IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-90,084-01
EX PARTE DANNY RICHARD LANE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1133791-A FROM THE 179TH DISTRICT COURT
FROM HARRIS COUNTY
SLAUGHTER, J., delivered the opinion of the Court in which KELLER, P.J.,
HERVEY, RICHARDSON, KEEL, and MCCLURE, J.J., joined. RICHARDSON, J., filed a
concurring opinion in which SLAUGHTER, J., joined. YEARY, J., filed a dissenting
opinion. NEWELL and WALKER, J.J., dissented.
O PI N I O N
This case arises from a conviction for the offense of failure to comply with sex-
offender-registration requirements. See TEX. CODE CRIM. PROC. ANN. ART. 62.102(a). In
his instant application for a post-conviction writ of habeas corpus, Applicant Danny
Richard Lane challenges his 2007 conviction for that offense in five grounds: (1) actual
innocence; (2) ineffective assistance of counsel; (3) involuntary plea; (4) due process
violation; and (5) no evidence. Though Applicant has raised several grounds for relief, the
Lane – 2
underlying basis for all of his claims is the same: He alleges that, unbeknownst to him at
the time of his guilty plea, he was not actually required to register as a sex offender because,
although he was convicted of aggravated rape in 1982, that conviction was later “set aside”
by the convicting court upon his successful completion of probation through a “judicial
clemency” order. See former TEX. CODE CRIM. PROC. ANN. ART. 42.12, § 7. 1 Applicant 0F
contends that this action by the trial court wiped away his conviction for all purposes, and
therefore, he had no reportable conviction requiring registration under the applicable
statutes in Code of Criminal Procedure Chapter 62. In support of his position, Applicant
relies on a decision from the Sixth Court of Appeals, issued after his guilty plea in this
case, interpreting the relevant statutes to mean that a similarly situated individual had no
duty to register and thus could not be guilty of failing to register as a sex offender. See Hall
v. State, 440 S.W.3d 690 (Tex. App.—Texarkana 2013, pet. ref’d).
The habeas court has recommended that this Court grant Applicant relief, either
based on ineffective assistance of trial counsel resulting in an involuntary plea, 2 or under 1F
a theory of actual innocence / no evidence. We, however, disagree with the habeas court’s
recommendation. With respect to Applicant’s ineffective-assistance / involuntary-plea
claim, viewing the facts and law from counsel’s perspective at the time of the
1
See Act of 1965, 59th Leg., p. 317, ch. 722, § 1 (formerly codified as TEX. CODE CRIM. PROC. ANN. ART.
42.12, § 7, current version at ART. 42A.701(f)). The pertinent statutory language provided that, upon
successful completion of probation and discharge by the trial court, the court “may set aside the verdict or
permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or
indictment against such defendant, who shall thereafter be released from all penalties and disabilities
resulting from the offense or crime . . . .”).
2
Although Applicant presented his ineffective-assistance and involuntary-plea claims in two grounds, those
claims were in fact intertwined because the basis for Applicant’s involuntary-plea claim was that he
received incorrect advice from counsel about his duty to register. Therefore, our analysis of Applicant’s
ineffective-assistance claim also encompasses his involuntary-plea claim.
Lane – 3
representation in 2007, we conclude that the law was unsettled as to whether Applicant had
a duty to register as a sex offender following the trial court’s grant of judicial clemency.
Thus, trial counsel did not perform deficiently by failing to further investigate that issue
when further investigation would not have yielded any clear answer under the law.
Although Applicant has supported his claims by citing the subsequent decision of the court
of appeals in Hall, we decline to hold trial counsel deficient based on legal developments
that occurred after counsel’s representation.
With respect to Applicant’s remaining claims, we observe that they are all based on
the underlying assumption that this Court will adopt the court of appeals’ analysis in Hall
and interpret the applicable statutes to mean that Applicant had no duty to register under
these circumstances. However, this Court has never endorsed the reasoning in Hall, and
we do not do so today. Instead, we conclude that the governing statutes in Code of Criminal
Procedure Chapter 62 mean that Applicant’s 1982 aggravated rape conviction obligated
him to register as a sex offender, notwithstanding the trial court’s order granting him
judicial clemency under former Code of Criminal Procedure Article 42.12, Section 7.
Because we disagree with Applicant’s view of the applicable statutory provisions, his
remaining claims are without any legally meritorious basis. Accordingly, we
simultaneously file and set this case and deny relief on all grounds.
I. Background
In June 1982, a jury convicted Applicant of aggravated rape, and he received a
sentence of ten years’ imprisonment, probated. 3 He did not appeal. Five years later, in
2F
3
Shortly after Applicant’s conviction, the Legislature restructured and expanded the sex-offense statutes.
The offense of “aggravated rape” became “aggravated sexual assault.” Griffith v. State, 116 S.W.3d 782,
Lane – 4
March 1987, the trial court entered an order terminating Applicant’s probation and setting
aside the conviction under then-existing Texas Code of Criminal Procedure Article 42.12,
Section 7. The statute contained a provision, sometimes referred to as “judicial clemency,”
which stated that the court, upon discharging the defendant from his probation, “may set
aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the
accusation, complaint, information or indictment against such defendant, who shall
thereafter be released from all penalties and disabilities resulting from the offense or crime
of which he has been convicted or to which he has pleaded guilty[.]” 4 But, the statute 3F
787 (Tex. Crim. App. 2003) (“The Penal Code sections for sexual assault and aggravated sexual assault
encompass the conduct previously included in the rape and aggravated rape statutes.”). Therefore,
Applicant’s aggravated rape conviction is equivalent to aggravated sexual assault for purposes of his duty
to register as a sex offender.
4
At the time, the complete provision at issue read as follows:
At any time, after the defendant has satisfactorily completed one-third of the original
probationary period or two years of probation, whichever is the lesser, the period of
probation may be reduced or terminated by the court. Upon the satisfactory fulfillment of
the conditions of probation, and the expiration of the period of probation, the court, by
order duly entered, shall amend or modify the original sentence imposed, if necessary, to
conform to the probation period and shall discharge the defendant. In case the defendant
has been convicted or has entered a plea of guilty or a plea of nolo contendere to an offense
other than an offense under Subdivision (2), Subsection (a), Section 19.05, Penal Code, or
an offense under Article 67011-1, Revised Statutes, and the court has discharged the
defendant hereunder, such court may set aside the verdict or permit the defendant to
withdraw his plea, and shall dismiss the accusation, complaint, information or
indictment against such defendant, who shall thereafter be released from all penalties
and disabilities resulting from the offense or crime of which he has been convicted or to
which he has pleaded guilty, except that proof of his said conviction or plea of guilty
shall be made known to the court should the defendant again be convicted of any
criminal offense.
Act of 1965, 59th Leg., p. 317, ch. 722, § 1 (formerly codified as TEX. CODE CRIM. PROC. ANN. ART. 42.12,
§ 7, current version at ART. 42A.701(f)) (emphasis added). Notably, under the current statute, sexual assault
convictions are explicitly exempted from eligibility for judicial clemency under this provision. See TEX.
CODE CRIM. PROC. ANN. ART. 42A.701(g)(2) (providing that eligibility for early termination of community
supervision and judicial clemency is inapplicable to a defendant convicted of “an offense the conviction of
which requires registration as a sex offender under Chapter 62”).
Lane – 5
further provided that, in the event of a new conviction for any criminal offense, proof of
the prior conviction that had been set aside “shall be made known to the court.” Id. 5 4F
At the time of Applicant’s aggravated rape conviction in 1982, there were no sex-
offender-registration requirements. In 1991, the Legislature enacted the first sex-offender-
registration program, and by 2005, the requirements were made retroactive so that anyone
with a “reportable conviction” occurring on or after 1970 was required to register. 6 The 5F
pertinent statute in Code of Criminal Procedure Chapter 62 defined a “reportable
conviction” as “a conviction or adjudication, including an adjudication of delinquent
conduct or a deferred adjudication, that, regardless of the pendency of an appeal, is a
conviction for or an adjudication for or based on” a number of sex offenses, including the
modern-day equivalent of Applicant’s aggravated rape conviction, aggravated sexual
assault. See TEX. CODE CRIM. PROC. ANN. ART. 62.001(5). Pursuant to the provisions in
Chapter 62, a conviction for aggravated sexual assault is subject to a lifetime registration
requirement. 7 6F
5
See also Vaughn v. State, 634 S.W.2d 310, 313 (Tex. Crim. App. [Panel Op.] 1982) (holding prior
conviction that had been set aside under Article 42.12, § 7, was admissible at punishment phase).
6
When the Legislature initially enacted sex-offender-registration requirements, those requirements applied
only to a “reportable conviction or adjudication [of delinquent conduct] occurring on or after September 1,
1991.” See Act of May 26, 1991, 72nd Leg., R.S., ch. 572 § 1, 8, 1991 Tex. Gen. Laws 2029-30. In 1997,
the Legislature amended the law by making sex-offender registration required for all individuals with a
“reportable conviction or adjudication” occurring on or after September 1, 1970. See Act of June 1, 1997,
75th Leg., R.S., ch. 668 § 11, 1997 Tex. Gen. Laws 2253, 2260–61, 2264. However, that legislation also
included an uncodified “savings clause” that limited the retroactive application to individuals who were, as
of September 1, 1997, incarcerated in a penal institution or under state supervision. Id. That savings clause
was subsequently eliminated in 2005. See Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005
Tex. Gen. Laws 3385, 3388, 3410. Thus, as of 2005, anyone with a “reportable conviction” after 1970 was
subject to sex-offender-registration requirements.
7
TEX. CODE CRIM. PROC. ANN. ARTS. 62.001(5) (providing that conviction for a violation of Penal Code
Section 22.021 is a reportable conviction); 62.101(a) (providing that the duty to register for this offense
ends when the person dies).
Lane – 6
In 1998, Applicant was added to the sex-offender registry for the first time upon his
release from prison on a drug charge. The habeas record reflects that Applicant registered
in April of that year in Pasadena, Texas. In April 2007, after Applicant was arrested for
another offense, officers discovered that he was not living at the address where he had
previously registered as a sex offender and had not completed his registration requirements
in recent years. Upon being questioned about this, Applicant told the investigating officer
that he thought he was no longer required to register based on statements made by an
attorney who represented him in another case. The investigating officer disagreed and told
Applicant that, pursuant to the provisions in Code of Criminal Procedure Chapter 62, he
had a lifetime duty to register. Applicant signed a form acknowledging this requirement
and stated that he would have registered had he known he was required to do so. The officer
scheduled an appointment for Applicant to complete his registration. Applicant “gave his
word” that he would attend the appointment. He further acknowledged his understanding
that the department would pursue criminal charges against him if he missed it. Despite this,
Applicant failed to appear for the appointment.
Months later, in September 2007, the investigating officer again met with Applicant
to inquire about his registration. Applicant told the officer “that he had been busy working
and did not want his friends to deal with listing their residence as the home of a sex
offender.” Applicant was then arrested and charged for third-degree-felony failure to
register as a sex offender. 8 Because of Applicant’s criminal history, he qualified as a
7F
habitual offender and faced a sentence of 25 years to life in prison.
8
See TEX. CODE CRIM. PROC. ANN. ART. 62.102(a), (b)(2).
Lane – 7
The trial court appointed Attorney J.A. “Joe” Salinas to represent Applicant. Salinas
obtained a plea offer from the prosecutor for Applicant to serve ten years in prison despite
his habitual-offender status. According to Applicant, Salinas informed him that the
prosecutor was “hard on these types of cases” and would revoke the ten-year offer if
Applicant did not accept it that day. Thus, on October 29, 2007, Applicant accepted the
offer and pleaded guilty. Applicant did not appeal and, until filing the instant writ
application, he has never previously sought any post-conviction habeas relief in this case.
After serving eight years of the ten-year sentence, Applicant was paroled in August 2015.
While on parole, Applicant was again charged with failure to comply with sex-
offender-registration requirements. In August 2017, he pleaded guilty to that offense and
was sentenced to an additional five years’ imprisonment, to run concurrently with the
remainder of his prior sentence. But then, according to Applicant, in September 2017, two
attorneys from the Texas Department of Criminal Justice Office of State Counsel for
Offenders contacted him and informed him that the Department had determined he in fact
had no duty to register as a sex offender and would be removed from the registry. 9 They 8F
informed him that this decision was made by the TDCJ Office of General Counsel and was
based on the decision of the Sixth Court of Appeals in Hall, 440 S.W.3d 690.
In Hall, a case with nearly factually identical circumstances, the court of appeals
held that an aggravated rape conviction that had been set aside through judicial clemency
under former Article 42.12, Section 7, could not serve as the underlying offense for a
failure-to-register charge. Id. at 692–94. To reach this conclusion, the court of appeals
9
The habeas court’s factual findings indicate that Applicant was in fact removed from the sex-offender
registry on September 29, 2017.
Lane – 8
relied on Cuellar v. State, in which this Court reached a similar holding in the distinct
context of a charge for felon in possession of a firearm under Penal Code Section 46.04(a).
See 70 S.W.3d 815, 819–20 (Tex. Crim. App. 2002) (holding that because Cuellar’s
underlying felony conviction was set aside pursuant to the judicial-clemency provision, he
was “not a convicted felon” and thus “there was no predicate felony conviction to support
a conviction under § 46.04(a)”) (emphasis original). The court of appeals in Hall applied
this reasoning to similarly conclude that Hall had no “underlying conviction which could
serve as the predicate conviction activating the sex-offender registration requirement.”
Hall, 440 S.W.3d at 694. Thus, because it believed Hall had no duty to register as a sex
offender following the grant of judicial clemency, the court of appeals held the evidence
was insufficient to support his failure-to-register conviction as a matter of law. Id.
II. Habeas Proceedings
In September 2018, Applicant filed this writ application challenging his 2007
failure-to-register conviction 10 in five grounds: (1) actual innocence; (2) ineffective
9F
assistance of counsel; (3) involuntary plea; (4) violation of due process; and (5) no
evidence. 11 The habeas court initially entered Findings of Fact and Conclusions of Law in
10F
which it agreed with Applicant that he had no duty to register under these circumstances
and recommended relief based on Applicant’s claims of actual innocence and no evidence.
Specifically, regarding Applicant’s no-evidence claim, the court concluded that, as a matter
10
To date, it does not appear that Applicant has filed any application challenging his subsequent 2017
failure-to-register conviction.
11
Applicant additionally included a “sixth ground” alleging collateral consequences. Because that ground
does not constitute an independent basis for relief, we do not address it.
Lane – 9
of law, “[a] felony conviction set aside under Article 42.12 cannot serve as a predicate or
underlying conviction” for a failure-to-register offense. See Habeas Court’s Conclusions
of Law, at 8 (citing Cuellar, 70 S.W.3d at 816–17). The habeas court thus determined that
Applicant’s aggravated rape conviction “was not a reportable conviction triggering the
requirement to register as a sex offender.” Id. Regarding his actual-innocence claim, the
habeas court similarly reasoned that because Applicant “did not have a reportable
conviction for Aggravated Rape, he did not have a duty to register as a sex offender when
he was convicted of [that offense] and he should be entitled to relief by having his
conviction vacated.” Id. at 9–10 (citing Ex parte Harbin, 297 S.W.3d 283, 287 (Tex. Crim.
App. 2009)).
Because the habeas court did not initially address the ineffective-assistance-of-
counsel and involuntary-plea allegations, this Court remanded the case with instructions
for the habeas court to address those claims. The habeas court then ordered Applicant’s
trial counsel, Salinas, to respond to the allegations. Complying with the court’s order,
Salinas filed two affidavits 12 in which he refuted Applicant’s allegations of ineffectiveness.
11F
In response to the allegation that he was deficient for failing to discover that
Applicant’s “set aside” conviction was not in fact a reportable conviction under the
applicable statutes in Code of Criminal Procedure Chapter 62, Salinas disagreed and
contended that he adequately investigated the registration charge and underlying offense.
He explained that he would have reviewed the registration charge offense report,
12
Salinas responded in both an original affidavit and a supplemental affidavit after reviewing the State’s
file.
Lane – 10
Applicant’s criminal history, and the allegations in the complaint to verify the accuracy of
the information. 13 According to Salinas, his customary practice was to thoroughly review
12F
the complaint with a defendant. Thus, he would have discussed both the failure-to-register
charge as well as the underlying aggravated rape conviction with Applicant. Although
Applicant claims that he told Salinas he believed he did not have a duty to register based
on advice received from another attorney, Salinas had no recollection of that conversation
and stated that if Applicant had expressed that belief, he would have explored the theory.
Salinas further explained that it was his customary practice to review everything in
the State’s file with a defendant. The State’s file includes a document titled “Order
Dismissing Cause / Order Terminating Probation” with a certification stamp dated October
5, 2007. The order shows that Applicant’s aggravated rape conviction was “set aside
according to law” upon successful completion of probation, as follows:
Salinas states that, assuming the order was in the State’s file before Applicant’s plea (which
appears to be the case based on the certification date), he would have been aware of it and
would have discussed it with Applicant. But, Salinas alleges that he would not have
13
Because Salinas no longer has his case file from sixteen years ago, he does not have the benefit of
knowing precisely what he did or did not do to investigate and was only able to speak of his representation
in general terms based on his customary practices.
Lane – 11
believed the order negated Applicant’s duty to register as a sex offender. He notes that,
based on the charges, the State seemingly also believed that the order did not relieve
Applicant of his duty to register. Thus, Salinas believes that everyone involved in the case
at the time of Applicant’s guilty plea in 2007 had interpreted the law in the same way—to
mean that Applicant was indeed required to register.
Finally, Salinas points out that the decision from the court of appeals in Hall did not
issue until 2013—six years after Applicant pleaded guilty to the instant failure-to-register
offense. In Salinas’s view, “a subsequent court of appeals decision and change in
administrative policy interpretation does not render [his] representation ineffective.”
Simply put, Salinas contends that no one could have anticipated that another defendant,
years later, would successfully challenge the duty to register as a sex offender under these
circumstances.
Following Salinas’ response, the habeas court made additional findings of fact and
conclusions of law in which it determined that Applicant’s guilty plea was “involuntary
because of trial counsel’s failure to investigate and discover that [Applicant] did not have
a reportable conviction” and that, had Salinas properly investigated the underlying
conviction, “he would have successfully been able to challenge the failure to register
charge.” Concerning prejudice, the court found many of Applicant’s allegations credible,
including that: (1) he told Salinas he felt he did not have a duty to register; (2) Salinas told
him the ten-year offer was a “today only” offer; (3) Salinas encouraged him to accept the
plea offer; and (4) Applicant “would not have pled guilty had he known he did not have a
reportable conviction.” The State agrees with the trial court’s recommendation to grant
Lane – 12
relief either under a no-evidence / actual-innocence theory or an ineffective-
assistance / involuntary-plea theory.
III. Standard of Review
On post-conviction review of habeas corpus applications, the convicting court is the
“original factfinder,” and this Court is the “ultimate factfinder.” Ex parte Thuesen, 546
S.W.3d 145, 157 (Tex. Crim. App. 2017) (citing Ex parte Reed, 271 S.W.3d 698, 727 (Tex.
Crim. App. 2008)). We typically defer to the convicting court’s findings of fact that are
reasonably supported by the record, and we afford that same deference to a habeas judge’s
ruling on “mixed questions of law and fact” that turn on credibility and demeanor. Ex parte
Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014). But “[w]hen our independent
review of the record reveals that the trial judge’s findings and conclusions are not supported
by the record, we may exercise our authority to make contrary or alternative findings and
conclusions.” Id. (quoting Reed, 271 S.W.3d at 727). We apply de novo review to rulings
on pure questions of law and mixed questions of law and fact that do not depend upon
credibility and demeanor. Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App.
2015).
IV. Counsel’s performance was not deficient because the law governing
Applicant’s duty to register was unsettled at the time of his guilty plea.
We begin our analysis by addressing Applicant’s ineffective-assistance claim
because it is the more straightforward of Applicant’s allegations for us to resolve.
Applicant contends that Salinas was ineffective for failing to discover that Applicant’s
aggravated-rape conviction that had been judicially set aside under former Article 42.12,
Section 7, was not a “reportable conviction” under Code of Criminal Procedure Chapter
Lane – 13
62, such that Applicant in fact had no duty to register and thus could not be guilty of failing
to register as alleged. Applicant further contends that, but for counsel’s ineffectiveness, he
would not have pleaded guilty to the failure-to-register charge. We disagree that Applicant
is entitled to relief on this basis. Viewing the circumstances from counsel’s perspective at
the time of the representation, the law was unsettled with respect to whether Applicant had
a duty to register following the trial court’s order setting aside the conviction under the
judicial-clemency provision. Because Salinas cannot be deficient for failing to “discover”
something that was unsettled or unclear under the law, Applicant cannot establish the
deficient-performance prong of his ineffective-assistance claim. Accordingly, his
ineffective-assistance / involuntary-plea claims fail.
A. Applicable Law for Ineffective-Assistance Claims
To prevail on a claim of ineffective assistance of counsel, an applicant must show
that his counsel’s performance was constitutionally deficient and that the deficiency
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to succeed on
either prong is fatal to the ineffectiveness claim. Perez v. State, 310 S.W.3d 890, 893 (Tex.
Crim. App. 2010). We focus solely on the deficient-performance prong in this case.
An attorney is deficient if his performance falls below an objective standard of
reasonableness under the prevailing professional norms, considering the facts of the case
viewed from counsel’s perspective at the time of the representation. Strickland, 466 U.S.
at 687–88, 690. In undertaking this analysis, we must make every effort to “eliminate the
distorting effects of hindsight.” Id. at 689.
Lane – 14
“It is fundamental that an attorney must have a firm command of the facts of the
case as well as the law before he can render reasonably effective assistance of counsel.” Ex
parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App. 1983). Thus, counsel is charged with
making an independent legal and factual investigation of the case. Strickland, 466 U.S. at
691; Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992). Under Strickland,
we consider whether counsel conducted reasonable investigations or made a reasonable
decision not to investigate. 466 U.S. at 691.
Further, “a lawyer must be sufficiently abreast of developments in criminal law
aspects implicated in the case at hand.” Ex parte Williams, 753 S.W.2d 695, 698 (Tex.
Crim. App. 1988). As a consequence, “[i]gnorance of well-defined general laws, statutes
and legal propositions is not excusable and such ignorance may lead to a finding of
constitutionally deficient assistance of counsel[.]” Ex parte Chandler, 182 S.W.3d 350,
358 (Tex. Crim. App. 2005). But, in recognition of the fact that “a bar card does not come
with a crystal ball,” for counsel’s conduct to be deficient, “the specific legal proposition”
the client faults counsel for failing to assert must be “‘well considered and clearly
defined.’” Id. at 358–59 (quoting 3 Ronald E. Mallen & Jeffrey M. Smith, Legal
Malpractice § 18.4 at 8 (5th ed. 2000)). Thus, we measure counsel’s performance against
“‘the state of the law in effect during the time of trial[,] and we will not find counsel
ineffective where the claimed error is based upon unsettled law.’” Id. at 359 (quoting Ex
parte Welch, 981 S.W.2d 183, 184 (Tex. Crim. App. 1998)).
B. Counsel was not deficient for failing to discover that Applicant
had no duty to register when that matter was unsettled under the
law.
Lane – 15
In its findings of fact and conclusions of law, the habeas court determined that, even
accepting that Salinas was aware of the judicial-clemency order at the time of Applicant’s
guilty plea, Salinas nevertheless “failed to examine [the order] under the law[.]” In other
words, in the habeas court’s view, Salinas conducted an adequate factual investigation, but
failed to sufficiently investigate the legal consequences of those facts. But, as we have
indicated above, counsel can only be ineffective for failing to ascertain a legal proposition
that was well-settled under prevailing legal principles at the time of the representation.
Thus, the habeas court’s conclusion necessarily raises the question: given the law in effect
at the time, what would further investigation have revealed?
1. Provisions Governing Sex Offender Registration in Code of
Criminal Procedure Chapter 62
As indicated above, Applicant’s aggravated rape conviction was set aside pursuant
to former Code of Criminal Procedure Article 42.12, Section 7, which allowed the trial
court upon Applicant’s successful completion of probation to “set aside the verdict” and
“dismiss” the indictment, thereby releasing Applicant from all “penalties and disabilities”
resulting from the offense. See Act of 1965, 59th Leg., p. 317, ch. 722, § 1 (formerly
codified as TEX. CODE CRIM. PROC. ANN. ART. 42.12, § 7, current version at ART.
42A.701(f)). But Salinas’s investigation of the applicable law would not have been
complete without considering this provision in conjunction with the applicable provisions
in Chapter 62 of the Code of Criminal Procedure, which specifically define the
circumstances in which a person is obligated to register as a sex offender. Had Salinas
consulted the applicable provisions in Chapter 62, he would have observed that any person
who “has a reportable conviction or adjudication” must register as a sex offender. TEX.
Lane – 16
CODE CRIM. PROC. ANN. ART. 62.051(a). The corresponding definition for what constitutes
a “reportable conviction or adjudication” covers any “conviction or adjudication, including
an adjudication of delinquent conduct or a deferred adjudication, that, regardless of the
pendency of an appeal, is a conviction for or an adjudication for or based on” one of the
enumerated sexual offenses, including aggravated sexual assault. Id. ART. 62.001(5).
Notably, while the definition for “reportable conviction or adjudication” in Article
62.001(5) requires anyone who “has” one of the enumerated types of convictions or
adjudications to register, it does not address under what circumstances a person ceases to
“have” such a conviction or adjudication based on subsequent legal events. But another
provision in Chapter 62 does expressly address that matter. Article 62.002, entitled
“Applicability of Chapter,” provides in relevant part:
(b) Except as provided by Subsection (c), the duties imposed on a person
required to register under this chapter on the basis of a reportable conviction
or adjudication, and the corresponding duties and powers of other entities in
relation to the person required to register on the basis of that conviction or
adjudication, are not affected by:
(1) an appeal of the conviction or adjudication; or
(2) a pardon of the conviction or adjudication.
(c) If a conviction or adjudication that is the basis of a duty to register under
this chapter is set aside on appeal by a court or if the person required to
register under this chapter on the basis of a conviction or adjudication
receives a pardon on the basis of subsequent proof of innocence, the duties
imposed on the person by this chapter and the corresponding duties and
powers of other entities in relation to the person are terminated.
TEX. CODE CRIM. PROC. ART. 62.002 (emphasis added). The apparent purpose of this
provision is to set forth the narrow circumstances under which a person with a “reportable
conviction or adjudication” may be relieved of his obligation to register based on events
occurring after the conviction or adjudication, and to clarify that certain subsequent events
Lane – 17
do not absolve a person of the duty to register. According to the statutory terms, a person
with a “reportable conviction or adjudication” is no longer obligated to register if: (1) the
conviction or adjudication is “set aside on appeal by a court,” or (2) the person “receives a
pardon on the basis of subsequent proof of innocence.” Id. ART. 62.002(c). However, a
person’s duty to register is not affected by a pending appeal or a non-innocence-based
pardon. Id. ART. 62.002(b). While the statutory terms do not expressly address a trial
judge’s order setting aside a conviction after successful completion of probation, that type
of relief plainly does not constitute a reversal of the conviction “on appeal by a court,” nor
is it a pardon based on proof of innocence. Thus, had Salinas reviewed Article 62.002, it
would have been reasonable for him to conclude that a person’s duty to register based on
a “reportable conviction” is not terminated as a result of a trial judge’s discretionary order
setting aside the conviction under Article 42.12, Section 7, when that type of relief is not
plainly included in the events terminating the duty to register under Article 62.002. At the
very least, the statutes are unclear with respect to whether Applicant had a duty to register
under these circumstances. Therefore, in view of the statutory provisions in Chapter 62
alone, Salinas was not deficient for failing to “discover” that Applicant had no duty to
register when that matter was not well-settled by the applicable statutory law.
2. No caselaw clearly indicated that Applicant was not required
to register following the judicial-clemency order.
Of course, if the governing caselaw in existence at the time of Applicant’s guilty
plea had clearly resolved this issue in Applicant’s favor, then counsel could be faulted for
being unaware of such caselaw. However, we disagree with the habeas court’s suggestion
that any such caselaw existed. As noted above, Applicant cites the Sixth Court of Appeals’
Lane – 18
decision in Hall, 440 S.W.3d 690, in support of his position that he had no duty to register
following the trial court’s judicial-clemency order under Article 42.12, Section 7. But Hall
was issued six years after Applicant’s 2007 guilty plea, and, in any event, it is an
intermediate appellate court decision that has never been endorsed by this Court.
Nevertheless, the habeas court determined that because Hall relies on this Court’s
reasoning from its 2002 decision in Cuellar, Cuellar should have led Salinas to conclude
that Applicant’s aggravated rape conviction that had been judicially set aside was not a
reportable conviction under Chapter 62. See Cuellar, 70 S.W.3d 815. We disagree with the
habeas court’s analysis of Cuellar as it pertains to these circumstances.
In Cuellar, this Court considered whether a felony conviction that had been set aside
under former Code of Criminal Procedure Article 42.12, Section 20—which is nearly
identical to the previous version of the statute under which Applicant’s conviction was set
aside—could serve as a predicate conviction for a felon-in-possession-of-a-firearm charge
under Penal Code Section 46.04(a). 14 Id. at 816. We held that it could not. Id. at 820. In
13F
doing so, we reasoned that “a person whose conviction is set aside pursuant to an Article
42.12, § 20, order is not a convicted felon,” and thus, the appellant there could not have
been a felon in unlawful possession of a firearm under the applicable terms in Penal Code
Section 46.04(a). Id. (“If a judge chooses to exercise this judicial clemency provision, the
conviction is wiped away, the indictment dismissed, and the person is free to walk away
14
See TEX. PENAL CODE § 46.04 (“(a) A person who has been convicted of a felony commits an offense if
he possesses a firearm: (1) after conviction and before the fifth anniversary of the person’s release from
confinement following conviction of the felony or the person’s release from supervision under community
supervision, parole, or mandatory supervision, whichever date is later; or (2) after the period described by
Subdivision (1), at any location other than the premises at which the person lives.”) (emphasis added).
Lane – 19
from the courtroom ‘released from all penalties and disabilities’ resulting from the
conviction.”) (quoting former Code of Criminal Procedure Article 42.12, § 20).
Even if Salinas had been aware of Cuellar, that decision would not have clearly
indicated one way or another whether Applicant’s set-aside aggravated rape conviction was
a “reportable conviction” for purposes of his duty to register under Chapter 62. Cuellar did
not purport to address sex-offender-registration requirements and instead focused solely on
the language in the judicial-clemency provision in Article 42.12, Section 7 (i.e., authorizing
the trial court to “set aside” the conviction and release a person from all “penalties and
disabilities” resulting from the offense). But as we have already indicated above, to resolve
the issue here, Salinas would have had to examine both the legal effect of a judicial-
clemency order under Article 42.12, Section 7, and the specifically applicable provisions
in Chapter 62 defining the duty to register. As we have already demonstrated, the statutory
provisions in Chapter 62 are, at best, ambiguous as to whether a person whose conviction
has been “set aside’ through judicial clemency is nevertheless required to register, and
Cuellar does nothing to resolve that ambiguity. Because Cuellar addressed only the general
effect of a set-aside order under Article 42.12, Section 7, but did not consider the
specifically applicable provisions in Chapter 62 governing a person’s duty to register as a
sex offender, Cuellar does not clearly settle the issue here. Thus, contrary to the habeas
court’s assessment, counsel should not be faulted for failing to extend the reasoning of
Cuellar to these distinguishable circumstances.
In sum, we disagree with the habeas court’s deficiency finding because it is not
supported by the record or the state of the law at the time of Salinas’s representation.
Lane – 20
Neither the statutes nor caselaw in effect in 2007 clearly stood for the proposition that a
grant of “judicial clemency” under former Article 42.12, Section 7, superseded Applicant’s
legal duty to register as a sex offender under the applicable provisions in Code of Criminal
Procedure Chapter 62. Thus, even if Salinas had conducted additional investigation, the
answer to the question of whether Applicant had a duty to register under these
circumstances would have remained, at most, unclear. As we have repeatedly indicated,
we will not hold that counsel was deficient based on unsettled law. See, e.g., Chandler, 182
S.W.3d at 359. Because Applicant has failed to establish deficient performance, we need
not examine whether Applicant suffered prejudice. See Perez, 310 S.W.3d at 893 (noting
that failure to succeed on either prong is fatal to ineffectiveness claim). Therefore,
Applicant’s ineffective-assistance / involuntary-plea claims lack merit.
V. Applicant had a duty to register as a sex offender, regardless of
the grant of judicial clemency.
In his remaining claims, Applicant contends that because he had no duty to register
as a sex offender, he cannot be guilty of the charged offense and thus is entitled to relief
either on the basis of actual innocence or a “no evidence” / due process violation.
Applicant’s position is premised on the assumption that this Court will agree with the court
of appeals’ analysis in Hall, 440 S.W.3d 690, and hold that a trial court’s order setting
aside a conviction for a sexual offense under former Article 42.12, Section 7, erases the
conviction for purposes of sex offender registration under Chapter 62. However, as a matter
of first impression, we disagree with the court of appeals’ analysis and conclusion in Hall.
Notwithstanding the broad language in Cuellar, 70 S.W.3d 815, indicating that a trial judge
has discretion under former Article 42.12, Section 7, to “wipe away” a conviction, the
Lane – 21
specifically applicable statutory provisions in Chapter 62 compel the conclusion that the
Legislature intended to require Applicant to register as a sex offender even after the trial
court granted him judicial clemency. Therefore, we resolve all of Applicant’s remaining
claims by rejecting his interpretation of the applicable statutes and holding that he did
indeed have a duty to register following the trial court’s grant of judicial clemency.
A. Provisions in Chapter 62 reflect the Legislature’s intent to require
registration for all individuals who have ever received a “reportable
conviction or adjudication,” unless one of the statutorily enumerated
exceptions applies.
As discussed above, Chapter 62 broadly defines a reportable conviction as “a
conviction or adjudication, including an adjudication of delinquent conduct or a deferred
adjudication, that, regardless of the pendency of an appeal, is a conviction for or an
adjudication for or based on” a number of sex offenses, including aggravated sexual
assault. TEX. CODE CRIM. PROC. ANN. ART. 62.001(5). Any person who “has” such a
conviction is obligated to register. Id. ART. 62.051(a).
At first blush, one might logically assume that a person no longer “has” a conviction
if the trial court has granted him judicial clemency under Article 42.12, Section 7, given
that such a conviction has been “set aside,” the indictment dismissed, and the defendant
“released” from all penalties and disabilities. See Act of 1965, 59th Leg., p. 317, ch.
722, § 1 (formerly codified as TEX. CODE CRIM. PROC. ANN. ART. 42.12, § 7). But the
remaining provisions in Chapter 62 refute this interpretation. As we have already indicated
in our analysis of Applicant’s ineffectiveness claim above, Article 62.002 spells out the
narrow circumstances in which a person previously convicted of a reportable offense may
Lane – 22
be relieved of his obligation to register based on events occurring after the conviction. 15 14F
Subsection (c) provides that a person’s duty to register is terminated: (1) if a conviction or
adjudication is “set aside on appeal by a court,” or (2) if the person “receives a pardon on
the basis of subsequent proof of innocence.” TEX. CODE CRIM. PROC. ANN. ART. 62.002(c)
(emphasis added). A trial court’s discretionary order setting aside a conviction under
Article 42.12, Section 7, does not plainly fall within these circumstances. Arguably, the
express mention of these circumstances suggests that any other non-enumerated
circumstances do not result in termination of the duty to register under Chapter 62. See
State v. Schunior, 506 S.W.3d 29, 38 (Tex. Crim. App. 2016) (“As a rule of statutory
interpretation, the express mention or enumeration of one person, thing, consequence, or
class, is tantamount to an exclusion of all others.”) (citation and quotations omitted).
Further, Subsection (b) of Article 62.002 identifies two other situations that “do not
affect” a person’s duty to register: (1) the conviction is being appealed, and (2) the person
receives a “pardon” that is not based on a finding of innocence. TEX. CODE CRIM. PROC.
ANN. ART. 62.002(b). While a judicial-clemency order does not plainly fall within either
15
The statute provides,
(b) Except as provided by Subsection (c), the duties imposed on a person required to
register under this chapter on the basis of a reportable conviction or adjudication, and the
corresponding duties and powers of other entities in relation to the person required to
register on the basis of that conviction or adjudication, are not affected by:
(1) an appeal of the conviction or adjudication; or
(2) a pardon of the conviction or adjudication.
(c) If a conviction or adjudication that is the basis of a duty to register under this chapter is
set aside on appeal by a court or if the person required to register under this chapter on the
basis of a conviction or adjudication receives a pardon on the basis of subsequent proof of
innocence, the duties imposed on the person by this chapter and the corresponding duties
and powers of other entities in relation to the person are terminated.
TEX. CODE CRIM. PROC. ANN. ART. 62.002.
Lane – 23
of these situations, we observe that it is analogous to a pardon because it is “within the trial
court’s sole discretion” to grant judicial clemency, and it is not based on any finding of
reversible legal error but is instead based on the trial court’s determination “that a person
on community supervision is completely rehabilitated[.]” Cuellar, 70 S.W.3d at 819. By
providing that a person who “has” an otherwise-reportable conviction must still register
even after a pardon, the Legislature has signaled its intent that these types of discretionary
determinations should not absolve a person of his registration obligations under Chapter
62. Because we are obligated, when interpreting statutes, to seek to effectuate legislative
intent and harmonize various provisions so that they will all be effective, we will not adopt
an interpretation that undermines these purposes. See Watkins v. State, 619 S.W.3d 265,
272 (Tex. Crim. App. 2021) (“Our duty is to try to interpret the work of our Legislature as
best we can to fully effectuate the goals they set out. . . . We do not focus solely upon a
discrete provision; we look at other statutory provisions as well to harmonize provisions
and avoid conflicts.”).
Finally, we also observe that Chapter 62 sets forth specific procedures governing
early termination of the duty to register that would be undermined if a single trial judge
were permitted to unilaterally relieve a person of his sex-offender obligations by setting
aside an otherwise-valid conviction. See generally TEX. CODE CRIM. PROC. chap. 62(I)
(“Early Termination of Certain Persons’ Obligation to Register”). After being subject to
registration for a minimum period of time, a person seeking early termination must undergo
an “individual risk assessment” based on criteria established by the Council on Sex
Offender Treatment. TEX. CODE CRIM. PROC. ANN. ART. 62.403(b). The individual risk
Lane – 24
assessment must consider matters such as a person’s criminal history, the likelihood of
recidivism, and the overall risk posed to the public. Id. Only after such an assessment has
been conducted may a person file a motion for early termination of registration
requirements with the convicting court, after which the court must determine whether early
termination is warranted. Id. ART. 62.404. If a single trial judge were permitted to make a
discretionary determination that a person was rehabilitated and was entitled to have his
conviction for a sexual offense set aside, such a result would undermine the provisions in
Subchapter I that set forth specific procedures for terminating an offender’s duty to register.
B. Extratextual considerations support requiring a person with a
“reportable conviction” to register, notwithstanding a trial judge’s
grant of judicial clemency.
To the extent the foregoing statutes are ambiguous on this matter, we may consult
extratextual sources to aid in our construction of the statutes. See TEX. GOV’T
CODE § 311.023 (providing that such considerations include the “object sought to be
attained,” legislative history, and consequences of a particular construction).
In Rodriguez v. State, 93 S.W.3d 60, 79 (Tex. Crim. App. 2002), we addressed the
legislative purposes underlying the sex-offender-registration program in the course of
considering an ex post facto challenge. We observed that the program was enacted by the
Legislature to promote public safety, and we ultimately held that the program was “civil
and remedial” in furtherance of this purpose, rather than punitive. Id. at 68; see also id. at
72 (observing that the Legislature “intended to create a remedial, regulatory scheme to
monitor the whereabouts of sex offenders, and to warn community members of their
presence,” and concluding that such scheme was “nonpunitive in effect”). But this broad
Lane – 25
purpose would be frustrated by allowing a single trial judge to unilaterally determine that
a person is rehabilitated and thus is not required to register. Indeed, as we have noted above,
Chapter 62 contains specific provisions addressing termination of the duty to register for a
person who otherwise “has” a prior reportable conviction, and those provisions require an
examination of the person’s characteristics based on criteria set forth by the Council on
Sex Offender Treatment to evaluate whether he continues to pose a safety risk. The public-
safety purposes underlying Chapter 62 would be undermined if a single trial judge were
permitted, in his discretion, to absolve a person from his registration duties without
engaging in the thorough processes for such a determination as contemplated by Chapter
62.
It is also worth emphasizing that the Legislature has amended the judicial-clemency
provision to now provide that sexual assault convictions are explicitly exempted from
eligibility for judicial clemency. See TEX. CODE CRIM. PROC. ANN. ART. 42A.701(g)(2)
(providing that eligibility for early termination of community supervision and judicial
clemency “does not apply to a defendant convicted of . . . an offense the conviction of
which requires registration as a sex offender under Chapter 62”). This provision was
included as a limitation on grants of judicial clemency in 1999. 16 Thus, at least as of 1999,
15F
the Legislature made plain what is arguably ambiguous under the statutes before this point
in time—the Legislature did not intend for those who have reportable convictions for
sexual offenses to be released from the duty to register through a judicial-clemency order.
16
Act of 1999, 76th Leg., ch. 1415 § 5.
Lane – 26
Finally, we consider the consequences of a construction that would result in a person
no longer having a duty to register following a trial court’s grant of judicial clemency under
former Article 42.12, Section 7. Such a holding would lead to the anomalous result that a
person who receives an executive pardon for the very same discretionary reasons (i.e., that
the person is believed to be rehabilitated or otherwise deserving of clemency) still has to
register, see TEX. CODE CRIM. PROC. ANN. ART. 62.002(b), but a person who receives
judicial clemency does not have to register. We cannot perceive of any logical reason why
the Legislature would desire such an unequal result. Further, pursuant to Chapter 62, even
individuals who successfully complete deferred adjudication community supervision must
still register as sex offenders for any reportable offense. See TEX. CODE CRIM. PROC. ANN.
ART. 62.001(5) (reportable conviction or adjudication includes “a deferred adjudication”);
McCraw v. C.I., 525 S.W.3d 701, 705 (Tex. App.—Beaumont 2017) (observing that the
current law is “clear” that “successful completion of deferred adjudication for particular
offenses does not relieve an offender of a duty to register under the” sex offender
registration program). Such individuals have never even technically been “convicted” of
any offense and, upon their successful completion of community supervision, receive a
dismissal of the proceedings and are not considered to have been convicted “for the
purposes of disqualifications or disabilities imposed by law for conviction of an offense.”
TEX. CODE CRIM. PROC. ANN. ART. 42A.111(c). This language is highly similar to the
“release” from all “penalties and disabilities” language contained in the judicial clemency
provision at issue here. Again, it would be an anomalous result to require individuals who
have successfully completed deferred adjudication to register in the absence of any
Lane – 27
technical conviction, and yet hold that those who previously had convictions but
subsequently received judicial clemency are not required to register. 17 16F
Ultimately, we conclude that the relevant considerations do not support Applicant’s
position that he was relieved of his duty to register as a result of the trial court’s order
unilaterally setting aside his aggravated rape conviction pursuant to the judicial-clemency
provision found in former Article 42.12, Section 7. Based on a holistic reading of the
provisions in Chapter 62, including the language in Article 62.002 specifying the events
that result in termination of the duty to register, as well as the relevant extratextual
considerations, we conclude that a person whose conviction has been “set aside” pursuant
to a judicial-clemency order nevertheless still “has” a “reportable conviction or
adjudication” for purposes of Chapter 62. Accordingly, because Applicant’s actual-
innocence and no-evidence claims lack any meritorious underlying legal basis, we deny
relief on those claims.
VI. Conclusion
For the reasons explained above, we hold that Applicant’s trial counsel was not
deficient during the guilty-plea proceedings based on the unsettled law at the time. We
further hold, in light of the applicable statutes in Chapter 62 of the Code of Criminal
Procedure, that Applicant had a duty to register as a sex offender despite the trial court’s
17
Similarly, juvenile adjudications of delinquent conduct are also considered to be “reportable convictions
or adjudications,” despite not being “convictions.” See Ex parte Valle, 104 S.W.3d 888, 889 (Tex. Crim.
App. 2003); TEX. CODE CRIM. PROC. ANN. ART. 62.001(5) (reportable conviction or adjudication includes
an adjudication of delinquent conduct); see also 37 Tex. Admin. Code § 380.8785 (2014) (Tex. Juv. Just.
Dep’t, Sex Offender Registration) (detailing sex-offender registration procedure for adjudications of
delinquent conduct). Again, a construction leading to the result that adult offenders who have had their
convictions discretionarily “set aside” do not have a duty to register, while juvenile offenders who have
never received a final conviction do have a duty to register, would lead to an anomalous result that the
Legislature did not likely intend.
Lane – 28
grant of “judicial clemency” under former Article 42.12, Section 7. Accordingly, we reject
the habeas court’s recommendation and deny relief on all claims.
Delivered: June 28, 2023
PUBLISH