      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-03-00296-CR



                                  Juan Victor Aguirre, Appellant


                                                   v.


                                   The State of Texas, Appellee




       FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
           NO. CR-02-613, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                                            OPINION


               Pursuant to a plea agreement, Juan Victor Aguirre pled guilty to the offense of sexual

assault. Tex. Pen. Code Ann. § 22.011(a)(2)(A) (West Supp. 2004). The trial court deferred

adjudication and ordered community supervision for a period of ten years. As a result of his plea

of guilty to a sexually violent offense, Aguirre is required to register as a sex offender for the rest

of his life. Tex. Code Crim. Proc. Ann. art. 62.12 (West Supp. 2004). Aguirre reserved the right to

appeal the registration requirement in his plea agreement and now raises a single issue contending

that the statute requiring him to register as a sex offender violates the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution. We affirm the district court’s order.
                Because Aguirre pled guilty and only challenges the constitutionality of the statute,

we will not recite the facts of the offense. Aguirre pled guilty to the sexual assault of a sixteen-year-

old girl. He was twenty-four years old at the time of the offense. Consent is irrelevant to culpability

when the victim is under the age of seventeen. Tex. Pen. Code Ann. § 22.011 (a)(2)(A) (West Supp.

2004). Prior to the plea, Aguirre filed a motion to quash the sexual offender registration requirement

on the basis that it violated the United States Constitution. The trial court denied Aguirre’s motion

to quash and certified his right to appeal.

                The Texas registration scheme that Aguirre challenges is rigorous. Under the statute,

a sex offender must register in person with local law enforcement of the county or municipality in

which the offender resides. Tex. Code Crim. Proc. Ann. art. 62.02 (West Supp. 2004). Registrants

must provide: (1) their name, each alias, date of birth, sex, race, height, weight, eye color, hair color,

social security number, driver’s license number, home address and shoe size, (2) a color photograph

and complete set of fingerprints, (3) the type of offense committed, age of victim, date of conviction

and the punishment received, (4) an indication as to whether the person is discharged, paroled,

released on juvenile probation, community supervision, or mandatory supervision, (5) an indication

of any vocational or professional license held or sought, (6) an indication as to whether the person

is or will be employed, carry on a vocation, or enroll as a student at a particular public or private

institution of higher education in the state or another state and the address of the institution, and (7)

any other information sought by the law enforcement agency. Id. A registered sex offender must

report in person to the local law enforcement authority at least once a year to verify the accuracy of

the above information. Id. art. 62.06 (West Supp. 2004). There are strict guidelines to follow if the



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sex offender changes addresses or enrolls in school. Id. arts. 62.04, .064 (West Supp. 2004). A

registered sex offender must renew his driver’s license or state identification in person annually. Id.

art. 62.065 (West Supp. 2004). The failure of a sex offender to comply with any requirement of the

registration scheme is a felony offense. Id. art. 62.10(b) (West Supp. 2004).

               Aguirre contends that the imposition of a lifetime registration requirement violates

his right to equal protection under the law because similarly situated adults are permitted to petition

the trial court for an exemption from the requirement. See City of Cleburne v. Cleburne Living

Center, 473 U.S. 432, 439 (1985) (Equal Protection Clause requires all persons similarly situated

to be treated alike). An exemption from the registration requirements is allowed under article

62.0105 of the Texas Code of Criminal Procedure if the registration requirement is based only on

a single reportable conviction or adjudication and the court makes findings that, (1) at the time of

the offense, the defendant was younger than nineteen years of age and the victim was at least thirteen

years of age, and (2) the conviction is based solely on the ages of the defendant and the victim at the

time of the offense. Tex Code Crim. Proc. Ann. art. 42.017 (West Supp. 2004). Aguirre asserts that

this provision of the statute is constitutionally infirm because adult offenders who are less than

nineteen years old are permitted to seek an exemption to the registration requirement and similarly

situated older offenders are not.

               When confronted with an attack on the constitutionality of a statute, we presume that

the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Rodriguez v.

State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). When social or economic legislation is at issue,

states are given wide latitude and the Constitution presumes that even improvident decisions will



                                                  3
eventually be rectified by the democratic process. City of Cleburne, 473 U.S. at 440. The burden

is on the party attacking the constitutionality of a statute to show that it violates the constitution.

Rodriguez, 93 S.W.3d at 69.

                We will uphold a statute which creates a classification among persons so long as the

classification drawn is rationally related to a legitimate state interest. City of Cleburne, 473 U.S. at

440. This general rule does not apply to classifications based on race, alienage, or national origin.

Id. These classifications “are so seldom relevant to the achievement of any legitimate state interest

that laws grounded in such considerations are deemed to reflect prejudice and antipathy.” Id.; see

also Casarez v. State, 913 S.W.2d 468, 493 (Tex. Crim. App. 1995). These laws are subjected to

strict scrutiny and are only sustained if the classification is tailored to serve a compelling state

interest. City of Cleburne, 473 U.S. at 440. We afford the same strict scrutiny to laws which restrain

personal rights protected by the United States Constitution. Id. Heightened scrutiny has also been

applied to legislative classifications based on gender. These restrictions will be upheld only when

they are substantially related to a legitimate state interest. Id. The United States Supreme Court has

declined to extend heightened review to classifications based on age. Id.

                Aguirre does not allege that we should extend heightened scrutiny to the age

distinctions drawn by the sex offender registration statute or that the statute impinges on a

constitutionally protected right. Rather, he contends that there is no rational basis for the statute to

allow adults under the age of nineteen to petition for exemption from registration when similarly

situated adults like himself are deprived of this right. Aguirre’s argument draws some support in the

recent concurring opinion by Justice Souter inviting a challenge to a similar Connecticut statute on



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equal protection grounds. See Connecticut Dep’t of Pub. Safety v. John Doe, 123 S. Ct. 1160, 1166

(2003) (Souter, J., concurring). In Connecticut Department of Public Safety, the United States

Supreme Court held that a similar lifetime sex offender registration requirement enacted in

Connecticut did not violate the due process clause of the United States Constitution. See id. at 1165.

In a concurring opinion, Justice Souter, joined by Justice Ginsburg, discussed a provision in the

Connecticut statute allowing an exemption for sex offenders younger than nineteen under

circumstances identical to the Texas statute:


       The line drawn by the legislature between offenders who are sensibly considered
       eligible to seek discretionary relief from the courts and those who are not is, like all
       legislative choices affecting individual rights, open to challenge under the equal
       protection clause. The refusal to allow even the possibility of relief to, say, a 19-
       year-old who has consensual intercourse with a minor aged 16 is therefore a
       reviewable legislative determination. Today’s case is no occasion to speak either to
       the possible merits of such a challenge or the standard of scrutiny that might be in
       order when considering it. I merely note that the Court’s rejection of respondents’
       procedural due process claim does not immunize publication schemes like
       Connecticut’s from an equal protection challenge.


Id. at 1166 (citation omitted). Aguirre’s present constitutional challenge relies on the same grounds

recognized by Justice Souter in his concurrence. No Texas court has considered whether article

62.0105, which permits only sex offenders under the age of nineteen to petition the court for an

exemption to the registration requirements, violates the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution.

               Under the rational basis test, similarly situated individuals must be treated equally

unless there is a rational basis for not doing so. Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex.

1985); Mauldin v. State Bd. of Plumbing Exam’rs, 94 S.W.3d 867, 873 (Tex. App.—Austin 2002,

                                                  5
no pet.). We will uphold a law creating a classification if there is “any reasonably conceivable state

of facts that could provide a rational basis for the classification.” See Federal Communications

Comm’n v. Beach Communications, Inc., 508 U.S. 307, 313-14 (1993); Mauldin, 94 S.W.3d at 873.

Where there are plausible reasons for legislative action, our inquiry is at an end.              Beach

Communications, Inc., 508 U.S. at 313-314.             In fact, the party challenging the legislative

classification has the burden of negating every conceivable basis which might support it. Id. at 315.

               Aguirre cites an opinion by the Alabama Court of Criminal Appeals in which the

court held that a portion of Alabama’s sex offender registration statute that treated similarly situated

adult and juvenile sex offenders differently violated the Equal Protection Clause. See State v. C.M.,

C.D.M. & S.D., 746 So.2d 410, 415 (Ala. Crim. App. 1999). The classification in C.M., however,

is significantly different from the one at issue in this case. The Alabama statute prohibited registered

sex offenders from living with minors at the same residence or within 1000 feet of a child care

facility. Id. at 414. An exception was made for parents who were living with their own children so

long as the child was not the victim of the offense. Id. The appellants were juvenile sex offenders

who could not return to their parents’ homes because they would be residing with minor siblings or

because their parents lived within 1000 feet of a child care facility. Id. at 412. The appellants argued

that the statute violated their rights under the Equal Protection Clause because it limited their

residency when similarly situated adult offenders were permitted to return home. Id. at 415. The

Alabama court held that there was no rational basis to allow adult sex offenders to live at home with

their children, but force parents of juvenile sex offenders to choose which of their own children will

live at home. Id.



                                                   6
                Aguirre’s complaint is factually distinguishable from the issue before the Alabama

Court of Criminal Appeals. The appellants in C.M. did not challenge the registration requirement,

but only the restriction on their residency. The challenged distinctions between older and teenaged

offenders in the Texas statute do not separate children from their families and therefore the reasoning

of the Alabama court is inapposite.

                In determining whether the complained-of classification in article 62.0105 violates

the Equal Protection Clause, we examine the legislative intent of the statute. The general purpose

of the Texas sex offender registration law is to “advance public safety objectives by facilitating law

enforcement’s monitoring of sex offenders and by alerting members of the public who may be in an

especially vulnerable situation to take appropriate precautions which could deter or prevent further

crimes.” Rodriguez, 93 S.W.3d at 68-69 (citing In re M.A.H., 20 S.W.3d 860, 863 (Tex. App.—Fort

Worth 2000, no pet.)). The bill analysis of the law enacting article 62.0105 drafted by the Texas

House of Representatives explains that the legislature intended to return to judges the discretionary

authority to exempt certain young offenders from registration that was removed in the prior

legislative session. See House Comm. on Pub. Safety, Bill Analysis, Tex. H.B. 2987, 77th Leg., R.S.

(2001). The bill analysis states that, “it has been argued that [youthful adult offenders] involved in

consensual sex were not offenders which should . . . be required to register as sex offenders.” Id.

                The Texas statute provides a discretionary exemption from lifetime sex offender

registration for certain youthful offenders. As reflected in the legislative history, this distinction was

not arbitrary, but can be read to take into account the generally accepted norm that teenagers are less

responsible and mature than older adults. See Johnson v. Texas, 509 U.S. 350, 367 (1993)



                                                    7
(discussing a nineteen-year-old defendant and noting that “[a] lack of maturity and an

underdeveloped sense of responsibility are found in youth more often than in adults and are more

understandable among the young.”). It is plausible to conclude that an older teenager who engages

in consensual sex with a younger teenager will not as certainly present a danger in the future as

compared to a more mature adult who engages in the same conduct.1 Although Aguirre presented

evidence of low recidivism among sex offenders as a whole, he did not present any evidence that

teenaged sex offenders present as great a risk to the community as similarly situated older offenders.

Therefore, we cannot conclude that the legislative decision to require lifetime registration for persons

over the age of eighteen, who engage in consensual sex with teenaged minors, was an irrational one.




       1
         We also find no constitutional infirmity in setting the age limit for a petition for exemption
from the registration requirements at age eighteen rather than a more mature age which would
include Aguirre. As Justice Holmes explained:

           [w]hen a legal distinction is determined, as no one doubts that it may be, between
           night and day, childhood and maturity, or any other extremes, a point has to be
           fixed or a line has to be drawn, or gradually picked out by successive decisions,
           to mark where the change takes place. Looked at by itself without regard to the
           necessity behind it the line or point seems arbitrary. It might as well or nearly as
           well be a little more to one side or the other. But when it is seen that a line or
           point there must be, and that there is no mathematical or logical way of fixing it
           precisely, the decision of the legislature must be accepted unless we can say that
           it is very wide of any reasonable mark.

Louisville Gas Co. v. Coleman, 277 U.S. 32, 41 (1928) (Holmes, J., dissenting).

                                                    8
We overrule Aguirre’s only issue and affirm the trial court’s order of deferred adjudication

community supervision.




                                            __________________________________________

                                            Jan P. Patterson, Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: February 5, 2004

Publish




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