SGN C.S.H.B. 489 75(R)BILL ANALYSIS CORRECTIONS C.S.H.B. 489 By: Allen 4-10-97 Committee Report (Substituted) BACKGROUND Since 1991 Texas has required registration of persons convicted of, or given deferred adjudication for, indecency with a child, sexual assault, prohibited sexual conduct, performance by a child and possession of pornography or those persons who receive a fourth conviction for indecent exposure. PURPOSE C.S.H.B. 489 will expand protections and information available to the public initiated in the 74th Session by requiring lifetime registration for certain offenses and assigning risks levels to sex offenders upon registration. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 1 (4) and (5), Article 6252-13c.1 (Sexual Offender Registration Program), Revised Statutes, as follows: (4) Adds "placed in a nonsecure community program for juvenile offenders," or placed on "juvenile probation, community supervision," to the definition of "Released". (5) Adds that a "Reportable conviction or adjudication" is a conviction or adjudication, regardless of the pendency of an appeal. Adds language providing that if the defendant was a person 18 years of age or older at the time of the violation of Section 25.02 (Prohibited sexual conduct), Penal Code then that is a reportable conviction or adjudication. Also adds convictions for violations of Sec. 43.03 (Promotion of prostitution), Sec. 43.04 (Aggravated promotion of prostitution), Sec. 43.05 (Compelling prostitution), Sec. 43.23 (Obscenity), Penal Code to the definition of "Reportable conviction or adjudication." Adds the second conviction for a violation of Section 21.07(a)(4) (Public lewdness), Sec. 43.22 (Obscene display or distribution), and Sec. 43.251 (Employment harmful to children), Penal Code to the definition of "Reportable conviction or adjudication". Adds that the second conviction under the laws of another state for an offense containing elements substantially similar to the elements of the offenses of public lewdness, indecent exposure, obscene display or distribution, employment harmful to children to the definition of "Reportable conviction or adjudication". SECTION 2. Amends Section 2 (e), Article 6252-13c.1, Revised Statutes, to delete references to how a person is released and to add a juvenile probation officer to the list of people the person shall provide their temporary address. SECTION 3. Amends Section 3, Article 6252-13c.1, Revised Statutes, as follows: Sec. 3. PRERELEASE NOTIFICATION. (a) Requires the Texas Department of Criminal Justice, or the Texas Youth Commission, as appropriate, before a person required to register under this article is due to be released from a penal institution, to determine the person's level of risk to the community and assign the person a risk level using criteria established by the department or commission. Deletes reference to how a person is released and adds juvenile probation officer to the list people that the person may report to. (b) Requires that the risk level be sent with the person's registration form to the DPS and other appropriate people. (c) Provides that if a person who is subject to registration receives an order deferring adjudication, placing the person on juvenile probation or community supervision, or imposing only a fine, the court shall determine the person's risk level based on a recommendation submitted to the court under Subsection (d) of this section. Provides that if a representative from the community supervision and corrections department or juvenile probation department is in court at the time a court pronounces an order or sentence under this subsection, they shall obtain the person's risk level from the court and conduct the prerelease notification and registration requirements specified in this section. In any other case, the court shall designate another appropriate individual to obtain the person's risk level from the court. (d) Requires a representative of a community supervision and corrections department or juvenile probation department, on request by a court, to submit to the court a recommendation as to the appropriate risk level for a person who may be subject to registration under this article. Requires the representative to determine that risk level using the applicable risk assessment instrument developed under this subsection. Requires the TDCJ, TYC, TJPC, and Council on Sex Offender Treatment to consult and develop a standard risk assessment instrument for adults and a standards risk assessment instrument for juveniles to be used in determining risk levels. (e) Reletters the section. (f) Reletters the section and conforms the lettering for previous subsections of this section. Requires local law enforcement authorities to publish notice in newspaper if the basis of registration is a conviction for a felony offense listed in Section 1 (5) of this article, other than an offense under Section 25.02, Penal Code. For notification of school superintendents, the basis on which the person is subject to registration does not matter. (g) Reletters the section. (h) Reletters the section. SECTION 4. Amends Section 4(a), (b), (e), and (f), Article 6252-13c.1, Revised Statutes, as follows: (a) Adds juvenile probation officer to the list of people that may supervise a person and to whom the person should provide their anticipated move date and new address. (b) Adds juvenile probation officer to the list of people that may supervise a person and are required to forward notice of the person's anticipated move date and new address to the local law enforcement authorities with whom the person last registered. (e) Adds juvenile probation officer to the list of people that may supervise a person and to whom the person shall report weekly during any period in which the person has not moved to an intended residence. (f) Provides that if the person moves to another municipality or county in this state, the local law enforcement authority is required to publish notice in the newspaper if the basis of registration is a conviction for a felony offense listed in Section 1(5) of this article, other than an offense under Section 25.02, Penal Code. Notice shall be provided to the superintendent of public schools regardless of the basis on which the person is subject to registration. SECTION 5. Amends Section 5(a), Article 6252-13c.1, Revised Statutes to add the risk level assigned to a person be included in the computerized central database. SECTION 6. Amends Section 7, Article 6252-13c.1, Revised Statutes, to provide that a person commits an offense if the person is required to register and fails to comply with any requirement of this article. Provides that failure to register is a felony of the third degree. Also provides that if it is shown at trial for an offense under this section that the person has been previously convicted of an offense under this section, the person shall be punished for second degree felony. SECTION 7. Amends Section 8, Article 6252-13c.1, Revised Statutes as follows: Sec. 8. APPLICABILITY; EXEMPTIONS. (a) Provides that this article applies only to a reportable conviction or adjudication occurring on or after September 1, 1970, except that the provisions of Section 3 and Section 4 of this article relating to the requirement of newspaper publication apply only to: a reportable conviction or adjudication occurring on or after September 1, 1997, if the conviction or adjudication relates to an offense under Section 21.07, 43.02, 43.03, 43.04, 43.05, 43.22, 43.23, or 43.251, Penal Code; or an offense in which the victim is a person 17 years of age or older; or a reportable conviction or adjudication occurring on or after September 1, 1995, if the conviction or adjudication is not a conviction or adjudication described above. (b) Allows a person who has a reportable conviction or adjudication for which the person is subject to registration under this article to petition a district judge in the county where the person resides or intends to reside for an exemption from this article. Allows the judge, after a hearing on the matter, to grant the exemption if the person proves by a preponderance of the evidence specific facts indicating that registration under this article would place the person's health and well-being in immediate danger. SECTION 8. Amends Section 9, Article 6252-13c.1, Revised Statutes, as follows: Sec. 9. EXPIRATION OF DUTY TO REGISTER. (a) Provides that the duty to register for a person with a reportable conviction or adjudication ends when the person dies unless, before death, the duty to register ended under Subsection (d). (b) Provides that the duty to register for a person with a reportable conviction or adjudication under Section 1 (5) (A), (B), (F), (G), (H), or (I) of this article based on an offense under Section 25.02 or 43.03, Penal Code, an attempt, conspiracy, or solicitation to commit an offense under Section 25.02 or 43.03, Penal Code, or an offense containing elements substantially similar to an offense under Section 25.02 or 43.03, Penal Code, ends as provided by Subsection (d) of this section. (c) Provides that the duty to register for a person with a reportable conviction or adjudication under Section 1(5)(E), (G), or (J) of this article based on two violations of an offense under Section 21.07(a)(4), 21.08, 43.22, or 43.251, Penal Code, or two violations of an offense containing elements substantially similar to these offenses ends as provided by Subsection (d) of this section. (d) Provides that the duty to register for a person with a reportable conviction or adjudication described by Subsection (b) or (c) of this section ends: (1) if the person's duty to register is based on an adjudication of delinquent conduct on the tenth anniversary of the date on which the disposition is made or the person completes the terms of the disposition, whichever date is later; or (2) if the person's duty to register is based on a conviction or on an order of deferred adjudication, on the 10th anniversary of the date on which the court dismisses the criminal proceedings against the person and discharges the person, the person is released from county jail, or the person discharges community supervision, whichever date is later. SECTION 9. Repeals Section 2(d), Article 6252-13c.1, Revised Statutes, as added by Section 1, Chapter 676, Acts of the 74th Legislature, Regular Session. SECTION 10. Provides that the changes in law made by this Act to Section 7, Article 625213c.1, Revised Statutes, applies only to offenses committed on or after the effective date of this Act. SECTION 11. Provides that the changes in law made by this Act to Section 8(a) and 9, Article 6252-13c.1, Revised Statutes, apply only to a defendant who, with respect to an offense listed in Section 1(5), Article 6252-13c.1, Revised Statutes, on or after the effective date of this Act is confined in a penal institution or is under the supervision and control of a juvenile probation office or an agency or entity operating under contract with a juvenile probation office, a community supervision and corrections department, or the pardons and paroles division of TDCJ. Provides that a defendant who, on the effective date of this Act, is not in a penal institution or under the supervision of a juvenile probation office, a community supervision and corrections department or the pardons and paroles division, is covered by the law in effect under Section 8(a) and 9, Article 6252-13c.1, Revised Statutes, before those sections were amended by this Act. SECTION 12. Effective date: September 1, 1997. SECTION 13. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute amends the definition of "released" by adding the words "placed in a nonsecure community program for juvenile offenders". Throughout the substitute, language is provided to add juvenile probation officers to the list of available officers. The substitute adds the offenses of promotion of prostitution, aggravated promotion of prostitution, compelling prostitution, and obscenity to the definition of reportable conviction or adjudication and deletes the offenses of public lewdness and sale, distribution, or display of harmful material to a minor from this definition. The substitute provides that the second conviction for a violation of public lewdness (Sec. 21.07(a)(4), Penal Code), obscene display or distribution, or employment harmful to children is a reportable conviction or adjudication. The original bill required the Board of Pardons and Paroles to determine a person's level of risk to the community and assign to the person a numeric risk level using specific guidelines outlined in the original bill. The substitute requires the Department of Criminal Justice or Texas Youth Commission to determine the person's level of risk to the community and assign to the person a risk level using criteria established by the department or commission. The substitute adds a new subsection which requires a representative of a CSCD or juvenile probation department to submit to the court, upon request by the court, a recommendation as to the appropriate risk level for a person who may be subject to registration. Requires this representative to determine this level by using applicable risk assessment instrument developed by TDCJ, TYC, TJPC and Council on Sex Offender Treatment. The original bill required, in addition to information currently required, the person's full name, race, a statement indicating whether the victim was a person younger than 17 years of age at the time of the commission of the offense, and the person's numeric risk level be published in a newspaper. The substitute maintains the current language regarding publishing information in a newspaper. C.S.H.B. 489 adds new language which makes the act retroactive for registration requirements, but not notification in the newspaper. Language is added to require a defendant to prove beyond a preponderance of evidence that registration under this article would place them in immediate danger before being granted an exemption.