Does C.C.P. article 12.42 sec. 14(b) limit the imposition of sex offender conditions like pwychological counseling to only the listed sex offenses? What about sex offender registration? Can a judge impose registration requirements for a non-sex case?

I have an opinion on these issues, but just wanted to see what the rest of the world thought.

[John, I already looked in Texas Sentencing and did not find the answer. ]

There are two schools of thought.

One: you can only do what is listed in the Code of Criminal Procedure and nothing more or less. This is true for only a few types of conditions of supervision: money, community service, and confinement.

Two: you can do anything that is reasonable and designed to punish, rehabilitate, or restore. See Tex. Code Crim. Pro. art. 42.12, sec. 11(a).

Some judges just don't believe in the second school of thought and just sentence by numbers. Others, like Ted Poe in Houston, are creative and thrive in that environment.

When the sex offender conditions were added in the CCP, the above two schools of thought were debated. The legislative record would show that prosecutors were concerned that creating a list of conditions for sex offenders would create the impression that those were the only conditions that could be imposed. We were reassured that the conditions were being written to force the judges who live under the first school of thought to get going on at least some minimum conditions of supervison for sex offenders. It was not meant to be a limitation; only a starting point.

In Texas Sentencing, the authors wrote: "The legislature left it to the discretion of a judge to determine the proper conditions of supervision." Page 129.

Judge Banales in Corpus Christi agreed with this approach and added sex offender conditions to several cases. He got an application for writ of mandamus filed against him for his efforts. The Thirteenth Court of Appeals agreed with the first school of thought and ordered him to cut it out. But the Court of Criminal Appeals ordered the writ withdrawn, leaving the debate for another day. Banales v. Thirteenth Court of Appeals, 2002 Tex. Crim. App. Lexis 108 (Tex. Crim. App. 2002). The new edition of Texas Sentencing notes this case. It will be out soon.

I supervised plenty of probationers with conditions for sex offender psych evaluation that are on probation for injury to a child, various assault-type charges, burglary, interference with child custody, and even one agg. perjury. From the cases that crossed my desk, both from my county and transferring in from others, it seemed the standard courts most often used was whether the condition was reasonably related to offender rehabilitation and/or community protection.

As for sex offender registration, I contended(usually successfully) that the judge can order registration for an offender that is not on probation for one of the listed offenses. CCP Art. 62.02(a) states: A person who has a reportable conviction or adjudication or who is required to register as a condition of parole, release to mandary supervision, or community supervision shall register. . . I know that parole sticks registration requirements on lots of offenders coming out who do not have an eligible reportable conviction, perhaps because of sexual misconduct in prison or an old sex crime conviction on their history that was completed before registration statutes imposed a duty to register. To the best of my memory, an offender that is required to register by condition of supervision only is permitted to quit verifying registration upon completion of the supervision term.

We in Tarrant County have negotiated pleas for non-sex offenses which included the full panoply of sex offender conditions including registration during the term of probation. We have also negotiated pleas with the prviso that the D undergo sex offender testing and if the evaluator recommended treatment, the D was obligated to register for the term of probation. Because the court has inherent power to set the terms and conditions of probation, could the court sua sponte order registration?

The Court of Criminal Appeals has been very clear about the circumstances under which a defendant may complain about conditions of supervision.

In Speth v. State, 6 SW3d 530, the Court declined to review sex offender conditions because the defendant had not objected at the time of their imposition. In a footnote, the Court even seems to suggest that conditions that are prohibited by law (an orchiectomy, for example), may be imposed by agreement or in the absence of an objection.

In Idown v. State, No. 124301, the Court declined to review the sufficiency of the evidence to support a restitution order because the defendant had not objected at the time of its imposition.

Both of these cases are noted in The Perfect Plea (p. 68), along with the statement: "If a defendant agrees to or fails to raise an objection to a particular condition of supervision, he may not later challenge the condition on direct appeal, even if it might be unlawful."