Untitled Texas Attorney General Opinion ( 2012 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 20,2012
The Honorable Kathryn H. Gurley Opinion No. GA-0976
287th Judicial District Attorney
Bailey and Parmer Counties Re: Whether a home-rule municipality may
Post Office Box 729 require sex offenders who reside within the city to
Friona, Texas 79035 register with the sheriff rather than with the chief
of police (RQ-I064-GA)
Dear Ms. Gurley:
You ask whether a home-rule municipality may require sex offenders who reside within the
city to register with the county sheriff rather than with the municipality's chief of police. 1
Chapter 62 of the Code of Criminal Procedure establishes and describes the sex offender
registration program. Article 62.051 thereof provides that "[a] person who has a reportable
conviction or adjudication2 or who is required to register as a condition of parole, release to
mandatory supervision, or community supervision shall register ... with the local law enforcement
authority in any municipality where the person resides or intends to reside for more than seven days."
TEX. CODE CRlM. PROC. ANN. art. 62.051(a) (West Supp. 2012). "lfthe person does not reside or
intend to reside in a municipality," the person must register "in any county where the person resides
or intends to reside for more than seven days." [d. The statute defines "local law enforcement
authority" as "the office of the chief of police of a municipality, the office of the sheriff of a county
in this state, or a centralized registration authority." !d. art. 62.001(2). You explain that, for many
years, the police department of the City of Muleshoe and the Bailey County Sheriff's Office have
agreed that the sheriff's office "will act as the registration authority for both the City of Muleshoe
and for Bailey County," and that "[s]ex offenders who reside within the city limits of Muleshoe are
instructed to register with the Bailey County Sheriff's Office." Request Letter at 1.
It is well established that, when the words of a statute are clear and unambiguous, a court,
and by extension this office, will construe them according to their plain and common meaning. Wind
ILetter from Honorable Kathryn H. Gurley, 287th Judicial Dist. Att'y, Bailey & Parmer Cntys., to Honorable
Greg Abbott, Tex. AU'y Gen. (May 24,2012), http://texasattorneygeneral.gov/opin ("Request Letter").
2Article 62.00 1 defines "reportable conviction or adjudication" and refers to eleven violations ofthe Penal Code
encompassed within that definition. TEX. CODE CRIM. PROe. ANN. art. 62.001(5) (West Supp. 2012).
The Honorable Kathryn H. Gurley - Page 2 (GA-0976)
Mountain Ranch, LLC v. City of Temple, 333 S.W.3d 580, 581 (Tex. 2010). Unless a strict
interpretation of statutory language according to its plain meaning "yields an absurd or nonsensical
result," courts will honor the Legislature's intent and reduce confusion "by gi ving legislators, the bar,
and ordinary persons confidence that courts will interpret statutes to mean what they say." Omaha
Healthcare Ctr. v. Johnson, 344 S.W.3d 392,395 (Tex. 2011). It is evident from the plain language
of article 62.051 that the Legislature has required cities, such as Muleshoe, to provide sex offender
registration only in the office of the chief of police. 3 Thus, a municipality may not require a sex
offender who resides within the limits of that municipality to register with the county sheriff rather
than with the chief of police of the municipality.
You also ask whether article 62.0045 is applicable in the present instance. Request Letter
at 2. That article, enacted in 2009, authorizes a commissioners court in a county with a population
of 100,000 or more to designate the county sheriff, or, by interlocal agreement, the chief of police
of a municipality within the county, to serve as a mandatory countywide registration location. See
TEX. CODE CRlM. PROC. ANN. art. 62.0045 (West SUpp. 2012). The population of Bailey County is
significantly less than 100,000. 4 Thus, Bailey County is not authorized to establish a centralized
registration authority. Likewise, in answer to the second part of your second question, because no
statute authorized any county to establish a centralized registration authority prior to the enactment
of article 62.0045, no court is likely to find that a county could have lawfully established a
centralized registration authority prior to 2009. 5
Finally, you inquire whether an offender may be prosecuted for failure to comply with the
registration requirements designated in article 62.051 (a): to register with the chief of police if a
person resides within a municipality, or with the sheriff if the person resides outside a municipality.
See Request Letter at 2. Although, as we have stated, you indicate that offenders living within the
city limits of Muleshoe have been directed by their parole or probation officers to register with the
office of the county sheriff, such a directive cannot overcome the provisions of the statute. Article
' We note that another provision of chapter 62 requires the Department of Public Safety to "determine which
local law enforcement authority serves as the person's primary registration authority based on the municipality or county
in which the person resides." TEX. CODE CRIM. PROC. ANN. § 62.004 (West Supp. 2012). In making those
determinations, however, the Department must follow the specific registration requirements of article 62.051(a) .
4See U.S. DEP'TOFCOMMERCE, U.S. CENsusB UREAU, State and County QuickFacts, at http://quickfacts.census
.gov/qwfd/states/48/48017.html (Bailey County's popUlation as of 2010 is 7,165).
SA brief submitted in response to this request contends that chapter 791 of the Government Code, which relates
to interlocal cooperation contracts, would authorize the kind of agreement contemplated here. See Brieffrom John B.
Dahill, Texas Conference of Urban Counties (July 24, 2012) (on file with Opinion Committee). But the mere existence
of article 62.0045, authorizing interlocal agreements in counties with a popUlation of 100,000 or more, indicates that the
Legislature believes that express authority is required for such an agreement. See United Servs. Auto. Ass'n v. Brite, 215
S.W.3d 400, 403 (Tex. 2007) (citing the "doctrine of expressio unius est exclusio alterius-the inclusion of a specific
limitation excludes all others"). Moreover, this office has frequently stated that chapter 791 "does not extend a local
government's criminal law enforcement authority beyond its jurisdiction." See Tex. Att' y Gen. Op. No. GA-O 189 (2004)
at 5-6; accord Tex. Att'y Gen. Op. Nos. GA-0150 (2004) at 5-6, JC-0219 (2000) at 5, JM-191 (1984) at 1.
The Honorable Kathryn H. Gurley - Page 3 (GA-0976)
62.102 provides that "[a] person commits an offense if the person is required to register and fails to
comply with any requirement of [chapter 62]." TEx. CODE CRIM. PROC. ANN. art. 62.102 (West
2006). As we have noted in an earlier opinion, "[a] prosecuting attorney 'has great discretion in
deciding whether, and which offenses, to prosecute.'" Tex. Att'y Gen. Op. No. GA-0765 (2010)
at 1 (citing U.S. v. Molina, 530 F.3d 326, 332 (5th Cir. 2008); Neal v. State, 150 S.W.3d 169, 173
(Tex. Crim. App. 2004)). In that opinion, we stated the following:
Courts recognize that prosecutorial decisions are ill-suited to judicial
review because such decisions include consideration of factors
involved in initiating a criminal case[, such as] the strength of the
case, the case's deterrent value, and the government's enforcement
pnontIes. Accordingly, courts afford prosecutorial decisions
substantial deference.
Id. (citations omitted). The possibility that an individual will raise the defense that he was directed
by his probation or parole officer to register with a law enforcement authority different from the one
prescribed by statute is merely one factor involved in a prosecutor's determination about the strength
of the case and thus falls within the scope of prosecutorial discretion. See id. at 2; see also Tex.
Att'y Gen. Gp. No. GA-0246 (2004) at 3 (recognizing difficulty in proving intent in circumstances
of possible criminal offense under section 143.006, Local Government Code, and noting that
"whether to proceed in such a case is a matter squarely within prosecutorial discretion"). We note,
however, that, pursuant to section 8.03 of the Penal Code, it is an "affirmative defense to prosecution
that the actor reasonably believed the conduct charged did not constitute a crime and that he acted
in reasonable reliance upon," inter alia, "(1) an official statement of the law contained in a written
order or grant of permission by an administrative agency charged by law with responsibility for
interpreting the law in question." TEX. PENAL CODE ANN. § 8.03(b) (West 2011).
The Honorable Kathryn H. Gurley - Page 4 (GA-0976)
SUMMARY
A sex offender who resides within a municipality should
register with the office of chief of police of the municipality, and a
sex offender who resides outside the limits of a municipality should
register with the county sheriff. A home-rule municipality may not
require otherwise, unless the municipality is in a county with a
centralized registration authority. A county with a population of less
than 100,000 persons is not authorized to establish a centralized
registration authority. Whether an offender may be prosecuted for
failure to comply with sex registration requirements is a matter within
a prosecutor's discretion.
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chairman, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee