Keasler, J., delivered the opinion of the Court, in which Keller, P.J., Meyers, Price, Womack, and Hervey, JJ., joined. Keller, P.J., filed a concurring opinion. Hervey, J., filed a concurring opinion. Alcala, J., filed a dissenting opinion, in which Johnson and Cochran, JJ., joined.

OPINION

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 Crabtree'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 felony, third-degree felony, and second-degree felony. Crabtree also argued that the State failed to allege that his previous conviction was a reportable conviction as defined in article 62.001(5). The trial court denied his motion.

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 Sheriff's 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 Sheriff's 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 Government inquiring about Crabtree's sex offender status. After receiving the call, Deputy Scott ran Crabtree'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.

Crabtree appealed, arguing that the trial court erred in denying his motion to quash the indictment and that the evidence was insufficient to support his conviction and sentence. As to the sufficiency of the evidence, Crabtree claimed that Code of Criminal Procedure article 62.003 makes a DPS substantial-similarity determination necessary to prove that an individual is required to register due to an extra-jurisdictional conviction. The court of appeals disagreed and held that article 62.003 does not make the requirement to register for an extra-jurisdictional conviction dependent upon a DPS determination and, therefore, it is not an element of failure to comply with registration requirements.*fn1 The court further found the indictment adequate and the evidence sufficient to support the jury's determination that Crabtree was required to register because the State introduced into evidence the charging documents laying out the elements of Crabtree's prior convictions.*fn2

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 Crabtree'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.*fn3 The essential elements of the crime are determined by state law.*fn4 "Under Texas state law, we measure the sufficiency of the evidence 'by the elements of the offense as defined by the hypothetically correct jury charge for the case.'"*fn5 The hypothetically correct jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried."*fn6

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.*fn7 We disagree that this completely describes all of the necessary elements of the hypothetically correct jury charge. The court of appeals's conclusion, based on its statutory interpretation, omitted an essential element that defines Crabtree's duty to register--that his extra-jurisdictional conviction was a "reportable conviction or adjudication" because DPS determined it was substantially similar to a Texas offense requiring registration.

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.*fn8 When interpreting statutes, "we seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation."*fn9 We do this by focusing on the statute's literal text in an "attempt to discern the fair, objective meaning of that text at the time of its enactment."*fn10 And to this end, we presume that (1) "every word has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible"*fn11 and (2) the Legislature intended for the entire statutory scheme to be effective.*fn12 Only if the statute's plain language is ambiguous or would lead to absurd results that the Legislature could not have possibly intended, may a court look beyond the text and consult extra-textual sources.*fn13

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.*fn14 A person is required to register "with the local law enforcement authority in any municipality where he resides or intends to reside for more than seven days" if he has a "reportable conviction or adjudication."*fn15

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.*fn16 The definition of "reportable conviction or adjudication " also includes 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 offense], but not if the violation results in deferred adjudication."*fn17 And article 62.003, entitled "Determination Regarding Substantially Similar Elements of Offense," states, in relevant part:

(a) For purposes of this chapter, the department*fn18 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.*fn19

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.*fn20

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."*fn21 The court of appeals noted that article 62.003 does indeed require DPS to make determinations, but the statute "does not condition statutes being substantially similar on such a determination."*fn22

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.*fn23 Additionally, the inclusion of a specific appellate remedy from a DPS determination in article 62.003(c) makes plain the legal significance of such a determination. Those who wish to contest DPS's determination that they must register under Chapter 62 may do so in Travis County district court.*fn24 If the Legislature intended a DPS determination to be merely advisory or legally inoperative, there would be no need to create an appellate remedy from an adverse determination.

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.*fn25 The Legislature was responding to Creekmore v. Attorney General of Texas, where Creekmore challenged Texas's sex-offender registration program claiming that the program, among other things, violated his right to due process because "(1) it does not indicate who determines whether an offense under [Uniform Code of Military Justice] is substantially similar to a listed offense under the Texas Penal Code; (2) it does not provide any process by which an individual determined to have a reportable conviction may challenge that determination; and (3) it does not give clear notice as to when one is deemed convicted two or more times of an offense."*fn26 According to House Bill 2113's bill analysis, article 62.003 "would make clear who decides whether an offense from another jurisdiction would trigger Texas registration requirements and would allow appeals from these decisions."*fn27 The bill analysis directly addresses DPS's responsibility and its impact: "DPS would have to determine whether an offense committed under another state's laws, federal law, or the Uniform Code of Military Justice contained elements that were substantially similar to the elements of an offense under Texas laws that would trigger a current law requirement that the person register as a sex offender."*fn28

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 make these determinations to its role as the sex-offender registration program's administrator is not dispositive. Even if the dissent is correct in its assessment that a DPS determination was intended solely for the program's administration, this conclusion does not necessarily preclude our holding that DPS is solely responsible for identifying who must comply with Chapter 62 based on extra-jurisdictional convictions. It is clear to us that identifying those subject to the registration requirement and its attendant conditions is the critical element that defines the scope of the sex-offender registration program and DPS's administration of it. The dissent concedes as much when it suggests that the DPS-maintained compilation of offenses already determined to be substantially similar exists "in order to assist law-enforcement agencies in registering sex offenders."*fn29

The State notes that we have previously made substantial-similarity determinations as a matter of law without referencing article 62.003,*fn30 presumably in support of its position that it is preferable to have these substantial-similarity determinations made by the judicial branch, as opposed to "some out-of-court agency." The dissent finds the State's argument and its supporting authority persuasive; we do not. The State acknowledges that our decisions in Prudholm v. State, Ex parte White, and Ex parte Warren are distinguishable from the present issue. Prudholm and Ex parte White considered whether out-of-state convictions used for enhancement purposes were substantially similar under Texas Penal Code § 12.42.*fn31 While neither of those cases involved sex-offender registration nor article 62.003's interpretation, they do indicate that substantial-similarity issues are matters of law.*fn32

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.*fn33 In holding that the sex-offender registration condition did not violate due process, we relied on the analysis used in Prudholm*fn34 and concluded that, for purposes of Chapter 62, Warren's conviction for the Illinois offense of contributing to the sexual delinquency of a child was substantially similar to the Texas offense of indecency with a child.*fn35 First, the limited issue confronting the Court in Ex parte Warren was whether the imposition of sex-offender registration conditions violated Warren's procedural due process rights as defined by the Fifth Circuit.*fn36 Second, because the question of the propriety of a registration requirement as a condition of parole is so fundamentally distinct from the statutory definition of a criminal offense, Ex parte Warren lends little insight to the present issue. While we held that Warren's out-of-state conviction was substantially similar to indecency with a child for purposes of article 62.001(5)(H)--which would statutorily require a parole panel to impose sex-offender registration conditions*fn37--our conclusion that Warren's conviction was a reportable conviction or adjudication requiring Warren to register was a more expansive holding than was required to resolve Warren's due process claim. We have upheld sex-offender registration parole conditions on a much lesser finding.*fn38 Because Ex parte Warren addressed a due process claim in the context of parole conditions, was overly broad, and did not contemplate the definition of the offense of failure to comply with registration requirements, we are not persuaded that it has precedential or persuasive value to the present issue.

In addition to Ex parte Warren, the dissent claims our opinion in Ex parte Harbin*fn39 supports its position that substantial-similarity determinations are questions of law that can be determined only by the judge presiding over the criminal proceeding. This interpretation of Ex parte Harbin is mistaken. In addressing Harbin's claim of actual innocence for failing to comply with registration requirements based on two out-of-state convictions, we held that, due to the various savings clauses found in the legislative amendments to Chapter 62, the convictions alleged in the indictment did not trigger an obligation to register.*fn40 We also acknowledged that article 62.0101--article 62.003's predecessor--gave DPS the responsibility to make substantial-similarity determinations retroactively. And to illustrate the effect of DPS's retroactive responsibility, we explained its implications on all of Harbin's previous convictions based on a DPS publication, contained in the record, which listed California offenses it determined to be substantially similar to Texas offenses.*fn41 We held that, under the version of Chapter 62 in effect at the time of the opinion, Harbin would need to register for his 1988 conviction for lewd or lascivious acts--the same offense that we held did not trigger Chapter 62's applicability at the time of the alleged offense--and his 1995 conviction for sexual battery because DPS determined in 2006 that both of these convictions are reportable convictions in Texas.*fn42 We further stated, "Applicant will not need to register for his 1994 and 1996 convictions for annoying or molesting a child because . . . [DPS] does not list California Penal Code § 647.6 as a reportable conviction."*fn43 The dissent's claim that we viewed the lack of a DPS determination as "persuasive evidence" and "not conclusive evidence of a duty to register" is a plain misreading of the case. Ex parte Harbin's discussion of substantial similarity could arguably be labeled dicta and therefore not binding precedent. Regardless, it certainly does not stand for the proposition that the presiding judge is the only one who can make a substantial-similarity determination. If anything, Ex parte Harbin stands for the opposite proposition: a DPS substantial-similarity determination controls whether an individual has a duty to register based on an out-of-state conviction. While our conclusion today is a result of interpreting articles 62.001(5)(H) and 62.003, it is consistent with and now firmly establishes what Ex parte Harbin implicitly and necessarily presumed.

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."*fn44 The court of

appeals expressed similar sentiments in recognizing that the "statute appears to place a very large burden on the Department."*fn45 The State, like the court of appeals and the dissent, appears to suggest that adhering to article 62.003's plain language creates an insurmountable burden for DPS and as a result is unwise. This position, however, is quite different from suggesting that article 62.003's language leads to absurd results that the Legislature could not have intended. The wisdom of a particular statute is outside this Court's purview.*fn46

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-requirements 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 or effectively delete statutory language in the name of interpretation.

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."*fn47 The dissent's due process concerns revolve around a defendant's inability to contest a DPS determination within the criminal prosecution itself and present a complete defense. The dissent's claim that, as a result of our statutory interpretation, a defendant convicted for failing to register would likely have a valid due process claim based on being deprived of the opportunity to defend himself, is questionable. The dissent itself acknowledges that the Supreme Court has held that, to be consistent with constitutional protections, there must be some meaningful review when administrative determinations play a critical role in the subsequent imposition of a criminal sanction.*fn48 Although the adequacy and the proper implementation of such review are outside the scope of this case, article 62.003's appellate process presumably provides such meaningful review of a DPS determination in that it affords those affected a reasonable opportunity to be heard and present evidence*fn49 and--according to the dissent--"is frequently used by potential registrants."*fn50 The federal district court's finding in Creekmore supports this view. The court found that newly enacted article 62.003 provided procedural due process because the statute charged a specific agency with the responsibility of making the substantial-similarity determination that used established procedures and a means of appeal from the determination.*fn51 And courts have generally rejected substantive due process claims based on an obligation to register as a sex offender.*fn52 Further, it is far from certain that a due process claim based on a deprivation of "a meaningful opportunity to present a complete defense" in this context will have merit. The dissent's broad assertion that our Chapter 62 interpretation potentially infringes upon this right, without more, is unsubstantiated. And the cases it relies upon are unhelpful in this regard.*fn53

Establishing that Crabtree had a reportable conviction or adjudication under the definition of article 62.001(5)(H) is a condition precedent to proving he had a duty to register and failed to comply with that burden.*fn54 Without proving that Crabtree's conviction satisfied this definition, he could not have committed the charged offense because he would not labor under an obligation to register.*fn55 Based on the plain language of articles 62.001(5)(H) and 62.003, we hold that a DPS substantial-similarity determination is an essential element of the offense of failure to comply with registration requirements.

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.*fn56 The court of appeals noted that the State's witness's evaluation of the substantial similarity of Crabtree's Washington convictions based solely on its title was "problematic," but it nonetheless found the evidence sufficient because the State introduced Crabtree's charging documents that contained the elements of his previous convictions.*fn57

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.*fn58 While a jury must find that Crabtree has a reportable conviction or adjudication that requires him to register, it is not the jury's role to determine whether a particular conviction or adjudication legally satisfies article 62.001(5)(H). In a case in which a duty to register is imposed by virtue of an extra-jurisdictional conviction or adjudication, this distinction between issues of fact and law is appropriately addressed by a jury charge that instructs the jury in the abstract and correctly sets out the law of the case.*fn59 Having concluded that a DPS determination is an essential element of the charged offense, we turn to the evidence the State adduced at trial and whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."

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 Crabtree'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.*fn60 Therefore, we find the evidence insufficient to sustain Crabtree's conviction.

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.

PUBLISH

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-0645-11

MARK ALAN CRABTREE, Appellant v. THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE TWELFTH COURT OF APPEALS SMITH COUNTY

Keller, P.J., filed a concurring opinion.

"[L]aws which regulate persons or entities must give fair notice of conduct that is forbidden or required."*fn1 A person of common intelligence must not have to guess at the meaning of such a law.*fn2 The dissent's construction of the law in this case would require persons without any legal training to make a legal determination about the similarity of offenses that no government entity or court has ever made. A person should not have to guess about whether or not the law requires him to register as a sex offender.

The Warren case cited by the dissent involves a legally distinct situation: the imposition of conditions of parole.*fn3 For conditions of parole, the defendant is given notice that the condition--the duty to register--is in effect before he is punished for violating the condition.*fn4

I think that the dissent also reads too much into the Whaley case*fn5 in saying, in a parenthetical, that "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."*fn6 In Whaley, the defendant was on sex-offender registration in Kansas for a conviction in that state.*fn7 He moved to Texas without notifying authorities in Kansas or Texas.*fn8 The defendant was then prosecuted under a federal statute that punishes a sex-offender registrant who fails to update his registration after moving to another state.*fn9 The Fifth Circuit emphasized that the federal law's focus is "on the problem of sex offenders escaping their registration requirements through interstate travel--rather than on requiring sex offender registration generally."*fn10 The federal law did not deprive the defendant of due process because he "was certainly aware that he was required to register under Kansas law."*fn11 So the federal statute, as construed by the Fifth Circuit, appears to be based on the defendant's acknowledged status as a sex-offender registrant in the state he moves from rather than his potential status as a sex-offender registrant in the State he moves to.

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.*fn12

With these comments, I join the Court's opinion.

Filed: October 31, 2012

Publish

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-0645-11

MARK ALAN CRABTREE, Appellant v. THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE TWELFTH COURT OF APPEALS SMITH COUNTY

Hervey, J., filed a concurring opinion.

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 Legislature has spoken--DPS is the proper authority for regulating whether an extra-jurisdictional conviction or adjudication triggers a person's duty to register. See Tex. Code Crim. Proc. art. 62.001(1), 62.003.

Hervey, J.

Filed: October 31, 2012

Publish

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-0645-11

MARK ALAN CRABTREE, Appellant v. THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE TWELFTH COURT OF APPEALS SMITH COUNTY

Alcala, J., filed a dissenting opinion, in which Johnson and Cochran, JJ., joined.

DISSENTING OPINION

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. 12-09-00322-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 mean what it has expressed, and it is not for the courts to add to or subtract from such a statute. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We give effect to the results of that unambiguous language unless it results in absurd consequences. Id. In this context, ambiguity exists when a statute may be understood by reasonably well-informed persons in two or more different senses; conversely, a statute is unambiguous where it reasonably permits only one understanding. State v. Neesley, 239 S.W.3d 780, 783 (Tex. Crim. App. 2007).

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];

(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), which is the Subsection violated by appellant, nor is a TDPS determination mentioned in Subsections (5)(I) or (6)(E), both of which include the same reference to "substantially similar" elements of an offense. See id. at arts. 62.001(5)(H), (5)(I) & (6)(E).

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 "[b]ased 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 article 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.*fn1 See id. at 287.

Until today, no court has interpreted the Chapter 62 criminal provision as requiring proof that a TDPS determination existed at the time of the criminal conduct. I conclude that, in accordance with this Court's approach in Warren and Harbin, the question of whether two statutes are "substantially similar" is a question of law for a court to determine when that question arises in a criminal proceeding. See Warren, 353 S.W.3d at 495-98. The plain language of the criminal provision can be reasonably understood as not requiring proof of a TDPS determination.

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).

Because the criminal provision and the TDPS provision, when read together, can be reasonably understood to have contrary meanings, I conclude that the language in these provisions is ambiguous. I, therefore, disagree with the majority opinion's determination that any conflict can be reconciled without having to turn to extra-textual analysis.*fn2

II. Extra-textual Analysis Reveals TDPS Evidence Not An Element of OffenseBecause 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 provision pertained to individuals convicted of sex offenses in Texas only, but it was soon amended to include individuals with out-of-state convictions. See Tex. Code Crim. Proc. art. 62.001(5)(H) (Chapter 62 definitions provision, defining "reportable conviction" as an out-of-state conviction for sex offense containing elements "substantially similar" to elements of reportable Texas sex offense), added by Act of May 29, 1995, 74th Leg., R.S., Ch. 258, § 1 (Tex. S.B. 267), effective Sept. 1, 1995. Thus, for almost 20 years, sex offenders convicted in other states who subsequently move to Texas have been required to register when their underlying convictions are for sex offenses "substantially similar" to reportable Texas sex offenses. See Tex. Code Crim. Proc. art. 62.001(5)(H). The Legislature enacted this provision in furtherance of the program's public safety goals to "ensure that offenders do not fall through the cracks and escape registration." See House Research Organization, Bill Analysis, Tex. S.B. 267, 74th Leg., R.S. (1995).

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 pendency 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 sheriff's office employee that the employee had determined that Creekmore must register as a sex offender in Texas. Id. at 653. Under protest, Creekmore 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 similar), thereby presenting a high "risk of error." Id. at 666-67.

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. Proc. 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.*fn3 The TDPS provision establishes the department's administrative role by requiring TDPS to annually provide or make available to each prosecuting attorney's office the criteria used to make substantial-similarity determinations, and any "existing record or compilation" of offenses that it had "already determined" were substantially similar to Texas offenses. See Tex. Code Crim. Proc. art. 62.003(b).

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."*fn4 See id. at art. 62.003(c). The opportunity to appeal a TDPS determination in district court is not contingent upon the existence of a criminal prosecution for failure to register, and it is unclear how such a civil-appeals process would function during a pending criminal proceeding for failure to register. See id. at art. 62.102(a). I conclude that the establishment of a civil-appeals process is indicative of the civil-regulatory nature of the TPDS provision.

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 determination to be dispositive in a criminal trial. The Legislature never mentioned TDPS in the plain words describing the criminal provision or in the applicable Chapter 62 definitions section defining a reportable offense. See Tex. Code Crim. Proc. arts. 62.001(5)(H) & 62.102(a). And nothing in the legislative history suggests that, by appointing a civil regulatory agency to make administrative determinations, lawmakers intended to dispel criminal courts of their authority to decide whether the elements of a criminal offense have been established as a matter of law.

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.*fn5 Such an interpretation creates a loophole in Texas' sex-offender-registration program that discourages extra-jurisdictional offenders from complying with registration requirements. This result is wholly inconsistent with the Legislative intent to promote public safety by monitoring sex offenders' movements and notifying the public of sex offenders' whereabouts.

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.*fn6

Instead, he moved to Texas and did not register. Although evidence at trial showed that he knew he was supposed to register, appellant now argues that he should not be held criminally liable for his failure to register simply because TDPS had not conducted an administrative process at the time he was apprehended. He makes this argument in spite of the fact that he never gave TDPS any opportunity to make a determination because law enforcement was unaware of his status as a sex offender.

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 "does not explicitly provide a sex offender any defense for a failure by the State to do any particular act, such as delivering him or her a particular form" and "with few exceptions, the burdens are placed on the offender."); Varnes v. State, 63 S.W.3d 824, 830 (Tex. App.--Houston [14th Dist.] 2001, no pet.) (court "decline[d] to hold that a technical violation of the State's duties under the [failure-to-register] statute necessarily nullifies prosecution under the statute, particularly since the statute expressly makes the prospective registrant responsible for verifying the State's actions and liable for his own failure to act under the statute."). The Legislature chose to place the burden to register directly on sex offenders because of the difficulties inherent in tracking individuals who regularly move from one place to the next. In order for sex-offender-registration programs to have any real impact, the burden of reporting must be placed on offenders and not on law enforcement.

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 Wetterling 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).*fn7

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 contingent upon TDPS having made a substantial-similarity determination, then many sex offenders convicted in other jurisdictions will be able to avoid registration without fear of criminal prosecution. This is because TDPS will likely be unable to meet the Herculean burden of making preemptive substantial-similarity determinations for all eligible offenses. According to the U.S. State Department, there are 195 countries in the world.*fn8 Taking that number, plus 50 states in the United States, plus the federal government and the military code, TDPS must consider sex-offense laws from approximately 250 jurisdictions and make substantial-similarity determinations for all of them. Because there are few limits on the age of the conviction for which a defendant may be required to register, former versions of statutes would also require examination by TDPS. Furthermore, because Texas and foreign statutes are often amended, the process would be perpetual and would require constant monitoring of other jurisdictions' legislative enactments. It is exceedingly unlikely that TDPS could ever compile a complete list of all reportable offenses.

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 deprived of the opportunity to defend himself against the criminal accusation.*fn9

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.*fn10

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., 344 S.W.2d 411, 415 (Tex. 1961) ("[w]here 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.*fn11 One is the Creekmore situation, which addresses the procedural due-process question regarding registration requirements. The other is the due-process concern that a criminal defendant can be convicted of a criminal offense without having the opportunity to defend against the TDPS list in criminal court and without a criminal court making a matter-of-law determination. Both of these due-process concerns are best addressed by the approach set out in this dissenting opinion, which permits a defendant to challenge the TDPS list in civil district court and allows him to challenge the substantial-similarity determination in criminal district court. Because the majority opinion's holding satisfies only the first due-process concern, a defendant's due-process rights in a criminal trial are impeded by its holding.

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 criminal provision. Limiting the TDPS provision to the civil-regulatory context best protects a defendant's due-process rights and best fulfills the public safety purpose of the sex-offender registration program. I, therefore, would uphold the court of appeal's judgment affirming the trial court's judgment.

Alcala, J.

Filed: October 31, 2012

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Opinion Footnotes

*fn1 Crabtree v. State, No. 12-09-00322-CR, 2011 WL 1204332, at *8 (Tex. App.--Tyler 2011) (not designated for publication).

*fn2 Id.

*fn3 Jackson v. Virginia, 443 U.S. 307, 318 (1979).

*fn4 Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011).

*fn5 Id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

*fn6 Id.

*fn7 See Crabtree, 2011 WL 1204332, at *6.

*fn8 Tex. Penal Code § 1.07(a)(22).

*fn9 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)).

*fn10 Id.

*fn11 Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim. App. 2009).

*fn12 Mahaffey, 364 S.W.3d at 913; see Tex. Gov't Code § 311.021(2).

*fn13 Id. (citing Boykin, 818 S.W.2d at 785-86).

*fn14 Tex. Code Crim. Proc. art. 62.102(a) (West 2008).

*fn15 Id. art. 62.051(a).

*fn16 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.)

*fn17 Tex. Code Crim. Proc. art. 62.001(5)(H).

*fn18 Id. art. 62.001(1) ("'Department' means the Department of Public Safety.").

*fn19 Id. art. 62.003.

*fn20 Id. art. 62.102(b); Juarez v. State, 198 S.W.3d 790, 793-94 (Tex. Crim. App. 2006).

*fn21 Crabtree, 2011 WL 1204332, at *7.

*fn22 Id.

*fn23 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, 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.").

*fn24 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).

*fn25 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.

*fn26 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).

*fn27 Bill Analysis at 4.

*fn28 Id. at 3.

*fn29 Post, at 21.

*fn30 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. 2011).

*fn31 Prudholm, 333 S.W.3d at 592; Ex parte White, 211 S.W.3d at 318.

*fn32 Prudholm, 333 S.W.3d at 592, 599-600; Ex parte White, 211 S.W.3d at 318, 319-20.

*fn33 Ex parte Warren, 353 S.W.3d at 491.

*fn34 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)

*fn35 Id. at 497-98.

*fn36 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 notice that sex-offender conditions may be imposed as a condition of release and a hearing which allows the parolee to be heard and present evidence; however if the parolee has been convicted of a sex offense, he has received all the process due).

*fn37 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 . . . .").

*fn38 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.)

*fn39 297 S.W.3d 283 (Tex. Crim. App. 2009).

*fn40 Id. at 286-87.

*fn41 Id. at 287.

*fn42 Id.

*fn43 Id.

*fn44 State's Br. on the Merits 13.

*fn45 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.").

*fn46 See generally Montgomery v. State, 170 S.W.2d 750, 753 (Tex. Crim. App. 1943) ("The courts are not concerned with the wisdom of legislation, this being a matter resting exclusively with the legislature.").

*fn47 Post, at 20.

*fn48 See, e.g., United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987); Estep v. United States, 327 U.S. 114, 121-22 (1946); Yakus v. United States, 321 U.S 414, 444 (1944).

*fn49 See Yakus, 321 U.S. at 433 (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 (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).

*fn50 See post, at 14 n.4 (citing court-of-appeals decisions addressing article 62.003 appeals).

*fn51 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).

*fn52 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).

*fn53 See post, at 21 n.9 (citing Crane v. Kentucky, 476 U.S. 683, 690 (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 (1984) (holding that this principle was not violated when breath-test evidence was not preserved by the State)).

*fn54 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.").

*fn55 See id.

*fn56 Crabtree, 2011 WL 1204332 at *9.

*fn57 Id.

*fn58 See Prudholm, 333 S.W.3d at 592, 599-600.

*fn59 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.").

*fn60 See Jackson, 443 U.S. at 318.

*fn1 Federal Communications Commission v. Fox Television Stations, 132 S. Ct. 2307, 2317 (2012).

*fn2 Id. (citing Connally v. General Constr. Co., 269 U.S. 385 (1926)).

*fn3 Ex parte Warren, 353 S.W.3d 490 (Tex. Crim. App. 2011).

*fn4 See United States v. Difrancesco, 449 U.S. 117, 148 (1980) (Brennan, J., dissenting) ("since parole and probation by definition are conditional, a defendant is on notice from the outset that a breach of those conditions may result in revocation of beneficial treatment").

*fn5 United States v. Whaley, 577 F.3d 254 (5th Cir. 2009).

*fn6 See dissent at 18.

*fn7 577 F.3d at 256.

*fn8 Id.

*fn9 Id. at 256-57, 259-60.

*fn10 Id. at 259.

*fn11 Id. at 262.

*fn12 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").

*fn1 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. See State v. Prush, 648 S.E.2d 556, 561 (N.C. App. 2007) (determination of whether elements of out-of-state criminal offense were substantially similar to elements of North Carolina criminal offense "does not require the resolution of disputed facts, and as such, is a matter of law"); State v. Lloyd, 970 N.E.2d 870, 877 (Ohio 2012) (whether an out-of-state offense is substantially equivalent to Ohio sex offense requiring registration is matter of law).

*fn2 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 Calton 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.

*fn3 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.

*fn4 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).

*fn5 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.

*fn6 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.

*fn7 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).

*fn8 Office of The Geographer and Global Issues, Bureau of Intelligence and Research, U.S. Department of State, Washington, D.C. (Jan. 3, 2012).

*fn9 Criminal defendants must be afforded a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (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 (1984) (fundamental fairness requires that a criminal defendant be afforded a "meaningful opportunity to present a complete defense").

*fn10 "[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 (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.

*fn11 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.