SOURCE: The Statesman
[FAC NOTE: Kudos to our friend, TX Attorney Richard Gladden for his role in this legal effort]At least four sex offenders in Texas have floated a new argument that has earned early legal victories.
When the Beaumont police detective called him in 2014, Curtis wondered what the officer might want. His only run-in with the law had been half a lifetime ago.
In 1985, he had been charged with indecency with a child, his stepdaughter. Curtis, then 34, struck a deal with prosecutors: He would plead guilty — but, if after 10 years he kept out of trouble, the conviction would go away. He paid his fees, performed his community service and attended sex offender counseling. The charge was dismissed in 1996.
Curtis said his crime stayed with him: “It never leaves me; it’s always in front of me.” (The paper is not using his last name, because he is fighting to keep it private and it does not appear in court documents.) He kept a low, steady profile. Over the next three decades, he raised his three boys in the house in which he’s always lived. He worked at a nearby chemical plant until his retirement in 2009.
So, the news from the detective was alarming. Despite the deal he’d cut with the state of Texas 30 years ago, Curtis was dismayed to learn that he now would have to register as a sex offender. His name and photo and details of the crime would appear on the state’s public website. He would need to check in with police regularly. The new rules, the detective informed Curtis, applied for the rest of his life.
Donnie Miller had struck a similar deal with Travis County prosecutors. In 1993, when he was 23, the Wimberley native was charged with sexual assault against a woman outside Exposé, a gentleman’s club on South Congress Avenue. “I was young, and I was stupid, and I was drunk,” he said.
At his trial, the jury couldn’t agree on a verdict. Facing a second trial and owing more than $20,000 in legal fees from the first one, Miller, like Curtis, signed a deal with prosecutors.
In exchange for a guilty plea, his record would be cleaned if he stayed out of trouble for 10 years. Although he’d have to register as a sex offender for that decade, he said the lawyers assured him that his name would be removed after he successfully completed his probation.
With his plan to become a licensed paramedic derailed by his sex offender status, Miller built a career in sales. Court records show he did well enough that he was granted permission to exit probation early.
So, he, too, was surprised to receive a phone call a year later informing him that, contrary to the terms of the deal he’d made a decade earlier, Texas had changed the rules. Whatever he had agreed to then was irrelevant. He would now be on the sex offender registry for life.
“If I’d known, why would I have taken a plea deal?” said Miller, now 48. “I would have borrowed the money for the retrial.”
Over the past 20 years, state and federal lawmakers have passed ever-stricter laws for sex offenses that require more people to be listed on public sex offender registries — typically for life. In some cases, the new laws have reached back to include those whose crimes occurred years before the statutes were enacted, and counter the deals they struck with prosecutors.
The U.S. Constitution prohibits new laws that pile additional punishments onto old crimes. In the past, government lawyers have successfully sidestepped that by arguing that retroactively requiring sex offenders to register for decades-old crimes is not really a punishment. Instead, they contended, it is merely a regulation that promotes public safety.
Now, however, at least four older sex offenders in Texas have floated a new argument that has earned early legal victories. They say the deals they agreed to in the past were essentially contracts between them and the state.
Not Right – This challenge that Richard is the lawyer for is in Texas only and it has to do with Texas breaking a contract. That is how the argument is proceeding. It’s based on about 3700-3800 registered citizens in Texas having a clear statement on our conditions of probation that says this: “* Your duty to register ends on the day your probation is discharged.”
Mine is on a page called: NOTICE OF SEXUAL OFFENDER REGISTRATION REQUIREMENT
My case was in 1994, and I believe that most people with this situation had a case in Texas between 1990 and 1995 , but I’m speculating a bit on that. Still you might really want to read over your conditions again just to make sure.
I was in Harris county in Sept. 2,1982 for Agg robbery and probation violatoin. While in the Harris county I caught a sex abuse case on May 9,1983,because I wouldn’t tell on the guys that done it . So they found out who done it and gave all the bill attendant cases. Which I was a bill attendant at the time .In a plea bargain I received 25yrs for agg robbery and 8yrs for sex abuse ran concurrent. The Parole Board let me out on a condation that when I complete my parole I’m off registration. In 2010 HPD sergeant told me they came out with something new that I have to sign . It was papers saying I have to register for life . I told her I wasn’t signing it . That’s when she threaten to put me in jail. I’m on DPS registration as being taken off the day I competed parole, but I’m still registering . Everyone else on the list have life by they name on DPS list. How could this be? I have a Passport & a TWIC card. I was a Inspector for the City of Houston 13yrs. because step daughter knew what kind of case I had so she used it against me when I put her out of my house. She filed a case against me in Dec.2016 . They pick me up on my job at the City. I stayed in the Harris county jail for two in a 1/2 months and received a No Bill. This is a problem you go through trying to stay free on registration.
Mr. Gladden,
Thank you for taking the time to come onto this forum and providing vital information to many of our cases.
Absolutely. Everything we do in life is a contract and interacting with the legal system is no different. For a minor offense that occurred in January ’97, with sentencing in April ’98, at that time there was no such thing as ‘sex offender probation’. Yet, after the zealots in Tallahassee concocted ‘sex offender probation’, the so-called Department of Corrections kept trying to retroactively apply them and, each time, my attorney had to keep going back to court only for the judge to toss the new condition out because it violated the ex post facto clause of the Federal and state constitutions. However, that didn’t stop SORNA and other ex post facto criminal penalties from being applied to me retroactively. Even though my attorney informed me TWICE prior to sentencing that my offense did not qualify for sex offender registration and public notification, and that I would not be subject to either, 30 days after time to appeal had passed the Florida DOC took my photo and informed me I would be placed on the public registry. My attorney later admitted that he misrepresented me. The plea he entered on my behalf — which was based on his misrepresentation — stated the specifics of the punishment, which did not include anything related to sex offender registration and notification including all the draconian measures that have been retroactively applied since. It was, for all intents and purposes, a contract with the State which subsequently violated it on every level and continues to do so. The courts have repeatedly ruled that it is only what is within the four corners of a contract that is applicable…full disclosure, non-concealment of material facts, equal consideration, a meeting of the minds. The state contracted with me that if I do this (satisfactorily complete these specific terms and conditions of the bilateral agreement), then this will happen (termination of the punishment with no further stated entanglements). The sorry SOB’s reneged!
If the lawmakers think it’s not punishment, let them try it for a year or so and see what they think then.
See Kirschenhunter v. Sheriff’s Office, Beauregard Parrish, 165 Fed. Appx. 362, 363 (5th Cir. 2006) (contracts clause argument regarding sex offender status imposed post-plea rejected, albeit without analysis); see generally Sveen v. Melin, 138 S. Ct. 1815 (2018) ; see also Lipscomb v. Columbus Separate Municipal School District, 269 F. 3d 494, 505 (5th cir. 2005) (state may not bargain away police power of state) Gladden talks a good game, but always loses in the appellate courts.
First of all, thanks to FAC for noting our work here in Texas.
Second, to “The Truth,” does a unanimous victory in the U.S. Supreme Court, which I personally won, count as an “appellate court” win? See, Leatherman v. Tarrant County Narcotics & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160 (1993)?
Finally, you don’t seem to know the difference between a “Contract Clause” claim, and a Substantive Due Process Clause claim under the Fourteenth Amendment. Ever read Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495 (1971)? Before filing the lawsuit for my clients in Texas, I actually DID research this issue, and I assure you the vast weight of decisional law across the USA, specifically addressing retroactive registrations requirements, has ruled favorably on the substantive due process claim I have alleged. Furthermore, I do not consider the unpublished, non-precedential decision in the Fifth Circuit which you have cited, involving a improperly presented claim filed by a pro se plaintiff, to be any obstacle. Neither will the Fifth Circuit, which by rule doesn’t consider unpublished decisions to be precedent. BTW, has your lawsuit in Dallas been dismissed yet?
Thanks Richard!
For those in FAC who don’t know; there is an alliance of attorneys across the United States who are considered (among the advocacy community, the academic community and even among their peers) to be the authorities in the area of sex offender issues. Among other states, Michigan has Miriam Auckerman, California has Janice Bellucci, North Carolina has Paul Dubbeling, We have Val Jonas and Texas has Richard Gladden.
Blah Blah Blah. Tell me about that Santobello issue in SOR litigation when you have secured a victory in the Fifth Circuit and/or the U. S. Supreme Court. Until then, it is all big talk to dredge up business in a market of desperate people. No intermediate appellate court or court of last resort is going to rule in favor of registrants on a contract law claim dressed up in pseudo-constitutional garb. Just because you can sell this to your clients doesn’t mean any panel of judges will go along. You Texans are dumb.
Whatever happened to this case? In January of 1994 (before there was a registry) I made a contract with Texas for charge of aggravated sexual assault of a minor (which that was bogus because there was no penetration), but I just listened to my lawyer Larry More in Tarrant county (Fort Worth, Texas) and receive differed adjudication, and was told that if I completed my probation of 10 years that it would go off my record… Boy was that a bunch of crap. In 1996 we found out things were a changin’. So now it’s been over 25 years since my day in court and I still have to register. I was hoping that I could glom on to the outcome of the original case, which I thought was headed to the Texas Supreme court.
This is interesting as I’ve found myself in a similar situation. Plea dealed out in Kansas in 1996 with a 10 yr agreement. Removed in 2007. But moving to Missouri was reregistered, because of different laws. How would that fit in in these cases. Even though what I was accused of is not even a sex offender registry offence in Missouri, totally screwed up laws.
David M.,
You probably need to initially seek advice from a Missouri attorney. Most States only require registration for out-of-state offenses if the elements of the out-of-state offense (in Kansas) has elements “substantially similar to” the elements of an offense that would require registration under the laws of the State to which you have moved (Missouri), had it ben committed in that State (Missouri). Yet you say Missouri doesn’t consider your Kansas offense to be one which would require you to register in Missouri if it had been committed in Missouri. If Missouri is requiring you to register merely on the basis of the fact that your name appears on the Kansas registry, you’ll likely need to confer with a Kansas attorney. However, I can say this: if Kansas statutory law at the time of your original plea, and the terms of your plea agreement, both “induced” you to waive your right to a trial (and accept a plea bargain) based on a reasonable belief that you would no longer be required to register once you completed probation of community supervision, it is my opinion, based on my legal research of both federal and State decisional law nationwide, that you should be able to sue in Kansas and compel Kansas to remove your name from the Kansas registry. That might result in Missouri taking you off the Missouri registry.
This is not a “Contract Clause” case under the U.S. Constitution, as “The Truth” mistakenly believes. Rather, your claim would be a Substantive Due Process claim under the U.S. Constitution as recognized by the U.S. Supreme Court in Santobello v. New York (1971), which I have cited elsewhere on this thread. This sort of claim does not include any requirement that you prove registration is “punitive,” as would an ex post facto claim.
P.S. BEWARE! Do not employ any pettifoggers from Dallas!
Thank You very much for your reply. I have a letter from Kansas which I have given a copy of to the registration office in Missouri a couple of times. Addressed to me it says
This letter is to advise you ———— ———- ——— etc that you have satisfied the present requirements of the Kansas Offender Registration Act (K.S.A.22-4901et seq.) in reference to your 1997 conviction in Kansas for Lewd and lascivious.
Please be advised that your registration records are now closed. You presently have no registration obligations in Kansas.
If you have questions, please contact etc etc.
They just look at it but it doesn’t mean anything to them. Here in Missouri.
You will need to speak with an attorney in Missouri. WAR (Women Against Registry) is located in Missouri and has some attorney references on their page https://womenagainstregistry.org/Attorneys. that might be a good place to start.
The same thing happened to me !! My “Record” was supposed to “Go Away” after I completed my Probation !! I did 4 years …. Well when I went to court to get off, I was informed that now I was CONVICTED !! And when I “Took the Plea Deal” I was ADJUCATED WITHHELD !! I have all Kinda “Paperwork” to prove it, But it doesn’t matter to “The State” !!! My charge was in 2003 !. So not not only am I FORCED to obey “ADDED ON PUNISHMENT” BUT, Now I’m also a CONVICTED FELON !! And I spent $160,000 and fought 2 year’s to “Not be a Felon” !! And According to the “Judge” After I completed my Probation, My “Record would be clean and I would NO LONGER be on The Registery” !! WELL THAT NEVER HAPPENED !!. BUT, BUT, BUT, I don’t understand why everyone is getting SO UPSET because “The US GOVERNMENT is “Changing Their Rules” !!. The US has done this FROM THE VERY BEGINNING!!! And People FORGET that the USA was started from ENGLAND BANISHING FELONS TO THE USA !! Our country was started by CRIMINALS !! So why expect change ?? EVERY “AGGREMENT” THAT THE US HAS MADE WITH “THE PEOPLE OF THE WEST” HAS BEEN BROKEN !!!. The US Government has LIED, CHEATED AND STOLD from the VERY BEGINNING, So why would anyone expect them to “Change” now ???. Our “Constitution” is a JOKE !! Our “Government” changes it “Whenever They Want” !!. There are “So Many Amendments” now, That the “Original Constitution” is all but GONE !!!!. And “Florida” is WORSE than the Rest of the Country !!!. We’ve all “Heard” about CHANGE, But in reality, Nothing has Changed !! Except for the Date/Year !!. The USA was Born EVIL and will remain EVIL !!. I could go on and on with examples, But anyone that is Black, Indian, Chinese or Foreign can surely say I’m right !!!.
Dear TOBM: Read my post in response to David M., above.
Hi, I just found out the there is a challenge to the retroactive sex offender registration law. I was placed on deferred adjudication probation Aggravated sexual assault and indecency with a child by contact on July 1997 I was 18 she was 13 she lied about her age. I looked all over paper it doesn’t have a registration time limited but my lawyer explain to me it was for 10 years after I finished probation. And It was like that in the system it showed my registration ended in 2017. Until they changed the law in 2005. I wanting to know this lawsuit does pertain to my case also? Thank you for your time and help.