The Tarrant County District Attorney's office is asking the state Attorney General whether the Texas Youth Commission can make juveniles register as sex offenders.
The DA's question to the AG: "Does TYC have the authority under § 87.85(g)(3) of the Texas Administrative Code to require an offender to register as a sex offender, notwithstanding that provision conflicts with the juvenile court's authority under article 62.352(b)(1) and (c) of the Texas Code of Criminal Procedure, and the juvenile court has opted to exercise its authority to defer a decision on registration?"
See a copy of the letter from DA Tim Curry's office to the attorney general: tarrantcountyAG.pdf
Specifically, your opinion is sought on whether section 87.85(g)(3) of the Texas Administrative Code, which authorizes TYC to require the registration of juvenile offenders who are discharged from TYC without successfully completing treatment, is in conflict with article 62.352(c) of the Texas Code of Criminal Procedure, which grants the juvenile court continuing jurisdiction on this issue. (Ed. note: links added)Interesting question. It seems like, from this non-attorney's perspective, that when the administrative code and an actual statute conflict, the greater weight is usually given to what the Legislature penned as opposed to agency-generated rules. But it's hard to predict how AG Greg Abbott will decide because there's no telling these days whether the opinion will be a political statement or a legal interpretation - we've seen his office issue both in recent times in the guise of AG opinions, and lately anything related to sex offenders inevitably takes on a highly politicized air.
Making the matter more difficult, the TAC language in question specifically declares, "If the duty to register has been deferred and the youth is discharged from TYC without successfully completing treatment for sex offense, the PSW shall register the youth." However the Sunset evaluation report on TYC (pdf) criticized the agency for failing to provide sex offender treatment to all youth for whom courts had ordered it. Page 16 of the Sunset report (p. 23 of the pdf) declares:
of the 284 youth TYC identifi ed as in need of sexual behavior treatment programming in fiscal year 2007, only 46 percent were enrolled in such a program. Furthermore, only 50 percent of the youth enrolled that year completed the program.What's more, in FY 2008 the agency only used 61% of its specialized treatment budget, say Sunset staff (p. 16). In other words there was money available to pay for treating more kids, TYC just couldn't get its act together.
Given that, here's my question: If youth fail to complete required sex offender treatment because the agency is not fulfilling its own responsibilities, should youth be placed on the sex offender registration rolls over the objection of the judge in the case? That seems to be the crux of the dispute, and to the extent that's what's happening, youth are being punished because TYC's not doing its job.
I'm curious to learn more about exactly how and when TYC adds youth to the sex offender rolls and how frequently that happens over a local judge's objections.