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 76 196-0201 

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 

sign at his residence as a condition of community supervision. Apparently, a district Court in’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 of community supervision and whether the sign requirement 

is wn&utional. While we 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. 

‘Before we 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] is an admhted and wnvicted child molester. 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 did not reach the wnstitutional issues bwause it concluded that the condition 

was not authorized by statute. The court reasoned that the primary purpose of probation under 

Tennessee law was rehabiitation of the defendant and that a broadly written grant of authority to trial 

courts to fashion conditions of probation %annot be read as granting unfettered authority to the 

wurts to impose punishments which are beyond the bounds of traditional notions of rehabilitation.” 

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 

detbndant and those charged with his supervision. In addition to being novel 
TheHonombleTimCurry - Page 2 (DM-437) 

and somewhat bizarre, wmpliance with the condition would have wnse 

quences in the 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 of recidivism, this legislative grant of authority may not be used to 

usurp the legislative role of delining the nature of punishment 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: 

The judge of the court having jurisdiction of the case shall determine the 

w&ions of community 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 to protect or restore the 

commm@ protect or restore the victim, or pun+ rehobihate, or refmn 

rhe defeendrmt. Conditions of wmmunity supervision may include, but shall 

notbelimitedto.... 

Code Grim. Proc. art. 42.12,s 1 l(a) (emphasis added). The language emphasized above was added 

to section 1 l(a) in 1993, as was language 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 in the law was effective September 1, 1993, id. 5 4.05, 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. Because you have not given us information 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 is clear from the tinal m of section 1 l(a), which was not signitkantly aEected by the 

1993 revision, that a trisl court is not 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. 

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The 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,eBIanc v, 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 of the probationer and the protection of the public will 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 of probation 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 of a defkknt wnvicted of a child-related sex offense that the sign requirement 

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, servea a rehabilitatk purpose by deterring recidivism, and protects the wmmunity by warning 

parentsandchi&en.* 

We believe that a Texas court might not have the same concerns about the sign requirement 

as the Supreme Court of Tennessee in Tennessee v. Burden for 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 det ermining . . . the conditions of community supervision . . , It is the 

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. 

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TheHonorableTimCurry - Page 4 (DM-437) 

Sewnd, there is some debate in the case law over whether requiring a probationer to post a 

sign regarding the aiminal conduct serves a rehabii 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 did the pm1993 version, particularly the new language in section 11 (a) 

that provides that a trial wurt may impose any reasonable condition of community supervision “that 

is designed to . _ . punish . . . the defendant.“’ We have not been able to locate any case construing 

~new~andwecarmotpredict~acourtwouldwnstrueittoaffectthelongstanding 

aituia used to detumine whether a condition of wmmunity 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 

reqrurement violates the dekiant’s right to pnvacy or f%ee expression. In a prior opinion, this office 

concluded that a condition of probation that restricts a fin&mental right is valid ifit (1) is primarily 

designed to meet the ends of rehabiitation and protection of the public and (2) is reasonably related 

to such ends. See Letter OpiionNo. 93-95 (1995) at 3-4. For the reasons stated above with respect 

to our anal@ ofartide 42.12, we believe it is likely that a wurt could conclude in a case invohkg 

a wnvicted sex offies that the sign reqkme@ even ifit restricts a fundamental right, is designed 

to meet the ends of rehabilitation and protection of the public and is reasonably related to those ends.’ 

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

Madsatto plsoe wt in mwspaper consisting of his pidure and statunent that he had been oonvicted ofD.U.L 

scmd both rehabilitative and punitive p- and was 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@ that amditica ofprobatic~ that probaticuter place sdvatisancnt in 

newspaper cc&sting ofhis picture and statement that be had been cowicted of D.U.I. did mt violate his cmslitutiaml 

(fontinued..) 

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

Whether a condition satisfies these criteria in a particular case will depend upon the facts, see id. at 

4, but we do not believe that a condition of community supervision requiring 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 if it is unambiguous and bears a reasonable 

relationship to the treatment of the probationer and the protection of the 

public. A condition is unreasonable only ifit has no 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) is ptimkly designed to meet the ends of rehabilitation and 

protection of the public and (2) is reasonably related to such ends, A 

wndition of wnmnmhy supervision requiring a defendant to post a warning 

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 

p. 2441