                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-13-00266-CV


                           ALBERT V. JESSEP, APPELLANT

                                           V.

                  POTTER COUNTY COMMUNITY SUPERVISION
                  AND CORRECTIONS DEPARTMENT, APPELLEE

                      On Appeal from the County Court at Law No. 1
                                   Potter County, Texas
           Trial Court No. 101404-1, Honorable W. F. (Corky) Roberts, Presiding

                                     June 23, 2015

                           MEMORANDUM OPINION
               Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant Albert V. Jessep, appearing pro se, sued appellee Potter County

Community Supervision and Corrections Department (CSCD) for declaratory relief and

damages in Potter County Court at Law Number One.1 The court sustained CSCD’s




      1
        Whether Jessep sued the proper defendant was not raised in the trial court or
on appeal. Because of our disposition of his appeal, we express no opinion on the
matter.
plea to the jurisdiction and dismissed the suit. Finding the trial court lacked jurisdiction,

we will affirm its order.


                                        Background


       Jessep’s computer was seized by peace officers while it was being repaired at an

Amarillo computer shop. The computer’s hard drive contained pornographic images

involving children. By two July 2005 indictments filed in the 47th District Court of Potter

County, he was charged with two possession-of-child-pornography offenses.2 In April

2006, Jessep plead guilty to each offense. The trial court deferred adjudication of guilt

and placed him on community supervision for a period of five years. A condition of

community supervision required that Jessep register as a sex offender.3             He was

assigned a “level two” or “moderate” sex offender risk level. 4 According to Jessep, he

was released from community supervision in April 2011.


       On April 22, 2013, Jessep filed the underlying lawsuit. He labeled his pleading

“petition for declaratory judgment to correct plaintiff’s record.” Jessep contended his

sex offender risk assessment was obtained by one of CSCD’s probation officers using

the Static-99 sex offender screening tool when the proper tool was the revised


       2
           See TEX. PENAL CODE ANN. § 43.26 (West Supp. 2014).
       3
          See TEX. CODE CRIM. PROC. ANN. art. 62.051(a) (West Supp. 2014) (“A
person . . . who is required to register as a condition of . . . community supervision shall
register . . . with the local law enforcement authority in any municipality where the
person resides or intends to reside for more than seven days”).
       4
          See TEX. CODE CRIM. PROC. ANN. art. 62.007(c)(2) and 62.053(c) (court
pronouncing sentence shall determine numeric risk level using screening tool under
article 62.007).


                                             2
Static-99. According to Jessep, the Static-99 was discontinued in 2006, the year of his

assessment. The officer conducting the assessment, Jessep asserted, was permitted

to infer that a party convicted of possession of child pornography also produced the

images possessed. This improper and incorrect inference, Jessep alleged, resulted in

his designation as a “level-2, moderate” risk level rather than a “level-1 low” level.

Jessep sought a judgment declaring the following:


       a. The Community Supervision and Corrections Department is a local
          state-aided department responsible to the community at large bound
          by rules of law.

       b. [The evaluating officer] is an associate of the CSCD and is/was in the
          employ as an assessor and evaluator of sex offender risk levels for the
          CSCD.

       c. [The evaluating officer] was the evaluator of plaintiff’s risk assessment
          level in 2006.

       d. [The evaluating officer] was certified as an evaluator in 2000, though
          never re-certified as to be kept abreast of the changes to the static-99
          tool that came about in 2006.

       e. [The evaluating officer] improperly assessed the plaintiff’s risk
          assessment indicating a “moderate” level when the level should have
          been assessed as “low.”

       f. [The evaluating officer] was in error to “reasonably infer” an added guilt
          to plaintiff’s charge that simply was not ever there.

       g. The Static-99 is not the assessment tool to be used when evaluating
          an offender charged or convicted of only a violation under the Texas
          Penal Code, Article [43.26], subpart (a).

       In a separate paragraph under the heading “damages,” Jessep alleged

“suffer[ing] seven years of a corrupt and mis-identified risk level showing on a State

database but available to the world and all its people for viewing that paints the plaintiff

as a sex offender who, though was only charged with a non-violent and non-victim


                                             3
oriented crime under the existing assessment tools, is still such a danger to his

community and to its children that the community should use extra caution as the

plaintiff is likely to re-offend at any given time.”   As a result of an erroneous risk

assessment, Jessep alleged, his “name and reputation” were damaged “in an amount in

excess of the minimum jurisdictional limit” of the county court at law.


       Jessep’s prayer included requests for declarations and money damages.


       CSCD answered and filed a plea to the trial court’s jurisdiction contending

essentially that Jessep could not obtain declaratory relief in a criminal law matter and if

he had a remedy it lay in the 47th District Court. Following a brief non-evidentiary

hearing, the county court at law sustained CSCD’s plea without stating a ground and

dismissed the case.


                                         Analysis


       CSCD argues Jessep is not entitled to a declaratory judgment because a civil

court cannot interfere with the operation of a criminal court by issuing a declaration of

rights under a criminal statute.    Jessep contends his complaint should be properly

characterized a civil action, and his request for declaratory relief therefore is not

inappropriate.


       The subject-matter jurisdiction of a trial court may be challenged by a party’s plea

to the jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per

curiam). A plea to the jurisdiction is a dilatory plea functioning “to defeat a cause of

action without regard to whether the claims asserted have merit.” Bland ISD v. Blue, 34

S.W.3d 547, 554 (Tex. 2000). We review de novo the ruling of a trial court on a plea to

                                             4
the jurisdiction as the existence of jurisdiction vel non is a question of law. Houston

Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 156 (Tex. 2007). When the

pleadings are challenged, we consider the allegations in favor of the plaintiff to

determine if the plaintiff alleged facts affirmatively demonstrating the jurisdiction of the

trial court to hear the case. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004). If the pleadings affirmatively show jurisdiction is lacking, a plea to the

jurisdiction may be granted without affording the plaintiff an opportunity to amend.

County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).


       A person required to register as a sex offender under Chapter 62 of the Texas

Code of Criminal Procedure is classified according to one of three risk levels based on

the danger the person is considered to present to the community and the likelihood of

recidivism. Garrett v. Tex. Dept. of Pub. Safety, No. 03-04-00661-CV, 2007 Tex. App.

LEXIS 3856, at *5-6 (Tex. App.—Austin May 17, 2007, no pet.) (mem. op.). A “risk

assessment review committee,” established by the Texas Department of Criminal

Justice develops or selects from among existing tools a “sex offender screening tool” for

determining the risk level of a registrant. TEX. CODE CRIM. PROC. ANN. art. 62.007(a),

(b)(1) (West 2006). The screening tool “must use an objective point system under

which a person is assigned a designated number of points for each of various factors.”

TEX. CODE CRIM. PROC. ANN. art. 62.007(c).


       When a sex-offender registrant receives an order of community supervision, the

court pronouncing the sentence must determine the person’s numeric risk level using

the sex offender screening tool developed or selected under Article 62.007, assign the

person a numeric risk level of one, two, or three, and ensure that the prerelease

                                             5
notification and registration requirements are conducted on the day of sentencing. TEX.

CODE CRIM. PROC. ANN. art. 62.053(c) (West Supp. 2014). A court may override an

assigned risk level only if it “believes that the risk level assessed is not an accurate

prediction of the risk the offender poses to the community” and “documents the reasons

for the override in the offender’s case file.” TEX. CODE CRIM. PROC. ANN. art. 62.007(d);

see Garrett, 2007 Tex. App. LEXIS 3856, at *17 (citing former article 62.035(d) now

article 62.007(d)).


       As a general rule, a party may not obtain a judicial construction of a penal law

through a declaratory judgment action. Ryan v. Rosenthal, 314 S.W.3d 136, 141 (Tex.

App.—Houston [14th Dist.] 2010, pet. denied) (citing Passel v. Fort Worth Indep. Sch.

Dist., 440 S.W.2d 61, 63 (Tex. 1969) (“It is well settled that courts of equity will not

interfere with the ordinary enforcement of a criminal statute unless the statute is

unconstitutional and its enforcement will result in irreparable injury to vested property

rights”)); see State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994) (“A civil court simply

has no jurisdiction to render naked declarations of rights, status or other legal

relationships arising under a penal statute” (quotation marks omitted)).


       But Jessep’s complaint concerns a status created under Chapter 62, a body of

law courts have viewed as civil and remedial in nature. See Rodriguez v. State, 93

S.W.3d 60, 79 (Tex. Crim. App. 2002) (upholding constitutionality of 1997 amendments

to sex-offender registration statute because they were civil and remedial in nature, not

so punitive as to categorize them as penal in nature); Hernandez v. State, No. 04-04-

00020-CR, 2004 Tex. App. LEXIS 4907, at *3 (Tex. App.—San Antonio June 2, 2004,

no pet.) (mem. op.) (“Chapter 62 of the Code of Criminal Procedure is essentially

                                            6
regulatory in nature, not punitive”); Ex parte Robinson, 116 S.W.3d 794, 798 (Tex. Crim.

App. 2003) (“[T]he 1999 version of the [sex offender registration program], like the 1997

version, is non-punitive in both intent and effect”); Reynolds v. State, 385 S.W.3d 93,

100 (Tex. App.—Waco 2012), aff’d, 423 S.W.3d 377 (Tex. Crim. App. 2014) (“The 2005

amendments to the registration statute were enacted specifically to address concerns

that, because the registration program had been amended numerous times since its

enactment, it had become cumbersome and difficult to manage. . . . Reorganizing and

amending chapter 62 to make it more easily understood by persons required to

administer it would then presumably further the registration program’s original

purpose—to promote public safety”).         Thus, we do not believe in every instance a

threshold jurisdictional bar automatically precludes a litigant’s use of declaratory relief to

challenge a sex-offender risk classification. See Garrett, 2007 Tex. App. Lexis 3856, at

*11, 15-19 (finding plaintiff’s request for declaratory relief challenging sex-offender

classification was an improper collateral attack which should properly have been raised

in the criminal proceeding, but not finding trial court lacked jurisdiction to entertain

claim).


          But CSCD also argues the county court at law lacks jurisdiction over Jessep’s

suit because a challenge of his sex offender risk level lies exclusively in the court where

the obligation to register originated. With this assertion, we agree.


          A declaratory judgment action under the Texas Uniform Declaratory Judgments

Act (UDJA)5 is merely a procedural device for deciding cases already within a court’s

jurisdiction. Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 444

          5
              TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-.011 (West 2015).

                                               7
(Tex. 1993). “A litigant’s request for declaratory relief cannot confer jurisdiction on the

court, nor can it change the basic character of a suit.” Morales, 869 S.W.2d at 947.


       A trial court’s exercise of jurisdiction over a declaratory judgment claim requires

“a justiciable controversy as to the rights and status of parties actually before the court

for adjudication, and the declaration sought must actually resolve the controversy.”

Brooks v. Northglen Ass’n, 141 S.W.3d 158, 163-64 (Tex. 2004).               “A justiciable

controversy is one in which a real and substantial controversy exists involving a genuine

conflict of tangible interests and not merely a theoretical dispute.” Texas Dep’t of Pub.

Safety v. Moore, 985 S.W.2d 149, 153 (Tex. App.—Austin 1998, no pet.). Absent a

case or controversy, a trial court’s declaration constitutes no more than a prohibited

advisory opinion. Brooks, 141 S.W.3d at 164.


       An advisory opinion decides “abstract questions of law without binding the

parties.” Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001). Texas courts have no

jurisdiction to issue advisory opinions.    See, e.g., Speer v. Presbyterian Children's

Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993); TEX. CONST. art. II, § 1.

“Under [the separation of powers] doctrine, governmental authority vested in one

department of government cannot be exercised by another department unless expressly

permitted by the constitution. Thus [the separation of powers article] prohibit[s] courts

from issuing advisory opinions because such is the function of the executive rather than

the judicial department.” Texas Ass’n of Business, 852 S.W.2d at 444.


       Here Jessep does not show us, nor can we envision, how the declarations

requested of the county court at law could terminate the controversy alleged. Rather, if



                                             8
a remedy for Jessep’s complaint exists at all, it lies in the sentencing court which could

override a risk level derived from the “sex offender screening tool” if it believed “the risk

level assessed is not an accurate prediction of the risk the offender poses to the

community.” Garrett, 2007 Tex. App. Lexis 3856, at *17 (discussing article 62.035(d)

the statutory predecessor of article 62.007(d));6 TEX. CODE CRIM. PROC. ANN. art. 62.053

(court pronouncing sentence shall determine a person’s numeric risk level using the sex

offender screening tool developed or selected under article 62.007). Because the 47th

District Court, as the sentencing court, has “ultimate control” over Jessep’s risk

classification, see Garrett, 2007 Tex. App. LEXIS, at *18, a declaratory judgment by the

county court at law affecting Jessep’s sex-offender risk level would be no more than

advisory.


       Essential also to Jessep’s claim for damages is a finding that CSCD’s

misfeasance or malfeasance caused the allegedly erroneous risk level determination.

As stated, the court empowered to make the risk-level override is the 47th District Court.

Allowing the county court at law, or any court other than the 47th District Court, to make

that determination as part of a tort suit would improperly cede authority intended for the

original sentencing court. Cf. Heck v. Humphrey, 512 U.S. 477, 486, 481-482, 487, 114

S. Ct. 2364, 129 L. Ed. 2d 383 (1994) (noting “the hoary principle that civil tort actions

are not appropriate vehicles for challenging the validity of outstanding criminal

judgments[,]” and holding that where “establishing the basis for the damages claim

necessarily demonstrates the invalidity of the conviction,” a 42 U.S.C. § 1983 action will

       6
        The current requirements for overriding a risk level are identical to those of
former article 62.035(d). See Acts May 26, 2006, 79th Leg., R.S., ch. 1008, § 1.01,
2005 Tex. Gen. Laws 3385, 3398 (redesignated and amended 2005) (current version at
TEX. CODE CRIM. PROC. ANN. art. 62.007).

                                             9
not lie “unless . . . the conviction or sentence has already been invalidated”). In other

words, we do not believe it possible for Jessep to establish the injury in tort he alleges

without proving the inaccuracy of his sex-offender risk level assessment. And we have

stated our agreement with CSCD’s position that the matter must be addressed if at all

by the 47th District Court.


                                         Conclusion


       We overrule Jessep’s issue on appeal.            Because repleading will not cure

Jessep’s jurisdictional defect, we affirm the order of the trial court.




                                                   James T. Campbell
                                                       Justice



Quinn, C.J., concurring with the majority opinion that the cause should have been
initiated in the 47th Judicial District Court.




                                              10
