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Texas Department of Public Safety v. Fowle

Court of Appeals of Texas, Fourteenth District

July 11, 2019

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
v.
PAUL EUGENE FOWLE, Appellee

          On Appeal from the 201st District Court Travis County, Texas Trial Court Cause No. D-1-GN-17-005174

          Panel consists of Justices Christopher, Hassan, and Poissant.

          OPINION

          TRACY CHRISTOPHER, JUSTICE

         The question in this case is whether a person must register as a sex offender in Texas if he was convicted under an Arizona statute for sexual abuse. Our answer is yes.

         I. Background

         Paul Fowle was indicted by the State of Arizona on two counts of sexual abuse. The indictment contained no factual allegations beyond the charge that he "intentionally and knowingly engaged in sexual contact" with a minor under the age of fifteen in June of 1983. Fowle pleaded guilty to both counts and was sentenced to concurrent terms of two years' imprisonment.

         Fowle moved to Texas after serving his sentences in Arizona. Upon his relocation, a question arose as to whether he was required to register as a sex offender in Texas.

         The answer to that question turns on an application of the Sex Offender Registration Act (the "Act"), which requires a person to register as a sex offender if he has a "reportable conviction or adjudication." See Tex. Code Crim. Proc. art. 62.051(a). A reportable conviction or adjudication includes a conviction from another state if the other state's offense contains elements that are "substantially similar" to the elements of an enumerated Texas offense. Id. art. 62.001(5)(H).

         The Department of Public Safety ("DPS") is responsible for determining whether the elements of a foreign offense are substantially similar to the elements of a Texas offense. Id. art. 62.003(a). DPS determined in this case that the Arizona offense for sexual abuse contained elements that were substantially similar to the Texas offense for indecency with a child. Because indecency with a child is one of the enumerated offenses under the Act, DPS determined that Fowle had a reportable conviction or adjudication and that he was required to register as a sex offender. Id. art. 62.001(5)(A).

         Fowle appealed DPS's determination to the trial court below, as the Act empowered him to do. Id. art. 62.003(c). The trial court granted Fowle's appeal and signed an order stating that his conviction in Arizona was not a reportable conviction or adjudication for purposes of the Act.

         DPS now appeals from that signed order.

         II. Applicable Law

         The legislature did not define the phrase "substantially similar," but in Prudholm v. State, 333 S.W.3d 590 (Tex. Crim. App. 2011), and then again in Anderson v. State, 394 S.W.3d 531 (Tex. Crim. App. 2013), the Court of Criminal Appeals applied a two-pronged test for deciding whether the elements of two offenses were substantially similar. The first prong of that test requires a court to compare the elements of the two offenses and determine whether they "display a high degree of likeness." See Prudholm, 333 S.W.3d at 594; Anderson, 394 S.W.3d at 535. The second prong requires a court to consider whether the elements are "substantially similar with respect to the individual or public interests protected and the impact of the elements on the seriousness of the offenses." See Prudholm, 333 S.W.3d at 595; Anderson, 394 S.W.3d at 536.

         The parties addressed this two-pronged test in both their trial briefing and their appellate briefing. But during the pendency of this appeal, and after the briefing stage had already closed, the Court of Criminal Appeals overruled Prudholm and Anderson "to the extent that they imposed the second prong of their test for substantial similarity." See Fisk v. State, - S.W.3d -, 2019 WL 2363143, at *6 (Tex. Crim. App. June 5, 2019). The Court explained that ...


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