Beware the Registration and Sex Offender Caseload that Follow Pleading to a Non-Sexual Offense
A conviction for a sexual offense is almost always accompanied by sex offender registration and a sex offender caseload. Registration typically means notifying law-enforcement where you work and live. Your name and address are posted on the internet in a sex offender registry for the public to see. Depending on the circumstances, registration can last for a life time, a period of ten years, or an entire term of probation. When a person is placed on a sex offender caseload that person must meet strict compliance conditions including sex offender counseling, staying away from family members and children, residency restrictions, admitting sexual misconduct even if none exists, restraints on internet usage, and polygraphs.
A sex offender is defined as a person who has been convicted of an offense listed under Chapter 62 of the Texas Penal Code. However a judge can impose registration requirements and sex offender conditions even if a person has not been convicted of a sex offense. Judges have wide discretion to impose any reasonable condition of probation so long as the condition fits the offense. A person who pleads down to unlawful restraint or assault may still face registration and case load requirements unless those requirements are specifically excluded on the record at the time of plea and sentencing.
This may present serious problems for people who think they are avoiding registration and sex offender conditions by pleading to “lesser offenses” — offenses not listed under Chapter 62. Take for example a defendant who has sexual relations and is later charged with sexual assault because his partner says the sex was nonconsensual. The prosecutors think the case is weak but they will not dismiss. The defendant believes the sex was consensual but doesn’t know what the jury will do. The stakes are high. The prosecutors offer a three year deferred adjudication probation to assault — a non-sexual offense. Many defendants are tempted to plead to these lesser offenses, not because the defendant is guilty but to avoid the risk and exposure of taking the case to trial. The sad reality is that too often these defendants are forced to comply with registration and sex offender conditions. Worse, they find out about the conditions only after they have been sentenced.
More worrisome is that this scenario may be unavoidable. Some judges believe they can amend the conditions of probation after sentencing to include registration and sex offender caseload as long as the defendant is provided with notice and an opportunity to be heard.
The consequences are more severe for those on probation seeking permission to return to their home state after having been sentenced in Texas. Even if the defendant is a resident of another state, Interstate Compact provisions require a defendant to obtain permission from their home state before returning with registration and sex offender conditions. If a home state denies permission, a person may not be allowed to return to their home state.
Fighting registration and sex offender conditions post conviction is difficult. Judges presume that a plea of guilty is voluntary and that the defendant knew about the consequences at the time of the plea. The burden is on the defendant to show he was misinformed about the consequences by his lawyer or the court. Even then, a defendant needs to show he in fact did not independently know about the conditions and would not have pled guilty had he known about the consequences.