The Corpus Christi Court of Appeals held that a judge could not order a sex offender to put up a sign and notify his neighbors about his status as a sex offender. Relying on rather poor statutory construction, the Court held that the specific registration requirements trump the trial court's discretion to establish any reasonable condition designed to protect the community. Fortunately, at least one judge dissented and got it right. No doubt the Court of Criminal Appeals will soon step in and get it right. Meanwhile, beware the opinion:
IN RE JOHN ROBERT LEE, Relator.
February 28, 2002, Delivered
[This message was edited by John Bradley on 03-05-02 at .]
It is very important that prosecutors fight the holding in this case. The premise of the entire holding is that a judge may not impose a creative condition of probation if there is a more specific (presumably limiting) statute describing that condition. That is wrong, wrong, wrong.
The Legislature meant just the opposite. In 1993, the Legislature gave the judges explicit authority to impose creative conditions of probation that are designed to protect the public and punish the defendant.
Now, every session, someone wants to encourage judges to use a particular condition (such as sex offender registration), so the Legislature obliges and adds such a condition to the list of proposed or mandatory conditions. But in now way is that intended to limit the choices of a judge.
There are only a couple of areas that the Legislature has said judges may not impose conditions. For example, there is a statute that says a judge may not require a defendant to get an orchiectomy. But that is the exception, not the rule.
If prosecutors do not fight hard to reverse the Court of Appeals ruling, we are in danger of losing a great law that encourages creative sentencing. Is the State Prosecuting Attorney getting involved?
Today, the Court of Criminal Appeals agreed to review the decision of the Corpus Chrisi Court of Appeals in this case. Stay tuned.
This is the same Court that recently reversed one of our MTR cases where we had a sexual ofeender probationer move within 300 feet of a school. The court reversed and remanded because there was no clear definition of what he had to measure ie. property line to property line or door to door.(The guy could see the flashing sign from his front door.)The State's office has agreed to file the PDR and hopefully we will prevail. It could affect all sexual offender probations as well as drug cases within 1000 ft of a school or playdround.
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