Court of Appeals of Texas, Ninth District, Beaumont
Submitted on January 19, 2017
Appeal from the 136th District Court Jefferson County, Texas
Trial Cause No. D-198352
McKeithen, C.J., Kreger and Johnson, JJ.
CHARLES KREGER, Justice
suit underlying this interlocutory appeal, C.I. seeks
declaratory and injunctive relief from efforts by state and
local officials to require him to register under the Texas
sex offender registration program ("SORP") of
Chapter 62 of the Texas Code of Criminal Procedure. See
generally Tex. Code Crim. Proc. Ann. arts. 62.001-.408
(West 2006 & Supp. 2016). Appellant, Steven McCraw, in
his official capacity as the Director of the Texas Department
of Public Safety, appeals from an order of the trial court
denying his plea to the jurisdiction. For the reasons set
forth below, we affirm the trial court's ruling.
facts underlying this case are undisputed. In 1986, C.I. pled
guilty to the offense of Indecency with a Child in the
Criminal District Court of Jefferson County, Texas. That
court accepted the plea, substantiated C.I.'s guilt, and,
pursuant to article 42.12 of the Code of Criminal Procedure
as it then existed, "defer[red] further proceedings
without entering an adjudication of guilt" and
"place[d] [C.I.] under [community] Supervision for a
period of ten (10) years, " subject to various
conditions of probation. C.I. successfully completed the full
term of his probation, and in 1996, the Criminal District
Court entered an order dismissing the case against him. In
2014, the Beaumont Police Department contacted C.I. and
notified him, for the first time, that he was required to
register as a sex offender. C.I. is listed by the Texas
Department of Public Safety (DPS) on the State's sex
offender registry as having been convicted of indecency with
a child in its online database.
filed suit against DPS, McCraw, the City of Beaumont, and James
P. Singletary, Chief of Police for the City of Beaumont,
under the Uniform Declaratory Judgment Act ("DJA"),
seeking "to determine his rights under the plea
agreement into which he entered with the State of Texas, to
determine his status in regard to whether or not he was
convicted of a felony, and to determine his offender
registration status." McCraw, the City of Beaumont, and
Singletary each filed pleas to the jurisdiction. After a
hearing, the trial court granted the pleas filed by the City
of Beaumont and Singletary, but denied the plea by McCraw.
McCraw then filed notice of interlocutory appeal.
See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(8) (West Supp. 2016); Texas A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 846 (Tex. 2007)
("a state official may seek interlocutory appellate
review from the denial of a jurisdictional
to the jurisdiction is a dilatory plea that challenges a
trial court's authority to decide a case on the merits.
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554
(Tex. 2000). When a plea to the jurisdiction asserts
sovereign immunity in a suit against a government official,
the claimant bears the burden of pleading sufficient facts to
affirmatively demonstrate the court's jurisdiction.
Tex. Dep't of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004). Whether the trial court has
subject matter jurisdiction is a question of law that we
review under a de novo standard, construing
the pleadings liberally in plaintiff's favor and looking
to his intent. See id. We also review matters of
statutory construction de novo. In re Mem'l
Hermann Hosp. Sys., 464 S.W.3d 686, 700 (Tex. 2015).
three issues, McCraw argues that: (1) he has not waived
sovereign immunity; (2) C.I.'s plea agreement and
successful completion of deferred adjudication do not nullify
the requirement that C.I. register as a sex offender; and (3)
C.I. cannot obtain a declaratory judgment on an issue arising
under a penal statute. We will address the issue concerning
the applicability of the SORP requirements first, as the
resolution of that issue controls the question of sovereign
immunity in this matter.
Requirement of Registration After Successful Deferred
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 2029-32
(originally located at Tex. Rev. Civ. Stat. Ann. art.
6252-13c.1) (amended, codified, and redesignated);
Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim.
App. 2002). At that time, the registration requirements
"applie[d] 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, sec. 1(5), 8(a), 1991 Tex. Gen. Laws
2029, 2030. In 1993, the Legislature expanded the definition
of "reportable conviction or adjudication" to
include deferred adjudications for specific offenses,
including indecency with a child, but applied the expanded
definition only 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, 3(a)(2), 1993 Tex. Gen. Laws
3420-21 (originally located at Tex. Rev. Civ. Stat. Ann. art.
6252-13c.1, §§ 1(5)(E), 8(a)(2)) (amended,
codified, and redesignated). Thus, it is undisputed that C.I.
had no duty to register under the SORP either at the time of
its enactment in 1991, nor at the time that the criminal case
against him was dismissed in 1996.
1997, the Legislature redesignated the statute as Chapter 62
of the Code of Criminal Procedure, and for the first time,
made the registration requirements retroactively 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, 1997 Tex. Gen. Laws
2253, 2260 (originally codified at Tex. Code Crim. Proc. art.
62.11) (repealed 2005). However, that legislation also
included an "uncodified 'savings clause'"
that limited the retroactive application to individuals who
were, as of September 1, 1997, incarcerated in a penal
institution or under state supervision. Act of June 1, 1997,
75th Leg., R.S., ch. 668, § 11, 1997 Tex. Gen. Laws
2253, 2264; Reynolds v. State,385 S.W.3d 93, 95-96
(Tex. App.-Waco 2012), aff'd423 S.W.3d 377
(Tex. Crim. App. 2014). That limitation on retroactivity was
subsequently eliminated in 2005 when the Legislature repealed
article 62.11 and enacted article 62.002, which maintained
the language applying the SORP to any "reportable
conviction or adjudication occurring on or after ...