Appeal from the 201st District Court Travis County, Texas
Trial Court Cause No. D-1-GN-17-005174
consists of Justices Christopher, Hassan, and Poissant.
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.
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'
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.
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.
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.
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.
appeals from that signed order.
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.
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 ...