Craig Rudy REYNOLDS, Appellant v. The STATE of Texas.
No. PD-1369-12.
Court of Criminal Appeals of Texas.
Feb. 12, 2014.
421 S.W.3d 377
The District here additionally contends that the application for an exemption was untimely. Generally, eligibility for an exemption is determined as of January 1 of the year in which the exemption is sought, and a person must apply for the exemption before May 1 of that year.13 Because the plaintiffs did not apply for an exemption until December of the year at issue, on the day the Foundation‘s LLC acquired the LP, the District argues that the application was late. But section 11.436(a) provided at the time:
An organization that acquires property that qualifies for an exemption under Section 11.181(a) or 11.182(a) may apply for the exemption for the year of acquisition not later than the 30th day after the date the organization acquires the property, and the deadline provided by Section 11.43(d) does not apply to the application for that year.14
The District argues that the relevant occurrence was not the LLC‘s acquisition of the LP but the LP‘s acquisition of the apartments years earlier. We agree with the court of appeals that this argument is based on the District‘s position that an exemption must be based only on legal title, which we have rejected. Under section 11.436, the Foundation‘s application, made within thirty days of the date it acquired equitable title to the apartments, was timely.
Accordingly, the judgment of the court of appeals is
Affirmed.
Walter M. Reaves Jr., Waco, for Appellant.
OPINION
MEYERS, J., delivered the opinion of the Court, in which KELLER, P.J., and KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.
Appellant, Craig Rudy Reynolds, was charged with and convicted of failure to
STATUTORY HISTORY
In 1991, the Texas Legislature enacted its first sex-offender registration provision. Act effective September 1, 1991, 72nd Leg., R.S., ch. 572, § 1. It required a person with a reportable conviction on or after September 1, 1991, to register with the local law enforcement agency. Id. Because Appellant‘s sexual-assault-of-a-child conviction occurred in 1990, however, the statute did not require him to register.
In 1997, the Legislature redesignated the statute as chapter 62 of the Code of Criminal Procedure and instituted its retroactive application to individuals with reportable convictions on or after September 1, 1970. Act effective September 1, 1997, 75th leg., R.S., ch. 668, § 1; Ex parte Arce, 297 S.W.3d 279, 281 (Tex.Crim.App. 2009). This change, however, was accompanied by an uncodified “savings clause” that restricted its application to people who were “confined in a penal institution . . . or under the supervision and control of . . . the Texas Department of Criminal Justice” on or after September 1, 1997. Id. at § 11(a). It explicitly preserved the law of the statute before the amendment for those individuals who had convictions but were not in a penal institution or subject to supervision for that conviction on or after September 1, 1997. Id. at § 11(b). Although Appellant‘s conviction was after 1970, he completed his entire sentence in 1995. Therefore, the “savings clause” applied to him and he was still not required to register.
In 2005, the Legislature reenacted and amended chapter 62. Act effective September 1, 2005, 79th leg., R.S., ch. 1008, § 1.01. These amendments included the repeal of article 62.11, which had contained the rule on applicability and the uncodified “savings clause.” Id. It was replaced with article 62.002 which also provided that the registration requirements applied to those with reportable convictions occurring on or after September 1, 1970. Id.;
ARGUMENTS OF THE PARTIES
Appellant contends that the registration requirement in the 2005 amendments does not apply to him and that he, therefore, had no legal duty to register. He argues that, because the transition clause states that the amendments apply to those who are “subject to Chapter 62,” the changes are applicable only to individuals who were already required to register on the effective date, which would not include Appellant. Appellant cites to our footnote in Ex parte Arce, 297 S.W.3d 279, 281 (Tex.Crim. App.2009), in which we acknowledged that it is unclear, because of this language, whether an individual who had been exempted from Chapter 62 by the earlier version of the statute would now be subject to it. Appellant also suggests that if the “savings clause” was repealed, it could only have been done so by implication, which is improper because the amendment is subject to an interpretation that the prior statute is still in effect.
Appellant also asserts that applying the 2005 amendments to him violates the Texas constitutional prohibition against retroactive laws. Appellant argues that, prior to 2005, he had a substantial, vested right to be free of the sex-offender registration requirements. He suggests that we adopt the three-part test formulated by the Supreme Court of Texas for determining whether a statute is unconstitutionally retroactive. Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 145 (Tex.2010). The test looks at “the nature and strength of the public interest served by the statute as evidenced by the Legislature‘s factual findings; the nature of the prior right impaired by the statute; and the extent of the impairment.” Id. Appellant asserts that these factors make it clear that applying the registration requirement to him is unconstitutional. Finally, Appellant contends, based on Robinson, that the court of appeals‘s reliance on the police-power exception in upholding his duty to register was error because an exception to retroactivity must be compelling and clearly established rather than justified by necessity alone or simply likely to do more good than harm. Id.
The State argues that the 2005 amendments apply to Appellant and that his conviction for failing to register is valid. The State asserts that the plain text of the transition clause makes clear that Appellant is not exempt from the requirement to register. Further, deleting the exemption and mandating uniform registration for all offenders is in line with the Legislature‘s stated intent to simplify and clarify the statute which had become overly complex. The State contends that the uncodified “savings clause” in the 1997 statute was eliminated by the 2005 amendments because the provision that the clause accompanied, article 62.11, was eliminated. Holding otherwise, the State argues, leads to the absurd result of every savings clause that has accompanied a repealed statute remaining in effect unless the Legislature clearly dictated differently.
The State goes on to point to the 2003 amendments of article 62.01(5) to demonstrate the meaning of the “subject to” phrase in the 2005 transition clause. The 2003 amendments added foreign convictions to the list of reportable offenses and had an applicability clause that specified
The State believes that Appellant‘s second issue should be remanded because the court of appeals failed to determine whether the complaint was properly preserved. In the alternative, the State disputes Appellant‘s contention that the 2005 amendments violate the prohibition on retroactive laws. The State asserts that Appellant‘s exemption was not a vested, substantive right because registration is a procedural regulation rather than a punishment, making it beyond the purview of the retroactive law prohibition. Further, the State argues that choosing to adopt the three-factor test from Robinson would still result in a finding that the registration requirement is constitutional because it is a reasonable use of police power that causes no substantial impairment of a right.
COURT OF APPEALS
On appeal, the court considered the applicability of the registration requirement to Appellant, the constitutionality of its retroactivity, and whether there was sufficient evidence to refute his defense of mistake of law. See Reynolds, 385 S.W.3d at 95-101. In its decision, the court of appeals asserted that the plain language of the transition clause indicates that Chapter 62 and the 2005 amendments to it were applicable to Appellant because he had a reportable conviction after September 1, 1970. Id. at 98. The court of appeals also looked to our opinion in Ex parte Harbin, 297 S.W.3d 283, 286 n. 5 (Tex.Crim.App.2009), in which we stated in a footnote that, because the Legislature made no indication of wishing to retain the uncodified portion, and because the “savings clause” is inconsistent with the amendments, “the uncodified portion has effectively been repealed.” Id. at 98-99. The court of appeals determined, therefore, that the “savings clause” was effective only from September 1, 1997 to August 31, 2005 and that Appellant had a duty to register under Chapter 62. Id. at 99.
The court of appeals then evaluated the constitutionality of the retroactivity of the registration statute. Because the amendments were made in order to address concerns that the registration program had become difficult to manage, the court of appeals presumed that the amendments furthered the program‘s original purpose of promoting public safety. Id. at 100. The court of appeals held that the statute‘s retroactivity did not render it unconstitutional because the amendments were necessary to safeguard the public. Id.
On the final issue, the court of appeals concluded that there was some evidence to support the jury‘s refusal to find for the affirmative defense of mistake of law. Id. at 101. Therefore, the evidence was legally sufficient to support the jury‘s conviction of Appellant. Id. at 102. Having overruled all of Appellant‘s issues, the court of appeals affirmed the judgment of the trial court. Id. We subsequently granted Appellant‘s petition for discretionary review on the two issues of the 2005
APPLICABILITY OF REGISTRATION REQUIREMENT TO APPELLANT
When this court interprets statutes, “we seek to effectuate the ‘collective’ intent or purpose of the legislators who enacted the legislation.” Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991) (citing Camacho v. State, 765 S.W.2d 431 (Tex.Crim.App.1989)). We begin our analysis with the language of the statute and “attempt to discern the fair, objective meaning of that text at the time of its enactment.” Id. Where that language is clear and unambiguous, we will give effect to its plain meaning, unless that meaning would lead to absurd consequences that the legislature could not have intended. Smith v. State, 789 S.W.2d 590, 592 (Tex.Crim.App.1990); Boykin, 818 S.W.2d at 785 (citing Faulk v. State, 608 S.W.2d 625, 630 (Tex.Crim.App.1980)). If it is ambiguous or would lead to an absurd result, it is then permissible for us to look beyond the plain text and consider additional factors. Boykin, 818 S.W.2d at 785-86. We do not find the need to look beyond the plain text in this case.
As set out above, the 2005 amendments contain a transition clause specifying that the changes in the law “apply to a person subject to Chapter 62,” and the amended version of Chapter 62 states that it applies to individuals who have reportable convictions or adjudications that occurred on or after September 1, 1970. Act effective September 1, 2005, 79th leg., R.S., ch. 1008, § 1.01;
Our decision here is in line with Ex parte Harbin, in which we concluded in a footnote, that the “savings clause” applies only to those who did not register between 1997 and 2005. 297 S.W.3d at 287. We stated that “[t]he 2005 amendments repeal[ed] all of article 62.11, including the uncodified ‘savings clause,‘” because “there was no indication that the legislature wished to retain or relocate the uncodified portion and since the ‘savings clause’ appears to be inconsistent with the 2005 statute‘s amendments and retroactive application.” Id. at 286, n. 5. Appellant points to our statements in Ex parte Arce in response to any reliance on Harbin. However, these statements in Arce have no bearing on our decision. We came to no conclusions and, instead, simply recognized that an argument could be made that the amendments do not apply to an individual previously exempted from Chapter 62.1
We begin with the State‘s contention that the court of appeals erred by not first determining whether Appellant‘s retroactivity-based complaint was properly preserved. The court of appeals should typically review preservation on its own motion, but where it does not expressly do so, this Court “should do so when confronted with a preservation question.” Ford v. State, 305 S.W.3d 530, 532-33 (Tex. Crim. App.2009). Therefore, we will not remand for this omission, as the State requests, and instead we will address whether the retroactivity complaint was preserved.
“As applied” constitutional claims are subject to the preservation requirement and therefore must be objected to at the trial court in order to preserve error. Flores v. State, 245 S.W.3d 432, 437 n. 14 (Tex.Crim.App.2008); Curry v. State, 910 S.W.2d 490, 496 & n. 2 (Tex.Crim.App.1995); see also Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009); Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim.App.2004); Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990) (stating that “[e]ven constitutional errors may be waived by failure to object at trial“).
There is no evidence that Appellant objected to the retroactivity of the statute at the trial court, but Appellant asserted during oral argument that, because he argued at the trial court that the registration statute should not apply to him, the issue could be interpreted as preserved. Asserting that the statute contained an exemption for Appellant, however, is a far cry from presenting the argument that the statute is unconstitutionally retroactive because it took away Appellant‘s vested right to not register. This retroactivity argument cannot be raised for the first time on appeal. Therefore, because no specific, timely objection was made, we conclude that this issue was not preserved for appellate review and we, therefore, will not consider it.2
CONCLUSION
In conclusion, Appellant‘s retroactivity argument was not preserved for review. We hold that the sex-offender-registration requirements in Chapter 62 apply to Appellant because the “savings clause” that previously exempted him was deleted by the 2005 amendments. Therefore, the judgment of the court of appeals is affirmed.
PRICE, J., filed a dissenting opinion, in which WOMACK, J., joined.
JOHNSON, J., dissented.
PRICE, J., filed a dissenting opinion in which WOMACK, J., joined.
Having concluded that the 2005 amendments to Chapter 62 of the Texas Code of Criminal Procedure for the first time required the appellant to register as a sex offender, the Court turns next to the ap-
Issues of error preservation, we have said, are systemic in first-tier appellate courts.2 This means that an appellate court may not reverse a conviction without first addressing any plausible argument, whether raised by the parties or not, that the purported error necessitating reversal is subject to error-preservation requirements and, if so, whether that error has been preserved for appeal.3 Here, however, because the court of appeals affirmed the trial court‘s judgment, the principle upon which the Court relies does not even apply. Courts of appeals are always permitted to affirm judgments of conviction on the merits of the issues raised without necessarily also reaching issues of procedural default (whether raised by the parties or not), for in that event they have addressed every issue “necessary to final disposition of the appeal.”4 Only if we should later reverse the lower court‘s judgment that affirmed the conviction does the issue of procedural default then become “necessary to final disposition of the appeal“—on remand.
Moreover, even when an appellate court has reversed a conviction without addressing a question of error preservation (which is not the situation here), this Court will usually vacate the lower court‘s judgment and remand the cause for the court of appeals to undertake the inquiry in the first instance.5 This is not to say that we must remand; we have indeed held that we may conduct the error preservation analysis in the first instance on discretionary review.6 But, in my view, we should do so only when it allows us to reach the issue we actually exercised our discretion-ary authority to review—presumably an issue of greater jurisprudential value than a run-of-the-mill question of procedural default (or else we would not have granted discretionary review in the first place).7
It is perfectly within our discretionary review capacity to also decide the merits of the retroactivity issue and then, if need be, remand the cause to the court of appeals to resolve any extant issue with respect to error preservation.8 That is the course of action the Court ought to take today. Because it does not, I respectfully dissent.
Manley DeWayne JOHNSON, Appellant v. The STATE of Texas.
No. PD-0193-13.
Court of Criminal Appeals of Texas.
Feb. 26, 2014.