TEXAS SEX OFFENDER DEREGISTRATION SYNOPSIS: OVERVIEW AND STEPS FOR NAME REMOVAL
Posted on by Michael Lowe.
How and why sex offenders can deregister and legally remove their names from the Texas sex offender registry
Texas law not only requires defendants convicted of certain sex crimes to register with the government as a sex offender; as of 2005, the Texas Legislature has also provided a procedure for individuals to have their names removed from the Texas sex offender registry. The process is called “deregistration.”
According to Texas Code of Criminal Procedure Article 62.401, beginning in 2005 a means for opting out of the sex offender registry was offered if certain criteria were met by the applicant. In 2011, Texas Code of Criminal Procedure Article 62.301 was passed providing for another, specific group of individuals to seek freedom for the sex offender registry in legislation nicknamed “the Romeo and Juliet Bill.”
What is the Texas Sex Offenders Registry?
The State of Texas has created and maintains a public list of people who have been convicted of specific sex crimes in Texas courts, which is similar in nature to those sex offender registries in other states as well as the sex offender registry maintained nationally. Overseen by the Texas Department of Public Safety, it is possible to search the Texas Sex Offenders Registry online by name, birthdate, address, county, zip code, or institute of higher education.
Until last year, the Texas Public Sex Offender Registry also provided the employer’s name, address, and telephone number for each sex offender on the registry. This employer information was removed and is no longer available on the Registry because of an amendment to the Texas Code of Criminal Procedure passed by the Texas Legislature in 2013 (changing Article 62.005).
Defendants who are convicted in a Texas court of any number of crimes considered to be sex crimes (child pornography, indecency with a child, sexual assault, etc.) may be required under Texas law to be included on the Texas Sex Offenders Registry as part of their sentencing. Depending upon the crime for which they are convicted, an individual can face being included on the Registry for anywhere from 10 years to the rest of their lives.
The Texas Sex Offenders Registry allows parents, teachers, and any member of the general public to learn about anyone living in their neighborhood or near their schools who has been convicted of a sex crime in the State of Texas. The information is provided by the Texas Department of Criminal Justice, the Texas Youth Commission, and other criminal justice agencies (regional, county, city, etc.).
The Texas Sex Offenders Registry is considered an open record to the public and as the DPS website explains, accordingly “…[i]t may be used by anyone for any purpose.”
Injustice to Some Individuals Named on Texas Sex Offenders Registry
The reality is that having your name on the Texas Sex Offenders Registry means that you may have problems finding a job, or holding on to that job. Some neighbors may harass you if you move into their neighborhood.
Some communities may bar you from living in them. People may avoid you, and it will be hard to make and keep friends. Some family members may exclude you from their lives. It is a shameful situation, and being on The Registry guarantees living as a social pariah for many of its registrants.
Still, the price of that punishment has been seen as warranted in view of the risk of future women and children (and sometimes men) being victimized in future sex crimes. The people listed on the Texas Sex Offenders Registry are those found to be at a risk of committing another sexual crime in the future if left unmonitored. The loss of their personal privacy has been legally determined to be less valuable than protecting the public interest against their potential criminal conduct.
Over time, however, it became clear that a lifelong punishment of having their identities revealed on the Registry was unjust for some people who were required by law to be included on the Texas Sex Offenders Registry. No two people are exactly alike, and stark differences revealed themselves between many of the registrants as the Registry was implemented over time.
For instance, there are some folk who are simply not a risk for re-offending and their treating therapists or counselors have confidence that there is no risk that these people, if freed from the Registry, would violate a Texas sex crime law in the future.
Many of these people completed years of court ordered sex offense counseling and reported to professionals who believe they do not pose any substantial risk to re-offend. Unfortunately, they continue to suffer substantial negative consequences from sex offense registration, including exclusion from employment; restrictions on where they live; alongside harassment, threats, the risk of physical assault, and being social ostracized.
This suffering happens not only to the registrant, of course. It has been shown that not just the individual named on the Sex Offender Registry, but their family, friends, and children also feel the negative effects of having their loved one listed on the Database. They, too, can be victims of harassment and abuse because of their relationship with someone identified as a Sex Offender on the Texas Registry.
Until recently, sex offender deregistration was not possible for anyone.
Deregistration Laws and Their Limitations
In 2005, the Texas Legislature amended the Texas Code of Criminal Procedure to allow for some people to be removed from the Texas Sex Offenders Database. Specifically, Articles 62.401 – 62.408 were passed and these laws set up a process for applicants to be taken off the Sex Offenders Registry by DPS. Then again, in 2011, new laws were passed to allow a specific type of registrant to be removed from the Registry if set criteria were met, as Article 62.301 was passed.
These laws do not create a specific type of expunction, however. Only one thing happens with a deregistration: the individual’s name is removed from the open record public registry database as an identified Texas Sex Offender.
This procedure does not remove the criminal case from the criminal records. It does not seal the criminal record from public view. In fact, anyone who is convicted of a sex crime in Texas is not eligible for expunction of their criminal records. (For more on expunction, please read my article on that process entitled, “Second Chances: How to Get Rid of Your Texas Criminal Record.”)
What Deregistration does is take your name off the Texas Sex Offender Registry database that is maintained by the Texas Department of Public Safety and it removes the legal requirement that you register in the future on any public sex offender listing. That is quite a lot for someone who has had to deal with the repercussions of having their name on the Registry, but that is all that deregistration does.
Deregistration does not:
• Act as any judicial finding on your underlying case (this is not an appeal of your conviction)
• Impact any probation or parole
• Nix any legal requirement that you reveal your sex crime conviction to a potential employer
• Allow you to get a job involving being around kids
• Release your DNA records from any law enforcement database
Who Is Eligible for Deregistration or the Early Termination of Sex Offender Registration?
Under the Texas Code of Criminal Procedure, those registered sex offenders listed on the Texas Sex Offenders Registry may be able to obtain a Judge’s court order granting the early termination of the legal requirement of their characterization as a sex offender for purposes of registration.
Technically, this is done by filing a motion with the judge requesting early termination of the person’s obligation to register under Chapter 62 of the Texas Code of Criminal Procedure. The judge has the authority and legal discretion to grant that request if they can prove with authenticated, admissible evidence that:
1. Under federal law, the amount of time required for registration on a Sex Offender Registry is less time than under Texas law
2. No more than one sex crime conviction (or deferred adjudication) on their record
3. Completion of Sex Offender Treatment Program as defined in Texas Administrative Code chapter 810
4. Professional Confirmation of Little or no Risk of Future Sex Crime Conduct (Re-Offenses)
5. The sex crime conviction resulting in the registration is based upon Texas law (out of state convictions are not covered here)
Furthermore, only certain sex crimes are covered here. Violent crimes, for example, are not subject to deregistration. For deregistration, the conviction is usually going to be based upon one of the following Texas sex crimes:
• Compelling prostitution where victim is under 17 years of age
• Sexual performance of a child
• Online solicitation of a minor
• Indecent exposure
• Unlawful restraint of a victim under 17 years of age
• Child pornography (possession or promotion)
• Indecency with a child (13-17 years old)
In spite of the above, there are many other situations wherein a sex offender registrant can deregister. This cases, will be heavily dependent upon the individual case. The key hurdle for the majority of these cases will be the first prong listed above. That is, one can deregister if the time for registration in Texas exceeds the Federal requirement. For a quick reference to many of these special cases, one should review the current DPS/Adam Walsh Act Table. For example, there are some Aggravated Sexual Assault, Kidnapping, Aggravated Kidnapping, Continuous Sexual Abuse of a Child, Prohibited Sexual Conduct and Burglary of a Habitation With Intent to Commit Sexual Assault cases that can qualify for deregistration as well. These special cases require a more in depth look at the individual relationships and ages between the victim/complainant and the Sex Offender registrant.
In 2011, a special statute was passed to allow deregistration for teenagers and young adults who were arrested for the sex crime of “statutory rape” even though the parties involved swore they had been engaging in consensual sex.
Texas Code of Criminal Procedure Article 62.301 allows for these young people either to avoid being placed upon the Sex Offender Registry or to go before the judge in a request for deregistration in a somewhat simpler process than other forms of deregistration as well as recognizing the realities of teenager sexual culture in America today. Now, if one of the individuals is at least 15 years old and the other is no more than four years older, then the situation will not be defined as statutory rape and a Texas sex crime requiring registration on the Texas Sex Offender Registry. For others in a “Romeo and Juliet” situation, the statute provides a simplified method for getting the young person’s name removed from the Sex Offender database.
Process for Deregistration from Texas Sex Offender Registry
Deregistration can be complicated and difficult to understand for those not adept at maneuvering through the Texas criminal justice system. For one thing, under Chapter 62 of the Texas Code of Criminal Procedure, first you must obtain the approval of the Texas Council on Sex Offender Treatment before you even think about filing a motion with a trial court judge. Here, proof must also be submitted and the Council will review your application with them.
1. The Texas Council on Sex Offender Treatment
The Texas Council on Sex Offender Treatment is part of the Texas Department of State Health Services. From its website:
“Since 1983, CSOT has been recognized by the State of Texas as the experts in the treatment and management of sex offenders. CSOT sets forth the standards of practice for the sex offender treatment providers in the State.”
The professional treatment perspective on your application for deregistration will come via the CSOT. Things that must be submitted to the Texas Council on Sex Offender Treatment include your documentation of your current criminal history background checks (both federal and state), as well as the court order detailing your conviction (or deferred adjudication) and confirmation of the age of the victim at the time of the offense if a minor was involved (Indictment; Offense Report; or Probable Cause Affidavit).
An assessment of your application with CSOT will include an evaluation of your case by an independent, licensed sex offender treatment provider who is under contract to the Council to provide deregistration evaluation services. This professional will undertake their own evaluation of your situation (i.e., their risk analysis of your likelihood of committing a sex crime in the future) and provide a written report of their findings to the CSOT.
If the Texas Council on Sex Offender Treatment supports your deregistration request, then the next step is to file a motion with the court seeking the judge’s ruling on your deregistration.
2. Motion before the Trial Judge
Once the CSOT has approved your application, then you can file a formal motion with the criminal court judge where your criminal trial was prosecuted. Here, the specifics of Art. 62.404 must be followed:
(a) A person required to register under this chapter who has requested and received an individual risk assessment under Article 62.403 may file with the trial court that sentenced the person for the reportable conviction or adjudication a motion for early termination of the person’s obligation to register under this chapter.
(b) A motion filed under this article must be accompanied by:
(1) a written explanation of how the reportable conviction or adjudication giving rise to the movant’s registration under this chapter qualifies as a reportable conviction or adjudication that appears on the list published under Article 62.402(b); and
(2) a certified copy of a written report detailing the outcome of an individual risk assessment evaluation conducted under Article 62.403(b)(1).
The presiding judge of that court (which may or may not be the same person who sat on the bench at your trial) will decide whether or not to hear your request. This will be an evidentiary hearing and the judge will be given great discretion under state law to decide whether or not your request should be granted. (In other words, it’s hard to overturn the judge’s decision here on appeal.)
Under the Texas Code of Criminal Procedure, the judge is given direction on how to respond to your deregistration request. Pursuant to Tex.Code of Crim. Proc. Art. 62.405, the judge may:
(1) deny without a hearing the movant’s request for early termination; or
(2) hold a hearing on the motion to determine whether to grant or deny the motion.
(b) The court may not grant a motion filed under Article 62.404 if:
(1) the motion is not accompanied by the documents required under Article 62.404(b); or
(2) the court determines that the reportable conviction or adjudication for which the movant is required to register under this chapter is not a reportable conviction or adjudication for which the movant is required to register for a period that exceeds the minimum required registration period under federal law.
Thanks to changes made to the Texas Sex Offender Registry laws in the past decade, it is possible for people who have been convicted of sex crimes in Texas to have their names removed from the Texas Sex Offender Registry database. It is not a simple process, but it is something that many individuals who are legally required to be on the open record Sex Offender database find to be worth the effort. It helps them and their loved ones.
Arguments can also be made that removing violators that have little if any likelihood of committing this sort of crime in the future also serves the public at large, providing a more accurate and valuable listing of high-risk persons on the database by removing those who are not prone to endangering the public in the future.
There is one last caveat, however. Those who undertake the effort to deregister from the Texas Sex Offenders Registry need to know that success here means that they will have a judge’s order freeing them from the official DPS database and its formal Registry. It will not remove their names from any online sex offender listings, blog posts, Facebook pages, and the like that may have been established based upon that public record. Seeking to have their names removed from these lists will entail additional steps, taken under civil procedure not criminal law.
About the Author:
Michael Lowe is a Texas trial attorney practicing criminal defense law in the Dallas area for many years after first serving as a felony prosecutor for the Office of the District Attorney for Dallas County. He is Board Certified by the State Bar of Texas in Criminal Law. Mr. Lowe has tried to verdict over 150 criminal trials so far in the state and federal systems.
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