DAN MORALES

ATTORNEY GENERAL 

## @ffice of the ZWmtep @eneral .&ate of Eexae April 11, 1997
The Honorable Tii Cony Criminal Diict Attorney Tarrant County 401 West Beknap Street, Justice Center Fort Worth, Texas 76196-0201 Opinion No. DM-437 Re: Whether a district court is authorized to require a defendant to post a warning sign at his residence stating that he is a convicted sex offender as a condition of wmmunity supervision 

## @Q-908)
Dear Mr. Curry: You ask whether a district wurt is authorized to require a wnvicted sex offender to post a signat hisresidenceasa condition ofcommunity supervision. Apparently, a district Courtin’Taii%nt County has required a wnvicted sex offender to post a twelve inch by twenty-four inch sign on his home stating ia three inch letters that “A PERSON ON PROBATION FOR A CHILD SEX OFFENSE LIVES HERE.” You ask whether the sign requkement is wnsistent with the wurt’s statutory authority to impose w&ions ofcommunity supervision and whether the sign requirement iswn&utional. Whilewe cannot determine whether a specitic condition of wmmunity supervision is authorized or wnstitutional in a particular case, we can address your question in general terms.

‘Beforewe examine the relevant T&IS ‘statutory provisions,,we believe itimportant to note that your questions raise issues of first impression in this state. We have found only one case in another jurisdiction addressiig a sin&r situation. In Tennessee v.Bun.&, 924 S.W.Zd 82 (Term. 1996), the Supreme Court of Tennessee considered a challenge to a condition of probation that required a wnvicted sex offender to erect a sign in his &ont yard stating, 

### Warning, ah chifdren fDe&dmt] isan admhted andwnvicted childmolester. Parents beware.” The defendant contended that the requirement was not authorized by Tennessee’s sentenchrg laws and that it violated the Eighth Amendment to the United States Constitution as well as provisions of the Tennessee Constimtion. The wurt didnot reachthe wnstitutional issuesbwause it concluded that the condition was not authorized by statute. The court reasoned that the primary purpose of probation under Tennessee lawwasrehabiitation ofthe defendant and that abroadly written grant of authority to trial courts to fashion conditions of probation %annot be read as granting unfettered authority to the wurts to imposepunishments which are beyond the bounds of traditional notions ofrehabilitation.” Id. at 86-87. The court wntinued:

The wnsequences of imposing such a condition without the normal safeguards of legislative study and debate are uncertain. Posting the sign in the defendant’s yard would dramatically affect persons other than the detbndantandthose charged with his supervision. In addition to being novelTheHonombleTimCurry - Page 2 (DM-437)

and somewhat bizarre, wmpliance with the condition would have wnse quences inthe wmmunity, perhaps beneficial, perhaps detrimental, but in any event unforeseen and unpredictable. Though innovative techniques of probation sre encouraged to promote the rehabilitation of offenders and the prevention ofrecidivism,this legislative grant of authority may not be used to usurp the legislative role of delining the nature ofpunishment which may be imposed. Id. at 87.
In Texas, article 42.12 of the Code of Criminal Procedure governs probation, now called “wmmunity supervision.” Section 11 sets forth the basic conditions of wmmunity supervision. It provides in pertinent part as follows:

Thejudge ofthe court havingjurisdiction of the case shall determine the w&ions ofcommunity supervision and may, at any time, during the period of community supervision.alter ,or modify the wnditions.. lIre&u& ~raqx impose my reosomble condition that is designed toprotect orrestore the commm@ protect orrestore the victim, orpun+ rehobihate, or refmn rhedefeendrmt.Conditions of wmmunity supervision may include, but shall notbelimitedto.... Code Grim.Proc. art. 42.12,s 1l(a) (emphasis added). The language emphasized above was added to section 1l(a) in 1993,as waslanguage replacing the term “probation” with the phrase “wmmunity supqvision” See~Actofh4ay29,F?93,73dLeg.,~S.,~,ch.900, §4.01,1993 Tex. Gen. Laxvs3>86, 3725. The change inthe law was effective September 1, 1993, id. 54.05, at 3743, and applies only to a defendant charged with or wnvicted of an offense wmmitted on or atIer that date, id. $4.02, at 3742. Becauseyou have not givenusinformation regardiig the date of the underlying offense, we address the law both as it existed prior to the 1993 amendment and as it provides today.
It isclear fromthe tinalm ofsection 1l(a), which was not signitkantly aEected by the 1993 revision, that a trisl court isnot limited to imposing only the specilic wnditions delineated in the subsections that follow. Courts have concluded that this language gives trial courts broad disc&ion to determix wnditions ofcommunity supervision Courts have used the following criteria to determine whether a condition of wmmunity supervision is unreasonable and therefore invalid under article 42.12 as it existed prior to 1993:

(1) it has no relationship to the crime; (2) it relates to conduct that is not in itself criminal; and (3) it forbids or requires conduct that is not reasonably related to Wure criminality of [the] defendant or does not serve the statutory ends of probation.

P- 2438The Honorable Tim Curry - Page 3 (DM-437)

To&v. Sfale, 911 S.W.2d 807,817 (Tex. App.--El Paso 1995, no writ ); see&o Z,eBIancv,Stare, 908 S.W.2d 573,574-75 (Rx. App.-Fort Worth 1995,no writ); Simpson v.Siare, 772 S.W.2d 276, 280 (Tex. App.-Amarillo 1989,no writ). A condition ofwmmunity supervision is invalid under this test only ifhas all three of these characteristics. Todd, 911 S.W.2d at.817. Case law also indicates that conditions of probation that are unambiguous and that bear a reasonable relationship to the treatment ofthe probationer andthe protection ofthe publicwill not be disturbed on review. Id..;see also Tmez v. Slale, 534 S.W.2d 686,691 (Tex. Crim. App. 1976); Simpson, 772 S.W.2d at 280; Mackv.S#ate,649S.W.2d 150, 152(Tex.App.-ElPaso 1983,nowrit).~ Whether a specitic condition of community service complies with the foregoing criteria and therefore is authorized by article 42.12 will depend upon the facts of the particular case.’ For this reason, this office is unable to definitively determine whether a particular condition ofprobation is valid. See Letter Opinion No. 93-95 (1995) (concluding that whether term of probation imposing hair and dress wde wmplies with article 42.12 involves factual determinations and is therefore beyond purview of opinion process). As a general matter, we believe it is likely that a court would wnclude in the case ofa defkknt wnvicted of a child-related sex offense that the signrequirement has a relationship to the crime, relates t0 wnduct that..is w sod requires conduct .&t is reas&ably related to titure criminality. Similarly, we believe it is also likely that a wurt would ~thatrequiringaw~~sscoffendertopostawamingsignonhispremisesissufliciently dear, serveaarehabilitatk purposeby deterring recidivism, and protects the wmmunity by warning parentsandchi&en.*
We believethat aTexas court might not have the same concerns about the sign requirement as the Supreme Court of Tennessee in Tennessee v.Burdenfor two reasons. Pii the Tennessee court was concerned th# the sign requirement usurped the legislature’s prerogative to fashion sentences. By contrast, the Texas statute appears to give the wurts broad latitude in this &a. As section 1 of article 42.12 states, “It is the purpose of this article to place wholly within the state wurts the responsibiity for determining

. . .the conditions of community supervision

. . , It isthe purpose of this article to remove from existing statutes the limitations, other than questions of constitutionality, that have acted as barriers to effective systems of wmmunity supervision in the public interest.” Code Grim.Proc. art. 42.12.5 1.

P- 2439TheHonorableTimCurry - Page 4 (DM-437)

Sewnd, there is some debate in the case law over whether requiring a probationer to post a signregardingthe aiminal conduct servesarehabii purpose or is primarily punitive. While this was clearly a concern of the court in Tennessee v..Beak, Florida courts in driving under the intluence cases have concluded that similar probation conditions’ serve at least some rehabilitative purpose! We also note that the post-1993 version of the Texas statute, article 42.12, may permit more pmitive w&ions thsn didthe pm1993 version, particularlythe new language in section 11(a) that providesthat atrial wurt may impose any reasonable condition of community supervision “that isdesignedto
._.punish

. . .the defendant.“’ We have not been able to locate any case construing ~new~andwecarmotpredict~acourtwouldwnstrueittoaffectthelongstanding aituia used to detumine whether acondition ofwmmunity supervision is reasonable, but we believe it is possible that a court might conclude that this language permits more punitive wnditions.6 In sun&evetlifthesignrequiremmt were held to be more punitive than rehabiitative, article 42.12 may now permit this, provided that the condition is not unwnstitutional. Although you ask whether the sign requirement is constitutional, you do not specify any particular wnwrn. We believe the most obvious wnstitutional concern is whether the sign reqrurementviolates the dekiant’s rightto pnvacy or f%ee expression. In a prior opinion, this office concluded that acondition ofprobation that restricts a fin&mental right isvalid ifit (1) is primarily designedto meetthe ends ofrehabiitation and protection of the public and (2) is reasonably related to suchends. SeeLetter OpiionNo. 93-95 (1995) at 3-4. For the reasons stated above with respect to our anal@ ofartide 42.12, we believe it islikely that a wurt could conclude in a case invohkg awnvicted sexoffies that the signreqkme@ even ifit restricts a fundamental right, is designed to meetthe ends ofrehabilitation and protection ofthe publicand isreasonably related to those ends.’

?SeeLbdrqy~,F)orido,606So.2d652(F&Dist.CiApp. 1992)(ccocludingthatconditionofpmbatioarquiring Madsatto plsoe

wt inmwspaper

consisting

ofhispidureandstatunent

thathehadbeenoonvicted

ofD.U.L scmd bothrehabilitative

and punitivep- andwas valid); Goldrchmitt v.Horkkz, 490 S&d 123 @Ia.Dist Ct.App. 1986) (au&ding that cmditim ofpmbatica zqkiag pmbationa to &ix bumper sticky to his car indicating D.U.L -savedrchabilitativeplupose).

%eeTodd, 911 S.W.Zd at 18 a4 (suggestiqthatwhilepreZJ93 vasicmof atick42.12 slrasedrehabitation asgoalofp&&xl, 1993 amadmc&maybrosdeapurposc).

‘C’ Linaby, 606 S&d 652 (con&d@ thatamditica ofprobatic~ thatprobaticuterplacesdvatisancntin newspaper cc&sting ofhis picture and statement that be had been cowicted of D.U.I. did mt violate his cmslitutiaml (fontinued..)

P. 2440The Honorable Tim Curry - Page 5 (DM-437)

Whether acondition satisfies these criteria in a particular case will depend upon the facts, see id. at 4, but we do not believethat acondition ofcommunity supervisionrequiring a convicted sex offender toposta warning sign at his residence is unwnstitutionalper se.’ SUMMARY A wndition of wrnnnmity supervision is authorized by artide 42.12 of the Code of Criminal Procedure ifit isunambiguous and bears a reasonable relationship to the treatment of the probationer and the protection of the public. A condition isunreasonable only ifit hasno relationship to the crirnq it relates to conduct that is not in itselfcriminal, and it forbids or requires conduct that is not reasonably related to future criminality of the defendant or doss not serve the statutory ends of probation. A condition that restricts a findatnental right is valid and does not run afoul of wnstitutional guarantees ifit (1) isptimkly designed to meet the ends of rehabilitation and protection of the public and (2) is reasonably related to such ends, A wndition ofwnmnmhy supervision requiring a defendant to post awarning sign at his residence stating that he is a wnvicted sex offender is notper se unauthorized by article 42.12 or unwnstitutional.

DAN MORALES Attorney General of Texas JORGE VEGA Fii Assistant Attorney General SARAH J. SHIRLEY Chair, Opiion Conunittee. Prepared by Mary R Grouter Assistant Attorney General

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