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Sex Offender Archives | Fort Worth Criminal Defense, Personal Injury, and Family Law

Jun 22
3
Sex Offender Deregistration Texas

Sex Offender Deregistration | Early Termination of Offender Registration

By | Sex Crimes

Sex Offender Deregistration TexasIn 2005, the Texas legislature enacted House Bill 867, which allows for the early termination of the requirement for an individual to register as a sex offender if it is determined that the person is no longer a continuing threat to society.

If you have been required to register as a sex offender in Texas, you may be eligible for this deregistration after a minimum time of registration. Whether you will be eligible for early termination will depend on whether the registerable offense meets specific criteria under State and Federal laws. In addition to determining whether your offense meets these criteria, there are other procedures you must follow and a judicial order that must be granted in order to obtain early termination. Because of the intricacies of this process and the requirement of filing for the judicial order, we recommend that you hire an experienced criminal defense lawyer to help you with the sex offender deregistration process.

Do I Qualify for Early Termination of My Obligation to Register as a Sex Offender?

1. ONLY 1 CONVICTION: The first requirement to qualify for deregistration as a sex offender is that you must only have one single reportable adjudication or conviction that requires registration under Texas Code of Criminal Procedure Chapter 62.

2. EXCEED THE FEDERAL MINIMUM TIME: The second requirement is that the minimum registration period for your reportable conviction must exceed the minimum required registration under Federal Law. Eligible offenses can be found here. For most offenses, the Federal minimum is 10 years. Texas Code of Criminal Chapter 62 specifically states that if an offense is not on this list, then it does not qualify.

Application to the Council on Sex Offender Treatment

To determine eligibility, you must submit an application to the Council of Sex Offender Treatment. To do this, you must fill out the Initial Eligibility Checklist. You will also need to obtain your Texas Department of Public Safety and FBI criminal histories. It might take a few weeks, but the Council on Sex Offender Treatment will respond by sending you a letter telling you whether you are an eligible candidate for deregistration.

If Eligible, What are the Next Steps to Deregister as a Sex Offender in Texas?

Just because an offense meets the initial requirements of deregistration, it does not mean that the person automatically qualifies for deregistration. While initially eligible, the person must move to the next steps of the procedure.

Deregistration Evaluation

Once it is determined that an offense is eligible, the next step to deregister is to undergo a risk assessment known as a Deregistration Evaluation. The person applying for deregistration is financially responsible for paying for this risk assessment and this assessment must be conducted by one of the 22 deregistration specialists that have been authorized by the Texas Council on Sex Offender Treatment. Your attorney can put you in contact with one of these specialists to have them conduct the assessment.

Judicial Order from the Original Court

The final step is to obtain an Order Granting Early Termination from a judge. To obtain an Order you must submit a Motion for Early Termination to the judge in the court that originally presided over your case. This motion must also be accompanied by certified copy of the risk assessment report prepared by the specialist in addition to a written explanation of the offense’s eligibility. After filing this Motion, the court will likely grant you a hearing by the judge where you will have an opportunity to present evidence to pursuade the judge to sign the Order Granting Early Termination. Because of this process, it’s highly recommended that you have an attorney who can help you with this process and hearing.

Are There Any Other Processes to Avoid Registering as a Sex Offender?

Under Texas Code of Criminal Procedure Section 42.017 and 42A.105, there are some limited remedies available to a person that’s otherwise required to register as a sex offender due to an offense of Indecency with a Child or Sexual Assault. Specifically, for these offenses, if:

  1. at the time of the offense, you were not more than four years older than the victim or intended victim and the victim or intended victim was at least 15 years of age, and
  2. the conviction is based solely on the ages of the defendant and the victim or intended victim at the time of the offense. Also, this must be the result of a single reportable adjudication or conviction.

If the above criteria are met, then under Texas Code of Criminal Procedure 62.301, a person may petition the court anytime at or after the date of the person’s sentencing for an exemption to register as a sex offender. An order issued under this exemption does not expire, but the court is required to withdraw the order if a person receives a subsequent reportable conviction or adjudication.

What Happens if an Order for Early Termination of the Duty to Register as a Sex Offender is Granted?

If deregistration is granted, then a person is no longer required to register as a sex offender. Getting an order for early termination does not destroy the records or remove the conviction from a person’s record, but it does mean that the threat of a new felony case being filed for failure to register is no longer a possibility. Your name will also be removed from the Texas Sex Offender Registry database.

Free Consultation | Tarrant County Deregistration Attorneys

If, after reading this article, you believe that you or a loved one might qualify for sex offender deregistration, contact our team today for a free case evaluation. We would be happy to help you get the sex offender registration requirement behind you. Contact us at (817) 993-9249.

Jan 12
1
Megans Law Sex Offender Passport

Passports Revoked for Sex Offenders Pursuant to New Law

By | Sex Crimes

Megan’s Law and the Implications for Passports of Registered Sex Offenders

Sex Offender Passport LawIn February of 2016, we wrote about President Obama signing Megan’s Law and the implications that the law would have on passports.

Effective January 11, 2018, in accordance with Megan’s Law, the U.S. State Department has started to revoke passports issued to registered sex offenders. The law was passed October 31, 2017 but is now in effect. This law prevents the Department of State from issuing passports to sex offenders without a unique identifier printed on the person’s passport and authorizes the State Department to immediately revoke all passports currently held by registered sex offenders that do not contain this identifier.

Required Endorsement for Sex Offender Passports

Passports re-issued to registered sex offenders will now bear an endorsement on the passport, which will read:

“The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).”

According to federal law, endorsements cannot be printed on passport cards, so qualifying individuals will not be issued passport cards.

This new procedure by the State Department does not prohibit registered sex offenders from leaving the country. But, it certainly leads to the presumption that this identifying marker on these passports could very likely lead to these individuals being denied entry into other countries.

In the coming weeks, the Department of State will be sending letters to those individuals covered under this law notifying them that their passports are now revoked.

There are a wide number of crimes that can lead to a person being on the sex offender registry. These crimes can include sexual assault of a child, indecency with a child, online solicitation of a minor and viewing or sharing child pornography (either inadvertently or on purpose).

For more information, visit the Department of State website.

 

Oct 24
2
Lee v State Continuous Sexual Abuse Texas 2017

Can an Out-of-State Conviction Be Used to Establish “Continuous” Abuse?

By | Sex Crimes

Texas Court of Criminal Appeals Holds That An Out-of-State Conviction Cannot Be Used to Establish “Continuous Sexual Abuse” Under Texas Law

Lee v State Continuous Sexual Abuse Texas 2017The Court of Criminal Appeals recently handed down an opinion regarding the use of an out-of-state act to support a conviction in Texas. The issue faced by the Court was whether the commission of an out-of-state aggravated sexual assault could support a conviction for continuous sexual abuse of a child under Texas law.

Lee v. State (Tex. Ct. Crim. App. 2017)

The Facts—The Trial Court Found Defendant Guilty of Continuous Sexual Abuse of a Child

In this case, Ronald Lee (Defendant) was convicted of continuous sexual assault of a child and the jury assessed a life sentence. During trial, evidence showed that Defendant committed aggravated sexual assault against his young stepdaughter twice, once in New Jersey and once in Texas. Both assaults were temporally separated by at least 30 days.

Texas Penal Code Section 21.02 prohibits the commission of two or more acts of sexual abuse over a specified time. Although committed in two separate states, the trial court permitted the evidence of both sexual assaults in New Jersey and Texas in order to convict Defendant.

The Court of Appeals Affirmed the Conviction, Holding that the Evidence was Legally Sufficient to Support the Conviction

On appeal, Defendant claimed that the evidence presented—the alleged act in New Jersey—was insufficient to support his conviction in Texas. The court of appeals held that because Defendant was charged and convicted under Texas Penal Code Section 21.01 for continuous sexual abuse, Texas has jurisdiction if part of the prohibited conduct element occurred in Texas. Further, the court determined that the location of the sexual abuse was not an element of the offense; thus, the State’s only obligation was to prove that the court of prosecution had venue—proper jurisdiction. As a result, because one of the alleged acts of sexual abuse occurred in Taylor County, the court of appeals said that the evidence was sufficient to prove venue.

The Court of Criminal Appeals Reforms the Judgment to a Lesser-Included Offense Conviction, Holding the Evidence was Legally Insufficient to Support the Original Conviction

Defendant appealed the appellate court’s decision to affirm his conviction. He argued that the alleged act of abuse in New Jersey was not sufficient proof required under the Texas Penal Code, which requires two or more violations of penal code sections. Each of these required offenses must be a violation of Texas law. Texas only has jurisdiction over an offense if either an action element or result element of the offense occurs inside the state. Because “act of sexual abuse” requires an act that is a violation of Texas law, Defendant’s act in New Jersey may not be considered one of the required offenses for a conviction under Section 21.02. The Court of Criminal Appeals determined that Texas had jurisdiction of continuous sexual abuse of a child, but the evidence in this case was insufficient to support the conviction because one of the acts was not a violation of Texas law.

When an appellate court finds that the evidence was insufficient to support a charged offense, but the jury found the defendant guilty of a lesser offense supported by sufficient evidence, then the appellate court must reform the judgment to reflect the lesser-included offense and remand for new punishment. In this case, the Court of Criminal Appeals concluded that the jury found Defendant guilty of aggravated sexual assault, which was the lesser-included offense, and remanded the case for a punishment hearing.

Judge Yeary’s Concurring Opinion

Jul 31
10
psychosexual evaluation sex offender risk assessment

Psychosexual Evaluations: A Risk Assessment for Sexual Allegation Cases

By | Sex Crimes

psychosexual evaluation sex offender risk assessmentA psychosexual evaluation is a method utilized by courts, prosecutors, and defense attorneys to provide a scientific basis to determine with a person is likely to be a repeat sexual offender. The evaluation is performed by a state-licensed mental health professional and, if requested by the defense, it is completely confidential for the client and their attorney.

Psychosexual evaluations are routinely performed to:

  • Identify deviant sexual behavior patterns
  • Evaluate the risk level of sexual and non-sexual recidivism
  • Recommend the type of treatment options that will be most beneficial to the client
  • Identify specific risk factors that should be targeted during treatment

Explaining the Psychosexual Evaluation Process

How long does the evaluation last?

The evaluation usually lasts a full day, but can sometimes spill over into a second day. However, the entire evaluation can be completed in about six hours. A typical schedule for the evaluation will last from 8:30am – 5:00pm, with breaks between sections of tests.

The Evaluation Consists of Four Parts

  1. Clinical interview
  2. Psychometric tests
  3. Physiological assessment of sexual arousal
  4. Risk assessment

Clinical Interview

The clinical interview lasts about one hour and serves to help the therapist and the client get to know each other before the tests begin. It also gives the client an opportunity to talk about the allegation with the therapist. This is the point where the therapist will document their initial impressions and provide detailed notes on the client. It is important that the person is honest and open about the nature of the allegation. If conducted at the request of the individual’s attorney, the evaluation is covered under the attorney-client privilege and the attorney cannot disclose the results or what was said without the client’s permission.

Psychometric Tests

The psychometric tests are comprised of a personality inventory, sexual inventory, and intelligence test. These tests are primarily in written formats, including true or false questions. The personality inventory allows the therapist to evaluate the client’s personality type, which will be factored in throughout the assessment. The sexual inventory is the longest portion, consisting of about 560 items. It is a thorough assessment of the client’s sexual history, background, and development. Again, this portion of the test factors into the therapist’s overall assessment of the client’s situation. The final portion is the intelligence test. This portion only lasts about twenty minutes and is essentially an IQ test. The intelligence test is important because it allows the therapist to effectively advocate that the client can handle the mental demands of treatment.

Physiological Assessment of Sexual Arousal

The physiological assessment helps the therapist understand whether the allegation would be outlier behavior for the client or not. This is primarily achieved by gaining an understanding of the client’s sexual preferences using the penile plethysmograph (PPG). The PPG operates by measuring blood pressure and erectile changes in the penis of the client due to the introduction of different visual stimuli. The PPG also monitors the client’s breathing to determine whether they’re attempting to deliberately falsify the results. Because accurate results are required for the therapist to make a strong evaluation on behalf of the client, the client should not attempt to cheat the PPG. Due to the nature of the visual stimuli and the physical intrusiveness of the PPG, this is considered the most difficult part of the evaluation for individuals being tested.

Rarely, a polygraph will also be performed. The polygraph is only used when the client denies any actual physical contact because the chance of recidivism is greatly diminished if there is no physical contact. If the polygraph is failed, then the results will not be used in the therapist’s evaluation because they do not indicate anything significant about the client’s situation.

Risk Assessment

The risk assessment consists of two parts, general criminality and sexual recidivism. The general criminality portion determines the client’s risk of recommitting crimes, while the sexual recidivism portion determines the client’s risk of recommitting sexual crimes. This part of the psychosexual assessment is extremely important because it allows the therapist to assign the client a risk profile to reoffend, both in general criminality and in sexual criminality. The therapist’s testimony that the client is a low risk to reoffend can be crucial for the defense in asserting that the client does not deserve a harsh punishment for the original allegation.

Confidentiality

When the psychosexual evaluation is obtained as part of the defense case preparation, it is completely confidential. Only the client and his attorney will be provided with it. Neither the client’s spouse nor any government entity can see the evaluation, unless it is used in court, and the defense attorney will only use the evaluation in court if it is beneficial to the client’s case. The evaluation is occasionally used at trial, but it is more often used during the plea-bargaining stage to improve the client’s case or during a sentencing portion of a trial.

Advice for Clients and Attorneys Regarding Psychosexual Evaluations

Clients should be honest with the therapist because it allows for a more reliable and accurate evaluation, which will be more beneficial to the client’s case. If the client lies or attempts to cheat the tests, the therapist will not be able to provide a good evaluation and may not be able to testify as well on behalf of the client.

Attorneys should provide information the therapist regarding the charges being made against the client (within the limits of discovery laws). Not only does this allow the therapist to factor that into the evaluation, but it also bolsters their testimony in court as they have accounted for the charges and facts of the case already. The stronger and more complete the therapist’s evaluation, the more likely that it will stand up in court against tough cross-examination.

Jun 26
4
Packingham Social Media Ban for Sex Offenders

SCOTUS Declares Social Media Ban for Sex Offenders Unconstitutional

By | Sex Crimes

Packingham Social Media Ban for Sex OffendersIn today’s world Internet access has become virtually unlimited. And, with new technology come new problems. These problems have led the Supreme Court to address the challenge modern day Internet access has created for the First Amendment in the landmark case, Packingham v. North Carolina. In Packingham, the Court was asked to determine whether a North Carolina law, which makes it a felony for a registered sex offender to access a social media-networking site, violates the First Amendment’s free speech clause.

North Carolina Imposed a Social Media Ban for all Registered Sex Offenders

In 2002, Lester Packingham, a 21-year-old student, pled guilty for taking indecent liberties with a child after having sex with a 13-year-old girl. As such, Packingham was required to register as a sex offender. However, in 2010 Packingham posted to his personal Facebook account thanking God after he received a dismissal for a traffic ticket. This post was observed by a police officer and Packingham was ultimately convicted for violating the social media ban for sex offenders. After making it all the way to the United States Supreme Court, Packingham’s conviction has now been overturned.

Supreme Court holds that Banning Sex Offenders from Social Media Violates the First Amendment

In overturning Packingham’s case, the Court ruled the North Carolina law to be an impermissible restriction of lawful speech. The Court has consistently held that “[a] fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” As such, the Court ruled that one of the most fundamental places to exchange views is cyberspace—particularly social media platforms. Social media has evolved and formed a stage for many topics protected by the First Amendment, including human thought. It has evolved so much so that “seven in ten American adults” now use at least one form of social media. Thus, the Court reasoned that while it may have once been difficult to determine which “places” are important for the exchange of ideas, it is now clear.

The Internet allows people access to vast amounts of information, which people need to thrive in modern society. North Carolina prohibited access to this information in an effort to protect children, but they ended up preventing Packingham from gaining access to large amounts of information — information unlikely to further sex crimes. As a result, the Court agreed that sex crimes involving children are repugnant, but it explained that even a valid government interest cannot escape all constitutional protections. The Court further noted that “[e]ven convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.” Thus, the Court determined that North Carolina did not meet its burden to show why the overly broad law was necessary to serve its purpose of protecting children and subsequently declared the law unconstitutional.

For further analysis, see: Amy Howe, Opinion analysis: Court invalidates ban on social media for sex offenders, SCOTUSblog (Jun. 19, 2017, 1:52 PM), http://www.scotusblog.com/2017/06/opinion-analysis-court-invalidates-ban-social-media-sex-offenders/ 

Apr 17
6
Fort Worth Criminal Defense Personal Injury Attorneys

Indecent Exposure: From Class B Misdemeanor to Sex Offender

By | Sex Crimes

Sex Offender Registration for the Offense of Indecent Exposure

Most “sex offenses” in Texas are felonies. Most sex offenses involve some sort of physical contact or an indecent act with a minor. However, there is one offense that is classified as a low-level Class B misdemeanor, than can result in sex offender registration.

Indecent Exposure under Section 21.08 of the Texas Penal Code is a Class B misdemeanor, which means it only carries a range of punishment of 0-180 days in county jail and a fine up to $2,000. Indecent Exposure can range from urinating on a public golf course, to having intercourse in a parked car in a public parking lot, to flashing someone. A person convicted or sentenced to Deferred Adjudication for Indecent Exposure does not typically have to register as a sex offender. If the offense is the first time that person has been charged or convicted with Indecent Exposure, then there is no registration requirement.

10-Year Sex Offender Registration for the 2nd Indecent Exposure Conviction

Under Section 62.005(5)(F) of the Texas Penal Code, a person is required to register as a sex offender for a period of 10 years for “the second violation of Section 21.08 (Indecent exposure), Penal Code.” However, “if the second violation results in a deferred adjudication,” then the person is not required to register. Because the statute uses the term “violation,” instead of “conviction,” a first charge of Indecent Exposure that results in a deferred adjudication still counts toward the total, even if the defendant ultimately has their case dismissed. So it is imperative that a defense attorney negotiate for a deferred adjudication if their client has a previous conviction or deferred for Indecent Exposure.

See what other crimes require Sex Offender Registration in Texas.

Jan 04
2
Juvenile Sex Offender Registration Texas

Juvenile Sex Offender Registration in Texas

By | Juvenile, Sex Crimes

Juvenile Sex Offender Registration TexasIn Texas, the law governing sex offender registration contains several provisions that apply specifically to juveniles. This means that sex offender registration works differently in juvenile cases than it does in adult cases. This article will highlight how sex offender registration works in the Texas juvenile justice system and why this is an appropriate approach to take in these cases. This article will not discuss exemptions to the sex offender registration law for certain young adult offenders.

Sex Offender Registration in Juvenile Cases

The two biggest differences between sex offender registration in adult and juvenile cases involves how long the duty to register lasts and exemptions or deferrals for certain juvenile cases.

Expiration of the Duty to Register

Sex offender registration in Texas is contained in Chapter 62 of the Texas Code of Criminal Procedure. Under Section 62.101, the duty to register in adult cases is for life. However, in juvenile cases, the duty to register ends ten years after the end of the sentence. This ten-year provision also applies to juvenile cases that are certified and transferred to adult court.

Exemptions for Certain Juvenile Cases

According to Section 62.351 of the Code of Criminal Procedure, either during or after the dispositional hearing in a case in which a juvenile has been adjudicated for a registrable offense, the court can hold a hearing to determine whether the interests of the public require this particular juvenile to register under Chapter 62. This hearing will only be held if, prior to the hearing, the attorney for the juvenile has filed a motion asking the court to consider exempting him from the registration requirements.

During this hearing, which does not involve a jury, the juvenile must prove by a preponderance of the evidence that the protection of the public would not be increased by the registration or that any increase in the protection of the public is clearly outweighed by the anticipated substantial harm to the juvenile and his family caused by registration. After the hearing, the court, under Section 62.352, can make one of several rulings. If the court determines that the juvenile has met his burden of proof, the court must exempt the child from the duty to register. If the juvenile has not met his burden, the judge can either make the child register, make the registration nonpublic, or defer the decision on registration until after the juvenile has completed treatment.

Deferral of the Registration Requirement Certain Juvenile Cases

If the court decides to defer the registration, the juvenile is not required to register during the deferral period. This deferral will automatically turn into an exemption if the juvenile successfully completes treatment, unless the prosecuting attorney files a motion requesting a hearing to reconsider the issue of registration.

Other Scenarios

Under Sections 62.353 and 62.354, juveniles who are already registering under Chapter 62, or those who are required to register due to an out-of-state adjudication, may also petition the court to have their registration either deferred or waived. These provisions require a hearing similar to that discussed above with exemptions.

Tarrant County’s Approach to Juvenile Sex Offender Registration

No one can guarantee a particular outcome in a specific case. Every case, and every set of facts, is different and unique. However, many times, in Tarrant County, if a motion is filed by the juvenile’s attorney, the court will consider deferring the registration requirement until the end of probation to see if the juvenile can successfully complete treatment.

Other States’ Approaches to Juvenile Sex Offender Registration

It is important to note that not all states have a provision for exempting or deferring a juvenile’s sex offender registration requirements. This means that if a child is adjudicated of a sex offense requiring registration in Texas and then moves out of state, he may be required to register under the new state’s laws.

Why is This an Appropriate Approach to Juvenile Sex Offender Registration?

At first blush, exempting juveniles from registering after they have been adjudicated of a sex offense seems wrong. However, it is important to remember that sex offender registration is a far-reaching consequence that can have profound effects on the life of the person subject to registration. These effects can be even more profound when the person who must register is an 11 or 12-year-old child. It is also important to note that research has shown repeatedly that juveniles who successfully complete treatment are less likely to reoffend than adults. Many juveniles who commit sexual offenses are not pedophiles, but instead, are curious, experimenting, or have not yet developed an acceptable level of impulse control.

While these behaviors are wrong, serious, and need to be addressed, sex offender registration is not the appropriate vehicle to do that. By allowing the exemption or deferral of registration in juvenile cases, Chapter 62 allows judges to evaluate each of these very different cases on their merits and apply the law in the most appropriate way for that case. It also allows juveniles to have a chance at rehabilitation before imposing drastic and long-lasting consequences on them that may devastate their lives before they ever really begin.

Conclusion

Sex offender registration is applied differently in adult cases than it is in juvenile cases. This is due to a few provisions in the law that apply specifically to juveniles. The biggest difference in the two systems is that, in juvenile cases, the judge has discretion over the issue of registration. The court can, if it chooses, defer that registration to see how the juvenile does in treatment. This allows courts to tailor a disposition and consequences to better suit a particular juvenile’s situation while still providing for the protection of the public.

This article is not intended to provide legal advice about any particular case. It is only intended to be a general overview of the sex offender registration law in juvenile cases. For legal advice, please consult an attorney about your case.

Dec 12
9
sexting laws texas

When Is “Sexting” a Crime in Texas?

By | Sex Crimes

sexting laws texas“Sexting” has become a very popular activity amongst teenagers and young adults in the last several years. This generation sees it as just another ordinary part of life with cell phones. For parents, prosecutors, and law enforcement officers, however, sexting is a dangerous habit that has wide-ranging effects. While sexting has the potential to severely damage lives and reputations, the very nature of it makes it difficult for authorities to adequately address the problems it causes. This article will explore what sexting is, how common it is, the applicable laws, and the practical implications of applying those laws to common instances of sexting.

What Is Sexting?

Sexting is derived from the words “sex” and “texting.” It means the sending of nude or sexually explicit photos or sexually suggestive text messages by text, email, or instant messenger using a mobile device. Many times, the person depicted in the photographs has either consented to the photo being taken or has taken the pictures of themselves. Typically, the person in the photograph, either on their own initiative or at the request of another, takes the photo and then voluntarily sends it to a significant other or a person they are attracted to. The intent is generally for the picture to be kept private by the initial recipient.

The problem with sexting arises when the photograph is either posted on the internet, usually through a social media platform, or is shared with others through text or email. In many cases, this posting or sharing is not consented to by the person depicted in the picture.

How Common is Sexting?

A study done by Drexel University in 2015 found that over 80% of adults surveyed admitted to sexting within the last year. The study was presented during the American Psychological Association’s 2015 convention. According to GuardChild.com, 20% of all teenagers have sent or posted nude or semi-nude photos or videos of themselves and 39% of teenagers have sent sexually suggestive messages through either email, text, or instant messaging.

Criminal Laws Applicable to Texting in Texas

In the State of Texas, there are several laws which could be used to prosecute instances of sexting, especially if it involves a minor. These laws can range from a Class C misdemeanor to a first-degree felony.

Unlawful Disclosure or Promotion of Intimate Visual Material

Texas law makes it unlawful for a person to intentionally disclose photographs or videos of a person engaged in sexual conduct or with their intimate parts exposed without the consent of the person depicted if the person in the photo/video had a reasonable expectation that the material would remain private, the person depicted is harmed and the identity of the person in the photo/video is revealed through the disclosure. This is a Class A misdemeanor.

Sale, Distribution, or Display of Harmful Material to a Minor

A person who sells, distributes, or shows “harmful material” to a minor, knowing that the material is harmful and the person is a minor, or displays harmful material and is reckless about whether a minor is present who would be offended is guilty of this offense in Texas. This is a Class A misdemeanor unless the person uses a minor to commit the offense, and then it is a third-degree felony.

Sexual Performance by a Child

The offense of sexual performance of a child is committed when a person employs, authorizes, or induces a child under the age of 18 to engage in sexual conduct. In this context, “sexual conduct” includes the lewd exhibition of the genitals, anus or breast. This offense is a third-degree felony, but if the victim was under the age of 14 at the time of the offense, then it is enhanced to a second-degree felony.

Possession or Promotion of Child Pornography

A person commits the offense of possession or promotion of child pornography if he intentionally or knowingly promotes or possesses with the intent to promote material that depicts a child engaged in sexual conduct knowing that the material depicts a child. This is a third-degree felony, but it can be enhanced to a second or first-degree felony.

The Sexting Law – Electronic Transmission of Certain Visual Material Depicting Minor

This is Texas’ “sexting” statute. Under it, a person under the age of 18 commits an offense if he intentionally or knowingly possesses or promotes to another minor visual material that depicts a minor engaged in sexual conduct by electronic means if he produced the material or knows that another minor produced it. This is a Class C misdemeanor, but it can be enhanced to either a Class B or Class A misdemeanor in certain situations.

Practical Implications

An instance of sexting in Texas can be prosecuted under any of the above laws. However, there are problems with each of these statutes that makes it difficult to prosecute sexting cases under them. These problems are what led the Texas legislature to create the sexting law several years ago.

Problems with the Sexting Law

However, there are two major problems with this law. First, the sexting statute only applies to persons under the age of 18. This means that an 18-year-old high school student who shares sexting photos with others in his high school cannot be prosecuted under this law. The second problem with it is that it creates a defense to prosecution if the person in possession of the visual material destroys it. So, the law that makes sexting illegal also allows those who break the law to get away with it by destroying the evidence. Because of these problems, it is almost impossible to prosecute someone under this law.

Problems with Using the Other Laws to Prosecute Sexting

The main issue with using the other laws laid out above to prosecute sexting cases is that they were not created to address this specific behavior. So, it becomes a situation where prosecutors are having to shove a square peg into a round hole to make it work in many cases. For instance, the Unlawful Disclosure or Promotion of Intimate Visual Material law requires that the person in the pictures had a reasonable expectation that the photos would remain private. GuardChild.com found in their compilation of sexting statistics that 44% of teenagers believe it is common for sexually suggestive text messages to be shared with others, and 35-40% of them feel that it is common for nude or semi-nude photos to be shared with others beyond the intended recipient. These beliefs undermine the “reasonable expectation of privacy” prong of the law.

Similarly, the Possession or Promotion of Child Pornography statute is problematic when used in sexting cases because it does not include any protections from prosecution for the victim. This means that when a teen age girl takes a nude photo of herself and sends it to her boyfriend, who then shares it with other students, the girl who took the photo of herself is as guilty of promotion of child pornography as the boy who shared it with others. Most people would agree that the victim shouldn’t face charges for child pornography. Yet, prosecutors must either prosecute both of them or do nothing.

Sex Offender Registration for a Sexting Conviction

Another major practical ramification of sexting is that if a person is convicted or adjudicated for sexting under the possession or promotion of child pornography law, he will be required to register as a sex offender for life if the person is prosecuted in the adult system or for ten years past the end of his sentence if he is adjudicated as a juvenile. Depending on the facts of the case, this can be a very harsh consequence for a behavior that is so common in this modern world we live in. But it is important for anyone who engages in sexting, and their parents, to realize that sex offender registration for life is a very real possibility if prosecuted.

Conclusion

While many parents may not know that sexting even exists, the fact remains that it is much more common than we would like to think. It can have devastating consequences for the person depicted in the photos, and for anyone who shares or possesses these photos. Many teenagers engage in this behavior without realizing what the ramifications can be.

This is one area where the law hasn’t caught up to technology yet. So, the job of protecting our children from the harms associated with sexting still falls primarily to parents. It is important for parents to educate themselves about the practice and then talk to their teenagers and pre-teens about the dangers of sexting.

 

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Sep 28
6
Texas Sex Offender Registration

Which Crimes Require Sex Offender Registration in Texas?

By | Sex Crimes

Texas Sex Offender RegistrationIt’s no secret that there are certain offenses that require individuals to register themselves on the sex offender registry. However, what are those offenses? How long is a person required to register?

What Offenses Require Sex Offender Registration in Texas?

In Texas there are over 20 offenses that require registration as a sex offender. Additionally, registration could be required as a condition of parole, release to mandatory supervision, or community supervision. Further, even if a person was convicted for a crime outside of Texas you might be required to register as a sex offender if the elements of that offense are substantially similar to an offense under Texas law that requires registration.

Under the Texas Code of Criminal Procedure these are called “reportable convictions or adjudications.” Article 62.001(5) of the Code defines these to be a conviction or adjudication, which includes deferred adjudication, that is based on various offenses outlined in the section.

How Long Does a Person’s Duty to Register as a Sex Offender Last?

Many of the offenses requiring registration as a sex offender have a lifetime registration requirement but some have a “10-year” requirement. The 10-year requirement depends not only on the alleged offense but also on how the case is disposed. If the duty was based on an adjudication of delinquent conduct (defined by Tex. Fam. Code §51.03) then the duty to register ends on the 10th anniversary of the date on which the disposition was made or the date of completion of the terms of the disposition, whichever is later. If the duty is based on a conviction or deferred adjudication, then the duty to register ends on the 10th anniversary of the date the person is released from a penal institution, or is discharged from community supervision, or the court dismisses the criminal proceedings, whichever date is later.

Additionally, there is a 10-year requirement for persons, who would otherwise be subject to lifetime registration requirements, who were a juvenile at the time and their case was transferred to a criminal district court pursuant to Section 54.02 of the Texas Family Code. Tex. Code Crim. Proc. Art. 62.101(b). Under this requirement the duty to register ends 10th anniversary of the date the person is released from a penal institution, completed probation, or the date the court dismisses the charges against them, whichever date is later. Id.

Below is a chart that lists offenses requiring registration and the applicable time period the law requires a person to register.

Sex Offender Registration Requirements in Texas

LENGTH OF REGISTRATION SEXUAL OFFENSES

Lifetime Registration

See Tex. Code of Crim. Proc. Art. 62.101(a), 62.001(5), (6)
  • Continuous sexual abuse of a young child or children. TPC 21.02
  • Indecency with a young child under. TPC 21.11(a)(1)
  • Sexual assault. TPC 22.011
  • Aggravated sexual assault. TPC 22.021
  • Aggravated kidnapping under TPC 20.02(a)(4) with intent to violate or abuse the victim sexually
  • Burglary under TPC 30.02(d) if offense was committed with the intent to commit one of the above listed felonies
  • Sexual performance by a child. TPC 43.25
  • An offense under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice if the offense’s elements are substantially similar to the above felonies.
  • Trafficking of a person under TPC 20A.02(a)(3), (4), (7), or (8)
  • Prohibited sexual conduct. TPC 25.02
  • Compelling prostitution under 43.05(a)(2)
  • Possession or promotion of child porn. TPC 43.26
  • Indecency with a young child under TPC 21.11(a)(2) if the person received another conviction or adjudication that requires registration
  • Unlawful restraint, Kidnapping, or Aggravated kidnapping if there was an affirmative finding that the victim or intended victim was younger than 17 and the person receives or has received another conviction or adjudication that requires registration. TPC 20.02, 20.03, 20.04
  • Obscenity under TPC 43.23(h)

10-Year Registration

 

See Tex. Code of Crim. Proc. Art. 62.101(c), 62.001(5)
  • Indecency with a young child in a manner not listed under lifetime registration. TPC 21.11
  • Unlawful restraint, Kidnapping, or Aggravated kidnapping if there was a finding that the victim or intended victim was younger than 17. TPC 20.02, 20.03, 20.04
  • An attempt, conspiracy, or solicitation to commit one of the above listed offenses in this chart
  • Online solicitation of a minor. TPC 33.021
  • Prostitution under TPC 43.02(c)(3)
  • Second indecent exposure under TPC 21.08 or an offense with substantially similar elements under the laws of another state, federal law, the laws of a foreign country or the Uniform Code of Military Justice but not if the second resulted in deferred adjudication.
  • An offense of the laws of another state, federal law, the laws of a foreign country or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of the offenses described above, but not if the offense resulted in deferred adjudication.

What Exactly Does the Duty to Register Require?

A person required to register must register with the municipality or county where they reside or intent to reside for more than seven days. Among other things the registration must contain the type of offense the person was convicted of, the age of the victim, and a recent color photograph of the person. Tex. Code Crim. Proc. Art. 62.051. If the person spends more than 48 hours in a different municipality or county three or more times in a month they must provide the local authority with certain information. Art. 62.059. In addition to registering, the person must comply with a request for a specimen of their DNA. Tex. Code Crim. Proc. Art. 62.061; Government Code §411.1473. Also, if the Department of Public Safety has assigned a person a numeric risk level of 3, public notice must be given of where that person intends to live. Art. 62.056. Further, there are restrictions on type of employment for certain registrants. Art. 62.063.*

As you can see there are many consequences that come with a conviction, deferred adjudication or adjudication for delinquent conduct for one of the above listed offenses and there are additional requirements that could be imposed depending on the particular alleged offense. These very specific requirements provided under the Texas Code of Criminal Procedure must be followed so that a person does not violate the registration requirements and face additional criminal consequences ranging from a state jail felony to a first degree felony. Art. 62.102. If it has been alleged that you committed one of these offenses, it can be extremely overwhelming but also important to understand what lies ahead for you. Contact our criminal defense attorneys today to ensure that you fully comprehend what is being alleged, what consequences could be attached, and what your options are in your specific situation. Additionally, contact us if you are currently required to register and have questions about what duties are required of you.

*Note this blog does not provide all requirements and additional requirements for certain offenses. To find all requirements see Article 62 of the Texas Code of Criminal Procedure.

Aug 13
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United States Age of Consent Map

What is the Age of Consent in the United States?

By | Sex Crimes

Is There a Uniform Age of Consent for all 50 States in the United States?

No, there is not a uniform age of consent. The “Age of Consent” is the minimum age at which a person may consent to participation in sexual intercourse. A person younger than the legal age of consent cannot legally consent to sexual activity. The age of consent in the United States ranges from 16 to 18 years old depending on the state, meaning that a person 15 years of age or younger cannot legally consent to sexual contact. Each state enacts its owns laws which set the age of consent.  If someone engages in sexual activity with a person younger than the age of consent in that state, the person could be charged with Statutory Rape or other offenses depending on the nature of the contact.

What follows is a map depicting the age of consent for all 50 states and a chart outlining the same.

*Note: This chart was current as of 2016, but could be subject to change over the years. Please do not rely on this chart to make any decisions that could impact your life. Check your own state’s age of consent laws to make sure you are fully informed, because ignorance of the law will not be a defense for you if charged with a child sexual offense.

United States Age of Consent Map

United States Age of Consent Map

United States Age of Consent Chart

STATE LEGAL AGE OF CONSENT
Alabama 16
Alaska 16
Arizona 18
Arkansas 16
California 18
Colorado 17
Connecticut 16
D.C. 16
Delaware 18
Florida 18
Georgia 16
Hawaii 16
Idaho 18
Illinois 17
Indiana 16
Iowa 16
Kansas 16
Kentucky 16
Louisiana 17
Maine 16
Maryland 16
Massachusetts 16
Michigan 16
Minnesota 16
Mississippi 16
Missouri 17
Montana 16
Nebraska 17
Nevada 16
New Hampshire 16
New Jersey 16
New Mexico 17
New York 17
North Carolina 16
North Dakota 18
Ohio 16
Oklahoma 16
Oregon 18
Pennsylvania 16
Rhode Island 16
South Carolina 16
South Dakota 16
Tennessee 18
Texas 17
Utah 18
Vermont 16
Virginia 18
Washington 16
West Virginia 16
Wisconsin 18
Wyoming 18

 

“Romeo and Juliet Law” in Texas | An Exception to the Age of Consent in Texas

As mentioned in the chart above, the age of consent in Texas is 17. Texas, as well as many other states, has created a so-called “Romeo and Juliet” law, an exception to the statutory rape and age of consent law. Romeo and Juliet laws are targeted toward teenagers and young adults who engage in sexual relations with someone under the age of consent (17 in Texas), but who are still close in age to the sexual partner. The Romeo and Juliet provision creates a close in age exemption and keeps these would-be offenders from being classified as sex offenders.

Under Texas law, if a person over the age of 17 has consensual sexual intercourse with someone under the age of 17, but there is also no more than a three-year age difference between the two partners, the Texas Romeo and Juliet law will not allow the older person to be charged with statutory rape or be classified as a sex offender.

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