Is de-registration possible for sex offenders in Texas?

Answer:

During the 79th Regular session of the Texas Legislature, two companion bills became law which potentially impact the deregistration of some sex offenders in Texas.

First, H.B. 867 amended Chapter 62, Code of Criminal Procedure, by adding Subchapter I, Art. 62.401 et seq., thereby creating a potential deregistration exemption for those certain non-aggravated first-time sex offenders, after those offenders have been registered for a minimum of ten (10) years. This delayed exemption is limited to those sex offenders which currently require lifetime registration under Texas law, but who are only subjected to a ten (10) year registration requirement under Federal law.

The five specific penal code offenses which are subject to deregistration under Art. 62.404 are: Indecency with a Child (Section 21.11(a)(1); Promotion and Distribution of Child Pornography (Section 43.26); Burglary with Intent (Section 30.02); Sexual Performance of a Child (Section 43.25); and Compelling Prostitution of a Child under 17 (Section 43.05(a)(2). The Legislature chose to not consider the deregistration of other sexual offenses to avoid violating the Jacob Wetterling Act which would cause the state to risk losing 10% of the annual federal grants it receives in the form of Edward Byrne Memorial funds.

The provisions of H.B. 867, however, cannot be implemented without a consideration of H.B. 2036. In amending Chapter 110, Occupations Code, the Legislature charged the Council on Sex Offender Treatment with “developing, researching, implementing, and deploying dynamic risk assessment tools and protocols for the use of individuals licensed under this chapter for the purpose of determining a sex offender’s risk to the community”. Similarly, H.B. 867 requires the Council by rule to “establish, develop, and/or adopt an individual risk assessment and/or a group of individual risk assessment tools and to evaluate persons using those tools”. Thus, Occupations Code § 110.501, and Art. 62.403, Code of Criminal Procedure, are to be read in conjunction with each other regarding the issue of sex offender risk assessment tools and protocols in Texas.

In October 2005, the Council began its Dynamic Risk Assessment Research project. The goal of this project is to collect research data from a variety of risk assessment tools which in turn can be used when considering deregistration issues. The Council is to provide to the Governor and to the Legislature a project status report by November 6, 2006.
While the Council’s research project is well underway, deregistration as contemplated by the Legislature under H.B. 867 will not occur immediately as a result of two primary factors. First, the U.S. Congress is currently considering two pieces of legislation pertaining to sex offenders, which may potentially change and/or broaden sex offender registration nationally. The passage of either H.R. 3132 and H.R. 4472 as currently written, directly impact H.B. 867 in that either would have the effect of removing the five above-referenced offenses from consideration for deregistration under Texas law.
Secondly, H.B. 867 cannot be implemented until the Council’s research has been completed to statistically support the assessment tool(s) utilized in determining a sex offender’s risk to the community and the administrative rules promulgated. Upon concluding the research project and pursuant to Article 62.403(b)(1-2), the “Council” shall evaluate the person using the individual risk assessment tool or group of individual risk assessment tools and provide to the person a written report detailing the outcome of the evaluation conducted. Under Art. 62.404, that person may then file with the sentencing Trial Court a Petition for Early Termination of his/her obligation to register. There remains an enormous amount of work to be completed by the Council before this process can be implemented in Texas, not to mention, the possibility of a federal law negating the Council’s work altogether.