Source: thecrimereport.org 9/7/23
In a 6-3 decision Ex parte Danny Richard Lane, the state’s highest criminal appeals court ruled that Texas’ historical doctrine of “judicial clemency” does not forgive sex offender registration.
The Texas Legislature in 1965 created this doctrine which gives a trial court the authority to, after a defendant has successfully completed the terms of probation, “set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime …”
This legislation morphed into what has become known in the state’s criminal justice system as an act of “judicial clemency”—similar to its cousin “executive clemency.”
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Texas overwhelmingly leads the nation with more than 100,000 registered sex offenders followed by a distant second California with nearly 62,000 such offenders.
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In September 2017, two attorneys with the Texas Department of Criminal Justice Office of State Counsel for Offenders informed Lane that based on a recent opinion from one of the state’s appeals court he no longer had a duty to register and would be removed from the state’s sex offender registry.
In September 2018, Lane challenged his 2007 conviction for failure to register based on the new appeals court decision. The trial court recommended that the 2007 conviction be set aside because of the 1987 “judicial clemency” order in the rape case.
The Texas Court of Criminal Appeals, however, rejected that recommendation, finding that a sex offender’s duty to register can be terminated only for two reasons: 1) the sex offense conviction requiring registration is reversed on appeal; or 2) the offender receives a full pardon based on proof of actual innocence.
Judicial clemency, the court said, does not fall within these parameters.
The Lane case is instructive for one basic reason beyond the judicial clemency issue:
Even if a sex offender receives a pardon based on “rehabilitation” or other individual meritorious reasons, they still must register as a sex offender. Only a pardon based on actual innocence forecloses the duty to register.
Bottom line:
There is no wiggle room on the duty to register as a sex offender, at least not in Texas.
Looks like the author flipped the numbers for CA and TX. At the very least, they greatly got the CA numbers wrong.
What does dismissed even mean then?
100,000 registrants in Texas is correct. I am one of them. I received and completed a Deferred Adjudication here and served 10yrs probation. Successfully completed that and the charges were dropped. No conviction. But. I still have to register. Its a catch 22 here with this b.s. That is why I am leaving this f’d up country asap to finish the rest of my life as a free man. I am tired of looking over my shoulder.
Both CA and TX attach the registry to a sex crime conviction penalty, identifying two separate penalties: one punitive and the other non-punitive. Both must be adhered to under penalty of law. The problem is that the non-punitive penalty is directly a result of the conviction.
13th amendment: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
The non-punitive penalty (registry) is involuntary servitude. The non-punitive penalty does not exist without a sex crime conviction.
It is shameful to not award relief to registrants who have been legally identified through the courts as being rehabilitated. CA wrote a law to override its own case dismissal, PC 1203.4, with PC 290.007.
PC 1203.4:
..1. be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if they have been convicted after a plea of not guilty, the court shall set aside the verdict of guilty;
..2. and, in either case, the court shall thereupon dismiss the accusations or information against the defendant
..3. and except as noted below, the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted
PC 290.007: A person required to register pursuant to any provision of the Act shall register in accordance with the Act, regardless of whether the person’s conviction has been dismissed pursuant to Section 1203.4, unless the person obtains a certificate of rehabilitation and is entitled to relief from registration pursuant to Section 290.5, or is exonerated pursuant to subdivision (e) of Section 3007.05 of the conviction requiring registration and the person is not otherwise required to register.
There is great disdain for a state court to disregard earning legal rehabilitation by excluding the registrant class alone from all the convict class. PC 290.007 violates its own law of “A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.” (CA Const., Art. 1, Sec 9) Registrants are not extended equal protection of rights and laws.
It is shameful to castigate one group of convicts to negate lawful rehabilitation, especially without any scientific reasoning.
Recently, a case decision of Fallen v US from the District of Columbia Circuit Court of Appeals identified any registration term beyond 5 years or longer is a serious penalty that violates the 6th amendment, which requires a jury trial.
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On a tangent, Texas’ only way to get off the registry is the same as the new SORNA laws, which is currently in a lawsuit by PLF and ACSOL enjoins.
How can a collateral consequence remain in effect if the offense spurring it has been dismissed?
Do anyone any if there are any new lawsuits against challenging, Texas’s lifetime registration retroactive law?