Travis County.
Tex. Code Crim. Proc. art. 62.03.

        15 Crabtree v. State, No. 12-09-00322-CR, 2011 WL 1204332, at *7 (Tex. App.-Tyler
March 31, 2011) (not designated for publication) (noting the enormity of the duty of DPS to
survey every law, past and present, from every U.S. and foreign jurisdiction under appellant's
interpretation of the statute).
        16
             Id.
                                                               Crabtree Dissenting Opinion     Page 9

 committed rape ofa child and child molestation and those records set out the elements ofthe

 Washington offense, the court ofappeals found that the evidence was sufficient to prove that

 the elements of those offenses were substantially similar to the elements of a Texas sex

offense for which lifetime reporting every ninety days was required.17

                                                  II.


         Any analysis of the Texas sex-offender registration and notification statutes should

begin with a short discussion of the development of the national sex-offender statutes.

A.       The Federal Statutory Scheme.

         California was the first state to enact a sex-offender registration statute in 1947, and

in 1990, Washington was the first state to enact a sex-offender community notification

statute.18 "The idea was politically popular, and by 1993, twenty-four states, including

Texas, enacted various versions of such statutes."19 Congress got into the act, and in 1994,

it passed the Jacob Wetterling Act with the intent "to prod all states to enact similar sex

offender registration and community notification laws and to provide for a national

registration system to handle offenders who move from one State to another."20 The Act


         17 Id. at*9.

         18 See Creekmore v. Att'y General of Texas, 116 F. Supp. 2d 767, 770-71 (E.D. Tex.
2000).

         19 Id. at 771 (internal citation omitted). Texas originally enacted its program in 1991 and
has expanded and amended it in almost every legislative session since then. See Creekmore v.
Att'y General of Texas, 341 F. Supp. 2d 648, 654 (E.D. Tex. 2004) (noting biennial legislative
enactments during the 1990s).

         20 Creekmore, 116 F. Supp. 2d at 771.
                                                           Crabtree Dissenting Opinion    Page 10

required states to ensure that their prison authorities informed a person who has been (a)

convicted of a sex crime against a minor, (b) convicted ofa "sexually violent offense," or (c)

determined to be a "sexually violent predator" of his duty to register with local authorities

wherever he moves before beingreleased from custody.21 TheAct also specified minimum

registration requirements for offenders and required states to criminalize the failure of sex

offenders to register with local authorities.22

       It has been noted that the "primary thrust" of the Wetterling Act "was to browbeat

individual states into enacting and enforcing local sex offender registration laws by

threatening to withhold federal highway funds, [but] the role of federal agencies has since

expanded."23 A helpful discussion of the early history of the relevant federal statutes may

be found in the first ofthree federal opinions dealing with the Texas sex-offender registration

requirement and the genesis ofthe "DPS determination" statute in the Creekmore v. Attorney

General of Texas litigation.24

       The 1996 Lychner Act added a new section to the federal law that required the



       21 See Wetterling Act at § 170101(a)(l)(A)-(B) & § 170101(b)(1); see Creekmore, 116 F.
Supp. 2d at 771.

       22 See Wetterling Act at 170101(b)(3)(A)-(B) & § 170101(C); see Creekmore, 116 F.
Supp. 2d at 771.

        23 Creekmore v. Att'y General ofTexas, 138 F. Supp.2d 795, 798 n.4 (E.D. Tex. 2001).
The federal act mandated that ten percent of a state's highway funds would be lost if that state
failed to implement a federally-approved program for sex offenderregistration and notification.
See Creekmore, 116 F. Supp. 2d at 772.
       24
            Seel 16 F. Supp. 2d at 770-73.
                                                           Crabtree Dissenting Opinion   Page 11

 Attorney General to establish a national database to track the whereabouts and movements

 of offenders who were subject to registration under the various federally-approved state

 statutes.25 If a state had not enacted federally approved sex-offender programs, offenders

were requiredto registerdirectly with the FBI.26 As PresidentClintonwarned in signingthe

legislation that enacted the national sex-offender registry: "Ifyou dare prey on our children,

the law will follow you wherever you go-state to state, town to town."27

       Under the most recent federal Sex Offender Registration and Notification Act

(SORNA),28 those who have been convicted of certain sex crimes in any state or federal

jurisdiction are required to provide local authorities-in whatever state they reside in-with

their names and other identifiers for inclusion in updated state and federal sex offender

registries.29 Under SORNA, thefailure to register withtheappropriate state authorities when


       25 See id. at 772.

       26 Id.

       27 Wayne Logan, Horizontal Federalism in anAge ofInterconnectedness, 154 U. Pa. L.
Rev. 257, 261 (2005) (quoting Ron Foumier, Clinton Signs Law on Sex Offenders, Cm. SUN-
TlMES, May 18, 1996, at 12).

       28 120 Stat. 590, 42 U.S.C. § 16901, etseq. (2006 ed.).

       29 Id. §§ 16912(a), 16913-16914, 16919(a) (2006 ed.); see generally Reynolds v. United
States, 132 S.Ct. 975, 978 (2012) (describing SORNA and its requirements). According to the
Court in Reynolds,
        The new federal Act reflects Congress' awareness that pre-Act registration law
        consisted of a patchwork of federal and 50 individual state registration systems.
        The Act seeks to make those systems more uniform and effective. It does so by
        repealing several earlier federal laws that also (but less effectively) sought
        uniformity; by setting forth comprehensive registration-system standards; by
        making federal funding contingent on States' bringing their systems into
        compliance with those standards; by requiring both state and federal sex offenders
                                                             Crabtree Dissenting Opinion   Page 12

one travels to a different state is a federal offense as well as a state offense.30

         In sum, the federal SORNA program places great emphasis on having all sex

offenders from every jurisdiction in the United States register in whatever local community

they live, and that their names, addresses, and other identifiers are contained within the

national FBI registry, subject to constant updating and monitoring so that such offenders

cannot avoid law enforcement oversight by slipping from one state to another in search of

a "clean slate."31

B.      The Texas Statutory Scheme.

        Texas enacted itsfirst sex-offender registration and notification statutes in 199132 and

has regularly amended them to ensure that the program meets minimum federal

requirements.33 They are now codified in Chapter 62 of the Code of Criminal Procedure.


        to register with relevant jurisdictions (and to keep registration information
        current); and by creating federal criminal sanctions applicable to those who
        violate the Act's registration requirements.
Id. (internal citations omitted). The Attorney General made the federal registration requirements
retroactive and applicable to all sex offenders "convicted of the offense for which registration is
required prior to the enactment" of SORNA on February 28, 2007. Id. at 979.
        30
             18 U.S.C. § 2250(a); see Reynolds, 132 S.Ct. at 978.

        31 See Wayne Logan, Horizontal Federalism, supranote 27, at 260; see also Reynolds,
132 S.Ct. at 982-83 (quoting supporters of SORNA to the effect that "[fjhere currently are over
100,000 sex offenders in this country who are required to register but are 'off the system.' They
are not registered. The penalties in this bill should be adequate to ensure that these individuals
register")[.]

       32 See the Texas Sex Offender Registration Program, Act effective Sept. 1, 1991, 72d
Leg., R.S., ch. 572, § 1, 1991 Texas Sess. Law Serv. 2029-32. That law was Article 6252-13c.l,
sec. 7, of the Texas Revised Statutes.

        33 Creekmore, 341 F. Supp. 2d at 654.
                                                             Crabtree Dissenting Opinion     Page 13

Under the 1991 law, a person who had been convicted in Texas ofaggravated sexual assault,

sexual assault, incest, indecency with a child, or had been convicted four times of indecent

exposure had a reportable offense and was required to register with the local law enforcement

authorities.34 Penal authorities were required to notify a sex offender of his duty to register

at least thirty days before the offender was released from prison.35 It was a Class A

misdemeanor for a person to fail to comply with that registration requirement.36

         In 1995, the statute was amended to require registration under the Act for those who

had been convicted out of state "for an offense containing elements that are substantially

similar to the elements" of those Texas offenses for which sex-offender registration was

required.37 After 1995, trial and appellate courts decided, as a matterof law, whetherthe out-

of-state conviction was "substantially similar" to theanalogous Texas sex offense.38 Courts

have regularly taken judicial notice concerning the "substantial similarity" between statutes


         34
              Tex. Civ. Stat. art. 6252-13c. 1, §1,2.

       35 Id. § 3. If the person had not been sent to prison, then the trial judge was required to
provide the sex offender with notification of the registration requirement at the time he
pronounced sentence. Id.
         36
              Id. § 7.

       37 See Acts 1995, 74th Leg., R.S., ch. 258, § 1, 2 (amending Art. 6252-13c 1, § 1, by
adding subsections (I) and (J)). By that time, the list of sex offenses for which registration was
required had grown considerably. See id. §§ (A)-(D), (F).


         38 See Ex parte Warren, 353 SW.3d 490,496 (Tex. Crim. App. 2011); Prudholm v. State,
333 S.W.3d 590, 596-600 (Tex. Crim. App. 2011); Exparte White, 211 SW.3d 316, 318 (Tex.
Crim. App. 2007); Hardy v. State, 187 S.W.3d 232, 236 (Tex. App.—Texarkana 2006, pet.
refd).
                                                            Crabtree Dissenting Opinion     Page 14

as a question of law for the court, not a question of fact for thejury.39

        The various states have taken different approaches in complying with SORNA and

its out-of-statesex-offenderregistrationrequirements. The "internal approach"requiresthat

out-of-state convictions satisfy the eligibility requirements of the forum state's registration

law.40 Thus, the out-of-state conviction must be "reasonably" or "substantially" the same or

"similarto" a registerable offense in the forum.41 Underthe "external approach," the forum

state gives deference to the legal determination of the convicting state.42 Thus, if the

convictingstate considers the offense one that is subjectto sex-offenderregistration,then the

forum state will do so also. The Texas sex-offender registration program takes both an

internal and external approach to out-of-state convictions.

        Under Article 62.001(5)(H), a "reportable conviction" may be "a violation ofthe laws

of another state, federal law, the laws of a foreign country, or the Uniform Code ofMilitary

Justice for or based on the violation of an offense containing elements that are substantially




       39 See Hardy, 187 S.W.3d at 236 ("Statutory interpretation is a question of law to be
determined by the trial court, not the jury" in deciding whether an out-of-state sexual offense is
"substantially similar" to a Texas offense); see also Rodriguez v. State, 227 SW.3d 842, 845
(Tex. App- Amarillo 2007, no pet.) (determining whether defendant's prior out-of-state
conviction was "substantially similar" to the Texas offense of aggravated sexual assaultwas a
question of law involving the interpretation of statutes and is not submitted to a jury for
resolution).

       40 See Wayne Logan, Horizontal Federalism, supra note 27, at 261.

       41 Id.

       42 Id.
                                                             Crabtree Dissenting Opinion        Page 15

similar to the elements of an enumerated Texas sex offense.43 Under that statute, Texas, like

35 other states, has taken an "internal approach" by comparing the elements of its sex

offenses to the elements of the extra-jurisdictional conviction.44 If those elements are

substantially similar, then the offender is subject to the requirements ofChapter 62, the Texas

Sex Offender Registration Program.

       But suppose that the elements of the out-of-state conviction are not substantially

similar to the elements of a Texas sex offense. Perhaps they share nothing in common. A

person with such a conviction may still be subject to the registration requirements ofChapter

62 under the "external approach" of Article 62.052.45 Under this statute, the Texas

Department ofPublic Safetyand anotherjurisdiction may enter into a reciprocalregistration

agreement that requires the out-of-state sex offender to register in Texas (and a Texas sex




       43 Tex. Code Crim. Proc. Art. 62.001(5)(H).

       44 Wayne Logan, Horizontal Federalism, supra note 27, at 261.

       45 Tex. Code Crim. Proc. Art. 62.052 ("Registration: Extrajurisdictional Registrants").
That provision reads as follows:
       (a) An extrajurisdictional registrant is required to comply with the annual
       verification requirements of Article 62.058 in the same manner as a person who is
       required to verify registration on the basis of a reportable conviction or
       adjudication.
       (b) The duty to register for an extrajurisdictional registrant expires on the date the
       person's duty to register would expire under the laws of the other state or foreign
       country had the person remained in that state or foreign country, under federal
       law, or under the Uniform Code of Military Justice, as applicable.
       (c) The department may negotiate and enter into a reciprocal registration
       agreement with any other state to prevent residents of this state and residents of
       the other state from frustrating the public purpose of the registration of sex
       offenders by moving from one state to the other.
                                                          Crabtree Dissenting Opinion    Page 16

offender to register in that jurisdiction) to prevent offenders "from frustrating the public

purpose of the registration of sex offenders by moving from one state to another."46 Thus,

Texas, like sixteen other states,47 will defer to the convicting state and require such offenders

to register in Texas for the time period prescribed by the convicting state's registration

scheme. This statute, like those of the other "external approach" states, is consistent with

Congress's and the Texas Legislature's intent to expand the scope of registration coverage

for out-of-state sex offenders and ensure that all sex offenders will be registered and

monitored if they move from state to state or town to town.

       By enacting a comprehensive internal and external approach toward out-of-state sex-

offender registrationrequirements, the Texas Legislature has pursued its "public purpose of

the registration ofsex offenders" to ensurethat this state does not become a haven those who

would frustrate that purpose "by moving from one state to another."48

C.     Article 62.003. Determination Regarding Substantially Similar Elements of
       Offense.


       In 2001, six years after it had amended the sex-offender registration statute to include

mandatory registration for out-of-state sex offenses that were substantially similar to Texas

sex offenses, the Legislature enacted Article 62.003, the "DPS Determination" statute, in




       46 Id. art. 62.052(c).

       47 Wayne Logan, Horizontal Federalism, supra note 27, at 287.
       48
            Tex. Code Crim. Proc. art. 62.052(c).
                                                           Crabtree Dissenting Opinion       Page 17

explicit reaction49 to the long-lasting Creekmore litigation. That new statute was enacted

to ensure that a person with an out-of-state conviction had an administrative and judicial

forum in which to challenge an assertion by local law enforcement that he had a reportable

sex-offense conviction and was, therefore, required to register under Chapter 62. But that

administrative statute has nothing to do with the definition of a "failure to register" offense,

and a DPS determination of substantial similarity is not an element of any criminal offense.

        The Creekmore litigation centered around Meredith Creekmore, who was convicted

of sex offenses under the Uniform Code ofMilitary Justice (UCMJ) for sexually abusing his

daughter when she was two to four years of age.50 He was sentenced to six years'

imprisonment. When he was released from prison, the Bureau ofPrisons (BOP) notified him

that he was required to register in Texas as a sex offender.51 BOP also notified the Sheriff




       49 The House Research Organization Bill analysis to HB 2113, which added Article
62.003 to the Sex Offender Registration Program, notes that supporters of the bill state,
        CSHB 2113 would clarify current language requiring registration for persons who
        committed sex offenses in other states or who violated federal or military law. It
        would make clear who decides whether an offense from another jurisdiction
        would trigger Texas registration requirements and would allow appeals of these
       decisions. These changes are necessary to address concerns about the Texas law
       that were raised in a lawsuit against the Beaumont Police Department.
Opponents of the bill argued that
       DPS may not be the proper entity to decide whether an offense from another
      jurisdiction would trigger Texas registration requirements. It is unclear whether
       an offender would go directly to DPS for a decision or whether this would be the
       responsibility of a local law enforcement agency. CSHB 2113 should require that
       the decision maker be trained and competent to make the decision.

       50 341 F. Supp. 2d at 651-52.

       51 116F. Supp. 2d at 769.
                                                           Crabtree Dissenting Opinion    Page 18

of Jefferson County, the Attorney General of Texas, and the Beaumont Chief of Police of

Creekmore's release and of his mandatory duty to register every ninety days for the rest of

his life.52 Creekmore registered, under protest, as a sex offender and then filed a civil

lawsuit, arguing that the Texas Program was infirm because, interalia, "it does not indicate

who determines whether an offense under UCMJ is substantially similar to a listed offense

under the Texas Penal Code" and "it does not provide any process by which an individual

determined to have a reportable conviction may challenge that determination[.]"53 In other

words, Creekmore claimed that his federal due-process rights were violated because he did

not have any legal way by which to challenge the Beaumont police chiefs notification that

he was required to register as a sex offender.54 That's the problem that Article 62.003

solved.55

       The federal district judge noted in his final opinion that the Texas Legislature had

solved the legitimate question that Creekmore raised by amending two statutes:



       52 Id.

       5iId.

       54 The federal districtjudge noted, in granting Creekmore prospective relief by preventing
the Beaumont authorities from "continuing to subject Creekmore to registration and public
dissemination of information" until he has been given the "basic procedural safeguards of notice,
opportunity to b hear, and appellate review" of the determination that he had a "reportable
conviction" under Texas law. 341 F. Supp. 2d at 671.

      55 That problem has, however, been solved under SORNA for anyone who, like
Creekmore or appellant, was informed that he was required to register as a sex offenderbefore
moving from the convicting jurisdiction. Article 62.003 still serves a useful purpose, however,
for those who are not required to register in their convicting state or who were convicted and
moved to Texas before the convicting state required sex-offender registration.
                                                               Crabtree Dissenting Opinion      Page 19

         (1)     "Article 62.0101 [now 62.003], enacted in 2001, delegates to the TDPS the
                 responsibility for determining whether a UCMJ offense contains elements
                 substantially similar to elements of a Texas offense"; and

        (2)     "Article 62.021 [now 62.052], amended in 2001 and 2003, now requires that
                any person required to register as a sex offender under federal law or the
                Uniform Code of Military Justice must register in Texas if not otherwise
                required to register under TSORP."56


        56 Creekmore, 341 F. Supp. 2d at 655. Former article 62.021 ("Out-of-State
Registrants"), read,
(a) This article applies to a person who:
        (1)      is required to register as a sex offender under:
                (A)     the laws of another state with which the department has entered into a
                         reciprocal registration agreement;
                (B)      federal law or the Uniform Code of Military Justice; or
                (C)      the laws of a foreign country; and
        (2)      is not otherwise required to register under this chapter because:
                (A)     the person does not have a reportable conviction for an offense under the
                        laws of the other state, federal law, the laws of the foreign country, or the
                        Uniform Code of Military Justice containing elements that are
                        substantially similar to an offense requiring registration under this chapter;
                        or

                (B)     the person does not have a reportable adjudication of delinquent conduct
                        based on a violation of an offense under the laws of the other state, federal
                        law, or the laws of the foreign country containing elements that are
                        substantially similar to an offense requiring registration under this chapter.

(b) A person described by Subsection (a) is required to comply with the annual verification
requirements of Article 62.06 in the same manner as a person who is required to verify
registration on the basis of a reportable conviction or adjudication.

(c) The duty to register for a person described by Subsection (a) expires on the date the person's
duty to register would expire under the laws of the other state or foreign country had the person
remained in that state or foreign country, under federal law, or under the Uniform Code of
Military Justice, as applicable.

(d) The department may negotiate and enter into a reciprocal registration agreement with any
other state to prevent residents of this state and residents of the other state from frustrating the
public purpose of the registration of sex offenders by moving from one state to the other.

That statute is now art. 62.052, although its definition portion was moved to art. 62.001(10).
                                                          Crabtree Dissenting Opinion        Page 20

Thus, the Texas Legislature, motivated in part by the insistent prodding of Congress to

ensure that sex offenders convicted in one state cannot travel to another state to obtain a

"clean slate,"57 enacted one statute to ensure that a person convicted of an out-of-state sex

offense had ajudicial forum in which to challengethe applicabilityofChapter 62 to his prior

conviction and enacted a separate statutory mechanism for extra-jurisdictional sex-offender

registration. Therefore, even if the elements of the out-of-state offense are not substantially

similar to the elements of a Texas sex offense, registration under Chapter 62 may be required

if registration is required under federal law, foreign law, or another state's law when Texas

has a reciprocal registration agreement with that state.58

       Thus, because Creekmore was required to register as a sex offender under the UCMJ

(and he had been informed of that federal-law requirement by the BOP before his release

from prison) and Article 62.021 [now 62.052], requires Texas registration if it is required

under the UCMJ, it would make no difference whether the elements of the UCMJ for which

Creekmore was convicted are similar to those of an offense under Texas law.59




       57 See id. subsection (d).

       58 See id. subsection (a).

       59 See Creekmore, 341 F. Supp. 2d at 670-71. The federal district judge concluded that
granting Creekmore temporary injunction relief
       will not preclude law enforcement officials from subjecting Creekmore to
       registration . . . upon providing the process now afforded under Article 62.0101.
       It will not preclude state officials from requiring Creekmore to register under any
       other alternative provision of TSORP, including Article 62.021, which may apply
        in their considered judgment.
Id. (footnote omitted).
                                                                Crabtree Dissenting Opinion     Page 21

            In sum, a convicted sex offender who moves to Texas will be required to register in

Texas if (a) the elements of the prior offense are "substantially similar" to those of a

reportable Texas sex offense or (2) the person is required to register as a sex offender under

the UCMJ or federal or foreign law, or the laws of another state with which Texas has a

reciprocal registration agreement.60

           Due process is satisfied under option (a) because a person whom local law

enforcement has ordered to register may seek a determination from DPS that the elements

of his out-of-state conviction are not "substantially similar" to the elements of an analogous

Texas sex offense.61 And, if unsatisfied, he may file a civil lawsuit in Travis County for

judicial reviewof the DPSdetermination.62 This administrative system hasbeensuccessfully

employed by at least two plaintiffs challenging the registerability of their out-of-state sex




           60 The Third Court of Appeals recently noted and distinguished these two different
statutory methods-a "substantially similar" reportable offense under Article 62.001 (5)(H) or as
an "extraterritorial registrant" under Art. 62.001(10)—by which a person with an out-of-state .
conviction may be required to register as a sex offender under Chapter 62. Tex. Dept. ofPublic
Safety v. Anonymous Adult Tex. Resident, 382 S.W.3d 531, 534 n.2 (Tex. App.-Austin 2012,
n.p.h.).

           61 The DPS determination statute is not designed to give out-of-state offenders direct,
public notice because DPS is not required to publicly disseminate its determinations of
"substantial similarity." It is required only to annually notify "each prosecuting attorney's office"
of the criteria that it uses in making determinations and of its existing record of previous
determinations of "substantial similarity." TEX. CODE CRIM. PROC. art. 62.003(b).

           62 Or, if DPS determines that the out-of-state sex conviction is not "substantially similar"
to a Texas one, the local law enforcement authority may file an appeal in Travis County. Tex.
Code Crim. Proc. Art. 62.003(c).
                                                            Crabtree Dissenting Opinion     Page 22

convictions.63 In each case, the plaintiff had a prior out-of-state conviction that DPS had

administratively determined was "substantiallysimilar" to a reportable offense under Texas

law.64 In each case, the plaintiff filed suit in a Travis County district court under Article

62.003(c).65 Both plaintiffs prevailed at the trial court level with the judge finding, as a

matter of law in each case, that the out-of-state offenses were not substantially similar to

Texas offenses for purposes of sex-offender registration under Chapter 62.66 In each case,

DPS appealed to the Third Court of Appeals and again lost.67 This civil administrative

system has worked exactly as intended in providing a forum for deciding whether a person


        63 Tex. Dept. of Public Safety v. Garcia, 327 S.W.3d 898 (Tex. App.-Austin 2010, pet.
denied) (alleged sex offender's Oregon conviction for having contributed to the sexual
delinquency of a minordid not contain elements substantially similar to the Texas Penal Code
offense of sexual assault; plaintiffs conviction was not a reportable or registerable offense under
Chapter 62); Anonymous Adult, 382 S.W.3d at 539 (elements of person's convictions for
indecent assault and battery were not "substantially similar" to Texas offense of sexual assault;
plaintiffs conviction was not a reportable offense under Chapter 62).

        64 Garcia, 327 S.W.3d at 901; AnonymousAdult, 382 S.W.3d at 532.

        65 Id. The plaintiffin Anonymous Adult first registered under Chapter 62 and then filed
suit.

        66 Garcia, 327 S.W.3d at 901; Anonymous Adult, 382 S.W.3d at 532.

        67 Garcia, 327 SW.3d at 906-07; Anonymous Adult, 382 S.W.3d at 539. It was
significant to the Garcia court that DPS had not shown that the plaintiff was required to register
as a sex offender in Oregon, noting,
         Had Garcia shown a the hearing that he was not required to register in Oregon, the
         Department's determination would create the anomalous situation in which a
         defendant was required to register in Texas for a conviction that was neither
         registerable in Oregon nor an "offense" heref]
Id. at 903 n.1. Thus, if a person canshow that his conviction did not require sex-offender
registration inthe original jurisdiction, then he need not register in Texas unless the elements of
the out-of-state offense are "substantially similar" to a reportable offense in Texas. And the
person may file a civil lawsuit in Travis County disputing any such determination.
                                                           Crabtree Dissenting Opinion    Page 23

has a "reportable" out-of-state sex-offense conviction. The statute says nothing, however,

about a person who is required to register under SORNA or under the extra-jurisdictional

statute. For them due process is provided in a different manner.

        Due process is satisfied under option (b), the external authority of SORNA and the

extra-jurisdictional statute, because a person whom local law enforcement has ordered to

register in Texas was already required to register as a sex offender in the jurisdiction in

which he was originally convicted. His due-process rights were satisfied by notification of

the registration requirement in that convicting jurisdiction, and his duty to register and the

duration ofthat duty is determined by the law ofthe convicting jurisdiction.68 Under Article

62.052, Texas is doing nothing more than enforcing the registration mandate of the

convicting jurisdiction and preventing the sex offender "from frustrating the public purpose

of the registration of sex offenders by moving from one state to another."69 Furthermore,

federal law requires a person who has been convicted of a registerable sex offense in one

state-such as a person who has been convicted of rape of a child in Washington-to register

with local law enforcement if he moves in interstate commerce to Texas.70 Article 62.052



       68 Tex. Code Crim. Proc. art. 62.052(b).

       69 Id art. 62.052(c).

        70 See United States v. Whaley, 577 F.3d 254, 256 (5th Cir. 2009) (defendant, who was
convicted in Kansas of aggravated sexual battery and required to register as a sex offender under
Kansas law uponrelease from prison, was required to register with local law enforcement when
he moved to Texas; when he failed to register in Texas he violated 18 U.S.C. § 2250(a) by
traveling in interstate commerce and knowingly failing to register and update his registration as
required under SORNA).
                                                               Crabtree Dissenting Opinion      Page 24

requires all extra-jurisdictional registrants who are required by federal law (SORNA) to

register in Texas to do so even if the elements of their out-of-state offenses are not

"substantially similar" to an analogous Texas offense.

                                                  in.


        In this case, appellant argues that the evidence to prove the offense of failing to

register as a sex offender under Chapter 62 was legally insufficient because the State did not

prove that DPS had made a prior determination that the elements of rape of a child under

Washington law are "substantially similar" to the elements of aggravated sexual assault of

a child under Texas law.71 He argues that a DPS determination is an essential element

because it "ensures that sex offender registration is applied across Texas in a standardized

manner that prevents discrimination, an arbitrary application of the law, and disparate results

for similarly situated defendants."

        But if appellant did not believe that he was supposed to register as a sex offender, he

could have complained to the Washington authorities when he was originally ordered to

register with local law enforcement in that state after he was released from prison in 1998.

        Appellantcannotclaimthat he did notreceive due-process notificationofhis lifetime

obligation to register as a sex offender regardless of where in the United States he resides.


        71 The State arguesthat DPS had made such a determination and had sent a letter noting
that determination addressed to Texas Law Enforcement Agencies on September 4, 2009, a few
days before appellant's trial commenced, but that letter was not introduced as a court's exhibit
and the trial judge did not takejudicial notice of it at the time of trial. It is only in its Motion for
Rehearing that the State attaches a copy of the letter, and therefore I will not considerthat letter
as proof of the fact it asserts.
                                                             Crabtree Dissenting Opinion      Page 25

The testimonial and documentary evidence in this case shows that he was repeatedly warned

by Washington authorities of his lifetime obligation to register every ninety days with local

law enforcement in whatever county he lived. He did not need to guess about whether or not

the law required him to register as a sex offender. That requirement included a county in

Texas as well as a county in Washington. Thus, all sex offenders who are convicted of rape

of a child in Washington and told that they are required to register as sex-offenders for their

lifetime and who then move to Texas will be treated in a "standardized manner that prevents

discrimination, an arbitrary application ofthe law, and disparate results for similarlysituated

defendants."


        In this case, the trial judge properly took judicial notice ofthe Washington statute for

rape of a child, the Texas statute of aggravated sexual assault of a child, the Washington

Supreme Courtdecisionconcerning appellant's conviction, appellant's Washingtonjudgment

and his signature attesting that he had been fully admonished of his lifetime sex-offender

registration requirement in whatever county he lived. Although it was unnecessary given

appellant's duty to register under Article 62.052, neither the trial judge nor the court of

appeals erred in concluding, as a matter of law, that the elements ofthe Washington rape-of-

a-child offense are "substantially similar" to the elements ofthe Texas offense ofaggravated

sexual assault of a child. I therefore respectfully dissent to the Court's failure to grant the

State's Motion for Rehearing.72


        72 On original submission, the majority stated that the Texas Legislature should amend
Article 62.003 if it disagreed with the Court's interpretation of that statute. Crabtree v. State,
                                                            Crabtree Dissenting Opinion   Page 26

Filed: January 16, 2013
Publish




    S.W.3d       , 2012 WL 5348220, *8 (Tex. Crim. App. October 31, 2012). To ensure that
Texas remains in compliance with SORNA and does not jeopardize any of its federal highway
funds, the Legislature could easily amend Article 62.003 by adding a new subsection (d):
        (d) This article is intended only for purposes of an administrative proceeding. A
        determination by the department is not a condition precedent to an offender's
       registration requirement nor is it an element of any criminal offense.
