Ex Parte: Jason Jones v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 1, 2023
• Docket: 08-22-00237-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ No. 08-22-00237-CR

EX PARTE: § Appeal from the

JASON JONES § 171st Judicial District Court

§ of El Paso County, Texas

§ Cause No. 970D08935-171-1

CONCURRING OPINION

I write separately from the Court to address the issue driving Jones’s appeal: that is, a

purported obligation to register as a sex offender for the remainder of his life. And this supposed

obligation is imposed regardless of his long ago discharge from deferred adjudication community

supervision, and formal dismissal of the underlying criminal charge without a conviction or

adjudication. Because I have serious doubts about this understanding, I follow two recent

precedents of this Court in writing a concurring opinion after otherwise writing for the Court. See

Hudspeth Cnty. v. Ramirez, 657 S.W.3d 103 (Tex. App.—El Paso 2022, no pet.) (Rodriguez, C.J.,

for majority and concurring); El Paso Tool & Die Co. v. Mendez, 593 S.W.3d 800 (Tex. App.—

El Paso 2019, no pet.) (Alley, J., for majority and concurring).

Because the doctrine of laches bars Jones from challenging his plea of guilty on the grounds

asserted, I agree he is not entitled to vacate or set aside the 1998 judgment that placed him on deferred adjudication community supervision for a period of eight years, which he successfully

completed in 2006. Yet, for me, the notion that he is required to register for the remainder of his

life unattached from any pending deferred adjudication is questionable on its face. What needs

further consideration is the effect of the 2006 dismissal order upon this purported registration

requirement. Given the lack of an adjudication against Jones, and an ultimate dismissal of the

underlying charge brought against him, I am not convinced there exists a legal basis for its support.

Resolving that question, however, requires an examination of the relevant statutes in effect both

when Jones was initially placed on deferred adjudication community supervision, and when he

was later discharged from supervision and his case dismissed without conviction or adjudication.

Such an examination would necessarily begin with a review of the Sex Offender Registry

Program (SORP), and further include statutes pertaining to deferred adjudication community

supervision. To begin, the Texas Legislature first enacted the sex offender registration statutes in

1991. Act of May 26, 1991, 72nd Leg., R.S., ch. 572, §§ 1, 4–5, 1991 Tex. Gen. Laws 2029–30,

2032 (amended, codified, and redesignated); Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim.

App. 2002). When originally enacted, the registration requirements “applied only to a reportable

conviction or adjudication [of delinquent conduct] occurring on or after September 1, 1991.” Act

of May 26, 1991, 72nd Leg., R.S., ch. 572, § 1, secs. 1(5), 8(a), 1991 Tex. Gen. Laws 2029, 2030.

And, two years later, in 1993, the Legislature expanded the definition of “reportable conviction or

adjudication” to include deferred adjudications for specific offenses, including indecency with a

child, and the expanded definition applied to offenses “for which an order of deferred adjudication

[was] entered by the court on or after September 1, 1993.” Act of May 30, 1993, 73rd Leg., R.S.,

ch. 866, § 1, sec. 1(5)(E), §§ 3, 8(a)(2), 1993 Tex. Gen. Laws 3420–21 (amended, codified, and

redesignated). Finally, in 1997, the Legislature made the registration requirements retroactively

2 applicable to “any reportable conviction or adjudication occurring on or after September 1, 1970.”

Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1(5)(H), 8, 1997 Tex. Gen. Laws 2253, 2260.

In current form and relevant here, Chapter 62 imposes a duty to register upon any person

who has “a reportable conviction or adjudication occurring on or after September 1, 1970;” and,

in this context, a “[r]eportable conviction or adjudication” is defined as “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 violation of [s]ection . . . 21.11 (Indecency with a child), . . . Penal Code.” TEX. CODE CRIM.

PROC. ANN. art. 62.001(5)(A), 62.002(a), (b); Ex parte Lane, 670 S.W.3d 662, 678 (Tex. Crim.

App. 2023); McCraw v. C.I., 525 S.W.3d 701, 705 (Tex. App.—Beaumont 2017). The Court of

Criminal Appeals addressed the legislative purpose underlying the registration program in

Rodriguez, 93 S.W.3d at 79. There, the Court observed that the program was enacted by the

Legislature to promote public safety. Id. Ultimately, Rodriguez held the program was “civil and

remedial,” not criminal or punitive. Id. at 69.

In my view, a duty to register was imposed on a defendant placed on deferred adjudication

for a qualifying offense at least as of September 1, 1993. As Jones was so counseled by his

attorney, he was required to register under SORP when he was ordered to complete eight years of

deferred adjudication community supervision in March 1998. Jones complied with the registration

requirement as shown by his signed DPS form in our record. Because the charge against Jones was

dismissed in 2006, however, I would further suggest it remains necessary to consider the effect of

this dismissal, based on the relevant deferred adjudication statutes, to determine whether an

obligation of registration continued long after that date.

3 Looking first to the dismissal of a deferred adjudication as the statute appeared when Jones

entered into a plea bargain with the State, it provided in relevant part:

On expiration of a probationary period imposed under Subsection (a) of this section, if the court has not proceeded to adjudication of guilt, the court shall dismiss the proceedings against the defendant and discharge him. . . . A dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense, except that upon conviction of a subsequent offense, the fact that the defendant had previously received probation shall be admissible before the court or jury to be considered on the issue of penalty.

Act of May 21, 1985, 69th Leg., R.S., ch. 427, § 1, sec. 3d(c), 1985 Tex. Gen. Laws 1531, 1534

(amended 1999 and recodified 2017) (current version at TEX. CODE CRIM. PROC. ANN. art.

42A.111(b)) (emphasis added). Upon expiration of a community supervision term, if a trial court

had not earlier proceeded to an adjudication of guilt, the mandatory language of this provision

imposed a duty upon a trial court to dismiss the underlying criminal charge. Moreover, for

purposes of “disqualifications or disabilities imposed by law for conviction of an offense,” the

statute in effect at the time when Jones was placed on deferred adjudication provided that a

dismissal and discharge could not be deemed a conviction for the purpose of imposing

disqualifications or disabilities required by law. See Act of May 21, 1985, 69th Leg., R.S., ch. 427,

§ 1, sec. 3d(c), 1985 Tex. Gen. Laws 1531, 1534.

I would further note that it appears at first blush that the Legislature did not change the

predecessor to current Article 42A.111(b), until after Jones had already entered his plea agreement

with the State. See Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 5(a), sec. 5(c), 1999 Tex. Gen.

Laws 4831, 4832. Notably, the later revision prohibited the dismissal of proceedings involving

offenses reportable under the SORP. See Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 5(a),

sec. 5(c), 1999 Tex. Gen. Laws 4831, 4832. And even when that change went into effect, it was

made expressly applicable only to a defendant who received deferred adjudication for an offense

4 occurring on or after September 1, 1999. Act of May 29, 1999, 76th Leg., R.S., ch. 1415, §§ 5(c),

34, 1999 Tex. Gen. Laws 4831, 4833, 4843. As a result, a defendant like Jones who received

deferred adjudication prior to September 1, 1999, was “covered by the law in effect when the

defendant received deferred adjudication . . . and the former law [was] continued in effect for that

purpose.” Act of May 29, 1999, 76th Leg., R.S., ch. 1415, §§ 5(c), 34, 1999 Tex. Gen. Laws 4831,

4833, 4843. In sum, under the deferred adjudication statutes applicable to Jones, it remained

mandatory for a trial court to dismiss all proceedings against a defendant, and in doing so, the

dismissal and discharge could not be deemed a conviction for the purposes of any disqualifications

or disabilities imposed by law.

Here, the record shows—after successful completion of community supervision by

Jones—the trial court rendered such order discharging him from deferred adjudication community

supervision imposed under former Article 42.12, Section 5(a), and it also dismissed the criminal

proceeding initiated against him. At the time, former Article 42.12, Section 5(c) imposed a

mandatory requirement on a trial court to dismiss all proceedings against a defendant “[o]n

expiration of a probationary period imposed under Subsection (a) of this section, if the court has

not proceeded to adjudication of guilt[.]” Id. And this applicable provision expressly decreed that:

[a] dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense, except that upon conviction of a subsequent offense, the fact that the defendant had previously received probation shall be admissible before the court or jury to be considered on the issue of penalty.

See Act of May 21, 1985, 69th Leg., R.S., ch. 427, § 1, sec. 3d(c), 1985 Tex. Gen. Laws 1531,

1534.

Reviewing Jones’s 2006 order of discharge and dismissal under the former version of

Article 42.12, Section 5(c), as was in effect, it would seem to me that his case falls under the former

5 requirements, not those applying after September 1, 1999. Moreover, the State has not challenged

the validity of the 2006 order. The record establishes, then, that Jones was discharged from the

1998 judgment of deferred adjudication—without an adjudication of guilt—and his case was

dismissed. Further, it follows from that disposition that Jones may not be deemed as having a

conviction for purposes of disqualifications or disabilities imposed by law, nor can it currently be

said that he “has” a deferred adjudication of a qualifying offense. Cf. Lane, 670 S.W.3d at 675

(providing that any person who “has” a conviction for a qualifying offense is obligated to register

under TEX. CODE CRIM. PROC. ANN. art. 62.001(5), and a discretionary order setting aside the

conviction, such as a judicial clemency order, does not alter the requirement).

In sum, because Jones is no longer subject to an order of deferred adjudication, and because

the trial court dismissed his case without proceeding to an adjudication of guilt, I am not convinced

there remains a legal basis to support an ongoing obligation to register for a dismissed,

unadjudicated case of the era of Jones’s case. Indeed, no order requiring a lifetime obligation is

seemingly included in the record of this case. Yet, according to Jones, authorities of DPS or other

officials appear to be asserting such requirement exists. My attention is thus drawn to a somewhat

similar case from our sister court of appeals which may be substantively analogous though not

procedurally the same. In that case, a complaint about a purported lifetime registration requirement

was challenged through the means of a civil action where an individual sought declaratory and

injunctive relief from efforts by state and local officials who were requiring him to register under

SORP. See McCraw, 525 S.W.3d at 70; see also Rodriguez, 93 S.W.3d at 69 (determining a penalty

of that nature would be considered “civil and remedial,” not criminal or punitive). In McCraw, the

Beaumont Court of Appeals held the individual pleaded a facially valid claim of ultra vires actions

and denied the officials’ plea to the jurisdiction. Id. at 708. Thus, even though I agree that habeas

6 relief to set aside Jones’s 1998 plea is barred by laches, I remain unconvinced about the correctness

of an ongoing registration requirement that is, in any event, a civil and remedial penalty, and not

one that is criminal and punitive. For all these reasons, I write this separate concurrence.

GINA M. PALAFOX, Justice

September 1, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.

(Do Not Publish)