Bennie Ray Johnson v. State

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-11-00429-CR ____________________

BENNIE RAY JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee _______________________________________________________ ______________

On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 11-05-05840-CR ________________________________________________________ _____________

MEMORANDUM OPINION ON MOTION FOR REHEARING

On motion for rehearing, Bennie Ray Johnson complains that the Court

misconstrued his complaint as an ex post facto challenge to the sex offender

registration statute. Johnson states that his only challenge to the sex offender

registration statute is that it violates the prohibition against a “retroactive law[.]”

See Tex. Const. art. I, § 16. Johnson has not filed a civil action but has appealed his

criminal conviction; however, he argues the distinction between an ex post facto

challenge and a retroactive law challenge is significant because he “challenges

1 Chapter 62 in a civil context” and does not claim a punitive effect but only that the

law affects a vested right. Johnson argues that the entire statute is facially void as

to any person with a reportable conviction before 1999 because the Legislature

amended the statute in 1999 and 2005.

On three occasions, the Court of Criminal Appeals has upheld a procedural

rule or statute without expressly deciding whether the retroactive law provision of

the Texas Constitution would apply in a criminal case in a manner distinguishable

from the ex post facto provision. See Fowler v. State, 991 S.W.2d 258, 261 (Tex.

Crim. App. 1999) (harmless error rule); Ex parte Davis, 947 S.W.2d 216, 220

(Tex. Crim. App. 1996) (successive habeas applications); Grimes v. State, 807

S.W.2d 582, 587-88 (Tex. Crim. App. 1991) (reversal on punishment only); see

also Tex. Const. art. I, § 16. In the context of civil litigation, the Texas Supreme

Court has observed

the constitutional prohibition against retroactive laws does not insulate every vested right from impairment, nor does it give way to every reasonable exercise of the Legislature’s police power; it protects settled expectations that rules are to govern the play and not simply the score, and prevents the abuses of legislative power that arise when individuals or groups are singled out for special reward or punishment. No bright-line test for unconstitutional retroactivity is possible. Rather, in determining whether a statute violates the prohibition against retroactive laws in article I, section 16 of the Texas Constitution, courts must consider three factors in light of the prohibition’s dual objectives: the nature and strength of the public interest served by the statute as evidenced by the Legislature’s factual 2 findings; the nature of the prior right impaired by the statute; and the extent of the impairment. The perceived public advantage of a retroactive law is not simply to be balanced against its relatively small impact on private interests, or the prohibition would be deprived of most of its force. There must be a compelling public interest to overcome the heavy presumption against retroactive laws. To be sure, courts must be mindful that statutes are not to be set aside lightly.

Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126, 145-46 (Tex. 2010)

(footnotes omitted).

The Legislature enacted the sex offender registration statute “to advance

public safety objectives 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 1999, the Legislature amended the sex offender registration law to

bring the statute into compliance with federal law and because “situations that have

taken place over the past few years that have shown us the weaknesses in our sex

offender registration program.” Senate Research Ctr., Bill Analysis, Tex. S.B. 399,

1224, 76th Leg., R.S. (1999). The 2005 amendments to the sex offender

registration statute sought to “streamline, simplify, and clarify” the provisions of a

sex offender registration statute that had become “too cumbersome and difficult to

manage.” Senate Research Ctr., Bill Analysis, Tex. C.S.H.B. 867, 79th Leg., R.S.

3 (2005). The legislation reflects a strong public interest in the safety of the public.

We also note that the amendments are not overtly retroactive, as they imposed

additional requirements on future registrations. See Act of May 26, 1999, 76th

Leg., R.S., ch. 444, § 10, 1999 Tex. Gen. Laws 2824, 2828; Act of May 26, 2005,

79th Leg., R.S., ch. 1008, § 4.01, 2005 Tex. Gen. Laws 3385, 3422.

Johnson argues his 1998 conviction established with finality the parameters

of the civil sanction imposed upon him. We understand Johnson to be arguing that

he had a settled expectation in the civil consequences of his criminal conviction for

a sexual offense. See Robinson, 335 S.W.3d at 147 (“The presumption is that a

retroactive law is unconstitutional without a compelling justification that does not

greatly upset settled expectations.”). Johnson has not shown how any additional

duty imposed by the subsequent amendments to Chapter 62 upset the expectation

that he was required to register within seven days of his arrival in a municipality.

See Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1, art. 62.02(a), 1997 Tex. Gen.

Laws 2253, 2254.

Johnson’s claim that the sex offender registration statute violates the

constitutional prohibition against retroactive laws is without merit. We overrule the

motion for rehearing.

MOTION FOR REHEARING OVERRULED.

4 ________________________________ HOLLIS HORTON Justice

Opinion Delivered March 6, 2013 Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.