Have any of you ever done a youthful adult sex offender waiver of registration? CCP 62.301. I'm trying to find out if I have to do a separate order, or if the order can be placed on the judgment.
Or, does anyone have a number to DPS where I can talk to someone knowledgeable about the sex offender registry.
The waiver should be a separate order, whether the underlying case was a conviction or deferred adjudication. This is due to the specific requirements of judgments and, to a lesser extent, procedures for granting deferred adjudication -- i.e., the interplay between both instruments and the affirmative findings at play. In particularity, regarding orders granting in reference to the specifically delineated requirements for judgments in CCP 42.01 (and per Sec. 4, standardized templates made available at http://txcourts.gov/rules-forms/forms/).
62.301's prerequisites are:
If Offense = PC 21.11 (indecency with child), or PC 22.011 (sex assault)
And if defendant:
is no more than 4 years older than the victim who was at least 15 years old at time of offense
42.01 judgment requirements apply (this includes Sec. 1(27) general affirmative finding of CCP 62 registration requirement + 42.017 finding in the judgment; see Sec. 8)
If deferred adjudication:
42A.102(a) finding in open court + 42A.103(a) mandatory minimum deferred term of 5 years + order granting deferred adjudication + 42A.105(c) specific affirmative filing statement of judge filed with the papers of the case
At any time after defendant is convicted or has received deferred adjudication for one of those two offenses, he can petition the court for the 62.301(d) waiver order, and once he's overcome his preponderance burden at that 62.301(c-1) hearing, then the Court's order is filed in the papers of the case, regardless of whether it was conviction (i.e. judgment) or deferred adjudication.
Some parties may prefer to kill two birds with one stone and have the 62.301 hearing at the same proceeding as the plea hearing, so that the overlapping nature of the Court's inquisition in proceedings governed by 62.301(c-1) and 42A.102(a) can be had jointly. However, as with everything, most local rules (presumably, all) and CCP 29.035 require 3 days' notice of the setting, so if defense tries to have them at the same session, and State's not ready to contest, 29.035 would be a valid argument for continuance as to 62.301 only, and it can be made orally.
Small point, kinda interesting -- note that, for deferred adjudication cases, there's no requirement that there be a general sex offender affirmative finding equivalent to the one that the judgment statute has (42.01, Sec. 1(27), despite their inclusion in the Texas Judicial Branch's template for orders granting deferred. But both orders granting deferred and judgments have the same other sex offender affirmative findings (language from 42.015, 42.017).
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