OPPlCL OP THE ATTORNEY

GENERilL

STATE ovTEXIIS JOHN CORNYN

March 5,1999

The Honorable Florence Shapiro Chair, State Affairs Committee Texas State Senate P.O. Box 12068 Austin, Texas 78711 Opinion No. JC-0010

Re: Whether a“Rules and General Conditions of Parole Release” contract that requires the parolee to “comply with Sex Offender Registration Program” in and ofitself obligates
a local law enforcement authority to register the parolee (RQ- 1113)

Dear Senator Shapiro:

You ask whether alocal law enforcement agency must as amatter of law register aparolee
as a sex offender on the sole ground that the parolee’s parole contract mandates that he or she “comply with Sex Offender Registration Program.” Inthis opinion alaw enforcement agency’s duty toregister aparolee as asex offender refers to the agency’s duty to forward acompleted registration formtothe DepartmentofPublic Safety,see TEX.CODECRIM.PROC.ANN.~~.~~.O~(C)(V~III~~ Supp. 1999), and in certain cases topublish notice ofthe person’s name and intended residence, see id. art. 62.03(e)(I). We conclude that a contract between the parolee and arepresentative of the Texas Department of Criminal Justice’s Pardons and Paroles Division (the “Pardons and Paroles Division”) setting out the conditions ofparole does not by itself obligate the local law enforcement authority toregister the parolee. You do not ask, and we do not consider, whether the law precludes
alocal law enforcement authority from registering aparolee in these circumstances.

Your request derives from the following facts. In March 1991, an individual received a juvenile adjudication for delinquent conduct involving a sex offense against a minor. The Texas Youth Commission released this person from custody forthat offense inDecember 1992. Two years later this same person was imprisoned for aburglary conviction. He was paroled in June 1997. As
one ofthe conditions of his parole, the Pardons and Paroles Division ofthe Texas Department of Criminal Justice required the individual, and he agreed, to “comply with Sex Offender Registration Program.” Apparently in compliance with the conditions ofhis parole, the parolee appeared atthe Arlington Police Department (“police department”) to register as a sex offender. The police department gathered from the parolee the information required by the Sex Offender Registration Program set forth in chapter 62 ofthe Code of Criminal Procedure, including his fingerprints and photograph. After consulting the Arlington City Attorney, the police department determined that itwas not required under the provisions ofchapter 62 to register the parolee and, in fact, did not doThe Honorable Florence Shapiro - Page 2 UC-0010)

so. In February 1998, the parolee allegedly abducted and killed ayoung Arlington woman. The parolee has been convicted ofthe crime and has been sentenced to death by lethal injection.

In our opinion, the parole contract between aparolee and the Pardons and Paroles Division, which requires aparolee to “comply with Sex Offender Registration Program,” does not obligate a local law enforcement authority to register the parolee as asex offender. The contract, partly titled “Rules and General Conditions of Parole Release,” represents an agreement between the Pardons and Paroles Division and 

### theparolee. 

### Accord TEx. GOV’TCODEANN.5508.154(a) (Vernon 1998) (requiring that inmate who istobereleased on parole be furnished acontract clearly and intelligibly stating conditions and rules ofparole). In anutshell, the contract sets out the conditions the parolee agrees to and the penalties upon the parolee’s failure to comply with the agreed upon conditions:

In consideration of the parole granted to me by the Board of Pardons and Paroles (Board) I do hereby accept such parole. Irecognize that my parole release is conditional and agree to abide by the following terms and conditions:

M. Releasee shall comply with Sex Offender Registration Program.

I HEREBY CERTIFY that I fully understand and accept each ofthe above conditions under which I am being released and agree that I am bound to faithfully observe each of the same. I fully understand and agree that a violation of or refusal of or refusal to comply with any ofthe conditions of Parole shall be sufficient cause for revocation ofParole

This agreement is signed by only the parolee and a representative of the Pardons and Paroles Division.

Your question, we note, depends in part on the construction of the terms of the parole contract between the parolee and the Pardons and Paroles Division, which requires a parolee to “comply with Sex Offender Registration Program.” You appear to construe the contract’s sex offender registration requirement to require the parolee to register asasex offender, independent of any statutory obligation to register imposed by chapter 62 ofthe Code of Criminal Procedure. The City of Arlington articulates another plausible interpretation of the same provision: “The City of Arlington believes that [this condition] requires aparolee to register as a sex offender only ifthe parolee is required to do so by the provisions ofthe Sex Offender Registration Law.” Letter from Gregory S.Norris, Assistant City Attorney, City ofArlington, toThe Honorable Dan Morales, Texas Attorney General 1(Apr. 27,1998) (on tile with the Opinion Committee). In other words, the term “comply” may be read to require registration or, alternatively, to require registration only if theThe Honorable Florence Shapiro - Page 3 (X-00 10)

parolee is required to do so under the Sex Offender Registration Program, chapter 62 of the Code ofCriminal Procedure. We do not construe contracts and cannot inthis opinion choose between the possible constructions ofthe sex offender registration requirement in the parole contract. See Tex. Att’y Gen. Op. Nos. DM-494 (1998) at 5n.22; DM-383 (1996) at 2; DM-192 (1992) at 10.

Even ifwe assume, asyou do, that theparole contract requires aparolee who isnot otherwise required by statute to register as a sex offender to do so, the parole contract does not obligate alaw enforcement agency to register that person as a sex offender under chapter 62. Initially, assuming the parole contract is indeed acontract, nothing in itimposes orpurports to impose duties upon any entity not a signatory to the contract, including a local law enforcement authority.

A law enforcement authority is required by the state to register only a person having a

“reportable conviction or adjudication” as that phrase is defined by article 62.01 of the Code of Criminal Procedure. TEX.CODEGRIM. PROC. ANN.art. 62.01(5), .02(c), .03(e)(f) (Vernon Supp. 1999). We do not know whether it is true, but we assume as you have requested that the parolee does not have a reportable conviction or adjudication. Absent a reportable conviction or adjudication, we know ofno law requiring alaw enforcement authority to register an individual as a sex offender under the Sex Offender Registration Program in chapter 62 ofthe Code of Criminal Procedure.
Moreover, the Pardons and Paroles Division may not amend the definition of “reportable conviction[s] or adjudication[s]” in article 62.01(5) to include additional offenses for which the Pardons and Paroles Division may deem sex offender registration a fitting condition for parole. Reportable convictions and adjudications aredefined inthe statute by the legislature. While section 508.221 of the Government Code authorizes the Pardons and Paroles Division to impose any reasonable condition upon a parolee, it does not purport to amend the statutory definition of

“reportable conviction or adjudication” under article 62.01(5), which would in turn trigger a law enforcement agency’s duty toregister an individual as asex offender. See TEX.GOV’TCODE ANN. 5508.221 (Vernon 1998); see also TEX.CRIM. PROC. ANN.art. 42.12,§ 1l(a) (Vernon Supp. 1999) (“The judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.“).

The legislature implicitly has recognized that the power to define the term “reportable convictions or adjudications” lies with it and not with the Pardons and Paroles Division. Section 508.186(a) of the Government Code directs the Division to require, as a condition of parole or mandatory supervision, aperson with areportable conviction or adjudication to register as a sex offender. This provision presumes that the legislature has defined forthe Division the circumstances in which sex offender registration must be imposed as a condition of parole or mandatory supervision. We therefore infer that the legislature defines what is a reportable conviction or adjudication and that itdid not intend topermit the Division to define alternative circumstances that require sex offender registration as acondition ofparole or mandatory supervision.The Honorable Florence Shapiro - Page 4 (JC-0010)

Consistent with our long-standing policy, we answer only the question you ask. See Tex. Att’y Gen. Op. No. JM-567 (1986) at 2. You do not ask several questions that may be pertinent. You do not ask, and we do not address, whether alaw enforcement authority may register aparolee who otherwise is not required by statute to register as a sex offender under chapter 62. Nor do we address the liabilities, ifany, for doing so. You also do not ask whether the parolee’s prior juvenile adjudication constitutes areportable conviction oradjudication, and ifso,whether alaw enforcement agency has any discretion in registering that person as a sex offender.

We also do not consider two questions the Arlington Police Department asked regarding a parolee’s obligation toregister asasex offender when chapter 62 ofthe Code ofCriminal Procedure does not require the parolee to register. A police department is not among those authorized to request an opinion ofthis office, aslisted in sections 402.042 and 402.043 ofthe Government Code. Consequently, section 402.045 of the Government Code precludes this office from rendering an opinion in answer to the police department’s questions.The Honorable Florence Shapiro - Page 5 (.Jc-0010)

SUMMARY

A parole contract that obligates aparolee to “comply with Sex Offender Registration Program” does not in and of itself impose aduty on alocal law enforcement authority toregister the parolee as asex offender under the Sex Offender Registration Program in chapter 62 of the Code of Criminal Procedure.

Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General

CLARK KENT ERVIN Deputy Attorney General - General Counsel

ELIZABETH ROBINSON Chair, Opinion Committee Prepared by Kymberly K. Oltrogge Assistant Attorney General