Ex Parte Bryan Scott Chamberlain ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-079-CR
EX PARTE BRYAN SCOTT
CHAMBERLAIN
------------
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
------------
OPINION
------------
I. INTRODUCTION
Appellant Bryan Scott Chamberlain appeals the trial court’s order denying
relief on his application for writ of habeas corpus that he filed pursuant to
article 11.072 of the Texas Code of Criminal Procedure. In two issues
Chamberlain complains: that the trial court was required to conduct an
evidentiary hearing on his application and, in an issue of first impression in
Texas, that the Texas Sex Offender Registration Program (SORP) violates the
substantive due process rights guaranteed to him under the Fourteenth
Amendment to the United States Constitution. Because the trial court did not
abuse its discretion by not conducting a hearing on Chamberlain’s application
and because the SORP does not violate substantive due process, we will affirm
the trial court’s order denying habeas corpus relief.
II. P ROCEDURAL B ACKGROUND
Prior to September 1, 1997, the code of criminal procedure imposed a
ten-year sex offender registration requirement; a person placed on deferred
adjudication for sexual assault was required to register during any community
supervision term and until the tenth anniversary of the date on which the court
dismissed the criminal proceedings against the person and discharged the
person. See Act of May 29, 1995, 74th Leg., R.S., ch. 676, § 2, 1995 Tex.
Gen. Laws 3649, 3649–50 and Act of May 16, 1995, 74th Leg., R.S., ch.
258, § 1, 1995 Tex. Gen. Laws 2197, 2197 (both amended 1997) (current
version at Tex. Code Crim. Proc. Ann. art. 62.101(a) (Vernon 2006)). Effective
September 1, 1997, the law changed to mandate that a person with a
reportable conviction or adjudication for a sexually violent offense register as
a sex offender for the person’s entire life. See Act of June 1, 1997, 75th Leg.,
R.S., ch. 668, § 1, 1997 Tex. Gen. Laws 2253, 2254, 2261 (amended 2005)
(current version at Tex. Code Crim. Proc. Ann. art. 62.101(a) (Vernon 2006)). 1
1
 A “sexually violent offense” is defined to include an offense under
section 22.011 of the penal code (sexual assault) committed by a person
2
Approximately one month after the sex offender registration requirement
changed to require lifetime registration, Chamberlain pleaded guilty pursuant to
a plea bargain agreement to the second-degree felony offense of sexual assault,
a sexually violent offense. The trial court accepted Chamberlain’s plea and,
pursuant to the terms of the plea bargain, deferred an adjudication of guilt and
placed Chamberlain on four years’ community supervision. Chamberlain did not
appeal. 2
Chamberlain successfully completed his community supervision term, and
the trial court discharged him from community supervision. Seven years later,
Chamberlain filed an application for writ of habeas corpus, asking the trial court
(1) to find that his plea was involuntary because it was obtained as a result of
the ineffective assistance of his trial counsel who had failed to inform him that
his plea would require lifetime sex offender registration instead of requiring
registration only during the term of his community supervision and for ten years
thereafter and (2) to declare the SORP unconstitutional as violative of
seventeen years of age or older. See Act of June 1, 1997, 75th Leg., R.S., ch.
668, § 1, 1997 Tex. Gen. Laws 2253, 2254 (current version at Tex. Code
Crim. Proc. Ann. art. 62.001(6)(A) (Vernon Supp. 2009)).
2
 In September 1999, the State filed a petition to proceed to
adjudication. The trial court subsequently dismissed that petition pursuant to
the State’s motion to dismiss.
3
substantive due process. After considering Chamberlain’s application, affidavits
from Chamberlain and his friends, the State’s response, an affidavit from
Chamberlain’s trial attorney, and Chamberlain’s reply, the trial court denied
relief without holding a hearing. Chamberlain now appeals.
III. S TANDARD OF R EVIEW
In general, a trial court’s ruling in a habeas proceeding should not be
overturned absent a clear abuse of discretion. Ex parte Jessep, 281 S.W.3d
675, 678 (Tex. App.—Amarillo 2009, pet. ref’d). We are to evaluate whether
the trial court abused its discretion by determining whether the trial court acted
without reference to any guiding rules or principles. Id. In doing so, we view
the evidence in the light most favorable to the trial court’s ruling. Ex parte
Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006) (holding court of
appeals was to review facts in light most favorable to trial court’s ruling even
when no witnesses testified and all evidence was submitted in written
affidavits); State v. Wilson, 288 S.W.3d 13, 16 (Tex. App.—Houston [1st
Dist.] 2008, pet. granted) (applying standard of review to article 11.072 writ).
IV. N O H EARING R EQUIRED
In his first issue, Chamberlain argues that the trial court abused its
discretion by entering findings of fact and conclusions of law without
conducting a live hearing on the issue of whether his plea was voluntary.
4
Chamberlain complains that the trial court abused its discretion by making fact
findings based on inconclusive, conflicting affidavit evidence concerning
whether his trial counsel informed him of the lifetime sex offender registration
requirement. Chamberlain’s affidavit swore that he was not so informed; his
trial counsel’s affidavit indicated that he did not remember, that his file had
been destroyed, but that it would have been his normal practice to so advise
Chamberlain. Thus, Chamberlain contends that the issue of the voluntariness
of his plea hinged on the trial court’s resolution of a credibility issue and that,
consequently, he was entitled to a hearing to test his former counsel’s
assertions that he would have informed Chamberlain of the change in the law
requiring lifetime sex offender registration. Chamberlain argues that the trial
court’s failure to conduct a hearing in light of this credibility issue constituted
an abuse of discretion and deprived him of due process.
We have previously held that there is no language in article 11.072
requiring the trial court to conduct a hearing on an application for habeas corpus
before rendering its decision on the relief sought. See Ex parte Cummins, 169
S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.); see also Ex parte
Jones, No. 02-07-00388-CR, 2008 WL 3185168, at *9 (Tex. App.—Fort
Worth Aug. 7, 2008, pet. ref’d) (mem. op., not designated for publication). We
have also previously held that the legislature did not intend to prohibit the trial
5
court from considering evidence filed with the application or with the State’s
response without conducting a hearing. See Cummins, 169 S.W.3d at 757.
The trial court’s findings of fact evidence that it did that here. Because article
11.072 does not require the trial court to hold a hearing before rendering its
decision on Chamberlain’s requested relief, we hold that the trial court did not
abuse its discretion by considering Chamberlain’s application, affidavits from
Chamberlain and his friends, the State’s response, an affidavit from
Chamberlain’s trial attorney, and Chamberlain’s reply and by ruling without
holding a hearing. 3 Accord Wheeler, 203 S.W.3d at 325–26 (requiring
appellate court to defer to trial court’s findings even when made or implied
based solely on affidavits). We therefore overrule Chamberlain’s first issue.
V. S UBSTANTIVE D UE P ROCESS S ATISFIED
In his second issue, Chamberlain raises as-applied and facial substantive
due process challenges to the constitutionality of the SORP under the United
States Constitution. In the trial court, however, Chamberlain raised only as-
3
 In his brief, Chamberlain relies on the Fifth Circuit case of Hall v.
Quarterman, 534 F.3d 365 (5th Cir. 2008), for the proposition that he should
be entitled to a hearing. In Hall, the Fifth Circuit applied the deferential
standard mandated by the Antiterrorism and Effective Death Penalty Act to
determine that Hall was entitled to an evidentiary hearing on his claim that he
was mentally retarded. The Hall facts are distinguishable from the present
facts.
6
applied challenges; 4 he is therefore prohibited from raising a facial challenge for
the first time here. See Karenev, 281 S.W.3d at 435 (concluding that a
defendant may not raise a facial challenge to the constitutionality of a statute
4
 In his application for writ of habeas corpus in the trial court,
Chamberlain argued,
Applicant was required to register as a sex offender without
any individualized assessment of how dangerous he was or the
likelihood of re-offending. The trial court had no discretion in
whether to require registration, and no official of the State of Texas
has discretion to alter the requirement. While it is certainly the
case that certain people who plead guilty to or are convicted of a
sex offense may present a high risk of re-offending, many do not.
The Texas Statute does not allow for any assessment of the risk of
re-offending by the individual defendant and does not allow the
Court any discretion in whether to require the defendant to register,
and in this case to register for life. In this rigid approach to sex
offender registration, the statute offends the due process clause of
the 14th Amendment to the United States Constitution in that it
deprives the defendant of the fundamental liberty of a good
reputation and the opportunity to rehabilitate his reputation without
allowing for any serious evaluation of the threat the defendant
presents to society.
Chamberlain thereafter prayed that the trial court would “find and declare the
Sex Offender Registration laws of this state deprive him of liberty to which he
is entitled under the 14th Amendment to the United States Constitution and
Article 1, §§ 10 and 19 of the Texas Constitution.” [Emphasis added.] See
Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim. App. 2009) (Cochran, J.,
concurring) (stating that the difference between a facial challenge and an “as
applied” challenge to the constitutionality of a penal statute is evidence; “[a]
facial challenge is based solely upon the face of the penal statute and the
charging instrument, while an applied challenge depends upon the evidence
adduced at a trial or hearing”).
7
for first the time on appeal). We therefore limit our analysis to whether the
SORP as applied to Chamberlain violates substantive due process under the
United States Constitution.
A. Chamberlain’s Arguments and His Facts
Chamberlain essentially makes two as-applied substantive due process
challenges to the SORP. First, Chamberlain argues that the SORP violated
substantive due process by imposing on him a compulsory initial registration
without any individualized assessment of how dangerous he was or his
likelihood of re-offending. Second, Chamberlain argues that the SORP violates
substantive due process because it requires him to register for his entire life but
provides no mechanism for a determination that, at some point during his
lifetime, he is no longer dangerous or no longer a risk for re-offending and,
consequently, should no longer be required to register. In support of both of
these challenges, Chamberlain points out in his application that his conviction
stemmed from facts that do not demonstrate dangerousness or a likelihood of
re-offending. Chamberlain alleges that after an evening of drinking and dancing
at a nightclub, the complainant accompanied him and his friends to an
apartment where they continued to drink and dance. Chamberlain claims that
eventually he and the complainant retired to one of the bedrooms where they
had consensual sex. He alleges that the next morning, the complainant went
8
to breakfast with him and his friends and that the group then went to his
apartment where the complainant visited with his friends while Chamberlain
took a shower and changed clothes. Chamberlain said that when he took the
complainant home, she kissed him, gave him her phone number, and asked him
to call her. Chamberlain states that he “reluctantly agreed to accept the plea
bargain and plead[ed] guilty to the charge” because he was advised that “this
was the quickest way to get this whole mess over with.”
B. Substantive Due Process Law
Generally, substantive due process protects against the arbitrary exercise
of governmental powers, unrestrained by established principles of private rights.
See County of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S. Ct. 1708,
1716 (1998). The United States Supreme Court’s substantive due process
analysis has two primary features:
First, we have regularly observed that the Due Process
Clause specially protects those fundamental rights and liberties
which are, objectively, “deeply rooted in this Nation’s history and
tradition,” and “implicit in the concept of ordered liberty,” such that
“neither liberty nor justice would exist if they were sacrificed.”
Second, we have required in substantive-due-process cases a
“careful description” of the asserted fundamental liberty interest.
Our Nation’s history, legal traditions, and practices thus provide the
critical “guideposts for responsible decisionmaking” that direct and
restrain our exposition of the Due Process Clause.
9
Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 2268 (1997)
(citations and parentheticals omitted); Ex parte Morales, 212 S.W.3d 483, 493
(Tex. App.—Austin 2006, pet. ref’d). The substantive component of the Due
Process Clause of the United States Constitution provides heightened protection
against government interference with the above described fundamental rights
or liberty interests. Glucksberg, 521 U.S. at 719, 117 S. Ct. at 2266. When
such a fundamental right or liberty interest is involved, the state must show a
compelling interest to curtail it and must do so as narrowly as possible. See
Reno v. Flores, 507 U.S. 292, 301–02, 113 S. Ct. 1439, 1447 (1993). When
no fundamental right or liberty interest is involved, however, the State must
show only a rational basis for its actions or legislation to survive a substantive
due process challenge. See Sullivan v. State, 986 S.W.2d 708, 714 (Tex.
App.—Dallas 1999, no pet.).
We begin our analysis of Chamberlain’s constitutional challenges with a
presumption that the SORP is valid and that the legislature has not acted
unreasonably or arbitrarily by enacting it. Rodriguez v. State, 93 S.W.3d 60,
69 (Tex. Crim. App. 2002). The burden rests on Chamberlain to establish its
unconstitutionality. Id.
10
C. The Interest at Issue; Rational Basis Exists
Chamberlain claims that the SORP arbitrarily and unreasonably infringes
upon his “right” to rebuild his dignity. The crux of Chamberlain’s complaint is
that his reputation is damaged by the SORP’s lifetime registration requirement.
We interpret Chamberlain’s argument to be that his reputation constitutes a
cognizable liberty interest for purposes of triggering the heightened substantive
due process protection. 5
Other courts have rejected the argument that a sex offender’s interest in
his reputation is a fundamental right or a liberty interest that will trigger
heightened federal substantive due process protection from statutory sex
offender registration schemes. See Cutshall v. Sundquist, 193 F.3d 466, 479
(6th Cir. 1999), cert. denied, 529 S. Ct. 1053 (2000); Doe v. Pataki, 3 F.
Supp. 2d 456, 467 (S.D.N.Y. 1998); Russell v. Gregoire, 124 F.3d 1079, 1094
(9th Cir. 1997), cert. denied sub nom. Russell v. Gregoire, 523 U.S. 1007
(1998); E.B. v. Verniero, 119 F.3d 1077, 1102–04 (3rd Cir. 1997), cert.
denied sub nom. W.P. v. Verniero, 522 U.S. 1109 (1998); Artway v. Attorney
5
 To the extent Chamberlain asserts any different interest, it does not
meet the requirement of being a fundamental right or liberty “objectively, deeply
rooted in this Nation’s history and tradition, and implicit in the concept of
ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed.” See Glucksberg, 521 U.S at 720–21, 117 S. Ct. at 2268.
11
Gen. of New Jersey, 81 F.3d 1235, 1268–69 (3rd Cir. 1996); see also Conn.
Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 6, 123 S. Ct. 1160, 1164 (2003)
(holding convicted sex offender had not been deprived of liberty interest for
purposes of procedural due process challenge to SORP); Paul v. Davis, 424 U.S.
693, 712, 96 S. Ct. 1155, 1165–66 (1976) (reputation alone is not a
constitutionally protected liberty interest). In the absence of authority
establishing that a sex offender possesses a fundamental right or liberty interest
in his reputation, we decline to recognize this allegedly fundamental right or
liberty interest. Because Chamberlain has not established that he possesses a
fundamental right or a liberty interest that the SORP impinges upon, his as-
applied constitutional challenges are not subject to the heightened substantive
due process protection provided when the government interferes with a
fundamental right or liberty interest. See Glucksberg, 521 U.S. at 719, 117 S.
Ct. at 2266. Instead, we analyze both Chamberlain’s as-applied federal
substantive due process constitutional challenges to determine whether the
SORP bears a rational relationship to a legitimate state interest. Accord City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249,
3254 (1985); Tex. Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d
504, 525 (Tex. 1995); In re M.A.H., 20 S.W.3d 860, 864 (Tex. App.—Fort
Worth 2000, no pet.).
12
We first examine the state interest; there is no question that the Texas
Legislature has a legitimate interest in protecting the citizens of Texas from
sexual predators. See Rodriguez, 93 S.W.3d at 74; accord, e.g., United States
v. Hernandez, 615 F. Supp. 2d 601, 621 (E.D. Mich. 2009); United States v.
Ambert, 561 F.3d 1202, 1209 (11th Cir. 2009); Doe v. Moore, 410 F.3d
1337, 1346 (11th Cir.), cert. denied sub nom. John Doe I v. Moore, 546 U.S.
1003 (2005); In re W.M., 851 A.2d 431, 451 (D.C. 2004), cert. denied sub
nom. W.M. v. Court Servs. Offender Supervision Agency, 543 U.S. 1062
(2005); Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir.), cert. denied, 543 U.S.
817 (2004); Gunderson v. Hvass, 339 F.3d 639, 643 (8th Cir. 2003), cert.
denied sub nom. Gunderson v. Fabian, 540 U.S. 1124 (2004); Akella v. Mich.
Dep’t of State Police, 67 F. Supp. 2d 716, 733 (E.D. Mich. 1999); In re J.W.,
787 N.E.2d 747, 757, 760 (Ill.), cert. denied sub nom. J.W. v. Illinois, 540
U.S. 873 (2003); Gibson v. Ind. Dep’t of Corr., 899 N.E.2d 40, 55 (Ind. Ct.
App. 2008); McCabe v. Commonwealth, 650 S.E.2d 508, 561, 563–66 (Va.
2007). And because the SORP’s notification provisions inform citizens that sex
offenders are living in their community—in order that citizens may take
necessary precautions—the SORP is a rational means to further a legitimate
13
state interest.6 See M.A.H., 20 S.W.3d at 865; Ex parte Mercado, No. 14-02-
00750-CR, 2003 WL 1738452, at *4 (Tex. App.—Houston [14th Dist.] Apr.
3, 2003, no pet.) (mem. op., not designated for publication); see also
Hernandez, 615 F. Supp. 2d at 621 (“SORNA [Sex Offender Registration and
Notification Act] meets the rational basis test because it is in the interest of
government to protect the public from sex offenders, and knowing where
offenders live enables the public to assess the risk and take protective
measures as appropriate.”). Thus, the remaining analysis requires us to
determine whether the features of the SORP challenged by Chamberlain bear
a rational relationship to the State of Texas’s legitimate interest in protecting
its citizens from sexual predators.
6
 Chamberlain does not attack the statutory notification provisions.
Indeed, two well-known pieces of federal legislation address the issues of sex
offender registration and community notification: the Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Act, passed in
1994, requiring all states to enact a program mandating that designated
offenders register with state or local authorities or risk losing ten percent of the
states’ federal anti-crime funding, see H.R. 3355, 103d Cong. § 170101
(1994) (outlining original version of act adopted by Congress and signed into
law), and Megan’s Law, enacted in 1996, as an amendment to the Jacob
Wetterling Act, requiring community notification when sex offenders move into
a neighborhood. See 42 U.S.C. § 14071 (2003).
14
D. Rational Basis Test Applied to Chamberlain’s Claims
Chamberlain argues that Texas’s SORP as applied to him violates
substantive due process because the statute’s compulsory registration
requirement, in the absence of any individualized assessment of his
dangerousness or risk of recidivism, bears no relationship to any legitimate state
interest. He also argues that the SORP as applied to him violates substantive
due process because it requires him to continue to register for his entire life and
provides no mechanism for a determination that, at some point in his life, he is
no longer dangerous or a recidivism risk. 7
The Texas Court of Criminal Appeals has not addressed the substantive
due process challenges raised by Chamberlain; they appear to be issues of first
impression. Because the court of criminal appeals has not addressed the
substantive due process challenges raised by Chamberlain, we conducted
national scope research looking for guidance on how other states have
addressed federal substantive due process challenges to sex offender
7
 With regard to this challenge, Chamberlain argues that “in the absence
of some individualized assessment that he presents a danger to [the]
community . . . [t]he SORP . . . arbitrarily creates a lifetime wall of shame . . .
for people who pose no significant risk of further crimes[, and] it is
unconstitutional.”
15
registration requirements. 8 The states that have addressed as-applied federal
substantive due process challenges like Chamberlain’s to a compulsory
statutory registration requirement on the ground that it required registration in
the absence of any individualized assessment of dangerousness or risk of
recidivism have nonetheless found the statutes constitutional. See, e.g., State
v. Druktenis, 2004-NMCA-032, 135 N.M. 223, 241, 86 P.3d 1050, 1068
(N.M. Ct. App. 2004); see also People v. Hood, 790 N.Y.S.2d 757, 758–59
(2005). As stated by the New Mexico Court in Druktenis,
Presumably, the unfairness to any who might present evidence that
they do not pose a significant risk of recidivism is, in the
Legislature’s view, outweighed by the risk that citizens may be
harmed notwithstanding such evidence. SORNA’s [Sex Offender
Registration and Notification Act’s] message is that no chance
should be taken, even were a sex offender able to present evidence
in an individualized hearing that he or she is integrateable into
society and neither a recidivist nor a current danger, since the risk
of harm to society, no matter what the evidence, is still too great
if exceptions were permitted, a risk the Legislature simply refuses
to take.
8
 Texas’s compulsory lifetime registration SORP applies to specifically
delineated offenses. See Tex. Code Crim. Proc. Ann. art. 62.101(a).
Registration for other reportable offenses is generally for ten years after the
person exits the penal system. See id. art. 62.101(c). Many states’ statutory
sex offender registration schemes, like Texas’s, create multi-tiered registration
requirements based on the type of offense committed. See, e.g., Ark. Code
Ann. § 12-12-919 (West 2004 & Supp. 2009); D.C. Code §§ 22-4001(6), 22-
4002 (2001 & Supp. 2009); N.Y. CORRECT. LAW § 168-h (McKinney 2003
& Supp. 2009); Okla. Stat. tit. 57, § 583 (2004 & Supp. 2009).
16
135 N.M. at 241, 86 P.3d at 1068. Likewise, the New York Supreme Court
in the Hood case rejected a defendant’s assertion that the sex offender
registration statute violated substantive due process by failing to include a “no
risk” category exempting purportedly non-dangerous offenders from
registration. 790 N.Y.S.2d at 758–59. The court noted that the statute
mandated registration based on a defendant’s conviction of an enumerated sex
offense, not his level of dangerousness. Id. Because the SORP required
Chamberlain’s compulsory registration based on his conviction of a crime that
meets the SORP’s definition of a “sexually violent offense,” we hold that the
SORP’s initial registration requirement is rationally related to the legitimate state
interest of protecting citizens from sexual predators. See Druktenis, 135 N.M.
at 241, 86 P.3d at 1068; Hood, 790 N.Y.S.2d at 758–59. Consequently, we
hold Chamberlain has failed to establish that the SORP’s initial registration
requirement, as applied to him, violates substantive due process.
We next address Chamberlain’s argument that the SORP as applied to him
violates substantive due process because it requires him to continue to register
for his entire life and provides no mechanism for a determination that, at some
point in his life, he is no longer dangerous or a recidivism risk. The court of
criminal appeals has rejected the exact constitutional challenge to the SORP
that Chamberlain makes when that challenge was framed as a procedural due
17
process challenge. See Ex parte Robinson, 116 S.W.3d 794, 797–98 (Tex.
Crim. App. 2003). In Ex parte Robinson, the court of criminal appeals
discussed the United States Supreme Court’s decision in Connecticut
Department of Public Safety v. Doe and wrote:
The [U.S. Supreme] Court held that “the fact that respondent seeks
to prove—that he is not currently dangerous—is of no consequence
under Connecticut’s Megan’s Law.” The Court explained that
“even if respondent could prove that he is not likely to be currently
dangerous, Connecticut has decided that the registry information
of all sex offenders—currently dangerous or not—must be publicly
disclosed.”
....
Robinson . . . argues that this is the very flaw with the SORP—that
it does not distinguish between dangerous and non-dangerous
offenders. He seeks a hearing to establish that he is not
dangerous. This is the same argument that Doe made and, like
Doe, Robinson specifically limits his argument in this court to one
of procedural due process, not substantive due process. As the
Supreme Court explained, there is no right to establish facts that
are irrelevant under the statutory scheme. And we need not
address the issue of substantive due process because it is not
before us.
116 S.W.3d at 797–98 (citations and footnotes omitted).
Turning specifically to an examination of the Texas sex offender
registration statute, the SORP, reveals that a statutory mechanism does exist
for persons subject to lifetime registration to seek early termination of their
obligation to register. See Tex. Code Crim. Proc. Ann. arts. 62.401–.408
18
(Vernon 2006). First, article 62.101 provides that “[e]xcept as provided by . . .
Subchapter I [the early termination of registration chapter]” a person is subject
to lifetime registration. See id. art. 62.101(a). Thus, the SORP clearly creates
an exception to lifetime registration; it authorizes a person who is required to
register for life to seek early termination of that obligation. Second, Subchapter
I, article 62.403 provides for an “individual risk assessment” to be performed
upon “the written request of a person with a single reportable adjudication” that
requires the person to register longer under Texas law than under federal law.
See id. art. 62.403(b); see also id. art. 62.007 (Vernon 2006). An individual
risk assessment evaluates the criminal history of a person required to register
and seeks to predict the person’s risk of recidivism and the level of continuing
danger the person poses to the community. Id. art. 62.043(a)(1)(2)(A), (B). A
person who is required to register and has requested and received an individual
risk assessment may file a motion for early termination of the person’s
obligation to register. See id. art. 62.404. The trial court may hold a hearing
to determine whether to grant or to deny a motion for early termination of
registration. See id. art. 62.405. To the extent that the SORP’s rational
relationship to the State’s legitimate interest in protecting its citizens from sex
offenders diminishes as a sex offender over time establishes his lack of
dangerousness and low risk of recidivism, the SORP does provide a vehicle for
19
such an offender (with a single reportable adjudication) to obtain an
individualized assessment of dangerousness and risk of recidivism and possibly
obtain early release from his obligation to register as a sex offender. 9
The SORP as applied to Chamberlain does not violate substantive due
process. The SORP’s initial compulsory registration requirement is rationally
related to and furthers a legitimate state interest, and the SORP contains a
mechanism that allows sex offenders who are purportedly not dangerous and
who pose a low risk of re-offending to petition for early termination of the
registration requirements. The record before us is thus insufficient to rebut the
presumption that the SORP is constitutional as applied to Chamberlain. We
overrule Chamberlain’s second issue.
9
 To the extent that Chamberlain complains about any other aspect of
the SORP, such complaints are for the legislature’s consideration. See M.A.H.,
20 S.W.3d at 864–65 (stating that whether application of SORP should be
contingent upon juvenile’s age or the seriousness of the offense was a question
left to the legislature). Moreover, whether the duration of the registration for
nonviolent sex offenders should be further limited is also a matter better left to
the legislature. See J.W., 787 N.E.2d at 760.
20
VI. C ONCLUSION
Having overruled both of Chamberlain’s issues and because there is no
relief from this court that is available to Chamberlain, we affirm the trial court’s
order denying habeas corpus relief.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
PUBLISH
DELIVERED: December 17, 2009
21