Affirmed and Memorandum Opinion filed April 3, 2003.
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In The
Fourteenth Court of Appeals
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NO. 14-02-00750-CR
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EX PARTE JOSELITO MERCADO, Appellant
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 917,476
M E M O R A N D U M O P I N I O N
Appellant is charged with violating a provision of the Sex Offender Registration Program (SORP). Tex. Code Crim. Proc. Ann. ' 62.06 (Vernon Supp. 2002). After denial of a pretrial writ of habeas corpus challenging the constitutionality of the statute under which he is charged, appellant appeals. We affirm the denial of habeas relief.
PROCEDURAL AND FACTUAL BACKGROUND
Appellant Joselito Mercado was charged with indecency with a child. Tex. Pen. Code Ann. ' 21.11(a)(1) (Vernon 1994). The trial court deferred a finding of guilt and placed him on community supervision for five years. At the time he received deferred adjudication, appellant was 34 years old; complainant was fourteen.
Appellant successfully completed his deferred adjudication as of December 15, 2001. Prior to completion of his probation, the trial court permitted appellant to marry the complainant. In accordance with Chapter 62 of the Texas Code of Criminal Procedure, appellant was required to register as a sex offender from the time he was placed on community supervision.[1] That obligation continues to the present.
The current charge stems from appellant=s failure to comply with the SORP. The indictment alleges appellant did “intentionally and knowingly fail to report to verify registration” as a sexual offender as required by Article 62.06 of the Texas Code of Criminal Procedure.[2] Appellant was arrested and his liberty curtailed by the conditions of a pretrial bond. Appellant filed a pretrial writ of habeas corpus that leveled a facial challenge to the constitutionality of the SORP. The trial court granted the writ and held a hearing, but the court denied relief and upheld the constitutionality of the statute. Appellant filed a timely notice of appeal.
ISSUES ON APPEAL
Appellant asserts five points of error, contending the SORP violates the United States and Texas Constitutions (1) by violating the principles of procedural due process; (2) by infringing on substantial liberty interests in violation of the prohibition against cruel and unusual punishment; (3) by violating the United States and Texas Constitutions= proportionality doctrines; (4) by infringing on the fundamental right to movement and right to travel; and (5) by being void for vagueness.
STANDARD OF REVIEW
When reviewing the constitutionality of a statute, we presume the statute is valid and the legislature has not acted unreasonably or arbitrarily in enacting the statute. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978); Dean v. State, 60 S.W.3d 217, 219 (Tex. App.CHouston [14th Dist.] 2001, pet. filed); see also I.N.S. v. Chadha, 462 U.S. 919, 944, 103 S. Ct. 2764, 2780 (1983). The burden rests on the party challenging the statute to establish its unconstitutionality. Granviel, 561 S.W.2d at 511; Dean, 60 S.W.3d at 219.
The defendant must show that in its operation, the statute is unconstitutional as to him in his situation; that it may be unconstitutional as to others is not sufficient. Parent v. State, 621 S.W.2d 796, 797 (Tex. Crim. App. 1981); Ex parte Robinson, 80 S.W.3d 709, 713 (Tex. App.CHouston [1st Dist.] 2002, pet. granted). We uphold the statute if we can determine a reasonable construction which will render it constitutional and carry out the legislative intent. See Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979. Dean, 60 S.W.3d at 219. If a statute is capable of two reasonable constructions, one of which sustains its validity, courts will give to it the interpretation that sustains its validity. Townsend v. State, 427 S.W.2d 55, 62 (Tex. Crim. App. 1968); Dean, 60 S.W.3d at 219.
THE TEXAS SEX OFFENDER
REGISTRATION PROGRAM
The Texas SORP, contained in chapter 62 of the Texas Code of Criminal Procedure, requires a person convicted of an enumerated offense to register with the local law enforcement authority of any county or municipality in which the person expects to reside for longer than seven days. See Tex. Crim. Proc. Code Ann. ' 62.02(a) (Vernon Supp. 2002). If the offender moves, he must register with the local law enforcement authority in the county or municipality in which his new residence is located. Id. at ' 62.04.
The SORP requires the Department of Public Safety (DPS) to compile information gathered from registrants and share it with law enforcement authorities and the public. Id. at '' 62.02 and 62.03(e). To achieve this end, the DPS maintains a computerized central database containing registration information. Id. at ' 62.08. Information in this database is public information and published on the Internet.[3] Id.
The DPS= Internet website enables citizens to obtain the name and address, photograph, and physical description of a registered sex offender by entering a zip code or city. It also enables citizens to access information regarding a sex offender=s risk to the community,[4] his specific offense, the number of counts with which he was charged, the victim=s age and gender, and the number of years and status of the offender=s sentence. Id. at '' 62.045(d) and 62.03(f).
Once a person registers with the SORP, he or she is expected to verify registration at regular intervals for a specified number of years. Id. at '' 62.06, 62.061, and 62.12. The length of time a person must comply with the requirements of the SORPCand the frequency with which he is expected to register or verify registrationCvary according to the severity of the offense committed. See id. at ' 62.12. In appellant=s case, appellant must verify registration annually for ten years after being released from deferred adjudication. See id. at ' 62.12(b)(2).
An individual commits an offense under the SORP if he is expected to register or verify registration and fails to comply with any program requirement. Id. at ' 62.10. Failure to comply with any SORP requirement results in either a state jail felony, felony of the third degree, or felony of the second degree, depending on the frequency of registration required. Id. at ' 62.10(b). For a person such as the appellant, who is receiving deferred adjudication for indecency with a child, the failure to comply with a SORP registration requirement is a state jail felony. See id. at ' 62.10(b)(1). A person adjudged guilty of a state jail felony may receive state jail confinement of not more than two years or less than 180 days, and, additionally, may be punished by a fine not to exceed $ 10,000. Tex. Pen. Code ' 12.35 (Vernon 1994).
PROCEDURAL DUE PROCESS
In his first point of error, appellant asserts the SORP violates the principles of procedural due process guaranteed by the Fourteenth Amendment of the United States Constitution and Article 1, Section 19 of the Texas Constitution.[5] Because appellant has not separately briefed his state and federal constitutional claims, we assume he claims no greater protection under the state constitution than that provided by the federal constitution. See Muniz v. State, 851 S.W.2d 238, 251B52 (Tex. Crim. App. 1993); Varnes v. State, 63 S.W.3d 824, 829 (Tex. App.CHouston [14th Dist.] 2001, no pet.).[6]
Actions asserting deprivation of procedural due process involve a sequential analysis. First, the court conducts an inquiry into whether the challenged conduct affects a protected life, liberty, or property interest. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705 (1972); Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). If so, the second step is to determine whether the level of process afforded to the plaintiff was sufficient, i.e. whether the right to due process was violated. Id.; Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976). Finally, when the level of process afforded has been determined to be inadequate, the court determines what additional process is due. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972); see also Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908 (1989).
1. Liberty or property interest
Procedural due process requirements attach only to the deprivation of constitutionally-protected property and liberty interests. Board of Regents, 408 U.S. at 569B70, 92 S. Ct. at 2705; Reese v. State, 877 S.W.2d 328, 331 (Tex. Crim. App. 1994). Protected liberty interests may arise from two sources: the Due Process Clause itself and the laws of the States. Kentucky Dept. of Corr., 490 U.S. at 460, 109 S. Ct. at 1908.[7] Appellant therefore must show compliance with the SORP deprives him of a property or liberty interest. See In re. M.A.H., 20 S.W.3d 860, 864 (Tex. App.CFort Worth 2000, no pet.). This the appellant has failed to do. While he asserts he has a protected liberty interest in being free of the stigma associated with registration as a sexual offender, he fails to point to any Texas law guaranteeing him such an interest.[8]
An individual=s reputation aloneCapart from some more tangible interestCis not enough to establish a due process violation in that it is neither a “liberty” nor a “property interest” by itself sufficient to invoke the procedural protection of the Due Process Clause. Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct. 1155, 1163 (1976); Robinson, 80 S.W.3d at 714; M.A.H., 20 S.W.3d at 864 (collecting cases). See also Connecticut v. Dep’t of Public Safety v. Doe, CU.S.C, CS. Ct.C, 2003 WL 728779, at *3 (Mar. 5, 2003) (mere injury to reputation, even if defamatory, does not constitute deprivation of liberty interest). Nor is ensuing impairment of future employment opportunities. Siegert v. Giffey, 500 U.S. 226, 233B35, 111 S. Ct. 1789, 1794 (1991). Simply stated, defamation by itself is a tort actionable under the laws of most states, but not a constitutional deprivation. Id. Stigmatization is an injury to reputation by itself; the freedom from stigmatization is not a liberty interest protected under the Fourteenth Amendment. Id.
To establish a liberty or property interest in his reputation that the Fourteenth Amendment will protect against state action, appellant must show (1) a defamatory state action against appellant; (2) accompanied by a change of appellant=s status as previously recognized under state law. Robinson, 80 S.W.3d at 714; Paul, 424 U.S. at 711B12, 96 S.C. at 1165. Thus, there must be evidence of defamation thatCwith some degree of certaintyCwill lead to loss of or injury to a more tangible interest. Id.; Marrero v. City of Hialeah, 625 F.2d 499, 515B19 (5th Cir. 1980). This is sometimes referred to as the “stigma plus infringement” test. Paul, 424 U.S. at 701B708, 96 S. Ct. at 1160B1165.
Here, appellant=s argument fails to pass the “stigma plus” test. First, the information he claims the State is improperly disseminating against himCnamely, that he was adjudicated for a sexual offenseCis true.[9] Therefore, he cannot establish the first element of a defamatory state actionCor “stigma”Cagainst him. See Robinson, 80 S.W.3d at 714B15.
Second, he points to no change in status recognized under Texas law, and fails to cite Texas law extending any legal guarantee of present enjoyment of reputation which has been altered by the SORP. Id. Indeed, he has produced no evidence that his reputation in the community was damaged or that he was denied educational or employment opportunities. The only injuries he cites are conclusory statements that Texas= SORP infringes on his right to privacy and creates a loss of employment opportunities.
Because appellant has failed to demonstrate (1) damage to his reputation coupled with (2) a specific loss, he has not brought himself under Fourteenth Amendment procedural due process protection. See id. (finding no protected liberty or property interest violated by the SORP where appellant failed to allege State action disseminating false information that damaged his reputation in community or education or employment opportunities); M.A.H., 20 S.W. 3d at 865.
2. Due process requirements
Because we find no conduct affecting a protected life, liberty, or property interest, we need not address whether the process afforded appellant was sufficient. Mathews v. Eldridge, 424 U.S. at 332B33, 96 S. Ct. at 901B02.[10]
Accordingly, we overrule appellant=s first point of error.[11] See also Connecticut Dep=t of Public Safety, 2003 WL 728779, at *4 (finding no due process violation under Connecticut=s sex offender registration act even if injury to appellant=s reputation constituted deprivation of a liberty interest).
EIGHTH AMENDMENT PUNISHMENT ISSUES
In his second and third points of error, appellant asserts the Texas SORP registration requirements violate the Eighth Amendment of the United States Constitution and Article 1, Section 13 of the Texas Constitution (1) by creating collateral consequences that infringe upon substantial liberty interests, and (2) by violating the proportionality doctrine, which protects against cruel and unusual punishment.[12] We disagree.
1. Requiring someone to register as part of the SORP is not “punishment.”
In his second point of error, appellant claims the SORP=s registration requirements are unconstitutional because they require him to register even though he has paid his debt to society. He asserts that, because he has successfully completed deferred adjudication, he should not be “punished” by the collateral consequence of having to verify registration and have his offense made known to the public. Appellant=s argument is without merit.
The United States Supreme Court and Texas Court of Criminal Appeals have recently ruled that dissemination of the fact that a person is a convicted sex offender does not constitute punishment. Smith v. Doe, CU.S.C,CS. Ct.C, 2003 WL 728556, at *5 (March 5, 2003) (finding Alaska=s sex offender registration act to be non-punitive and so nonviolative of ex post facto laws); Rodriguez v. State, 93 S.W.3d 60, 79 (Tex. Crim. App. 2002) (finding (1) Texas Legislature=s intent in passing the SORP was civil and remedial in nature, and (2) the effect of the Texas SORP is not so punitive as to transform the statute into a criminal sanction). See also Robinson, 80 S.W.3d at 715 (the Texas SORP creates no collateral consequences and so does not violate proportionality doctrine); Dean, 60 S.W.3d at 225 (the Texas SORP is “essentially regulatory” and so not violative of ex post facto laws). Its intent is remedial, not punitive. Smith, 2003 WL 728556 at *8; Rodriguez, 93 S.W.3d at 69; Dean, 60 S.W.3d at 220B21 (collecting cases).[13]
Because Chapter 62 of the Texas Penal Code is essentially “regulatory,” not punitive, appellant=s argument has no merit. We therefore overrule appellant=s second point of error.
2. Because the SORP is non-punitive, compliance with the SORP cannot constitute “cruel and unusual” punishment.
In his third point of error, appellant contends the Texas SORP violates the constitutional prohibition against cruel and unusual punishment because “non-dangerous” offenders register in the same manner as “dangerous” offenders. This, asserts appellant, results in “punishment” that is disproportionate to the offenses for which non-dangerous offenders are convicted. We disagree.
The Eighth Amendment protection against “cruel and unusual” punishment is triggered only if there is punishment. Trop, 356 U.S. at 96, 78 S. Ct. at 595. Having concluded the SORP=s registration requirements are non-punitive, we find there is no punishment. Accordingly, we overrule appellant=s third point of error. See Smith, 2003 WL 728556 at *1 (because Alaska sex offender registration act is nonpunitive, its retroactive application did not violate ex post facto clause); Rodriguez, 93 S.W.3d at 79 (because Texas SORP is non-punitive, it merits no ex post facto protection).
RIGHT TO TRAVEL
In his fourth point of error, appellant asserts the SORP infringes upon his fundamental right to movement and right to travel in and among the various states in violation of the Fourteenth Amendment of the United States Constitution and Article 1, Sections 3 and 19 of the Texas Constitution.[14] We disagree.
Freedom to travel throughout the United States is a basic constitutional right. Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 901B02, 106 S. Ct. 2317, 2320 (1986). A person=s right to travel embraces three components: (1) the right of a citizen of one state to enter and leave another state; (2) the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state; and (3) the right to be treated like other citizens should a traveler elect to become a permanent resident. Saenz v. Roe, 526 U.S. 489, 500, 119 S. Ct. 1518, 1525 (1999). Any classification that penalizes the exercise of the right to travel survives scrutiny if it is necessary to promote a compelling governmental interest. Dunn v. Blumstein, 405 U.S. 330, 339, 92 S. Ct. 995, 1001 (1972); Saenz, 526 U.S. at 504B05, 119 S. Ct. at 1527.
A state law implicates the right to travel when it actually deters travel, when impeding travel is its primary objection, or when it uses any classification which serves to penalize the exercise of that right. Soto-Lopez, 476 U.S. at 903, 106 S. Ct. at 2321; Robinson,80 S.W.3d at 715. Travelers, however, do not have a constitutional right to the most convenient form of travel. Cramer v. Skinner, 931 F. 2d 1020, 1031 (5th Cir. 1991). See also Robinson, 80 S.W.3d at 715 (finding the Texas SORP does not violate appellant=s right to travel). Minor restrictions on travel simply do not amount to the denial of a fundamental right that can be upheld only if the government has a compelling justification. Cramer, 931 F.2d at 1031. The right to travel is thus subject to reasonable regulation. Robinson, 80 S.W.3d at 715B16; Sullivan v. University Interscholastic League, 599 S.W.2d 860, 864 (Tex. App.CAustin 1980), aff’d in part and rev=d in part on other grounds, 616 S.W.2d 170 (Tex. 1981).
Here, the SORP has not denied appellant his fundamental right to travel. Appellant is not prohibited from traveling; indeed, he may travel wherever he pleases. However, when he changes his residence or regularly visits a location, he must report that fact to the local law enforcement authority. See Tex. Crim. Proc. Code Ann. ' 62.04(a) (Vernon Supp. 2002); Robinson, 80 S.W. 3d at 716. Merely having to report a change in residence or regular visitationCa minor restriction on one=s right to travelCdoes not deny appellant or other sexual offenders the fundamental right to travel. See id.; Cramer, 931 F.2d at 1031.
Because the SORP does not deny appellant his fundamental right to travel, we review the statute under the “rational basis” testCi.e. is the statute reasonable, not arbitrary, and rationally-related to a legitimate state interest? See Cleburne, 473 U.S. at 440, 105 S. Ct. At 3254.
We conclude Chapter 62 of the Texas Penal Code is constitutionally sound. The State has a legitimate interest in alerting the public to persons who pose a threat, and the SORP is rationally related to that interest. See Rodriguez, 93 S.W.3d at 74 (the SORP promotes public safety “by alerting the public to the presence of sex offenders”); M.A.H., 20 S.W.3d at 863.
Because Texas= SORP registration requirements are rationally related to a legitimate State purpose, appellant=s constitutional challenge to the SORP on the basis of violation of his right to movement fails. Appellant demonstrates only an indirect burden on his right to travel; such a restriction does not deny him his fundamental rights. See Cramer, 931 F.2d at 1031; Robinson, 80 S.W.3d at 716.
Accordingly, we overrule appellant=s fourth point of error.
VOID FOR VAGUENESS
In his final point of error, appellant asserts the Texas SORP is void for vagueness in violation of the Fourteenth Amendment to the United States Constitution and Article 1, Section 19 of the Texas Constitution. Because there are “at least two dozen ways” to violate SORP registration requirements, argues appellant, the statute (1) lacks “sufficient definiteness that ordinary people can understand what conduct is prohibited”; and (2) encourages arbitrary and discriminatory enforcement.[15] We disagree.
When a vagueness challenge involves First Amendment concerns, a statute may be held facially invalid even though it is not unconstitutional as applied to the appellant=s conduct. Long v. State, 931 S.W.2d 285, 288 (Tex. Crim. App. 1996); DeWillis v. State, 951 S.W.2d 212, 214 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d). When no First Amendment rights are involved, the court need only examine a statute to determine whether it is impermissibly vague as applied to the appellant=s specific conduct. Id.; Bynum v. State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989). The appellant must establish the statute is unconstitutional as applied to him; that it might be unconstitutional to others is not sufficient. See id.; DeWillis, 951 S.W.2d at 214B215.
Because we find no authority suggesting sex offenders have a constitutionally-protected right under the First Amendment to live without disclosure of their geographic location to local authorities or to live without disclosure of their offenses to the public, we look only to see if the SORP is impermissibly vague as applied to appellant=s conduct. See id. at 217; Bynum, 767 S.W.2d at 774. We conclude that it is not.
A statute is void for vagueness if it does one of two things. First, it is void if it fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden by statute. Papachristou v. City of Jacsonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843 (1972); Kolendar v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1958 (1983); Cotton v. State, 686 S.W.2d 140, 141 (Tex. Crim. App. 1985). Second, it is void if it encourages arbitrary and erratic arrests and convictions. Id. See also Bynum, 767 S.W.2d at 775. The SORP does neither.
1. Fair notice
A statute that forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential element of due process. DeWillis, 951 S.W.2d at 214. Indeed, laws that are not sufficiently definite, such that their terms and provisions may be “known, understood, and applied,” are void and unenforceable. Id. Thus, a statute is unconstitutionally “void for vagueness” when no standard of conduct is specified at all or when no core of prohibited activity is defined. Briggs v. State, 740 S.W.2d 803, 806 (Tex. Crim. App. 1987).
In the instant case, appellant claims the SORP statutes do “not adequately define and differentiate the actus reus element in an articulable manner.” We disagree.
First, appellant clearly had “notice” that the SORP pertained to him. His duty to register and verify registration was specifically detailed in the Texas Code of Criminal Procedure. See Tex. Crim. Proc. Code Ann. ' 62.02(a) (Vernon Supp. 2002)(“[a] person who has a reportable conviction or adjudication . . . shall register or . . . verify registration”); ' 62.01(5)(I)(a “[r]eportable conviction or adjudication means . . . a deferred adjudication for . . . Indecency with a Child.”); ' 62.04(a) (“If a person required to register intends to change address . . . the person shall . . . report in person . . .”); ' 62.06(b) (“A local law enforcement authority . . . may direct . . . person to report . . . to verify”); ' 62.062(a) (“A person subject to this chapter who [visits another municipality or county] shall report . . .”); ' 62.10 (“A person commits an offense if . . . [he] fails to comply with any requirement of this chapter”). Certainly, any adult of ordinary intelligence would know failure to register or to verify registration would result in a harsh penalty and would act accordingly. See Robinson, 80 S.W.3d at 716 (finding the SORP not void for vagueness where wording of article 62.04(a) was “sufficiently explicit” to inform defendant of prohibited conduct).
Additionally, appellant complied with the SORP for five years. Evidence shows he initialed a “sex offender registration acknowledgment form,” signed an “adult sex offender registration pre-release notification form,” and registered or verified registration on five separate occasions. Clearly, appellant was aware of, and understood, the SORP registration requirementsCand knew they applied to him.
Because appellant=s conduct was covered by the SORP statute, appellant cannot complain of the vagueness of the law as applied to others. See Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999). Thus, like the Robinson court, we hold that the wording of article 62.04(a) is sufficiently explicit to inform those subject to it, like appellant, of prohibited conduct. See Robinson, 80 S.W.3d at 716.
2. Arbitrary arrests and convictions
Statutes that delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis are impermissibly vague. Grayned v. City of Rockford, 408 U.S. 104, 108B9 (1972); Bynum, 767 S.W.2d at 775. So, too, are statutes that establish indeterminate guidelines for law enforcement. Long v. State, 931 S.W.2d 285, 287 (Tex. Crim. App. App. 1996).
Here, appellant claims the SORP “encourages arbitrary and capricious enforcement” because it “leaves the decision [to prosecute SORP violations] entirely in the hands of law enforcement officials.” This argument is without merit.
First, Texas law is very explicit about how authorities are to enforce the SORP. See Tex. Crim. Proc. Code Ann. '' 62.03 and 62.06 (Vernon Supp. 2002) (detailing how and when authorities are to inform sex offenders about the program, register offenders, and verify registration information); ''' 62.03(f), 62.045, and 62.0451(detailing how and when authorities are to publish SORP information); ' 62.035 (detailing how authorities are to conduct risk assessments); ' 62.08 (detailing what is to be maintained in offender databases); ' 62.10 (detailing what constitutes SORP violation); and ' 62.12 (detailing how long authorities must enforce registration or verification procedures for individual offenders). Virtually nothing is delegated to policemen, judges, or juries regarding how the SORP is enforced. Appellant himself acknowledges there are more than “two dozen ways” a person can violate the SORP registration requirements. Rather than finding such specificity to be “vague,” we conclude it offers an unusual degree of detail and clarity regarding behavior that triggers non-compliance.
Next, evidence indicates authorities followed the prescribed procedures: appellant was directed to comply with the SORP registration requirements; appellant was asked to sign a sex offender registration acknowledgment form indicating he knew he had to verify registration for ten years after discharge from supervision; appellant was asked to sign verification update forms; a peace officer visited with appellant at his residence on December 7, 2001, to inform him of the need to verify before January 11, 2002; and the State confirmed appellant was not registered with another law enforcement agency prior to seeking its January 19, 2002 indictment.
Because we find (1) appellant had fair notice of the SORP registration requirements, and (2) the SORP does not encourage arbitrary and erratic arrests and convictions, we conclude the SORP is not void for vagueness. Accordingly, we overrule appellant=s fifth point of error.
CONCLUSION
Having overruled all appellant=s points of error, we affirm the judgment of the trial court denying appellant habeas relief.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed April 3, 2003.
Panel consists of Justices Yates, Anderson, and Frost.
Do not publishCTex. R. App. P. 47.2(b).
[1] The SORP places a duty to register on a person who has a Areportable conviction or adjudication.@ Tex. Crim. Proc. Code Ann. ' 62.02(a) (Vernon Supp. 2002). It specifies that deferred adjudication for a violation of Tex. Penal Code ' 21.11 (indecency with a child) is a reportable offense. Tex. Crim. Proc. Code Ann. ' 62.01(I)(i) (Vernon Supp. 2002). An individual commits an offense under the SORP if the person is required to register or verify registration and fails to comply with any of the program=s requirements. See Tex. Crim. Proc. Code Ann. '' 62.10 and 62.101 (Vernon Supp. 2002).
[2] Appellant=s original indictment, dated January 17, 2002, stated appellant Aintentionally and knowingly did fail to report to register.@ On July 12, 2002, the indictment was amended to read Aintentionally and knowingly did fail to verify registration.@
[3] The information published includes the person=s full name, age, and gender; a brief description of the person=s offense; the person=s address; and a recent photograph. See Tex. Crim. Proc. Code Ann. ' 62.03 (Vernon Supp. 2002). Although an offender is required to provide his or her social security number, driver=s license number, and telephone number at the time he or she registers, this information is not made public. See id. at ' 62.03(g) (Vernon Supp. 2002).
[4] Under the SORP, authorities must assess the offender=s level of risk to the community using a sex offender screening tool outlined in ' 62.035, and a numeric risk level of one, two, or three is assigned to the individual. Id. at '' 62.03(a) and (c), and 62.035.
[5] The Fourteenth Amendment provides in part: ANo State shall . . . deprive any person of life, liberty, or property, without due process of law.@ U.S. Const. amend. XIV, ' 1. The Texas Constitutional due-process provision provides: ANo citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of law of the land.@ Tex. Const. art I, ' 19.
[6] Appellant has not separately briefed the state constitutional violations, so we are not obligated to address them. Tex. R. App. P. 38; Heitman v. State, 815 S.W.2d 681, 690 n. 23 (Tex. Crim. App. 1991) (requiring briefs claiming constitutional violations under both state and federal constitutions to show how constitutional protections differ). However, historically, courts have equated the due course of law clause in the Texas Constitution with the guarantee of due process under the Fourteenth Amendment of the United States Constitution. See Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (holding there is no meaningful distinction between Adue course@ and Adue process@). See also Sullivan v. State, 986 S.W.2d 708, 715 (Tex. App.CDallas 1999, no pet.).
[7] Appellant makes no claim under the Fifth Amendment of the United States Constitution, which guarantees that the federal government may not deprive a person of life, liberty or property interests without procedural due process. Because he asserts only a violation of the Fourteenth Amendment, which pertains to state deprivation of these interests, appellant must show the interests he seeks to protect were Acreated and their dimensions . . . defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.@ Paul v. Davis, 424 U.S. 693, 709, 96 S. Ct. 1155, 1164 (1976) (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972)). Interests attain constitutional status Aby virtue of the fact that they have been initially recognized and protected by state law.@ Paul, 424 U.S. at 710, 96 S. Ct. at 1164. Interests also attain constitutional status if they are guaranteed in one of the provisions of the Bill of Rights, which has been Aincorporated@ into the Fourteenth Amendment. Id.n.5.
[8] Cf. Bell v. Burson, 402 U.S. 535, 543, 91 S. Ct. 1586, 1591 (1971) (holding that stateCby issuing drivers= licensesChad recognized in its citizens a right to operate a vehicle on the highways of the state and so could not withdraw this right without giving petitioner due process); Morrissey v. Brewer, 408 U.S. 471, 490, 92 S. Ct. 2593, 2605 (1972) (holding that stateCbecause it had afforded parolees the right to remain at liberty as long as the conditions of their parole were not violatedCcould not alter the status of a parolee without providing procedural safeguards).
[9] Appellant acknowledges the truth of the information disseminated by the DPS. He complains, however, that the SORP requires registration by both dangerous and non-dangerous sex offenders; thus, he is forced to suffer the same Asocial stigma@ as that suffered by more dangerous offenders. We disagree.
The SORP provides the following information to the public in addition to offender names and addresses: (1) a brief description of the offense for which an offender was charged; (2) a general description of the victim; (3) the offender=s numeric risk level; and (4) the guidelines used to determine the offender=s risk level. Tex. Crim. Proc. Code Ann. ' 62.03(f) (Vernon Supp. 2003). Because the information published varies from individual to individual, no two offenders are treated exactly alike.
[10] The minimum requirements of due process are notice and an opportunity to be heard. Mathews v. Eldridge, 424 U.S. at 333, 96 S. Ct. at 902; Univ. of Tex. Med. Sch., 901 S.W.2d at 930.
[11] As pointed out by the State, the Texas SORP is more amenable to a substantive due process review than a procedural one. See Connecticut Dep=t of Public Safety, 2003 WL 728779, at *4 (Stevens, J., concurring) (noting such claims must be analyzed in terms of substantive, not procedural, due process). To pass muster substantively, a statute that does not affect a fundamental right or interest is valid if it bears a rational relationship to a legitimate state interest. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254 (1985); Texas Workers= Compensation Comm=n v. Garcia, 893 S.W.2d 504, 525 (Tex.1995). Thus, the government violates a party=s substantive due process rights only when there is no rational basis for the challenged action. See Williamson v. Lee Optical of Okla, 348 U.S. 483, 488, 75 S. Ct. 461, 464 (1955); Jackson v. State, 807 S.W.2d 387, 390 (Tex. App.CHouston [14th Dist.] 1991, pet. ref=d).
Here, the Texas legislature has a legitimate purpose to protect the public from sexual predators. See Rodriguez v. State, 93 S.W.3d 60, 74 (Tex. Crim. App. 2002) (Texas SORP promotes public safety Aby alerting the public to the presence of sex offenders@). Because the SORP=s notification provisions inform citizens that sex offenders are living in their communityCin order that citizens may take necessary precautionsCthe SORP is a rational means to further a legitimate State purpose. See id. at *2 (finding sex offenders to be Aserious threat@); M.A.H., 20 S.W. 3d at 866.
[12] The Eighth Amendment provides: AExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.@ It is applicable to the States by and through the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 667, 82 S. Ct. 1417, 1420 (1962). Article I, Section 13 of the Texas Constitution contains similar language.
[13] To determine whether a statute is punitive or regulatory, courts follow a two-part analysis. Dean, 60 S.W.3d at 221. First, the court determines the intent of the Legislature in passing the Act (i.e., did it intend for the Act to be punitive, or was its goal merely to provide a regulatory framework?). Id. Next, the court determines whether, despite a stated non-punitive intent, the effect of the Act is Aso punitive@ as to negate the intention.@ Id. In performing the second step, the court looks at the seven factors enumerated in Kennedy v. Mendoza-Martinez. See Hudson v. U.S., 522 U.S. 93, 99B100, 118 S. Ct. 488, 493 (1997) (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168B69, 83 S. Ct. 554 (1963)). See also Smith, 2003 WL 728556, at *2 (applying the two-part analysis and seven Kennedy factors to find Alaska=s sex offender registration statute to be non-punitive); Rodriguez, 93 S.W.3d at 79 (applying the two-part analysis and seven Kennedy factors to find the Texas SORP to be non-punitive).
[14] Again, appellant presents no authority on how the protection guaranteed by the Texas Constitution differs from the protection guaranteed by the United States Constitution. Thus, we assume appellant claims no greater protection under the State constitution than that provided by the federal constitution. See Muniz, 851 S.W.2d at 251B252; Varnes, 63 S.W.3d at 829.
[15] Again, appellant presents no authority on how the protection guaranteed by the Texas Constitution in Article I, Section 19 differs from the protection guaranteed by the United States Constitution. Thus, we assume appellant claims no greater protection under the State constitution than that provided by the federal constitution. See Muniz, 851 S.W.2d at 251B252; Varnes, 63 S.W.3d at 829.