Been racking my brain on this one. I've got a defendant who pled to Indecency with a Child back in 1987. He got 3y deferred and appears to have completed his probation in 1990. There doesn't appear to be a requirement to register as part of his probation conditions. The question has come up as to whether he's failed to register now. I've done some reading and know of the 1991 and 1997 changes, but since he was off of probation and not being supervised by anyone at the time of the amendments, does he fall outside of the requirement to register?

In 2005, House Bill 867 changed various sex offender reporting requirements and timelines. Section 4.01 of that bill reads as follows:

SECTION 4.01. (a) Except as provided by Subsection (b) of this section, the changes in law made by this Act in amending Chapter 62, Code of Criminal Procedure, apply to a person subject to Chapter 62, Code of Criminal Procedure, for an offense or conduct committed or engaged in before, on, or after the effective date of this Act.
(b) To the extent that the changes in law made by this Act to Chapter 62, Code of Criminal Procedure, change the elements of or punishment for conduct constituting a violation of Chapter 62, those changes apply only to conduct engaged in on or after the effective date of this Act. Conduct engaged in before the effective date of this Act is governed by the law in effect at the time the conduct was engaged in, and that law is continued in effect for that purpose.

HB 867 made Indecency with a Child by Contact (but not by Exposure) a lifetime registration offense in 2005. Section 4.01 of HB 867 appears to apply that change retroactively to your defendant.

My concern here would be that registering some 15+ years would be ex post facto punishment. The comments cited above does not indicate, to my reading and I could be wrong, that you can impose lifetime registration AFTER conviction only if you're now seeking conviction for a crime committed but never prosecuted until 2005.

Because the prosecution occurred before the change in 2005 then it is governed by the law at the time of the prosecution.

SCOTUS and the CCA have rejected all ex post facto challenges to the retroactive application of sex offender registration requirements.

However, there may be a due process notice issue in play. But once the offender knows he must register, I think it is a prosecutable offense.

Right on cue ...

Reynolds v. State (10th COA)

This should give you the green light.