In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-11-00429-CR
____________________
BENNIE RAY JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 11-05-05840-CR
________________________________________________________ _____________
MEMORANDUM OPINION ON MOTION FOR REHEARING
On motion for rehearing, Bennie Ray Johnson complains that the Court
misconstrued his complaint as an ex post facto challenge to the sex offender
registration statute. Johnson states that his only challenge to the sex offender
registration statute is that it violates the prohibition against a “retroactive law[.]”
See Tex. Const. art. I, § 16. Johnson has not filed a civil action but has appealed his
criminal conviction; however, he argues the distinction between an ex post facto
challenge and a retroactive law challenge is significant because he “challenges
1
Chapter 62 in a civil context” and does not claim a punitive effect but only that the
law affects a vested right. Johnson argues that the entire statute is facially void as
to any person with a reportable conviction before 1999 because the Legislature
amended the statute in 1999 and 2005.
On three occasions, the Court of Criminal Appeals has upheld a procedural
rule or statute without expressly deciding whether the retroactive law provision of
the Texas Constitution would apply in a criminal case in a manner distinguishable
from the ex post facto provision. See Fowler v. State, 991 S.W.2d 258, 261 (Tex.
Crim. App. 1999) (harmless error rule); Ex parte Davis, 947 S.W.2d 216, 220
(Tex. Crim. App. 1996) (successive habeas applications); Grimes v. State, 807
S.W.2d 582, 587-88 (Tex. Crim. App. 1991) (reversal on punishment only); see
also Tex. Const. art. I, § 16. In the context of civil litigation, the Texas Supreme
Court has observed
the constitutional prohibition against retroactive laws does not insulate
every vested right from impairment, nor does it give way to every
reasonable exercise of the Legislature’s police power; it protects
settled expectations that rules are to govern the play and not simply
the score, and prevents the abuses of legislative power that arise when
individuals or groups are singled out for special reward or
punishment. No bright-line test for unconstitutional retroactivity is
possible. Rather, in determining whether a statute violates the
prohibition against retroactive laws in article I, section 16 of the Texas
Constitution, courts must consider three factors in light of the
prohibition’s dual objectives: the nature and strength of the public
interest served by the statute as evidenced by the Legislature’s factual
2
findings; the nature of the prior right impaired by the statute; and the
extent of the impairment. The perceived public advantage of a
retroactive law is not simply to be balanced against its relatively small
impact on private interests, or the prohibition would be deprived of
most of its force. There must be a compelling public interest to
overcome the heavy presumption against retroactive laws. To be sure,
courts must be mindful that statutes are not to be set aside lightly.
Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126, 145-46 (Tex. 2010)
(footnotes omitted).
The Legislature enacted the sex offender registration statute “to advance
public safety objectives by facilitating law enforcement’s monitoring of sex
offenders and by alerting members of the public who may be in an especially
vulnerable situation to take appropriate precautions which could deter or prevent
further crimes.” In re M.A.H., 20 S.W.3d 860, 863 (Tex. App.—Fort Worth 2000,
no pet.). In 1999, the Legislature amended the sex offender registration law to
bring the statute into compliance with federal law and because “situations that have
taken place over the past few years that have shown us the weaknesses in our sex
offender registration program.” Senate Research Ctr., Bill Analysis, Tex. S.B. 399,
1224, 76th Leg., R.S. (1999). The 2005 amendments to the sex offender
registration statute sought to “streamline, simplify, and clarify” the provisions of a
sex offender registration statute that had become “too cumbersome and difficult to
manage.” Senate Research Ctr., Bill Analysis, Tex. C.S.H.B. 867, 79th Leg., R.S.
3
(2005). The legislation reflects a strong public interest in the safety of the public.
We also note that the amendments are not overtly retroactive, as they imposed
additional requirements on future registrations. See Act of May 26, 1999, 76th
Leg., R.S., ch. 444, § 10, 1999 Tex. Gen. Laws 2824, 2828; Act of May 26, 2005,
79th Leg., R.S., ch. 1008, § 4.01, 2005 Tex. Gen. Laws 3385, 3422.
Johnson argues his 1998 conviction established with finality the parameters
of the civil sanction imposed upon him. We understand Johnson to be arguing that
he had a settled expectation in the civil consequences of his criminal conviction for
a sexual offense. See Robinson, 335 S.W.3d at 147 (“The presumption is that a
retroactive law is unconstitutional without a compelling justification that does not
greatly upset settled expectations.”). Johnson has not shown how any additional
duty imposed by the subsequent amendments to Chapter 62 upset the expectation
that he was required to register within seven days of his arrival in a municipality.
See Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1, art. 62.02(a), 1997 Tex. Gen.
Laws 2253, 2254.
Johnson’s claim that the sex offender registration statute violates the
constitutional prohibition against retroactive laws is without merit. We overrule the
motion for rehearing.
MOTION FOR REHEARING OVERRULED.
4
________________________________
HOLLIS HORTON
Justice
Opinion Delivered March 6, 2013
Do Not Publish
Before McKeithen, C.J., Gaultney and Horton, JJ.
5