389 S.W.3d 820 | Tex. Crim. App. | 2012
Lead Opinion
OPINION
delivered the opinion of the Court,
A jury found Mark Crabtree guilty of the second-degree felony offense of failing to comply with sex offender registration requirements. Crabtree claims that the evidence is legally insufficient to support his conviction because the evidence failed to demonstrate that the Department of Public Safety (DPS) determined his extra-jurisdictional conviction was substantially similar to a Texas offense requiring registration; therefore the State did not prove that he was required to register as a sex offender in Texas. We agree and render a judgment of acquittal.
I. BACKGROUND
In 1989, Crabtree was convicted of the following Washington offenses: rape of a child in the first degree, child molestation in the first degree, and statutory rape in the first degree. In January 2009, law enforcement officials in Smith County, where Crabtree resided, learned of these prior convictions. Concluding that Crab-tree’s previous Washington convictions required him to register as a sex offender in Texas and that he failed to do so, law enforcement officers arrested him for failure to comply with registration requirements. The grand jury returned a true bill of indictment which alleged
on or about the 12th day of January, 2009 ... 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, because of a reportable conviction for Rape of a Child in the First Degree, intentionally or knowingly fail to register with the local law enforcement authority in said county.
Crabtree sought to quash the indictment alleging the indictment’s language failed to give him sufficient notice of the charged offense’s felony level under Texas Code of Criminal Procedure article 62.102 which defines separate offenses for a state-jail
At trial, the State began its case-in-chief by introducing the judgment and charging instruments documenting Crabtree’s Washington convictions for rape of a child in the first degree, child molestation in the first degree, and statutory rape in the first degree, for which he was sentenced to confinement for a term of 89 months, 41 months, and 61 months, respectively. The sponsoring witness, Noel Martin, a crime scene investigator with the Smith County Sheriffs Office who compared Crabtree’s fingerprints to the documents, testified that the conduct described in the charging instrument for rape of a child in the first degree would be considered a first-degree felony aggravated sexual assault of a child in Texas.
The State then called Smith County Sheriffs Deputy Jeri Scott to establish Crabtree’s registration requirement. Deputy Scott was in charge of the sex offender registration program in Smith County. In that capacity, Deputy Scott registered those required to register as sex offenders, received registrants’ verifications, and performed residence and employment checks. She also provided guidance to other law enforcement officers on sex offender registration issues.
In January 2009, Deputy Scott received a call from Whitehouse Police Department Officer Bob Overman inquiring about Crabtree’s sex offender status. After receiving the call, Deputy Scott ran Crab-tree’s criminal history by searching the TCIC/NCIC database. She also searched for Crabtree’s name in a local database containing incident reports with suspect, victim, and witness information. There, she found Crabtree was identified as a witness in a 2008 burglary case which listed his address as being in Whitehouse, located in Smith County. Based on her discovery of Crabtree’s conviction for the Washington offense of rape of a child in the first degree, she determined that Crabtree had a duty to register as a sex offender in Texas because, in her opinion, the offense was substantially similar to the Texas offense of aggravated sexual assault of a child. She stated rape of a child in the first degree was substantially similar to the Texas offense of aggravated sexual assault of a child and that child molestation in the first degree was substantially similar to a sexually violent offense, albeit without specifically identifying which sexually violent offense.
By her own admission, Deputy Scott based her substantial-similarity conclusion on the Washington offense’s title: rape of a child in the first degree. She stated that she did not know the elements of Washington’s rape of a child offense. She also conceded that DPS is ultimately responsible for determining whether an out-of-state conviction is substantially similar to a Texas offense. In fact, Deputy Scott testified that she submitted “paperwork” to DPS and was still waiting to hear back from them at the time of Crabtree’s trial. This, according to Deputy Scott, indicated that “[the paperwork’s] either fine or it’s not been processed.” The State did not proffer any evidence at trial or notify the trial judge that DPS determined that Crabtree’s Washington conviction was substantially similar to a Texas offense that required registration as either a “reportable conviction or adjudication.” The jury found Crabtree guilty of the second-degree felony offense and assessed a punishment of eighteen years’ confinement and a $10,000 fine.
We granted Crabtree’s petition for discretionary review to determine whether the court of appeals erred in finding that (1) a DPS determination is not an element of the offense and, as a result, the evidence was legally sufficient, and (2) the indictment was sufficient. In challenging the evidence’s sufficiency, Crabtree limits his arguments to the State’s alleged failure to prove that he had a “reportable conviction or adjudication” and that he was required to register as a sex offender. So our legal-sufficiency analysis and conclusion address only these arguments. Because we find the evidence insufficient to support Crab-tree’s conviction, we need not address the indictment’s sufficiency.
II. Legal Sufficiency
In addressing a challenge to the sufficiency of the evidence, a court must determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
The court of appeals stated that the hypothetically correct jury charge in this case requires the State’s evidence to show that (1) Crabtree was required to register, (2) he failed to comply with that requirement, (3) his duty to register would expire under article 62.101(a), and (4) he was required to verify his registration once every 90 days.
A. Interpretation of Chapter 62
The Legislature defines the elements of an offense as the forbidden conduct, the required culpability, any required result, and the negation of any exception to the offense.
Texas Code of Criminal Procedure Chapter 62 defines the scope of Texas’s sex offender registration program and delineates the legal duties of those who administer it and those subject to its requirements. A person commits the offense of failure to comply with registration requirements if the person (1) is required to register and (2) fails to comply with any requirement of Chapter 62.
Article 62.001(5) defines “reportable conviction or adjudication” as a conviction or adjudication for specifically identified Texas sex offenses or offenses containing a sexual component.
(a) For purposes of this chapter, the*826 department18 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.19
Article 62.102(b) sets out several distinct offenses ranging from state-jail to second-degree felonies that turn on the nature of a person’s registration requirements: (1) whether a person must register for a ten-year period or for life; and (2) if lifetime registration is required, whether the person must verify his or her information with law enforcement yearly or every 90 days.
In rejecting Crabtree’s argument that a DPS determination is required to sustain his conviction, the court of appeals reasoned that, had 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.”
We disagree with the court of appeals’s interpretation because it undermines the Legislature’s readily apparent statutory scheme. Although the Texas sex offender registration program is generally complex, the plain language of articles 62.001 and 62.003 clearly demonstrates the Legislature’s intent that whether an extra-jurisdictional conviction or adjudication triggers a person’s duty to register is controlled by a DPS determination pursuant to article 62.003. And the language that makes this delegation effective is not ambiguous nor does it compel absurd results the Legislature could not have possibly intended.
Article 62.003’s broad introductory phrase, “For purposes of this chapter,” indicates the Legislature’s intent that article 62.003 applies to the entire Texas sex offender registration program. This naturally includes the definitions found in article 62.001 containing the broad extra-jurisdictional “catch-all” provisions requiring substantial similarity. Through article 62.003, the Legislature delegated the authority to DPS to expand the statutory definition of “reportable conviction or adjudication” by expressly giving it the responsibility to determine whether the elements of extra-jurisdictional convictions or adjudications are substantially similar to Texas offenses the Legislature has specifically listed as requiring registration. In its delegation, the Legislature not only gave DPS the general responsibility to make substantial-similarity determinations, but was specific in defining DPS’s continued responsibility in carrying out its mandate. Article 62.003 requires DPS to publish the criteria used in evaluating elements of extra-jurisdictional offenses and to provide records of extra-jurisdictional offenses previously determined to be substantially similar to Texas offenses.
The dissent finds ambiguity in articles 62.001(5)(H) and 62.003 as to DPS’s role in determining substantial similarity. Assuming such ambiguity exists, article 62.003’s legislative history leads us to the same conclusion based on the statutes’ plain language: the Legislature intended for DPS to decide whether extra-jurisdictional convictions are reportable convictions or adjudications. As the dissent notes, article 62.003’s creation was a direct response to federal litigation.
Purportedly relying on H.B. 2113’s bill analysis, the dissent concludes a DPS substantial-similarity determination was intended only to apply to DPS in its administrative role or in the “civil-regulatory context.” The quoted language in H.B. 2113’s bill analysis refutes this interpretation. Also, limiting DPS’s responsibility to
The State notes that we have previously made substantial-similarity determinations as a matter of law without referencing article 62.008,
Ex parte Warren did, however, involve sex-offender registration, but presented its registration issue in a distinguishable posture. Warren contested the imposition of sex-offender registration requirements as a condition of parole as a violation of his due process rights because he was not given prior notice and an opportunity to respond before the conditions were imposed.
In addition to Ex parte Warren, the dissent claims our opinion in Ex parte Harbin
Citing to Texas Government Code § 311.021, the State maintains this statutory interpretation would violate the presumption that “a result feasible of execution is intended.” The State goes on to assert that, “It is completely unfeasible to expect DPS to be able to maintain a constant vigil upon the criminal law of the entire world for a period of time spanning the conceivable lifetimes of any potential violators of Art. 62.102.”
Relying on statutory construction aids, the dissent takes issue with the consequences of our interpretation which it views as thwarting the objective of Texas’s sex-offender registration program. The dissent first claims that our interpretation creates a “loophole” that encourages non-registration because it removes the burden on offenders to initiate registration and hinders the State’s ability to prosecute those with out-of-state sex offenses despite their knowing or intentional failure to register. However, our decision is limited to defining the statutory elements of the failure-to-comply-with-registration-require-ments offense viewed through the hypothetically correct jury charge. If, through our restrained approach in interpreting the plain language enacted by the Legislature, we have exposed a weakness in the state’s statutory scheme not intended by the Legislature, it has the ability to remedy it. Like our inability to opine on a law’s wisdom, we cannot judicially amend
The dissent also claims that our interpretation puts individuals’ substantive and procedural due process rights at risk “because a defendant could be subjected to criminal liability on the basis of a mere administrative determination.”
Finding that a DPS determination was not an element of the offense, the court of appeals found that the evidence was sufficient to establish substantial similarity between Crabtree’s convictions and an enumerated Texas offense without a DPS determination.
We address the court’s sufficiency conclusion because it is a direct result of its misreading of articles 62.001(5)(H) and 62.003 and inappropriately assigns to the jury the burden of deciding what the law is. The court of appeals would permit the jury to determine whether Crabtree’s previous conviction or adjudication was substantially similar to a Texas offense requiring registration. But whether a particular extra-jurisdictional conviction or adjudication is a “reportable conviction or adjudication” under article 62.001(5)(H) is a matter of law.
B. The Evidence is Insufficient
The record is silent as to whether DPS previously determined that the Washington offense rape of a child in the first degree was substantially similar to a Texas offense statutorily defined as a “reportable conviction or adjudication.” Indeed, in its closing argument and in response to Crab-tree’s closing remarks, the State expressly advocated that a DPS determination was not required to prove its case and that the jury, on its own, could find that Crabtree’s conviction for rape of a child was substantially similar to the offense of aggravated sexual assault in Texas. Instead, the State offered Detective Martin’s and Deputy Scott’s lay person legal conclusions that the Washington offense was substantially similar to the Texas offense of aggravated sexual assault of a child. In light of our interpretation of the relevant Chapter 62 articles, this is not sufficient. From the guilty verdict it returned, we can assume the jury found Crabtree was previously convicted of rape of a child in the first degree. However, the additional step in the jury’s required adjudicatory process— that rape of a child in the first degree is a “reportable conviction or adjudication” — is not supported by the record and its absence leads us to conclude that no rational juror could find that Crabtree had an obligation to register as a sex offender beyond a reasonable doubt.
III. CONCLUSION
Holding that the evidence was legally insufficient to support Crabtree’s conviction for the offense of failure to comply with registration requirements, we reverse the judgments of the courts below and enter a judgment of acquittal.
KELLER, P.J., filed a concurring opinion.
HERVEY, J., filed a concurring opinion.
. Crabtree v. State, No. 12-09-00322-CR, 2011 WL 1204332, at *8 (Tex.App.-Tyler 2011) (not designated for publication).
. Id.
. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
. Byrd v. State, 336 S.W.3d 242, 246 (Tex.Crim.App.2011).
. Id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997)).
. Id.
. See Crabtree, 2011 WL 1204332, at *6.
. Tex. Penal Code § 1.07(a)(22).
. Mahaffey v. State, 364 S.W.3d 908, 913 (Tex.Crim.App.2012) (quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991)).
. Id.
. Tapps v. State, 294 S.W.3d 175, 177 (Tex.Crim.App.2009).
. Mahaffey, 364 S.W.3d at 913; see Tex. Gov’t Code § 311.021(2).
. Id. (citing Boykin, 818 S.W.2d at 785-86).
. Tex.Code Crim. Proc. art. 62.102(a) (West 2008).
. Id. art. 62.051(a).
. See id. art. 62.001(5) (including, for example, the offenses of continuous sexual abuse, possession or promoting child pornography, burglary of a habitation with the intent to commit an assaultive sexual offense, and a second conviction for the offense of indecent exposure.)
. Tex.Code Crim. Proc. art. 62.001(5)(H).
. Id. art. 62.001(1) (" ‘Department’ means the Department of Public Safety.").
. Id. art. 62.003.
. Id. art. 62.102(b); Juarez v. State, 198 S.W.3d 790, 793-94 (Tex.Crim.App.2006).
. Crabtree, 2011 WL 1204332, at *7.
. Id.
. Id. art. 62.003(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,*827 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.”).
. Id. art. 62.003(c) ("An appeal of a determination made under this article shall be brought in a district court in Travis County.”); see generally Tex. Dep’t Pub. Safety v. Garcia, 327 S.W.3d 898 (Tex.App.-Austin 2010, pet. denied).
. See House Research Organization, Bill Analysis, Tex. H.B. 2113, 77th Leg., R.S. at 4 (2001) (hereinafter "Bill Analysis”); see also Public Hearing on S.B. 1648 Before the Sen. Crim. Justice Comm., 77th Leg. (statement of Dean Johnson, Police Legal Advisor for the Beaumont Police Department, Mar. 21, 2001) available at http://www.senate.state.tx.us/ avarchive/?mo=03&yr=2001&lim=0.
. 116 F.Supp.2d 767, 769-70 (E.D.Tex.2000) (magistrate’s opinion on Creekmore’s Motion for Preliminary Injunction); see generally Creekmore v. Attorney General of Texas, 341 F.Supp.2d 648 (E.D.Tex.2004).
. Bill Analysis at 4.
. Id. at 3.
. Post, at 845.
. See Ex parte Warren, 353 S.W.3d 490, 495-98 (Tex.Crim.App.2011); Prudholm v. State, 333 S.W.3d 590 (Tex.Crim.App.2011); Ex parte White, 211 S.W.3d 316, 319 (Tex.Crim.App.2007).
. Prudholm, 333 S.W.3d at 592; Ex parte White, 211 S.W.3d at 318.
. Prudholm, 333 S.W.3d at 592, 599-600; Ex parte White, 211 S.W.3d at 318, 319-20.
. Ex parte Warren, 353 S.W.3d at 491.
. Prudholm, 333 S.W.3d at 592-95 (holding that to find two offenses substantially similar, a review of each offense elements must (1) display a high degree of likeness, but may be less than identical, and (2) be substantially similar with respect to the individual or public interests protected and the impact of the elements on the seriousness of the offenses).
. Id. at 497-98.
. Id. at 492-93 (noting our adoption of the Fifth Circuit’s holding in Meza v. Livingston, 607 F.3d 392 (5th Cir.2010), that, among other things, a parolee is entitled to written no
. Tex. Gov't Code § 508.186 ("A parole panel shall require as a condition of parole or mandatory supervision that a releasee required to register as a sex offender under Chapter 62, Code of Criminal Procedure; (1) register under that chapter....”).
. See Ex parte Campbell, 267 S.W.3d 916, 922 (Tex.Crim.App.2008) (concluding that a parole panel was authorized to impose sex-offender registration requirements based on a single conviction for indecent exposure because a parole panel has broad authority to impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.)
. 297 S.W.3d 283 (Tex.Crim.App.2009).
. Id. at 286-87.
. Id. at 287.
. Id.
. Id.
. State’s Br. on the Merits 13.
. Crabtree, 2011 WL 1204332, at *7 (“But the task would have to be larger than a simple survey of every law in the entire world because neither the laws of this state nor any other are static. And so this duty would seem to entail keeping track of the legislative process in the fifty states, every foreign country, and the U.S. federal system. Finally, because some sex offenders serve lengthy sentences before being released, the Department would be responsible for a survey of previous laws of the fifty states, every foreign country, and the U.S. federal system and military code.”).
.See generally Montgomery v. State, 145 Tex.Crim. 606, 170 S.W.2d 750, 753 (1943) ("The courts are not concerned with the wisdom of legislation, this being a matter resting exclusively with the legislature.”).
. Post, at 844.
. See, e.g., United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987); Estep v. United States, 327 U.S. 114, 121-22, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944).
. See Yakus, 321 U.S. at 433, 64 S.Ct. 660 (holding that the Emergency Price Control Act's judicial review’s restriction of an administrative determination to a single court did not violate due process as long as the process affords a reasonable opportunity to be heard and present evidence); see also Mendoza-Lopez, 481 U.S. at 838-40, 107 S.Ct. 2148 (holding that a collateral challenge to a prior deportation order is only permitted in a criminal prosecution based on the contested order when the deportation proceeding effectively eliminates the right of judicial review).
. See post, at 841 n. 4 (citing court-of-appeals decisions addressing article 62.003 appeals).
. Creekmore, 341 F.Supp.2d at 667; see generally Meza v. Livingston, 607 F.3d 392 (5th Cir.2010); Coleman v. Dretke, 395 F.3d 216 (5th Cir.2004).
. See, e.g., Doe v. Moore, 410 F.3d 1337, 1345 (11th Cir.2005) ("The circuit courts that have considered this substantive due process argument regarding sex offender registries have upheld registration and publication requirements finding no constitutional infirmities.”); Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir.2004) (per curiam) (holding that persons convicted of serious sex offenses do not have a fundamental right to be free from registration requirements).
. See post, at 845 n. 9 (citing Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (holding that a state procedural rule excluding evidence regarding a confession’s voluntariness violated the defendant’s meaningful opportunity to present a complete defense) and California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (holding that this principle was not violated when breath-test evidence was not preserved by the Slate)).
. Id. art. 62.102(a); Tex. Penal Code § 6.01(c) ("A person who omits to perform an act does not commit an offense unless a law as defined by Section 1.07 provides that the omission is an offense or otherwise provides that he has a duty to perform the act.”).
. See id.
. Crabtree, 2011 WL 1204332 at *9.
. Id.
. See Prudholm, 333 S.W.3d at 592, 599-600.
. Tex.Code Crim. Proc. art. 36.13 (stating, "the jury is the exclusive judges of the facts, but is bound to receive the law from the court and be governed thereby.”); see id. art. 36.14 (”[T]he judge shall ... deliver to the jury ... a written charge distinctly setting forth the law applicable to the case.”).
. See Jackson, 443 U.S. at 318, 99 S.Ct. 2781.
Concurrence Opinion
filed a concurring opinion.
“[L]aws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”
The Warren case cited by the dissent involves a legally distinct situation: the imposition of conditions of parole.
Moreover, this statute does not apply just to a person whose offense in another jurisdiction required him to register. It applies to any person whose offense is deemed substantially similar to a Texas offense, even if that person is not required to register in the other jurisdiction. Other jurisdictions include not only other states, but also foreign countries, which may or may not have a registration system in place.
The dissent would fault appellant for failing to ascertain on his own that his prior conviction is for a crime that is similar enough to a Texas crime that he is required to register. If that were in fact what the legislative scheme provided, then it would create a serious due process problem by providing that a defendant must guess at what the law requires and face prosecution and incarceration if he guesses incorrectly. The dissent’s view would also require prosecutors and police officers to guess what out-of-state offenses qualify for registration — risking a wrongful prosecution if they are incorrect.
With these comments, I join the Court’s opinion.
.Federal Communications Commission v. Fox Television Stations, - U.S. -, 132 S.Ct. 2307, 2317, 183 L.Ed.2d 234 (2012).
. Id. (citing Connally v. General Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926)).
. Ex parte Warren, 353 S.W.3d 490 (Tex.Crim.App.2011).
.See United States v. DiFrancesco, 449 U.S. 117, 148, 101 S.Ct. 426, 66 L.Ed.2d 328
. United States v. Whaley, 577 F.3d 254 (5th Cir.2009).
. See dissent at 843.
. Id.
. Id. at 256-57, 259-60.
. Id. at 259.
. Id. at 262.
. See Prudholm v. State, 333 S.W.3d 590 (Tex.Crim.App.2011) (affirming court of appeals’s decision to overturn enhancement finding after determining that California offense of "sexual battery does not contain elements that are substantially similar to the elements of aggravated kidnapping or sexual assault”).
Concurrence Opinion
filed a concurring opinion.
I join the majority opinion, but I write separately to stress one salient point, one driven home to us, or should be, every day. It is not our job to legislate from the bench. We have a branch of government charged with this responsibility, and the
Dissenting Opinion
filed a dissenting opinion, in which JOHNSON and COCHRAN, JJ„ joined.
I respectfully dissent. Unlike the Court’s majority opinion, I conclude the evidence is sufficient and would uphold the court of appeals’s judgment affirming the conviction against appellant, Mark Alan Crabtree, for failure to register as a sex offender. See Crabtree v. State, No. 12-09-00S22-CR, 2011 WL 1204332, at *8-9 (Tex.App.-Tyler Mar. 31, 2011). The majority opinion determines that the failure-to-register offense requires, as one of its elements, evidence that the Texas Department of Public Safety (TDPS) had previously determined that appellant’s Washington conviction for first-degree child rape was substantially similar to a Texas offense for which he would have been required to register, and that the record contains no evidence of this. But the applicable criminal provision in Texas Code of Criminal Procedure Chapter 62 does not include a TDPS determination as one of its requirements. See Tex.Code Crim. Proc. art. 62.102(a); see also id. at art. 62.001(5) (defining “reportable conviction or adjudication” without mentioning TDPS). I conclude that the pertinent provisions in Chapter 62 can be reasonably understood to have different meanings. These ambiguous provisions must be examined through extra-textual analysis, which shows that the goal of the sex-offender-registration program is to protect the public from sex offenders through monitoring and public notice, and that a defendant’s due-process rights may be infringed if a criminal court judge is precluded from making a matter-of-law determination regarding a criminal element of the failure-to-register offense. The legislative goals and due process concerns underlying these provisions are best met by construing the criminal provision as not including a TDPS determination as a statutory element of the criminal failure-to-register offense.
I. The Ambiguous Statutes Require Extra-Textual Analysis
The criminal provision and the TDPS provision each appear to have plain meaning at first blush, but when examined together, as required, they are ambiguous.
A. Applicable Legal Standards
Statutory interpretation is a question of law that we review de novo. Nguyen v. State, 359 S.W.3d 636, 641 (Tex.Crim.App.2012). In interpreting statutes, we seek to effectuate the Legislature’s collective intent and presume that the Legislature intended for the entire statutory scheme to be effective, that a just and reasonable result was intended, and that a result feasible of execution is intended. See Tex. Gov’t Code § 311.021; Mahaffey v. State, 364 S.W.3d 908, 913 (Tex.Crim.App.2012) (in construing plain language in statute, court may look to other provisions within entire “statutory scheme” rather than merely single, discrete provision at issue) (quoting Murray v. State, 302 S.W.3d 874, 879, 881 (Tex.Crim.App.2009)).
To achieve this goal, we necessarily focus our attention on the literal text of the statute and attempt to discern the fair, objective meaning of that text at the time of its enactment. Nguyen, 359 S.W.3d at 642. When a statutory term is not defined, we attempt to give effect to its plain meaning or common understanding. Ramos v. State, 303 S.W.3d 302, 307 (Tex.Crim.App.2009). If the plain language is unambiguous, our analysis ends because the Legislature must be understood to
B. Language in Provisions is Ambiguous When Examined Jointly
1. The Criminal Provision
Code of Criminal Procedure article 62.102(a), which I refer to as the “criminal provision,” provides that “[a] person commits an offense if the person is required to register and fails to comply with any requirement of this chapter.” Tex.Code Crim. Proc. art. 62.102(a). The criminal provision thus applies only to people who are “required to register.” Id. A person who is “required to register” is one who, among other circumstances, has a “reportable conviction or adjudication.” Id. at art. 62.051(a) (providing that person who has reportable conviction “shall register ... with the local law enforcement authority”). The term “reportable conviction or adjudication” is defined in Chapter 62 as follows:
[It] means a conviction or adjudication, including an adjudication of delinquent conduct or a deferred adjudication, that, regardless of the pendency of an appeal, is a conviction for or an adjudication for or based on:
(A)[penal code violations of continuous sexual abuse of young children, indecency with a child, sexual assault, aggravated sexual assault, or prohibited sexual conduct];
(B) [compelling prostitution, sexual performance by a child, or possession or promotion of child pornography];
(C) [aggravated kidnapping if the intent was to violate or abuse the victim sexually];
(D) [burglary if, in general, the intent was to violate or abuse the victim sexually];
(E) [unlawful restraint, kidnapping or aggravated kidnapping if, in general, the victim was under 17 years of age];
[[Image here]]
(G) [an attempt to commit the above described offenses or trafficking of persons except for indecent exposure];
(H) a violation of the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice for or based on the violation of an offense containing elements that are substantially similar to the elements of an offense listed under Paragraph (A), (B), (C), (D), (E), (G), (J), or (K), but not if the violation results in a deferred adjudication;
(I) [a second violation for indecent exposure; provides “substantially similar” language as in (H) ];
(J) [online solicitation of a minor]; or
(K) [trafficking of persons].
Id. at art. 62.001(5).
The Chapter 62 definition of a “reportable conviction” thus extends to an out-of-state conviction only if the underlying offense contains “elements that are substantially similar” to the elements of an offense that would be reportable if committed in Texas. See id. at art. 62.001(5)(H). Nothing in the Chapter 62 definitions section identifies TDPS as the sole entity that must make a finding of substantial similarity as described in Subsection (5)(H),
This Court has previously approached the substantial-similarity determination as a question of law for a court to decide when that issue arises in a criminal proceeding. See Ex parte Warren, 353 S.W.3d 490, 495-98 (Tex.Crim.App.2011). In Warren, this Court was asked to determine whether an out-of-state sex offense was “reportable” for the purposes of Chapter 62, and that same question is at the heart of appellant’s sufficiency challenge. Id. at 493. This Court determined, pursuant to the Chapter 62 definition of what constitutes a “reportable offense,” that certain Illinois sex offenses were “substantially similar” to reportable Texas sex offenses, and, therefore, that Warren was properly subjected to sex-offender parole conditions. Id. at 498 (stating that “[bjased on the foregoing, we conclude that the Illinois offense of Contributing to the Sexual Delinquency of a Child is ‘substantially similar’ to the Texas offense of Indecency with a Child and constitutes an offense that qualifies a parolee for sex-offender conditions”). This Court determined substantial similarity under Code of Criminal Procedure ai’ticle 62.001(5)(H), the Chapter 62 provision defining “reportable conviction,” without referencing or mentioning the TDPS provision. See id. While I acknowledge that Warren arose in the context of a habeas corpus application challenging an alleged deprivation of due process regarding conditions of parole, the procedural dissimilarity of Warren cannot reasonably be used as the basis for ignoring this Court’s decision permitting a criminal court to make the matter-of-law determination irrespective of a TDPS determination. See id.
Appellant mistakenly suggests that this Court’s decision in Ex parte Harbin establishes that a TDPS determination is an element of the criminal provision. 297 S.W.3d 283 (Tex.Crim.App.2009). But in Harbin, it was this Court, not TDPS, that ultimately determined that some of Harbin’s out-of-state convictions did not require him to register in Texas. Id. at 287-88. The issue in Harbin was not whether TDPS had made a determination, but whether one of Harbin’s out-of-state offenses was, as determined by this Court, “substantially similar to a Texas offense that would have required [Harbin] to register as a sex offender in Texas.” Id. at 285. This Court ruled that some of Harbin’s out-of-state offenses were not “substantially similar” to reportable Texas sex offenses. Id. at 287-88. Although it considered the absence of a TDPS determination to be persuasive evidence, this Court did not hold that a TDPS determination was a required element for a criminal conviction. Id. The Court’s approach suggests that TDPS determinations were not considered by this Court to be conclusive evidence of a duty to register.
2. The TDPS Provision
The majority opinion reaches its decision by transplanting a requirement of article 62.003 of the Texas Code of Criminal Procedure, which I refer to as the “TDPS provision,” into the criminal provision and applicable definitions sections, which do not include that requirement. See Tex. Code Crim. Proc. art. 62.003(a). The TDPS provision states, “For the purposes of this chapter, the department is responsible for determining whether an offense under the laws of another state ... contains elements that are substantially similar to the elements of an offense under the laws of this state.” Id. The majority opinion interprets the TDPS provision as limiting the meaning of “substantially similar” to include only those extra-jurisdictional offenses that TDPS has already determined to be reportable. Compare id. at art. 62.001(5)(H), with id. at art. 62.003(a). Under this interpretation, the TDPS provision creates the exclusive means by which an extra-jurisdictional sex offender will have a reportable conviction and thus be required to register. See id. at arts. 62.003 and 62.051(a) (describing general registration requirements).
I agree with the majority opinion that the TDPS provision could be reasonably read to apply to the criminal provision because the former provision says it applies “for the purposes of’ Chapter 62, which is the chapter under which both statutes appear. See id. But the TDPS provision also could be reasonably read as being inapplicable to the criminal provision because the criminal provision does not include an element that requires a TDPS determination. See id. at art. 62.102(a). Furthermore, the introduction, “for the purposes of this chapter,” pertains to the phrase, “the department is responsible for determining.” See id. at art. 62.003. By using the word “responsible,” the Legislature makes TDPS liable for making a legal determination upon an inquiry from a person or agency. See Merriam-WebsteR’s Collegiate Dictionary 998 (10th ed.1993) (defining “responsible” as “liable to be called on to answer”). This reasonable understanding of the plain words in the TDPS provision would make the department responsible for determining substantial similarity as part of its regulatory function over the sex-offender-registration program, with the burden of making these administrative determinations. Under this interpretation, the TDPS determination would not be an element of the criminal provision because a sex offender from another state could have a “reportable offense” and be required to register, even in the absence of a TDPS ruling. See Tex. Code Crim. Proc. art. 62.001(5)(H).
II. Extra-textual Analysis Reveals TDPS Evidence Not An Element of Offense
Because there are two reasonable meanings that can be derived from the criminal provision, we may consider limited extra-textual factors to discern the meaning that best honors the will of the Legislature. See Cornet v. State, 359 S.W.3d 217, 221 (Tex.Crim.App.2012). Relevant factors we may consider include (A) the legislative history and circumstances under which the statute was enacted; (B) consequences of a particular construction; and (C) the object sought to be attained. See Tex. Gov’t Code § 311.023; Clinton v. State, 354 S.W.3d 795, 800 n. 1 (Tex.Crim.App.2011).
A. Legislative History and Circumstances of Enactment
1. Inception of Registration Program and Criminal Provision
Chapter 62, entitled “Sex Offender Registration Program,” aims to establish a comprehensive regulatory scheme governing sex-offender registration. The program, including a provision that imposes criminal penalties for non-registration, was initially enacted over 20 years ago, in 1991. See Act of June 15, 1991, 72nd Leg., R.S., ch. 572 § 1 (Tex. S.B. 259), effective Sept. 1, 1991. As originally enacted, the criminal
2. Inception of TDPS Provision
It was not until 2001, seven years after Chapter 62 was amended to require registration by out-of-state sex offenders, that the Legislature enacted the separate TDPS provision. See Act of May 3, 2001, 77th Leg., R.S., Ch. 211 § 2 (Tex. S.B. 1380), effective Sept. 1, 2001. The Legislature enacted the TDPS provision in direct response to Creekmore v. Attorney General of Texas, a federal civil lawsuit. See House Research Organization, Bill Analysis, Tex. H.B. 2113, 77th Leg., R.S. (2001) (noting that provision was enacted to address concerns raised in lawsuit against Beaumont Police Department); Creekmore v. Attorney General of Texas, 341 F.Supp.2d 648, 655 (2004) (noting that TDPS provision was enacted “during pen-dency of this suit — and perhaps in response to it”).
Creekmore, a sex offender convicted under military law, was advised by federal officials that, upon being released from federal prison, he would be required to register as a sex offender in any state where he chose to reside. Id. at 653-54. Federal officials also advised Beaumont law enforcement, where the prison was located, of Creekmore’s impending release. Id. Creekmore was released from prison and chose to reside in Beaumont. Id. Creekmore was then advised by a Jefferson County sheriffs office employee that the employee had determined that Creek-more must register as a sex offender in Texas. Id. at 653. Under protest, Creek-more registered as a sex offender, but filed a lawsuit claiming that Texas’ sex-offender-registration program violated his constitutional rights. Id. Creekmore challenged Texas’ sex-offender-registration program on the basis that it “did not designate an entity for making [substantial-similarity] determinations, nor did it provide process whereby potential registrants could be heard in the matter.” Id. Importantly, nothing in the Creekmore litigation concerned criminal penalties for failure to register or the constitutionality of the criminal provision.
The district court acknowledged that the pre-TDPS provision statutory scheme, which called on law-enforcement officers to make individual registration determinations, had “provided no process whatsoever” before requiring Creekmore to register. Id. at 666. The court determined that the pre-TDPS registration procedure was constitutionally inadequate because it called upon an “untrained layman” (each individual law-enforcement officer) to make a difficult legal determination (deciding whether two statutes are substantially
In responding to the Creekmore litigation, the Legislature made a single administrative body, TDPS, responsible for carrying out registration procedures at that preliminary stage. The provision asks TDPS to determine as an initial matter, element by element, whether a particular sex offense from another jurisdiction would subject an individual to registration under Texas law. See Tex.Code Crim. Prog art. 62.003(a).
The TDPS provision appears alongside several other administrative tasks assigned to the department and appears to constitute a delegation of administrative responsibility.
The Legislature also enacted a right of appeal. An individual who desires to challenge a TDPS determination that an offense is substantially similar (and thus reportable) may appeal that determination in a lawsuit that “shall be brought in a district court in Travis county.”
Under my reading of the statutory scheme, sex offenders are still entitled to full procedural protections at the initial registration stage; if someone is dissatisfied with a TDPS registration determination, a civil appeal may be brought to resolve that dispute. See id. at art. 62.003(c). Nothing in the dissenting opinion diminishes TDPS’s role as administrator of the sex-offender program, nor does it affect the right of appeal to civil court. Both remain in full effect.
I conclude that the most reasonable understanding of the legislative history is that the TDPS provision was intended to satisfy procedural due-process concerns by authorizing a single law-enforcement entity to make the administrative determination regarding substantial similarity for out-of-state offenses, and by establishing a right to appeal that determination in a civil district court. See Tex.Code Crim. Proc. art. 62.003(a)-(c). But the Legislature never intended for that administrative de
B. Consequences from Interpreting that TDPS Exclusively Determines Matter of Law in Criminal Proceeding
To interpret the TDPS provision as an element of the criminal provision would lead to two negative consequences, which are inconsistent with the legislative intent.
1. State’s Ability to Prosecute Sex Offenders Negatively Impacted
a. Offenders Who Knew About Registration Requirements Will Escape Prosecution
The State would be seriously hindered in its ability to prosecute some extra-jurisdictional sex offenders, notwithstanding their knowing or intentional failure to register.
The case at bar perfectly illustrates the conundrum: Appellant was convicted of child rape in Washington, a state with a sex-offender-registration program that would have required him to register.
This loophole could not have been intended by the Legislature. The regulations contemplate that individuals will comply with the program’s requirements on their own accord or face criminal penalties for failure to comply. See Tex.Code Crim. Proc. art. 62.102(a). The Legislature decided to place the primary responsibility for compliance on offenders and not on TDPS or any other law-enforcement agency. See Martin v. State, 252 S.W.3d 809, 819 (Tex.App.-Texarkana 2008, pet. dismissed as improvidently granted) (noting that sex-offender-registration program
The burden to initiate registration extends even to sex offenders convicted in other jurisdictions. That is because federal law in place since 1994 has effectively required sex offenders who move to another state to inform law enforcement in the convicting state and register in the new state within 10 days. See Jacob Wetter-ling Crimes Against Children and Sexually Violent Offender Registration Program, Pub.L. No. 103-322, title XVII, Sec. 170101, 108 Stat.2038 (1994) (formerly codified at 42 U.S.C. §§ 14071-73, repealed and superseded by 42 U.S.C. § 16911 et seq. (2006)). The Wetterling Act also provided that “[a] person required to register under a State program established pursuant to this section who knowingly fails to so register and keep such registration current shall be subject to criminal penalties in any State in which the person has so failed.” See former 42 U.S.C. § 14071(c) (1994). By 2001, when the TDPS provision was enacted, federal law also required every state to establish procedures for registering sex offenders from other jurisdictions. See 42 U.S.C. § 14071(b)(7) (2001) (each state “shall include in its registration program residents who were convicted in another State and shall ensure that procedures are in place to accept registration information” from such individuals).
Because of the close interaction between state and federal sex-offender laws, sex offenders are on notice of their duty to register in any jurisdiction where they reside. See, e.g., United States v. Whaley, 577 F.3d 254, 262 (5th Cir.2009) (actual notice of duty to register in one jurisdiction is sufficient, for due process purposes, to put sex offender on notice of duty to register with government generally). Appellant was convicted of first-degree child rape, first-degree statutory rape, and first-degree child molestation, and evidence presented at trial demonstrated that he knew he was required to register as a sex offender. The majority opinion’s injection of an element not found within the criminal provision has the serious consequence of creating a loophole that allows this convicted child rapist to avoid his duty to register. This cannot be what the Legislature intended.
b. Offenders Will Escape Prosecution Because TDPS List Will Never Be Complete
As noted by the court of appeals, if the State’s ability to prosecute non-registration by extra-jurisdictional sex offenders is
But the primary concern here is not the weight of the administrative burden on TDPS. The real concern is that TDPS would likely never satisfy this burden. This would result in many convicted sex offenders escaping prosecution for failure to register. This could not have been the intent of the Legislature in its efforts to protect the public from all convicted sex offenders, regardless of whether they are homegrown or convicted elsewhere. In contrast, reading the criminal provision exactly as it is written, without inserting the TDPS provision that does not expressly apply to it, best serves the Legislative intent to protect the public from all convicted sex offenders.
2. A Defendant’s Right to Present Defense Is Negatively Impacted
Incorporation of the TDPS provision as an element of the criminal provision poses a threat to individuals’ substantive and procedural due-process rights because a defendant could be subjected to criminal liability on the basis of a mere administrative determination. The majority opinion permits a criminal conviction upon the State’s proof that an offense appears on a TDPS list without allowing a defendant the opportunity to challenge, in a criminal court with the benefit of appointed counsel for indigent defendants, the accuracy of that determination. The Legislature did not intend for TDPS’s judgment to supplant the judgment of a court. This is apparent from the fact that the Legislature provided registrants with the opportunity to appeal TDPS administrative determinations to a Travis county district court. See Tex.Code Crim. Proc. art. 62.003(c). Thus, to hold that a TDPS determination conclusively proves or disproves an individual’s duty to register is problematic in the criminal setting because criminal liability then, in effect, hinges on an administrative ruling that was never intended to be conclusive. This is a particular concern among criminal defendants recently released from prison, who are unlikely to have the funds to hire an attorney to challenge this administrative determination by TDPS in a Travis county district court. A defendant convicted under such a statutory scheme would likely have a valid due-process claim that he had been
The more reasonable understanding of the language of these provisions is that the TDPS provision describes the civil-regulatory function of TDPS in creating as complete a list as possible of foreign offenses that are substantially similar to Texas offenses, in order to assist law-enforcement agencies in registering sex offenders. If anyone desires to contest this determination, he may do so in a Travis county district court, and any determination by that court will only affect this TDPS list. Unlike the civil-administrative proceedings, a criminal prosecution should require that substantial similarity be determined by the court presiding over a defendant’s trial.
I would expressly hold that the administrative determination under the TDPS provision is an entirely different matter from the role of courts to decide criminal cases. See Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 415 (1961) (“[wjhere the issue is one inherently judicial in nature ..., the courts are not ousted from jurisdiction unless the Legislature, by a valid statute, has explicitly granted exclusive jurisdiction to the administrative body”).
There are two due-process concerns at issue in this decision.
C. Object Sought to Be Attained is to Advance Public Safety
The stated legislative purpose behind Chapter 62 is to advance public-safety objectives. The program promotes public safety “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.” In re M.A.H., 20 S.W.3d 860, 863 (Tex.App.-Fort Worth 2000, no pet.). In particular, the Legislature was concerned about high recidivism rates for sex offenders, the unique threat sex offenders pose to public safety, a low incidence of rehabilitation, and sexual misconduct that frequently begins as a juvenile. See Senate Research Org., Bill Analysis, Tex. S.B. 259, 73rd Leg., R.S. (1991). Under the program, law-enforcement officers “monitor sex offenders living within their jurisdiction in order better to thwart repeat offenses.” House Research Org., Bill Analysis, S.B. 259, 72nd Leg., R.S. (1991). This monitoring begins when a convicted sex offender seeks to register himself with the local law-enforcement agency. The program is effectively enforced by criminal penalties imposed on convicted sex offenders who fail to register as required. See Tex.Code Crim. Proc. art. 62.102(a).
The reading suggested by the majority opinion is contrary to the object sought to be attained by the sex-offender-registration program in that it inhibits sex-offender registrations by permitting sex offenders to move to Texas and not register unless and until TDPS makes a substantial-similarity determination. But in cases such as this one, in which an out-of-state sex offender moves to Texas and fails to inquire about his duty to register, Texas law enforcement will be unable to determine if such an individual has a reportable conviction because TDPS is unaware of his presence in the jurisdiction. The criminal provision is most reasonably read as placing the initial burden of inquiring about the duty to register on an out-of-state sex offender, and not on Texas law enforcement, which in many cases is unaware that such an individual has entered the State.
III. Conclusion
The plain language of the criminal provision does not include any reference to TDPS. The TDPS provision’s reference to TDPS’s authority to determine substantial similarity must be examined under its intended context: TDPS’s authority is exclusive as to the administration of the sex offender registration program. During the sex-offender registration process, only TDPS, and not the thousands of individual police officers from various law enforcement agencies, decides whether an out-of-state offense is substantially similar to an eligible Texas offense. But the sex-offender registration process is a distinct matter from the criminal prosecution for failure to register as a sex offender. It is absurd to conclude that the Legislature intended for sex offenders to escape criminal prosecution merely because TDPS had not yet placed their criminal offenses on a list, particularly when it is undisputed, as here, that the defendant knew about the requirement to register as a convicted sex offender, and that his conviction is one that is substantially similar to a reportable Texas offense. It is equally absurd to conclude that the Legislature intended for a defendant to lose his constitutional right to defend against a criminal accusation and for a civil administrative ruling to become binding in criminal court, particularly when there is no express language that makes the TDPS list applicable to the
Rehearing denied.
. The Texas courts of appeals that have considered this issue have treated substantial similarity as a matter of law to be determined by the trial court. See, e.g., Brown v. State, No. 05-10-00162-CR, 2012 WL 1021444 (Tex.App.-Dallas Mar. 28, 2012, pet. filed) (holding that substantial similarity is question of law for court and that TDPS determination unnecessary for criminal conviction); Reid v. State, No. 01-10-00456-CR, 2011 WL 6306630 (Tex.App.-Houston [1st Dist.] Dec. 15, 2011, no pet.) (overruling defendant’s sufficiency challenge in failure-to-register case without considering or mentioning TDPS determination). Other jurisdictions also consider this type of inquiry to be a matter of law.
. I completely agree with Judge Hervey's point in her concurring opinion that ”[i]t is not our job to legislate from the bench” and that "the Legislature has spoken.” This point supports the dissenting opinion. In the statute that specifically criminalizes any failure to comply with the requirements of Chapter 62, the Legislature plainly and expressly describes the elements necessary to establish a criminal offense, and none of these elements requires proof of any determination by TDPS. See Cation v. State, 176 S.W.3d 231, 233 (Tex. Crim.App.2005) ("In discerning whether any given fact constitutes an element of an offense, we look to the plain language of the statute involved”). If the Legislature had intended for the TDPS provision to be an element of the criminal offense, it would have specifically included it in the criminal provision or in the applicable Chapter 62 definitions section. See, e.g., Cornet v. State, 359 S.W.3d 217, 222 (Tex.Crim.App.2012) (noting that, "when the Legislature desires to convey a certain level of specificity within a statutory provision, it knows how to do it”). Absent a more explicit statement from the Legislature, this Court should not interpret the TDPS provision as an element of the criminal provision.
Rather than apply the plain words that expressly describe the criminal offense, the majority opinion alters that plain meaning by transplanting a different Chapter 62 provision into the criminal offense. That wholly separate provision, the TDPS provision, was enacted for the purpose of defining TDPS's administrative role. The Legislature's use of the introductory phrase "for the purposes of this chapter” makes the TDPS provision applicable to the nearly fifty articles in Chapter 62 that address administrative matters, such as where and when to register, what information must be collected, public notification requirements, and provisions for juvenile offenders.
The Legislature has expressly instructed courts to consider extra-textual factors when statutory language is ambiguous. See Tex. Gov’t Code § 311.023. Having abided by the Government Code’s description of how the Legislature intends for courts to examine statutes, I conclude that a review of the language of the criminal provision and the relevant extra-textual factors makes it abundantly clear that the Legislature never intended for the TDPS provision to alter the elements of the failure-to-register offense. Construing ambiguous language in light of the appropriate extra-textual factors in order to avoid an absurd result does not constitute legislating from the bench.
. TDPS is the general administrator of the sex-offender program and is responsible for many administrative functions under Chapter 62. For example, TDPS is responsible for determining an individual’s primary registration authority; for maintaining a computerized sex-offender database; and for providing sex offender information to other law-enforcement agencies. See Tex.Code Crim. Proc. arts. 62.004-06.
. This civil-appeals mechanism is frequently used by potential registrants. See, e.g., Texas Dept. of Public Safety v. Garcia, 327 S.W.3d 898 (Tex.App.-Austin 2010, pet. denied) (affirming trial court reversal of TDPS substantial-similarity determination in the context of a civil-administrative appeal); Texas Dept, of Public Safety v. Anonymous Adult Texas Resident, No. 03-11-00602-CV, 2012 WL 3793249 (Tex.App.-Austin Aug. 30, 2012, no pet.) (affirming trial court’s reversal of TDPS substantial-similarity determination upon civil challenge by prospective registrant).
. The criminal provision is not a strict-liability offense. Because no state of mind is specified, proof that the defendant acted intentionally, knowingly, or recklessly is sufficient. See Tex. Penal Code §§ 6.02, 6.03. In Chapter 62 failure-to-register cases, the mens rea requirement applies to the actual knowledge of a duty to register. See Varnes v. State, 63 S.W.3d 824, 830 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Here, appellant was found guilty of a knowing or intentional failure to register.
. See Wash. Rev.Code § 9A.44.130 (2011) (requiring registration in that state for anyone convicted of a sex offense, and requiring sex offenders to register in another state upon relocating), enacted by Act of Feb. 28, 1990, Wash. 51st Leg., Ch. 3.
. Today, the federal government directly regulates sex offenders by requiring them to register in any jurisdiction where they reside and imposes a federal criminal penalty upon certain sex offenders who fail to register. See 42 U.S.C. § 16913(a); 18 U.S.C. § 2250(a).
. Office of The Geographer and Global Issues, Bureau of Intelligence and Research, U.S. Department of State, Washington, D.C. (Jan. 3, 2012).
. Criminal defendants must be afforded a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) ("Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.”); California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (fundamental fairness requires that a criminal defendant be afforded a "meaningful opportunity to present a complete defense”).
. "[W]here a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding.” United States v. Mendoza-Lopez, 481 U.S. 828, 838, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (holding that, when validity of prior deportation is element of a criminal offense in subsequent prosecution, defendant may collaterally challenge validity of prior deportation in pending criminal proceeding). The Supreme Court noted further that, "[e]ven with this safeguard, the use of the result of an administrative proceeding to establish an element of a criminal offense is troubling.” Id. at 838 n. 15, 107 S.Ct. 2148.
.I do not see any other due-process concerns. If, for example, someone did not register because he was never admonished that his particular conviction required him to register as a sex offender or because a law-enforcement agency refused his registration for any reason, then the State would be unable to prove criminal intent. Either the State or the defendant could challenge any determination by TDPS during the criminal proceedings. Conclusive evidence that the defendant did not knowingly or intentionally fail to register would render the evidence insufficient.
Dissenting Opinion
filed an opinion dissenting to the denial of the State’s Motion for Rehearing in which JOHNSON and ALCALA, JJ., joined.
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.
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.
*848 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.
At trial, Detective Noel Martin with Smith County Sheriffs Office testified that appellant was the person whose fingerprints matched the fingerprints on the Washington state judgment of Mark Crab-tree. 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 of these 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 of the 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 defendant Mark 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 12 years old and was not married to Mark Alan Crab-tree.”
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
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 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.
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, “I’ve been expecting it.”
The jury instructions in this case contained the following application paragraph:
Now if you 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*850 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 of a 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 conviction because the State failed to show that, under Article 62.003(a),
If the legislature wished to define out of state convictions as the same or substantially similar to certain offenses only if*851 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 committed rape of a child and child molestation and those records set out the elements of the Washington offense, the court of appeals 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.
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.
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.”
The 1996 Lychner Act added a new section to the federal law that required the 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.
Under the most recent federal Sex Offender Registration and Notification Act (SORNA),
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.”
Texas enacted its first sex-offender registration and notification statutes in 1991
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.
The various states have taken different approaches in complying with SORNA and its out-of-state sex-offender registration requirements. The “internal approach” requires that out-of-state convictions satisfy the eligibility requirements of the forum state’s registration law.
Under Article 62.001(5)(H), a “reportable conviction” may be “a violation of the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice for or based on the violation of an offense containing elements that are substantially similar to the elements of’ an enumerated Texas sex offense.
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 of Chapter 62 under the “external approach” of Article 62.052.
By enacting a comprehensive internal and external approach toward out-of-state sex-offender registration requirements, the Texas Legislature has pursued its “public purpose of the registration of sex offenders” to ensure that this state does not
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 explicit reaction
The Creekmore litigation centered around Meredith Creekmore, who was convicted of sex offenses under the Uniform Code of Military Justice (UCMJ) for sexually abusing his daughter when she was two to four years of age.
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:
(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
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,”
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.
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 (b) 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.
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.
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 of that duty is determined by the law of the convicting jurisdiction.
*858 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” here[.] Id. at 903 n. 1. Thus, if a person can show that his conviction did not require sex-offender registration in the 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.
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.
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.
Appellant cannot claim that he did not receive due-process notification of his lifetime obligation to register as a sex offender regardless of where in the United States he resides. 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 of the law, and disparate results for similarly situated defendants.”
In this case, the trial judge properly took judicial notice of the Washington statute for rape of a child, the Texas statute of aggravated sexual assault of a child, the Washington Supreme Court decision concerning appellant’s conviction, appellant’s Washington judgment 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 of the Washington rape-of-a-child offense are “substantially similar” to the elements of the Texas offense of aggravated sexual assault of a child. I therefore respectfully dissent to the Court’s failure to grant the State’s Motion for Rehearing.
. 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 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.
. See 18 U.S.C. § 2250(a) (setting out penalty for violating federal Sex Offender Registration and Notification Act of 42 U.S.C. § 16913).
. Tex.Code Crim. Proc. art. 62.052.
. The 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).
. Tex.Code Crim. Proc. art. 62.003.
. In re Crabtree, 141 Wash.2d 577, 9 P.3d 814 (2000).
. Id. at 816.
. Id. at 819; State's Exhibit 2.
. Rev.Code Wash. § 9A.44.073; see State v. Bishop, 63 Wash.App. 15, 816 P.2d 738, 742 (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.").
. 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."
. Mr. Overholser said that rape of a child is a Class A felony in Washington and requires lifetime registration.
. Appellant’s sister told Officer Scott that appellant moved to Smith County in 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.
. The trial judge had already taken judicial 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.
. 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.
.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).
. Id.
. Id. at *9.
. See Creekmore v. Att’y General of Texas, 116 F.Supp.2d 767, 770-71 (E.D.Tex.2000).
. 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).
. Creekmore, 116 F.Supp.2d at 771.
. See Wetterling Act at § 170101(a)(1)(A)-(B) & § 170101(b)(1); see Creekmore, 116 F.Supp.2d at 771.
. See Wetterling Act at § 170101(b)(3)(A)-(B) & § 170101(C); see Creekmore, 116 F.Supp.2d at 771.
. Creekmore v. Att'y General of Texas, 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 offender registration and notification. See Creekmore, 116 F.Supp.2d at 772.
. See 116 F.Supp.2d at 770-73.
. See id. at 772.
. Id.
. Wayne Logan, Horizontal Federalism in an Age of Interconnectedness, 154 U.Pa.L.Rev. 257, 261 (2005) (quoting Ron Fournier, Clinton Signs Law on Sex Offenders, Chi. Sun-Times, May 18, 1996, at 12).
. 120 Stat. 590, 42 U.S.C. § 16901, et seq. (2006 ed.).
. Id. §§ 16912(a), 16913-16914, 16919(a) (2006 ed.); see generally Reynolds v. United States,-U.S.-,-, 132 S.Ct. 975, 978, 181 L.Ed.2d 935 (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 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.
. 18 U.S.C. § 2250(a); see Reynolds, 132 S.Ct. at 978.
. See Wayne Logan, Horizontal Federalism, supra note 27, at 260; see also Reynolds, 132 S.Ct. at 982-83 (quoting supporters of SOR-NA to the effect that "[tjhere 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 penal
. 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.
. Creekmore, 341 F.Supp.2d at 654.
. Tex. Civ. Stat. art. 6252-13c.l, § 1, 2.
. 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.
. Id. § 7.
. See Acts 1995, 74th Leg., R.S., ch. 258, § 1, 2 (amending Art. 6252-13c.l, § 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).
. See Ex parte Warren, 353 S.W.3d 490, 496 (Tex.Crim.App.2011); Prudholm v. State, 333 S.W.3d 590, 596-600 (Tex.Crim.App.2011); Ex parte White, 211 S.W.3d 316, 318 (Tex.Crim.App.2007); Hardy v. State, 187 S.W.3d 232, 236 (Tex.App.-Texarkana 2006, pet. ref’d).
. 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 Rodriquez v. State, 227 S.W.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 assault was a question of law involving the interpretation of statutes and is not submitted to a jury for resolution).
. See Wayne Logan, Horizontal Federalism, supra note 27, at 261.
.Id.
. Id.
. Tex.Code Ckim. Proc. Art. 62.001(5)(H).
. Wayne Logan, Horizontal Federalism, supra note 27, at 261.
. 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 extrajurisdic-tional 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.
. Id. art. 62.052(c).
. Wayne Logan, Horizontal Federalism, supra note 27, at 287.
. Tex.Code Crim. Proc. art. 62.052(c).
. 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.
. 341 F.Supp.2d at 651-52.
. Id.
. Id.
. The federal district judge noted, in granting Creekmore prospective relief by preventing the Beaumont authorities from "continu
. That problem has, however, been solved under SORNA for anyone who, like Creek-more or appellant, was informed that he was required to register as a sex offender before 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.
. 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).
.See id. subsection (d).
. See id. subsection (a).
. 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 Creek-more to register under any other alternative provision of TSORP, including Article 62.021, which may apply in their considered judgment.
Id. (footnote omitted).
. 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. of Public Safety v. Anonymous Adult Tex. Resident, 382 S.W.3d 531, 534 n. 2 (Tex.App.Austin 2012, n.p.h.).
. 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).
. 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).
. 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 minor did not contain elements substantially similar to the Texas Penal Code offense of sexual assault; plaintiff's 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
. Garcia, 327 S.W.3d at 901; Anonymous Adult, 382 S.W.3d at 532.
. Id. The plaintiff in Anonymous Adult first registered under Chapter 62 and then filed suit.
. Garcia, 327 S.W.3d at 901; Anonymous Adult, 382 S.W.3d at 532.
. Garcia, 327 S.W.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,
. Tex.Code Crim Proc. art. 62.052(b).
. Id. art. 62.052(c).
. 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 upon release 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).
. The State argues that 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 take judicial 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 consider that letter as proof of the fact it asserts.
. On original submission, the majority stated that the Texas Legislature should amend Arti-
ed) 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.