Another prosecutor in our office has a case where DPS has determined the defendant's offense from Michigan for Criminal Sexual Misconduct is substantially similar to TX offense of indecency with a child by contact. The prosecutor is on vacation, so I'm helping him out.

The defense's argument is the girl's age was 15 and the boy was 18 so in TX, the defendant had an affirmative 3 year age difference defense. Thus, his conduct was not an offense under TX law and he would not be required to register in TX. I do not think he should be able to go into the facts of the prior offense at trial. I think once DPS makes that determination he has to register unless he appeals the DPS determination.

I am in the process of obtaining the offense report from Michigan police to determine the exact age of the girl.

Any thoughts from anyone out there?