Reynolds v. State

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1369-12

CRAIG RUDY REYNOLDS, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
BOSQUE COUNTY

MEYERS, J., delivered the opinion of the Court, in which KELLER,
P.J., and KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined. PRICE, J.,
filed a dissenting opinion, in which WOMACK, J., joined. JOHNSON, J., dissented.

OPINION

Appellant, Craig Rudy Reynolds, was charged with and convicted of failure to comply

with sex-offender registration requirements. The charges originated from a 1990 conviction

for sexual assault of a child, for which he was sentenced to five years’ imprisonment.

Appellant served his entire sentence and was released in August of 1995. The registration

statute in effect at the time did not require Appellant to register as a sex offender. The statute,
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however, was amended in 2005, putting Appellant’s duty to register in dispute. He was

convicted of failing to register in 2009, but appealed, arguing that the amended statute did

not require him to register, that such retroactivity would be unconstitutional, and that there

was insufficient evidence to support the jury’s refusal to find his affirmative defense of

mistake of law. Reynolds v. State, 385 S.W.3d 93 (Tex. App.–Waco 2012). The court of

appeals upheld the conviction. Id. at 102. We granted Appellant’s petition for discretionary

review to determine whether the 2005 amendments imposed a new requirement for him to

register and whether this violates the prohibition against retroactive laws.

STATUTORY HISTORY

In 1991, the Texas Legislature enacted its first sex-offender registration provision.

Act effective September 1, 1991, 72nd Leg., R.S., ch. 572, § 1. It required a person with a

reportable conviction on or after September 1, 1991, to register with the local law

enforcement agency. Id. Because Appellant’s sexual-assault-of-a-child conviction

occurred in 1990, however, the statute did not require him to register.

In 1997, the Legislature redesignated the statute as chapter 62 of the Code of

Criminal Procedure and instituted its retroactive application to individuals with reportable

convictions on or after September 1, 1970. Act effective September 1, 1997, 75th leg.,

R.S., ch. 668, § 1; Arce v. State, 297 S.W.3d 279, 281 (Tex. Crim. App. 2009). This

change, however, was accompanied by an uncodified “savings clause” that restricted its

application to people who were “confined in a penal institution . . . or . . . under the
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supervision and control of . . . the Texas Department of Criminal Justice” on or after

September 1, 1997. Id. at § 11(a). It explicitly preserved the law of the statute before the

amendment for those individuals who had convictions but were not in a penal institution

or subject to supervision for that conviction on or after September 1, 1997. Id. at § 11(b).

Although Appellant’s conviction was after 1970, he completed his entire sentence in

1995. Therefore, the “savings clause” applied to him and he was still not required to

register.

In 2005, the Legislature reenacted and amended chapter 62. Act effective

September 1, 2005, 79th leg., R.S., ch. 1008, § 1.01. These amendments included the

repeal of article 62.11, which had contained the rule on applicability and the uncodified

“savings clause.” Id. It was replaced with article 62.002 which also provided that the

registration requirements applied to those with reportable convictions occurring on or

after September 1, 1970. Id.; T EX. C ODE C RIM. P ROC. A NN. art. 62.002(a). The

Legislature, however, made no indication as to whether it wished to retain or repeal the

uncodified portion of article 62.11, which included the “savings clause.” Instead, the

2005 amendments contained a transition clause that stated that “the changes in law made

by this Act in amending Chapter 62, Code of Criminal Procedure, apply to a person

subject to Chapter 62, Code of Criminal Procedure, for an offense or conduct committed

or engaged in before, on, or after the effective date of this Act.” Act effective September

1, 2005, 79th leg., R.S., ch. 1008, § 1.01. Relying on a letter from the Texas Department
 Reynolds - Page 4

of Public Safety that stated he did not have to register under the new law, Appellant never

registered. In 2009, he was arrested for failing to register, convicted, and sentenced to

five years’ confinement. The issues now presented are whether the 2005 amendments

imposed a new requirement for Appellant to register as a sex offender even though he had

no such duty in the past and whether this would constitute prohibited retroactivity.

ARGUMENTS OF THE PARTIES

Appellant contends that the registration requirement in the 2005 amendments does

not apply to him and that he, therefore, had no legal duty to register. He argues that,

because the transition clause states that the amendments apply to those who are “subject

to Chapter 62,” the changes are applicable only to individuals who were already required

to register on the effective date, which would not include Appellant. Appellant cites to

our footnote in Ex parte Arce, 297 S.W.3d 279, 281 (Tex. Crim. App. 2009), in which we

acknowledged that it is unclear, because of this language, whether an individual who had

been exempted from Chapter 62 by the earlier version of the statute would now be subject

to it. Appellant also suggests that if the “savings clause” was repealed, it could only have

been done so by implication, which is improper because the amendment is subject to an

interpretation that the prior statute is still in effect.

Appellant also asserts that applying the 2005 amendments to him violates the

Texas constitutional prohibition against retroactive laws. Appellant argues that, prior to

2005, he had a substantial, vested right to be free of the sex-offender registration
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requirements. He suggests that we adopt the three-part test formulated by the Supreme

Court of Texas for determining whether a statute is unconstitutionally retroactive.

Robinson v. Crown Cork & Seals Co., 335 S.W.3d 126, 145 (Tex. 2010). The test looks at

“the nature and strength of the public interest served by the statute as evidenced by the

Legislature’s factual findings; the nature of the prior right impaired by the statute; and the

extent of the impairment.” Id. Appellant asserts that these factors make it clear that

applying the registration requirement to him is unconstitutional. Finally, Appellant

contends, based on Robinson, that the court of appeals’s reliance on the police-power

exception in upholding his duty to register was error because an exception to retroactivity

must be compelling and clearly established rather than justified by necessity alone or

simply likely to do more good than harm. Id.

The State argues that the 2005 amendments apply to Appellant and that his

conviction for failing to register is valid. The State asserts that the plain text of the

transition clause makes clear that Appellant is not exempt from the requirement to

register. Further, deleting the exemption and mandating uniform registration for all

offenders is in line with the Legislature’s stated intent to simplify and clarify the statute

which had become overly complex. The State contends that the uncodified “savings

clause” in the 1997 statute was eliminated by the 2005 amendments because the provision

that the clause accompanied, article 62.11, was eliminated. Holding otherwise, the State

argues, leads to the absurd result of every savings clause that has accompanied a repealed
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statute remaining in effect unless the Legislature clearly dictated differently.

The State goes on to point to the 2003 amendments of article 62.01(5) to

demonstrate the meaning of the “subject to” phrase in the 2005 transition clause. The

2003 amendments added foreign convictions to the list of reportable offenses and had an

applicability clause that specified that the change “applie[d] to a person subject to

registration under Chapter 62.” Act effective September 1, 2003, 78th leg., R.S., ch. 1005,

§§ 8, 12. The State points out that if the “subject to” phrase functions as Appellant

suggests, the addition of foreign convictions in 2003 would have had no effect because

individuals with those convictions had not previously been subjected to the registration

requirement. Finally, the State argues, because the purpose of transition provisions is to

help avoid the shock that can result from changing law, one was included in the 2005

amendments to put those who were not previously required to register on notice that the

law may now require registration.

The State believes that Appellant’s second issue should be remanded because the

court of appeals failed to determine whether the complaint was properly preserved. In the

alternative, the State disputes Appellant’s contention that the 2005 amendments violate

the prohibition on retroactive laws. The State asserts that Appellant’s exemption was not

a vested, substantive right because registration is a procedural regulation rather than a

punishment, making it beyond the purview of the retroactive law prohibition. Further, the

State argues that choosing to adopt the three-factor test from Robinson would still result
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in a finding that the registration requirement is constitutional because it is a reasonable

use of police power that causes no substantial impairment of a right.

COURT OF APPEALS

On appeal, the court considered the applicability of the registration requirement to

Appellant, the constitutionality of its retroactivity, and whether there was sufficient

evidence to refute his defense of mistake of law. See Reynolds, 385 S.W.3d at 95-101. In

its decision, the court of appeals asserted that the plain language of the transition clause

indicates that Chapter 62 and the 2005 amendments to it were applicable to Appellant

because he had a reportable conviction after September 1, 1970. Id. at 98. The court of

appeals also looked to our opinion in Ex parte Harbin, 297 S.W.3d 283, 286 n.5 (Tex.

Crim. App. 2009), in which we stated in a footnote that, because the Legislature made no

indication of wishing to retain the uncodified portion, and because the “savings clause” is

inconsistent with the amendments, “the uncodified portion has effectively been repealed.”

Id. at 98-99. The court of appeals determined, therefore, that the “savings clause” was

effective only from September 1, 1997 to August 31, 2005 and that Appellant had a duty

to register under Chapter 62. Id. at 99.

The court of appeals then evaluated the constitutionality of the retroactivity of the

registration statute. Because the amendments were made in order to address concerns that

the registration program had become difficult to manage, the court of appeals presumed

that the amendments furthered the program’s original purpose of promoting public safety.
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Id. at 100. The court of appeals held that the statute’s retroactivity did not render it

unconstitutional because the amendments were necessary to safeguard the public. Id.

On the final issue, the court of appeals concluded that there was some evidence to

support the jury’s refusal to find for the affirmative defense of mistake of law. Id. at 101.

Therefore, the evidence was legally sufficient to support the jury’s conviction of

Appellant. Id. at 102. Having overruled all of Appellant’s issues, the court of appeals

affirmed the judgment of the trial court. Id. We subsequently granted Appellant’s petition

for discretionary review on the two issues of the 2005 amendments’ applicability and

retroactivity.

APPLICABILITY OF REGISTRATION REQUIREMENT TO APPELLANT

When this court interprets statutes, “we seek to effectuate the ‘collective’ intent or

purpose of the legislators who enacted the legislation.” Boykin v. State, 818 S.W.2d 782,

785 (Tex. Crim. App. 1991) (citing Comacho v. State, 765 S.W.2d 431 (Tex. Crim. App.

1989)). We begin our analysis with the language of the statute and “attempt to discern the

fair, objective meaning of that text at the time of its enactment.” Id. Where that language

is clear and unambiguous, we will give effect to its plain meaning, unless that meaning

would lead to absurd consequences that the legislature could not have intended. Smith v.

State, 789 S.W.2d, 590, 592 (Tex. Crim. App. 1990); Boykin, 818 S.W.2d at 785 (citing

Faulk v. State, 608 S.W.2d 625, 630 (Tex. Crim. App. 1980)). If it is ambiguous or would

lead to an absurd result, it is then permissible for us to look beyond the plain text and
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consider additional factors. Boykin, 818 S.W.2d at 785-86. We do not find the need to

look beyond the plain text in this case.

As set out above, the 2005 amendments contain a transition clause specifying that

the changes in the law “apply to a person subject to Chapter 62,” and the amended version

of Chapter 62 states that it applies to individuals who have reportable convictions or

adjudications that occurred on or after September 1, 1970. Act effective September 1,

2005, 79th leg., R.S., ch. 1008, § 1.01; T EX. C ODE C RIM. P ROC. A NN. art. 62.002(a). The

plain meaning of these provisions is simply that the amendments to the law apply to those

with a reportable conviction that occurred on or after September 1, 1970, which includes

Appellant. As the State points out, the provision that the “savings clause” accompanied

was deleted in 2005 and, therefore, the uncodified portion that included the “saving

clause” was deleted as well. There is no language within the statute that indicates the

“savings clause” was to be retained. The plain language of the statute also does not

indicate that “person[s] subject to Chapter 62” means only those individuals who had

been subject to it prior to the amendments, as Appellant suggests, and we see no reason to

read this meaning into it. The use of the present tense of “subject to” rather than the past

tense, “subjected to,” further supports our conclusion that it is not an individual’s past

status under the statute that determines applicability. Therefore, Chapter 62 does apply to

Appellant and he was required to register under Chapter 62.

Our decision here is in line with Ex parte Harbin, in which we concluded in a
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footnote, that the “savings clause” applies only to those who did not register between

1997 and 2005. 297 S.W.3d at 287. We stated that “[t]he 2005 amendments . . . repeal[ed]

all of article 62.11, including the uncodified ‘savings clause,’” because “there was no

indication that the legislature wished to retain or relocate the uncodified portion and since

the ‘savings clause’ appears to be inconsistent with the 2005 statute’s amendments and

retroactive application.” Id. at 286, n.5. Appellant points to our statements in Ex parte

Arce in response to any reliance on Harbin. However, these statements in Arce have no

bearing on our decision. We came to no conclusions and, instead, simply recognized that

an argument could be made that the amendments do not apply to an individual previously

exempted from Chapter 62.1

CONSTITUTIONALITY OF STATUTE’S RETROACTIVITY

We begin with the State’s contention that the court of appeals erred by not first

determining whether Appellant’s retroactivity-based complaint was properly preserved.

The court of appeals should typically review preservation on its own motion, but where it

1

The 2005 transition clause provided in relevant part that “the changes in law made
by this Act in amending Chapter 62, Code of Criminal Procedure, apply to a
person subject to Chapter 62, Code of Criminal Procedure, for an offense or
conduct committed or engaged in before, on, or after the effective date of this
Act.” Arguably, the transition language referring to a person being subject to
Chapter 62 would preclude application to someone who was exempted from
Chapter 62 by an earlier version of the statute. We need not, and do not, decide
this question, however.

Ex parte Arce, 297 S.W.3d at 281, n.10 (citation omitted).
 Reynolds - Page 11

does not expressly do so, this Court “should do so when confronted with a preservation

question.” Ford v. State, 305 S.W.3d 530, 532-33 (Tex. Crim. App. 2009). Therefore, we

will not remand for this omission, as the State requests, and instead we will address

whether the retroactivity complaint was preserved.

“As applied” constitutional claims are subject to the preservation requirement and

therefore must be objected to at the trial court in order to preserve error. Flores v. State,

245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008); Curry v. State, 910 S.W.2d 490, 496

& n.2 (Tex. Crim. App. 1995); see also Karenev v. State, 281 S.W.3d 428, 434 (Tex.

Crim. App. 2009); Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004); Briggs

v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (stating that “[e]ven constitutional

errors may be waived by failure to object at trial”).

There is no evidence that Appellant objected to the retroactivity of the statute at

the trial court, but Appellant asserted during oral argument that, because he argued at the

trial court that the registration statute should not apply to him, the issue could be

interpreted as preserved. Asserting that the statute contained an exemption for Appellant,

however, is a far cry from presenting the argument that the statute is unconstitutionally

retroactive because it took away Appellant’s vested right to not register. This retroactivity

argument cannot be raised for the first time on appeal. Therefore, because no specific,

timely objection was made, we conclude that this issue was not preserved for appellate
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review and we, therefore, will not consider it.2

CONCLUSION

In conclusion, Appellant’s retroactivity argument was not preserved for review.

We hold that the sex-offender-registration requirements in Chapter 62 apply to Appellant

because the “savings clause” that previously exempted him was deleted by the 2005

amendments. Therefore, the judgment of the court of appeals is affirmed.

Delivered: February 12, 2014

Publish

2
Even if we did remand the case for the court of appeals to consider the preservation
issue, as the State requests, the outcome would be same. The issue was not preserved and,
therefore, remanding to the court of appeals would be a useless exercise.