Ex Parte: Jason Jones v. the State of Texas ( 2023 )

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
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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.
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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
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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
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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
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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)
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