                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-09-079-CR


EX PARTE BRYAN SCOTT
CHAMBERLAIN

                                   ------------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

                               I. INTRODUCTION

      Appellant Bryan Scott Chamberlain appeals the trial court’s order denying

relief on his application for writ of habeas corpus that he filed pursuant to

article 11.072 of the Texas Code of Criminal Procedure.         In two issues

Chamberlain complains: that the trial court was required to conduct an

evidentiary hearing on his application and, in an issue of first impression in

Texas, that the Texas Sex Offender Registration Program (SORP) violates the

substantive due process rights guaranteed to him under the Fourteenth

Amendment to the United States Constitution. Because the trial court did not
abuse its discretion by not conducting a hearing on Chamberlain’s application

and because the SORP does not violate substantive due process, we will affirm

the trial court’s order denying habeas corpus relief.

                         II. P ROCEDURAL B ACKGROUND

      Prior to September 1, 1997, the code of criminal procedure imposed a

ten-year sex offender registration requirement; a person placed on deferred

adjudication for sexual assault was required to register during any community

supervision term and until the tenth anniversary of the date on which the court

dismissed the criminal proceedings against the person and discharged the

person. See Act of May 29, 1995, 74th Leg., R.S., ch. 676, § 2, 1995 Tex.

Gen. Laws 3649, 3649–50 and Act of May 16, 1995, 74th Leg., R.S., ch.

258, § 1, 1995 Tex. Gen. Laws 2197, 2197 (both amended 1997) (current

version at Tex. Code Crim. Proc. Ann. art. 62.101(a) (Vernon 2006)). Effective

September 1, 1997, the law changed to mandate that a person with a

reportable conviction or adjudication for a sexually violent offense register as

a sex offender for the person’s entire life. See Act of June 1, 1997, 75th Leg.,

R.S., ch. 668, § 1, 1997 Tex. Gen. Laws 2253, 2254, 2261 (amended 2005)

(current version at Tex. Code Crim. Proc. Ann. art. 62.101(a) (Vernon 2006)). 1



      1
        A “sexually violent offense” is defined to include an offense under
section 22.011 of the penal code (sexual assault) committed by a person

                                       2
      Approximately one month after the sex offender registration requirement

changed to require lifetime registration, Chamberlain pleaded guilty pursuant to

a plea bargain agreement to the second-degree felony offense of sexual assault,

a sexually violent offense. The trial court accepted Chamberlain’s plea and,

pursuant to the terms of the plea bargain, deferred an adjudication of guilt and

placed Chamberlain on four years’ community supervision. Chamberlain did not

appeal. 2

      Chamberlain successfully completed his community supervision term, and

the trial court discharged him from community supervision. Seven years later,

Chamberlain filed an application for writ of habeas corpus, asking the trial court

(1) to find that his plea was involuntary because it was obtained as a result of

the ineffective assistance of his trial counsel who had failed to inform him that

his plea would require lifetime sex offender registration instead of requiring

registration only during the term of his community supervision and for ten years

thereafter and (2) to declare the SORP unconstitutional as violative of



seventeen years of age or older. See Act of June 1, 1997, 75th Leg., R.S., ch.
668, § 1, 1997 Tex. Gen. Laws 2253, 2254 (current version at Tex. Code
Crim. Proc. Ann. art. 62.001(6)(A) (Vernon Supp. 2009)).
      2
        In September 1999, the State filed a petition to proceed to
adjudication. The trial court subsequently dismissed that petition pursuant to
the State’s motion to dismiss.


                                        3
substantive due process. After considering Chamberlain’s application, affidavits

from Chamberlain and his friends, the State’s response, an affidavit from

Chamberlain’s trial attorney, and Chamberlain’s reply, the trial court denied

relief without holding a hearing. Chamberlain now appeals.

                            III. S TANDARD OF R EVIEW

      In general, a trial court’s ruling in a habeas proceeding should not be

overturned absent a clear abuse of discretion. Ex parte Jessep, 281 S.W.3d

675, 678 (Tex. App.—Amarillo 2009, pet. ref’d). We are to evaluate whether

the trial court abused its discretion by determining whether the trial court acted

without reference to any guiding rules or principles. Id. In doing so, we view

the evidence in the light most favorable to the trial court’s ruling. Ex parte

Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006) (holding court of

appeals was to review facts in light most favorable to trial court’s ruling even

when no witnesses testified and all evidence was submitted in written

affidavits); State v. Wilson, 288 S.W.3d 13, 16 (Tex. App.—Houston [1st

Dist.] 2008, pet. granted) (applying standard of review to article 11.072 writ).

                            IV. N O H EARING R EQUIRED

      In his first issue, Chamberlain argues that the trial court abused its

discretion by entering findings of fact and conclusions of law without

conducting a live hearing on the issue of whether his plea was voluntary.

                                        4
Chamberlain complains that the trial court abused its discretion by making fact

findings based on inconclusive, conflicting affidavit evidence concerning

whether his trial counsel informed him of the lifetime sex offender registration

requirement. Chamberlain’s affidavit swore that he was not so informed; his

trial counsel’s affidavit indicated that he did not remember, that his file had

been destroyed, but that it would have been his normal practice to so advise

Chamberlain. Thus, Chamberlain contends that the issue of the voluntariness

of his plea hinged on the trial court’s resolution of a credibility issue and that,

consequently, he was entitled to a hearing to test his former counsel’s

assertions that he would have informed Chamberlain of the change in the law

requiring lifetime sex offender registration. Chamberlain argues that the trial

court’s failure to conduct a hearing in light of this credibility issue constituted

an abuse of discretion and deprived him of due process.

      We have previously held that there is no language in article 11.072

requiring the trial court to conduct a hearing on an application for habeas corpus

before rendering its decision on the relief sought. See Ex parte Cummins, 169

S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.); see also Ex parte

Jones, No. 02-07-00388-CR, 2008 WL 3185168, at *9 (Tex. App.—Fort

Worth Aug. 7, 2008, pet. ref’d) (mem. op., not designated for publication). We

have also previously held that the legislature did not intend to prohibit the trial

                                        5
court from considering evidence filed with the application or with the State’s

response without conducting a hearing. See Cummins, 169 S.W.3d at 757.

The trial court’s findings of fact evidence that it did that here. Because article

11.072 does not require the trial court to hold a hearing before rendering its

decision on Chamberlain’s requested relief, we hold that the trial court did not

abuse its discretion by considering Chamberlain’s application, affidavits from

Chamberlain and his friends, the State’s response, an affidavit from

Chamberlain’s trial attorney, and Chamberlain’s reply and by ruling without

holding a hearing. 3     Accord Wheeler, 203 S.W.3d at 325–26 (requiring

appellate court to defer to trial court’s findings even when made or implied

based solely on affidavits). We therefore overrule Chamberlain’s first issue.

                       V. S UBSTANTIVE D UE P ROCESS S ATISFIED

      In his second issue, Chamberlain raises as-applied and facial substantive

due process challenges to the constitutionality of the SORP under the United

States Constitution. In the trial court, however, Chamberlain raised only as-




      3
        In his brief, Chamberlain relies on the Fifth Circuit case of Hall v.
Quarterman, 534 F.3d 365 (5th Cir. 2008), for the proposition that he should
be entitled to a hearing. In Hall, the Fifth Circuit applied the deferential
standard mandated by the Antiterrorism and Effective Death Penalty Act to
determine that Hall was entitled to an evidentiary hearing on his claim that he
was mentally retarded. The Hall facts are distinguishable from the present
facts.

                                          6
applied challenges; 4 he is therefore prohibited from raising a facial challenge for

the first time here.   See Karenev, 281 S.W.3d at 435 (concluding that a

defendant may not raise a facial challenge to the constitutionality of a statute




      4
      In his application for writ of habeas corpus in the trial court,
Chamberlain argued,

             Applicant was required to register as a sex offender without
      any individualized assessment of how dangerous he was or the
      likelihood of re-offending. The trial court had no discretion in
      whether to require registration, and no official of the State of Texas
      has discretion to alter the requirement. While it is certainly the
      case that certain people who plead guilty to or are convicted of a
      sex offense may present a high risk of re-offending, many do not.
      The Texas Statute does not allow for any assessment of the risk of
      re-offending by the individual defendant and does not allow the
      Court any discretion in whether to require the defendant to register,
      and in this case to register for life. In this rigid approach to sex
      offender registration, the statute offends the due process clause of
      the 14th Amendment to the United States Constitution in that it
      deprives the defendant of the fundamental liberty of a good
      reputation and the opportunity to rehabilitate his reputation without
      allowing for any serious evaluation of the threat the defendant
      presents to society.

Chamberlain thereafter prayed that the trial court would “find and declare the
Sex Offender Registration laws of this state deprive him of liberty to which he
is entitled under the 14th Amendment to the United States Constitution and
Article 1, §§ 10 and 19 of the Texas Constitution.” [Emphasis added.] See
Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim. App. 2009) (Cochran, J.,
concurring) (stating that the difference between a facial challenge and an “as
applied” challenge to the constitutionality of a penal statute is evidence; “[a]
facial challenge is based solely upon the face of the penal statute and the
charging instrument, while an applied challenge depends upon the evidence
adduced at a trial or hearing”).

                                         7
for first the time on appeal). We therefore limit our analysis to whether the

SORP as applied to Chamberlain violates substantive due process under the

United States Constitution.

A.    Chamberlain’s Arguments and His Facts

      Chamberlain essentially makes two as-applied substantive due process

challenges to the SORP.     First, Chamberlain argues that the SORP violated

substantive due process by imposing on him a compulsory initial registration

without any individualized assessment of how dangerous he was or his

likelihood of re-offending. Second, Chamberlain argues that the SORP violates

substantive due process because it requires him to register for his entire life but

provides no mechanism for a determination that, at some point during his

lifetime, he is no longer dangerous or no longer a risk for re-offending and,

consequently, should no longer be required to register. In support of both of

these challenges, Chamberlain points out in his application that his conviction

stemmed from facts that do not demonstrate dangerousness or a likelihood of

re-offending. Chamberlain alleges that after an evening of drinking and dancing

at a nightclub, the complainant accompanied him and his friends to an

apartment where they continued to drink and dance. Chamberlain claims that

eventually he and the complainant retired to one of the bedrooms where they

had consensual sex. He alleges that the next morning, the complainant went

                                        8
to breakfast with him and his friends and that the group then went to his

apartment where the complainant visited with his friends while Chamberlain

took a shower and changed clothes. Chamberlain said that when he took the

complainant home, she kissed him, gave him her phone number, and asked him

to call her. Chamberlain states that he “reluctantly agreed to accept the plea

bargain and plead[ed] guilty to the charge” because he was advised that “this

was the quickest way to get this whole mess over with.”

B.    Substantive Due Process Law

      Generally, substantive due process protects against the arbitrary exercise

of governmental powers, unrestrained by established principles of private rights.

See County of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S. Ct. 1708,

1716 (1998). The United States Supreme Court’s substantive due process

analysis has two primary features:

             First, we have regularly observed that the Due Process
      Clause specially protects those fundamental rights and liberties
      which are, objectively, “deeply rooted in this Nation’s history and
      tradition,” and “implicit in the concept of ordered liberty,” such that
      “neither liberty nor justice would exist if they were sacrificed.”
      Second, we have required in substantive-due-process cases a
      “careful description” of the asserted fundamental liberty interest.
      Our Nation’s history, legal traditions, and practices thus provide the
      critical “guideposts for responsible decisionmaking” that direct and
      restrain our exposition of the Due Process Clause.




                                        9
Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 2268 (1997)

(citations and parentheticals omitted); Ex parte Morales, 212 S.W.3d 483, 493

(Tex. App.—Austin 2006, pet. ref’d). The substantive component of the Due

Process Clause of the United States Constitution provides heightened protection

against government interference with the above described fundamental rights

or liberty interests. Glucksberg, 521 U.S. at 719, 117 S. Ct. at 2266. When

such a fundamental right or liberty interest is involved, the state must show a

compelling interest to curtail it and must do so as narrowly as possible. See

Reno v. Flores, 507 U.S. 292, 301–02, 113 S. Ct. 1439, 1447 (1993). When

no fundamental right or liberty interest is involved, however, the State must

show only a rational basis for its actions or legislation to survive a substantive

due process challenge. See Sullivan v. State, 986 S.W.2d 708, 714 (Tex.

App.—Dallas 1999, no pet.).

      We begin our analysis of Chamberlain’s constitutional challenges with a

presumption that the SORP is valid and that the legislature has not acted

unreasonably or arbitrarily by enacting it. Rodriguez v. State, 93 S.W.3d 60,

69 (Tex. Crim. App. 2002). The burden rests on Chamberlain to establish its

unconstitutionality. Id.




                                       10
C.    The Interest at Issue; Rational Basis Exists

      Chamberlain claims that the SORP arbitrarily and unreasonably infringes

upon his “right” to rebuild his dignity. The crux of Chamberlain’s complaint is

that his reputation is damaged by the SORP’s lifetime registration requirement.

We interpret Chamberlain’s argument to be that his reputation constitutes a

cognizable liberty interest for purposes of triggering the heightened substantive

due process protection. 5

      Other courts have rejected the argument that a sex offender’s interest in

his reputation is a fundamental right or a liberty interest that will trigger

heightened federal substantive due process protection from statutory sex

offender registration schemes. See Cutshall v. Sundquist, 193 F.3d 466, 479

(6th Cir. 1999), cert. denied, 529 S. Ct. 1053 (2000); Doe v. Pataki, 3 F.

Supp. 2d 456, 467 (S.D.N.Y. 1998); Russell v. Gregoire, 124 F.3d 1079, 1094

(9th Cir. 1997), cert. denied sub nom. Russell v. Gregoire, 523 U.S. 1007

(1998); E.B. v. Verniero, 119 F.3d 1077, 1102–04 (3rd Cir. 1997), cert.

denied sub nom. W.P. v. Verniero, 522 U.S. 1109 (1998); Artway v. Attorney




      5
         To the extent Chamberlain asserts any different interest, it does not
meet the requirement of being a fundamental right or liberty “objectively, deeply
rooted in this Nation’s history and tradition, and implicit in the concept of
ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed.” See Glucksberg, 521 U.S at 720–21, 117 S. Ct. at 2268.

                                       11
Gen. of New Jersey, 81 F.3d 1235, 1268–69 (3rd Cir. 1996); see also Conn.

Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 6, 123 S. Ct. 1160, 1164 (2003)

(holding convicted sex offender had not been deprived of liberty interest for

purposes of procedural due process challenge to SORP); Paul v. Davis, 424 U.S.

693, 712, 96 S. Ct. 1155, 1165–66 (1976) (reputation alone is not a

constitutionally protected liberty interest).     In the absence of authority

establishing that a sex offender possesses a fundamental right or liberty interest

in his reputation, we decline to recognize this allegedly fundamental right or

liberty interest. Because Chamberlain has not established that he possesses a

fundamental right or a liberty interest that the SORP impinges upon, his as-

applied constitutional challenges are not subject to the heightened substantive

due process protection provided when the government interferes with a

fundamental right or liberty interest. See Glucksberg, 521 U.S. at 719, 117 S.

Ct. at 2266.     Instead, we analyze both Chamberlain’s as-applied federal

substantive due process constitutional challenges to determine whether the

SORP bears a rational relationship to a legitimate state interest. Accord City of

Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249,

3254 (1985); Tex. Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d

504, 525 (Tex. 1995); In re M.A.H., 20 S.W.3d 860, 864 (Tex. App.—Fort

Worth 2000, no pet.).

                                       12
      We first examine the state interest; there is no question that the Texas

Legislature has a legitimate interest in protecting the citizens of Texas from

sexual predators. See Rodriguez, 93 S.W.3d at 74; accord, e.g., United States

v. Hernandez, 615 F. Supp. 2d 601, 621 (E.D. Mich. 2009); United States v.

Ambert, 561 F.3d 1202, 1209 (11th Cir. 2009); Doe v. Moore, 410 F.3d

1337, 1346 (11th Cir.), cert. denied sub nom. John Doe I v. Moore, 546 U.S.

1003 (2005); In re W.M., 851 A.2d 431, 451 (D.C. 2004), cert. denied sub

nom. W.M. v. Court Servs. Offender Supervision Agency, 543 U.S. 1062

(2005); Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir.), cert. denied, 543 U.S.

817 (2004); Gunderson v. Hvass, 339 F.3d 639, 643 (8th Cir. 2003), cert.

denied sub nom. Gunderson v. Fabian, 540 U.S. 1124 (2004); Akella v. Mich.

Dep’t of State Police, 67 F. Supp. 2d 716, 733 (E.D. Mich. 1999); In re J.W.,

787 N.E.2d 747, 757, 760 (Ill.), cert. denied sub nom. J.W. v. Illinois, 540

U.S. 873 (2003); Gibson v. Ind. Dep’t of Corr., 899 N.E.2d 40, 55 (Ind. Ct.

App. 2008); McCabe v. Commonwealth, 650 S.E.2d 508, 561, 563–66 (Va.

2007). And because the SORP’s notification provisions inform citizens that sex

offenders are living in their community—in order that citizens may take

necessary precautions—the SORP is a rational means to further a legitimate




                                     13
state interest.6 See M.A.H., 20 S.W.3d at 865; Ex parte Mercado, No. 14-02-

00750-CR, 2003 WL 1738452, at *4 (Tex. App.—Houston [14th Dist.] Apr.

3, 2003, no pet.) (mem. op., not designated for publication); see also

Hernandez, 615 F. Supp. 2d at 621 (“SORNA [Sex Offender Registration and

Notification Act] meets the rational basis test because it is in the interest of

government to protect the public from sex offenders, and knowing where

offenders live enables the public to assess the risk and take protective

measures as appropriate.”).      Thus, the remaining analysis requires us to

determine whether the features of the SORP challenged by Chamberlain bear

a rational relationship to the State of Texas’s legitimate interest in protecting

its citizens from sexual predators.




      6
        Chamberlain does not attack the statutory notification provisions.
Indeed, two well-known pieces of federal legislation address the issues of sex
offender registration and community notification: the Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Act, passed in
1994, requiring all states to enact a program mandating that designated
offenders register with state or local authorities or risk losing ten percent of the
states’ federal anti-crime funding, see H.R. 3355, 103d Cong. § 170101
(1994) (outlining original version of act adopted by Congress and signed into
law), and Megan’s Law, enacted in 1996, as an amendment to the Jacob
Wetterling Act, requiring community notification when sex offenders move into
a neighborhood. See 42 U.S.C. § 14071 (2003).

                                        14
D.    Rational Basis Test Applied to Chamberlain’s Claims

      Chamberlain argues that Texas’s SORP as applied to him violates

substantive due process because the statute’s compulsory registration

requirement, in the absence of any individualized assessment of his

dangerousness or risk of recidivism, bears no relationship to any legitimate state

interest. He also argues that the SORP as applied to him violates substantive

due process because it requires him to continue to register for his entire life and

provides no mechanism for a determination that, at some point in his life, he is

no longer dangerous or a recidivism risk. 7

      The Texas Court of Criminal Appeals has not addressed the substantive

due process challenges raised by Chamberlain; they appear to be issues of first

impression.   Because the court of criminal appeals has not addressed the

substantive due process challenges raised by Chamberlain, we conducted

national scope research looking for guidance on how other states have

addressed federal substantive due process challenges to sex offender




      7
       With regard to this challenge, Chamberlain argues that “in the absence
of some individualized assessment that he presents a danger to [the]
community . . . [t]he SORP . . . arbitrarily creates a lifetime wall of shame . . .
for people who pose no significant risk of further crimes[, and] it is
unconstitutional.”

                                        15
registration requirements. 8 The states that have addressed as-applied federal

substantive due process challenges like Chamberlain’s to a compulsory

statutory registration requirement on the ground that it required registration in

the absence of any individualized assessment of dangerousness or risk of

recidivism have nonetheless found the statutes constitutional. See, e.g., State

v. Druktenis, 2004-NMCA-032, 135 N.M. 223, 241, 86 P.3d 1050, 1068

(N.M. Ct. App. 2004); see also People v. Hood, 790 N.Y.S.2d 757, 758–59

(2005). As stated by the New Mexico Court in Druktenis,

      Presumably, the unfairness to any who might present evidence that
      they do not pose a significant risk of recidivism is, in the
      Legislature’s view, outweighed by the risk that citizens may be
      harmed notwithstanding such evidence. SORNA’s [Sex Offender
      Registration and Notification Act’s] message is that no chance
      should be taken, even were a sex offender able to present evidence
      in an individualized hearing that he or she is integrateable into
      society and neither a recidivist nor a current danger, since the risk
      of harm to society, no matter what the evidence, is still too great
      if exceptions were permitted, a risk the Legislature simply refuses
      to take.




      8
        Texas’s compulsory lifetime registration SORP applies to specifically
delineated offenses. See Tex. Code Crim. Proc. Ann. art. 62.101(a).
Registration for other reportable offenses is generally for ten years after the
person exits the penal system. See id. art. 62.101(c). Many states’ statutory
sex offender registration schemes, like Texas’s, create multi-tiered registration
requirements based on the type of offense committed. See, e.g., Ark. Code
Ann. § 12-12-919 (West 2004 & Supp. 2009); D.C. Code §§ 22-4001(6), 22-
4002 (2001 & Supp. 2009); N.Y. CORRECT. LAW § 168-h (McKinney 2003
& Supp. 2009); Okla. Stat. tit. 57, § 583 (2004 & Supp. 2009).

                                       16
135 N.M. at 241, 86 P.3d at 1068. Likewise, the New York Supreme Court

in the Hood case rejected a defendant’s assertion that the sex offender

registration statute violated substantive due process by failing to include a “no

risk”   category   exempting     purportedly    non-dangerous      offenders    from

registration.   790 N.Y.S.2d at 758–59.        The court noted that the statute

mandated registration based on a defendant’s conviction of an enumerated sex

offense, not his level of dangerousness.        Id.   Because the SORP required

Chamberlain’s compulsory registration based on his conviction of a crime that

meets the SORP’s definition of a “sexually violent offense,” we hold that the

SORP’s initial registration requirement is rationally related to the legitimate state

interest of protecting citizens from sexual predators. See Druktenis, 135 N.M.

at 241, 86 P.3d at 1068; Hood, 790 N.Y.S.2d at 758–59. Consequently, we

hold Chamberlain has failed to establish that the SORP’s initial registration

requirement, as applied to him, violates substantive due process.

        We next address Chamberlain’s argument that the SORP as applied to him

violates substantive due process because it requires him to continue to register

for his entire life and provides no mechanism for a determination that, at some

point in his life, he is no longer dangerous or a recidivism risk. The court of

criminal appeals has rejected the exact constitutional challenge to the SORP

that Chamberlain makes when that challenge was framed as a procedural due

                                         17
process challenge. See Ex parte Robinson, 116 S.W.3d 794, 797–98 (Tex.

Crim. App. 2003).         In Ex parte Robinson, the court of criminal appeals

discussed the United States Supreme Court’s decision in Connecticut

Department of Public Safety v. Doe and wrote:

      The [U.S. Supreme] Court held that “the fact that respondent seeks
      to prove—that he is not currently dangerous—is of no consequence
      under Connecticut’s Megan’s Law.” The Court explained that
      “even if respondent could prove that he is not likely to be currently
      dangerous, Connecticut has decided that the registry information
      of all sex offenders—currently dangerous or not—must be publicly
      disclosed.”

            ....

      Robinson . . . argues that this is the very flaw with the SORP—that
      it does not distinguish between dangerous and non-dangerous
      offenders.    He seeks a hearing to establish that he is not
      dangerous. This is the same argument that Doe made and, like
      Doe, Robinson specifically limits his argument in this court to one
      of procedural due process, not substantive due process. As the
      Supreme Court explained, there is no right to establish facts that
      are irrelevant under the statutory scheme. And we need not
      address the issue of substantive due process because it is not
      before us.

116 S.W.3d at 797–98 (citations and footnotes omitted).

      Turning specifically to an examination of the Texas sex offender

registration statute, the SORP, reveals that a statutory mechanism does exist

for persons subject to lifetime registration to seek early termination of their

obligation to register.    See Tex. Code Crim. Proc. Ann. arts. 62.401–.408



                                        18
(Vernon 2006). First, article 62.101 provides that “[e]xcept as provided by . . .

Subchapter I [the early termination of registration chapter]” a person is subject

to lifetime registration. See id. art. 62.101(a). Thus, the SORP clearly creates

an exception to lifetime registration; it authorizes a person who is required to

register for life to seek early termination of that obligation. Second, Subchapter

I, article 62.403 provides for an “individual risk assessment” to be performed

upon “the written request of a person with a single reportable adjudication” that

requires the person to register longer under Texas law than under federal law.

See id. art. 62.403(b); see also id. art. 62.007 (Vernon 2006). An individual

risk assessment evaluates the criminal history of a person required to register

and seeks to predict the person’s risk of recidivism and the level of continuing

danger the person poses to the community. Id. art. 62.043(a)(1)(2)(A), (B). A

person who is required to register and has requested and received an individual

risk assessment may file a motion for early termination of the person’s

obligation to register. See id. art. 62.404. The trial court may hold a hearing

to determine whether to grant or to deny a motion for early termination of

registration.   See id. art. 62.405.   To the extent that the SORP’s rational

relationship to the State’s legitimate interest in protecting its citizens from sex

offenders diminishes as a sex offender over time establishes his lack of

dangerousness and low risk of recidivism, the SORP does provide a vehicle for

                                        19
such an offender (with a single reportable adjudication) to obtain an

individualized assessment of dangerousness and risk of recidivism and possibly

obtain early release from his obligation to register as a sex offender. 9

      The SORP as applied to Chamberlain does not violate substantive due

process. The SORP’s initial compulsory registration requirement is rationally

related to and furthers a legitimate state interest, and the SORP contains a

mechanism that allows sex offenders who are purportedly not dangerous and

who pose a low risk of re-offending to petition for early termination of the

registration requirements. The record before us is thus insufficient to rebut the

presumption that the SORP is constitutional as applied to Chamberlain. We

overrule Chamberlain’s second issue.




      9
         To the extent that Chamberlain complains about any other aspect of
the SORP, such complaints are for the legislature’s consideration. See M.A.H.,
20 S.W.3d at 864–65 (stating that whether application of SORP should be
contingent upon juvenile’s age or the seriousness of the offense was a question
left to the legislature). Moreover, whether the duration of the registration for
nonviolent sex offenders should be further limited is also a matter better left to
the legislature. See J.W., 787 N.E.2d at 760.

                                       20
                                 VI. C ONCLUSION

      Having overruled both of Chamberlain’s issues and because there is no

relief from this court that is available to Chamberlain, we affirm the trial court’s

order denying habeas corpus relief.




                                                   SUE WALKER
                                                   JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

PUBLISH

DELIVERED: December 17, 2009




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