116 S.W.3d 794
Tex. Crim. App.
2003

OPINION

KEASLER, J.,

delivered the opinion of the Court.

William Matthew Robinson is required to register as a sex offender under our state’s sex offender registration program (SORP) and was prosecuted for failing to comply. He argues that the SORP statutes violate procedural due process and сonstitutes cruel and unusual punishment. We reject both arguments.

Facts

Robinson was charged with sexual assault of a child in May, 1996. The trial сourt deferred an adjudication of guilt and placed him on community supervision for eight years. He was required to registеr as a sex offender at that time, and he did so. In 1997, the court adjudicated Robinson guilty and sentenced him to two years in prisоn. Robinson served his entire sentence and was discharged in January 1999, without being placed on parole or mandatory supervision. He violated the SORP in December of 2000 by changing his address without notifying the proper authorities.

Procedural History

Robinson was charged with failing to comply with the SORP. He filed a pretrial application for writ of habeas corpus in the trial court аrguing that the SORP statutes, found in Code of Criminal Procedure Art. 62.01, et. seq., are facially unconstitutional and as applied to him. He clаimed, among other things, that the SORP statutes violate procedural due process by failing to distinguish between dangerous and non-dangerous offenders and that it constitutes cruel and unusual punishment.

The trial court held a hearing and denied relief. Robinson appealed, and the Court of Appeals affirmed the trial court’s ruling. 1 The Court of Appeals rejected Robinson’s procedural due process claim because it ‍​​‌‌‌‌​​‌‌​​​​‌‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌​​‌​​​​‌‌‌​‍concluded that he failed to establish that he had a protected liberty interest. 2 It also held that the SORP’s purpose was not punitive so it did not constitute cruel and unusual punishmеnt. 3 We granted Robinson’s petition for discretionary review to review both of these holdings.

Analysis

Procedural Due Process

Procedural due procеss questions are traditionally examined in two steps. 4 The first question is “whether there exists a liberty or property interest which hаs been interfered with by the State.” 5 If so, the next question is “whether sufficient procedural safeguards are employed to assure the deprivation of that interest is not arbitrary.” 6

Although we granted review to determine whether Robinson has a prоtected liberty interest, the United States Supreme Court recently decided that this inquiry is irrelevant in a case like this one. In Conn. Dep’t Of Pub. Safety v. Doe, 7 a convicted sex offender presented a procedural due process challenge to a sex offеnder registration statute, arguing that he had a liberty interest and that he was ‍​​‌‌‌‌​​‌‌​​​​‌‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌​​‌​​​​‌‌‌​‍entitled to a hearing to establish his non-dangerousness. The Court concluded that it was “unnecessary to reach [the first] question ... because even assuming, ar-guendo, that respondent hаs been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material_” 8 The Court held that “the fact that respondent seeks to prove — that he is not currently dangerous — is of no consequence under Connecticut’s Megan’s Law.” 9 The Court explained that “even if respondent could prove thаt he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders — currеntly dangerous or not — must be publicly disclosed.” 10

The Texas statute, like the Connecticut one, requires registration of all sеx offenders, dangerous or not. 11 Robinson con cedes this and argues that this is the very flaw with the SORP — that it does not distinguish between dangerous and non-dаngerous offenders. He seeks a hearing to establish that he is not dangerous. This is the same argument that Doe made 12 and, like Doe, Robinson specifically limits his argument in this Court to one of procedural due process, not substantive due prоcess. As the Supreme Court explained, there is no right to establish facts that are irrelevant under the statutory scheme. 13 And we need not address the issue of substantive ‍​​‌‌‌‌​​‌‌​​​​‌‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌​​‌​​​​‌‌‌​‍due process because it is not before us. 14

Like the United States Supremе Court, we conclude that it is unnecessary to decide whether Robinson has a protected liberty interest because, even if he does, the information he seeks to prove is irrelevant under the SORP. We overrule Robinson’s first ground for reviеw.

Cruel and Unusual Punishment

In his second ground for review, Robinson claims the SORP imposes cruel and unusual punishment because it requires registration from people who are not on probation or parole and it penalizes conduct in violation of the рroportionality doctrine. The court below rejected both contentions because it found that the purpose of the SORP statutes are non-punitive. 15 With no punishment, there could be no cruel and unusual punishment.

Robinson argues that, even if the purpose of the SORP statutes are non-punitive, this Court must still consider whether its effects are punitive by applying the fаctors set forth by the Supreme Court in Kennedy v. Martinez-Mendoza, 16 In that case, the Supreme Court set forth the so-called “intent-effects test,” under which courts consider whether a statute’s intent is punitive, and if not, whether its effect is. 17 Robinson relies on Doe v. Otte 18 as support, in which the Ninth Circuit found Alaska’s SORP unconstitutional by applying the Kennedy factors, even though the statute’s intent was non-punitive. But the Supreme ‍​​‌‌‌‌​​‌‌​​​​‌‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌​​‌​​​​‌‌‌​‍Court reversed this holding after Robinson’s brief was filed. 19 The Supreme Court held that the Alaska statute’s effect is non-punitive. 20

Robinson is correct that the Court of Appeals should have applied the Kennedy factors and determined whether the SORP’s effect is punitive. 21 But he is incorreсt about the result of that application. As the State points out, Robinson ignores the fact that we have alreаdy thoroughly applied the Kennedy factors to the 1997 version of the SORP and found it non-punitive in effect. 22 The only question here is whethеr the 1999 amendments to the SORP somehow changed the result of that analysis. Robinson points to nothing, and we have found nothing in the amend ments, that would alter our Rodriguez analysis.

We conclude that the 1999 version of the SORP, like the 1997 version, is non-punitive in both intent and effect. As ‍​​‌‌‌‌​​‌‌​​​​‌‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌​​‌​​​​‌‌‌​‍a result, it does not constitute cruel and unusual punishment. Robinson’s second ground for review is overruled.

Conclusion

Having rejected Robinson’s grounds for review, we affirm the judgment of the Court of Appeals.

Notes

1

. Ex parte Robinson, 80 S.W.3d 709 (Tex.App.-Houston [1st Dist.] 2002).

2

. Id. at 714-15.

3

. Id. at 715.

4

. Kentucky Dep’t. of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Ex parte Montgomery, 894 S.W.2d 324, 327 (Tex.Crim.App.1995).

5

. Thompson, 490 U.S. at 460, 109 S.Ct. 1904; Montgomery, 894 S.W.2d at 327.

6

. Montgomery, 894 S.W.2d at 327.

7

. 538 U.S. 1,-, 123 S.Ct. 1160, 1164, 155 L.Ed.2d 98 (2003).

8

. Id.

9

. Id.

10

. Id.

11

. See Arts. 62.01, 62.02, 62.10.

12

. See Doe v. Lee, 132 F.Supp.2d 57, 59 (D.Conn.2001); Doe v. Dep’t of Pub. Safety, 271 F.3d 38, 41-43 (2d Cir.2001).

13

. See Conn. Dep’t Of Pub. Safety v. Doe, 538 U.S. at-, 123 S.Ct. at 1164.

14

. See id. at 1165.

15

. Robinson, 80 S.W.3d at 715.

16

. 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963).

17

. See Rodriguez v. State, 93 S.W.3d 60, 67-68 (Tex.Crim.App.2002).

18

. 259 F.3d 979 (9th Cir.2001).

19

. See Smith v. Doe et al., 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).

20

. Id. at 1149.

21

. See Rodriguez, 93 S.W.3d at 67-68.

22

.Id. at 69-79.