TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00602-CV
Texas Department of Public Safety, Appellant
v.
Anonymous Adult Texas Resident, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-10-000869, HONORABLE TIM SULAK, JUDGE PRESIDING
C O N C U R R I N G O P I N I O N
I concur in the majority's judgment. For substantially the same reasons identified in the majority's opinion, I agree that the elements of the Massachusetts offense of indecent assault and battery on a person over fourteen years of age are not substantially similar to the elements of the Texas offense of sexual assault.
I do not agree, however, with the majority's conclusion that the Sex Offender Registration Act (SORA) (1) allows consideration of the "facts and circumstances" underlying out-of-state criminal convictions in certain "unusual cases." While I recognize that this Court's opinion in Texas Department of Public Safety v. Garcia (2) expanded SORA's inquiry to look into the conduct underlying the out-of-state conviction, I find no support for that expansion in SORA's text. The plain language of SORA confines the inquiry to whether the elements of the out-of-state offense are "substantially similar" to the elements of a SORA offense. (3) In that respect, I would have decided Garcia differently.
Accordingly, I join in the judgment and, with these qualifications, the majority's opinion. (4)
__________________________________________
Jeff Rose, Justice
Before Chief Justice Jones, Justices Pemberton and Rose;
Concurring Opinion by Justice Rose, joined by Justice Pemberton
Filed: August 30, 2012
1. Tex. Code Crim. Proc. Ann. arts. 62.001-.408 (West 2006 & Supp. 2011).
2. Texas Department of Public Safety v. Garcia, 327 S.W.3d 898, 905-06 (Tex. App.--Austin 2010, pet. denied).
3. See Tex. Code Crim. Proc. Ann. art. 62.001(5)(H).
4. Justice Pemberton joins in this concurrence.