Ex Parte Bryan Scott Chamberlain

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO.

2-09-079-CR

EX PARTE BRYAN SCOTT

CHAMBERLAIN

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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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OPINION

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I. Introduction

Appellant

Bryan Scott Chamberlain appeals the trial court = s order

denying relief on his application for writ of habeas corpus that he filed

pursuant to article 11.072 of the Texas Code of Criminal Procedure. In two issues Chamberlain complains: that the

trial court was required to conduct an evidentiary hearing on his application

and, in an issue of first impression in Texas, that the Texas Sex Offender

Registration Program (SORP) violates the substantive due process rights

guaranteed to him under the Fourteenth Amendment to the United States

Constitution. Because the trial court

did not abuse its discretion by not conducting a hearing on Chamberlain = s

application and because the SORP does not violate substantive due process, we

will affirm the trial court = s order

denying habeas corpus relief.

II. Procedural Background

Prior to

September 1, 1997, the code of criminal procedure imposed a ten-year sex

offender registration requirement; a person placed on deferred adjudication for

sexual assault was required to register during any community supervision term

and until the tenth anniversary of the date on which the court dismissed the

criminal proceedings against the person and discharged the person. See Act of May 29, 1995, 74th Leg.,

R.S., ch. 676, ' 2, 1995 Tex. Gen. Laws 3649 ,

3649 B 50 and

Act of May 16, 1995, 74th Leg., R.S., ch. 258, ' 1, 1995

Tex. Gen. Laws 2197 , 2197 (both amended 1997) (current version at Tex. Code

Crim. Proc. Ann. art. 62.101(a) (Vernon 2006)).

Effective September 1, 1997, the law changed to mandate that a person

with a reportable conviction or adjudication for a sexually violent offense

register as a sex offender for the person = s entire

life. See Act of June 1, 1997,

75th Leg., R.S., ch. 668, ' 1, 1997

Tex. Gen. Laws 2253 , 2254, 2261 (amended 2005) (current version at Tex. Code

Crim. Proc. Ann. art. 62.101(a) (Vernon 2006)). [1]

Approximately

one month after the sex offender registration requirement changed to require

lifetime registration, Chamberlain pleaded guilty pursuant to a plea bargain

agreement to the second-degree felony offense of sexual assault, a sexually

violent offense. The trial court

accepted Chamberlain = s plea and, pursuant to the

terms of the plea bargain, deferred an adjudication of guilt and placed

Chamberlain on four years = community supervision. Chamberlain did not appeal. [2]

Chamberlain

successfully completed his community supervision term, and the trial court

discharged him from community supervision.

Seven years later, Chamberlain filed an application for writ of habeas

corpus, asking the trial court (1) to find that his plea was involuntary

because it was obtained as a result of the ineffective assistance of his trial

counsel who had failed to inform him that his plea would require lifetime sex

offender registration instead of requiring registration only during the term of

his community supervision and for ten years thereafter and (2) to declare the

SORP unconstitutional as violative of substantive due process. After considering Chamberlain = s

application, affidavits from Chamberlain and his friends, the State = s

response, an affidavit from Chamberlain = s trial

attorney, and Chamberlain = s reply, the trial court denied

relief without holding a hearing.

Chamberlain now appeals.

III. Standard of Review

In

general, a trial court = s ruling in a habeas proceeding

should not be overturned absent a clear abuse of discretion. Ex parte Jessep , 281 S.W.3d 675, 678

(Tex. App. C Amarillo 2009, pet. ref = d). We are to evaluate whether the trial court

abused its discretion by determining whether the trial court acted without

reference to any guiding rules or principles.

Id. In doing so, we view

the evidence in the light most favorable to the trial court = s

ruling. Ex parte Wheeler , 203

S.W.3d 317 , 325 B 26 (Tex. Crim. App. 2006)

(holding court of appeals was to review facts in light most favorable to trial

court = s ruling

even when no witnesses testified and all evidence was submitted in written

affidavits); State v. Wilson , 288 S.W.3d 13, 16 (Tex. App. C Houston

[1st Dist.] 2008, pet. granted) (applying standard of review to article 11.072

writ).

IV. No Hearing Required

In his

first issue, Chamberlain argues that the trial court abused its discretion by

entering findings of fact and conclusions of law without conducting a live

hearing on the issue of whether his plea was voluntary. Chamberlain complains that the trial court

abused its discretion by making fact findings based on inconclusive,

conflicting affidavit evidence concerning whether his trial counsel informed

him of the lifetime sex offender registration requirement. Chamberlain = s

affidavit swore that he was not so informed; his trial counsel = s

affidavit indicated that he did not remember, that his file had been destroyed,

but that it would have been his normal practice to so advise Chamberlain. Thus, Chamberlain contends that the issue of

the voluntariness of his plea hinged on the trial court = s

resolution of a credibility issue and that, consequently, he was entitled to a

hearing to test his former counsel = s

assertions that he would have informed Chamberlain of the change in the law

requiring lifetime sex offender registration.

Chamberlain argues that the trial court = s

failure to conduct a hearing in light of this credibility issue constituted an

abuse of discretion and deprived him of due process.

We have

previously held that there is no language in article 11.072 requiring

the trial court to conduct a hearing on an application for habeas corpus before

rendering its decision on the relief sought.

See Ex parte Cummins , 169 S.W.3d 752, 757 (Tex. App. C Fort

Worth 2005, no pet.); see also Ex parte Jones , No. 02-07-00388-CR, 2008

WL 3185168 , at *9 (Tex. App. C Fort

Worth Aug. 7, 2008, pet. ref = d) (mem.

op., not designated for publication). We

have also previously held that the legislature did not intend to prohibit the

trial court from considering evidence filed with the application or with the

State = s response

without conducting a hearing. See

Cummins , 169 S.W.3d at 757 . The

trial court = s findings of fact evidence that

it did that here. Because article 11.072

does not require the trial court to hold a hearing before rendering its

decision on Chamberlain = s requested relief, we hold that

the trial court did not abuse its discretion by considering Chamberlain = s

application, affidavits from Chamberlain and his friends, the State = s

response, an affidavit from Chamberlain = s trial

attorney, and Chamberlain = s reply and by ruling without

holding a hearing. [3] Accord Wheeler , 203 S.W.3d at 325 B 26

(requiring appellate court to defer to trial court = s

findings even when made or implied based solely on affidavits). We therefore overrule Chamberlain = s first

issue.

V. Substantive Due Process Satisfied

In his

second issue, Chamberlain raises as-applied and facial substantive due process

challenges to the constitutionality of the SORP under the United States Constitution. In the trial court, however, Chamberlain

raised only as-applied challenges; [4]

he is therefore prohibited from raising a facial challenge for the first time

here. See Karenev , 281 S.W.3d at

435 (concluding that a defendant may not raise a facial challenge to the

constitutionality of a statute for first the time on appeal). We therefore limit our analysis to whether

the SORP as applied to Chamberlain violates substantive due process under the

United States Constitution.

A. Chamberlain = s

Arguments and His Facts

Chamberlain

essentially makes two as-applied substantive due process challenges to the

SORP. First, Chamberlain argues that the

SORP violated substantive due process by imposing on him a compulsory initial

registration without any individualized assessment of how dangerous he was or

his likelihood of re-offending. Second,

Chamberlain argues that the SORP violates substantive due process because it

requires him to register for his entire life but provides no mechanism for a

determination that, at some point during his lifetime, he is no longer

dangerous or no longer a risk for re-offending and, consequently, should no longer

be required to register. In support of

both of these challenges, Chamberlain points out in his application that his

conviction stemmed from facts that do not demonstrate dangerousness or a

likelihood of re-offending. Chamberlain

alleges that after an evening of drinking and dancing at a nightclub, the

complainant accompanied him and his friends to an apartment where they

continued to drink and dance.

Chamberlain claims that eventually he and the complainant retired to one

of the bedrooms where they had consensual sex.

He alleges that the next morning, the complainant went to breakfast with

him and his friends and that the group then went to his apartment where the

complainant visited with his friends while Chamberlain took a shower and

changed clothes. Chamberlain said that

when he took the complainant home, she kissed him, gave him her phone number,

and asked him to call her. Chamberlain

states that he A reluctantly agreed to accept the

plea bargain and plead[ed] guilty to the charge @ because

he was advised that A this was the quickest way to get

this whole mess over with. @

B. Substantive Due Process Law

Generally,

substantive due process protects against the arbitrary exercise of governmental

powers, unrestrained by established principles of private rights. See County of Sacramento v. Lewis , 523

U.S. 833, 845 , 118 S. Ct. 1708, 1716 (1998).

The United States Supreme Court = s

substantive due process analysis has two primary features:

First,

we have regularly observed that the Due Process Clause specially protects those

fundamental rights and liberties which are, objectively, A deeply

rooted in this Nation = s history and tradition, @ and A implicit

in the concept of ordered liberty, @ such

that A neither

liberty nor justice would exist if they were sacrificed. @ Second,

we have required in substantive‑due‑process cases a A careful

description @ of the asserted fundamental

liberty interest. Our Nation = s

history, legal traditions, and practices thus provide the critical A guideposts

for responsible decisionmaking @ that

direct and restrain our exposition of the Due Process Clause.

Washington v. Glucksberg , 521

U.S. 702, 721 , 117 S. Ct. 2258, 2268 (1997) (citations and parentheticals

omitted); Ex parte Morales , 212 S.W.3d 483, 493 (Tex. App. C Austin

2006, pet. ref = d). The substantive component of the Due Process

Clause of the United States Constitution provides heightened protection against

government interference with the above described fundamental rights or liberty

interests. Glucksberg, 521 U.S.

at 719 , 117 S. Ct. at 2266 . When such a

fundamental right or liberty interest is involved, the state must show a

compelling interest to curtail it and must do so as narrowly as possible. See Reno v. Flores , 507 U.S. 292 , 301 B 02, 113

S. Ct. 1439, 1447 (1993). When no

fundamental right or liberty interest is involved, however, the State must show

only a rational basis for its actions or legislation to survive a substantive

due process challenge. See Sullivan

v. State , 986 S.W.2d 708, 714 (Tex. App. C Dallas

1999, no pet.).

We begin

our analysis of Chamberlain = s

constitutional challenges with a presumption that the SORP is valid and that

the legislature has not acted unreasonably or arbitrarily by enacting it . Rodriguez v. State , 93 S.W.3d 60, 69

(Tex. Crim. App. 2002). The burden rests

on Chamberlain to establish its unconstitutionality. Id .

C. The Interest at Issue;

Rational Basis Exists

Chamberlain

claims that the SORP arbitrarily and unreasonably infringes upon his A right @ to

rebuild his dignity. The crux of

Chamberlain = s complaint is that his

reputation is damaged by the SORP = s

lifetime registration requirement. We interpret Chamberlain = s

argument to be that his reputation constitutes a cognizable liberty interest

for purposes of triggering the heightened substantive due process protection. [5]

Other

courts have rejected the argument that a sex offender = s

interest in his reputation is a fundamental right or a liberty interest that

will trigger heightened federal substantive due process protection from

statutory sex offender registration schemes.

See Cutshall v. Sundquist , 193 F.3d 466, 479 (6th Cir. 1999), cert.

denied , 529 S. Ct. 1053 (2000); Doe v. Pataki , 3 F. Supp. 2d 456,

467 (S.D.N.Y. 1998); Russell v. Gregoire , 124 F.3d 1079, 1094 (9th Cir.

1997), cert. denied sub nom. Russell v. Gregoire , 523 U.S. 1007 (1998); E.B.

v. Verniero , 119 F.3d 1077 , 1102 B 04 (3rd

Cir. 1997), cert. denied sub nom. W.P. v. Verniero , 522 U.S. 1109

(1998); Artway v. Attorney Gen. of New Jersey , 81 F.3d 1235 , 1268 B 69 (3rd

Cir. 1996); see also Conn. Dep = t of

Pub. Safety v. Doe, 538 U.S. 1, 6 , 123 S. Ct. 1160, 1164 (2003)

(holding convicted sex offender had not been deprived of liberty interest for

purposes of procedural due process challenge to SORP); Paul v. Davis ,

424 U.S. 693, 712 , 96 S. Ct. 1155 , 1165 B 66

(1976) (reputation alone is not a constitutionally protected liberty

interest). In the absence of authority

establishing that a sex offender possesses a fundamental right or liberty

interest in his reputation, we decline to recognize this allegedly fundamental

right or liberty interest. Because

Chamberlain has not established that he possesses a fundamental right or a

liberty interest that the SORP impinges upon, his as-applied constitutional

challenges are not subject to the heightened substantive due process protection

provided when the government interferes with a fundamental right or liberty

interest. See Glucksberg, 521

U.S. at 719 , 117 S. Ct. at 2266 .

Instead, we analyze both Chamberlain = s

as-applied federal substantive due process constitutional challenges to

determine whether the SORP bears a rational relationship to a legitimate state

interest. Accord City of Cleburne,

Tex. v. Cleburne Living Ctr. , 473 U.S. 432, 440 , 105 S. Ct. 3249, 3254

(1985); Tex. Workers =

Compensation Comm = n v. Garcia , 893

S.W.2d 504, 525 (Tex. 1995); In re M.A.H. , 20 S.W.3d 860, 864 (Tex. App. C Fort

Worth 2000, no pet.).

We first

examine the state interest; there is no question that the Texas Legislature has

a legitimate interest in protecting the citizens of Texas from sexual

predators. See Rodriguez , 93

S.W.3d at 74 ; accord, e.g. , United States v. Hernandez , 615 F.

Supp. 2d 601, 621 (E.D. Mich. 2009); United States v. Ambert , 561 F.3d

1202, 1209 (11th Cir. 2009); Doe v. Moore , 410 F.3d 1337, 1346 (11th

Cir.), cert. denied sub nom. John Doe I v. Moore , 546 U.S. 1003 (2005);

In re W.M. , 851 A.2d 431 , 451 (D.C. 2004), cert. denied sub nom. W.M. v.

Court Servs. Offender Supervision Agency , 543 U.S. 1062 (2005); Doe v.

Tandeske , 361 F.3d 594, 597 (9th Cir.), cert. denied , 543 U.S. 817

(2004); Gunderson v. Hvass , 339 F.3d 639, 643 (8th Cir. 2003), cert.

denied sub nom. Gunderson v. Fabian , 540 U.S. 1124 (2004); Akella v.

Mich. Dep = t of State Police , 67 F.

Supp. 2d 716, 733 (E.D. Mich. 1999); In re J.W. , 787 N.E.2d 747 , 757,

760 (Ill.), cert. denied sub nom. J.W. v. Illinois , 540 U.S. 873 (2003);

Gibson v. Ind. Dep = t of

Corr. , 899 N.E.2d 40, 55 (Ind. Ct. App. 2008); McCabe v. Commonwealth ,

650 S.E.2d 508, 561 , 563 B 66 (Va. 2007). And because the SORP = s

notification provisions inform citizens that sex offenders are living in their

community C in order that citizens may take

necessary precautions C the SORP is a rational means to

further a legitimate state interest. [6] See M.A.H. , 20 S.W.3d at 865 ; Ex

parte Mercado , No. 14-02-00750-CR, 2003 WL 1738452 , at *4 (Tex. App. C Houston

[14th Dist.] Apr. 3, 2003, no pet.) (mem. op., not designated for publication);

see also Hernandez , 615 F. Supp. 2d at 621 ( A SORNA

[Sex Offender Registration and Notification Act] meets the rational basis test

because it is in the interest of government to protect the public from sex

offenders, and knowing where offenders live enables the public to assess the

risk and take protective measures as appropriate. @ ). Thus, the remaining analysis requires us to

determine whether the features of the SORP challenged by Chamberlain bear a

rational relationship to the State of Texas = s

legitimate interest in protecting its citizens from sexual predators.

D. Rational Basis Test

Applied to Chamberlain = s Claims

Chamberlain

argues that Texas = s SORP as applied to him

violates substantive due process because the statute = s

compulsory registration requirement, in the absence of any individualized

assessment of his dangerousness or risk of recidivism, bears no relationship to

any legitimate state interest. He also

argues that the SORP as applied to him violates substantive due process because

it requires him to continue to register for his entire life and provides no

mechanism for a determination that, at some point in his life, he is no longer

dangerous or a recidivism risk. [7]

The Texas Court of Criminal Appeals has not

addressed the substantive due process challenges raised by Chamberlain; they

appear to be issues of first impression.

Because the court of criminal appeals has not addressed the substantive

due process challenges raised by Chamberlain, we conducted national scope

research looking for guidance on how other states have addressed federal

substantive due process challenges to sex offender registration requirements. [8] The states that have addressed as-applied

federal substantive due process challenges like Chamberlain = s to a compulsory

statutory registration requirement on the ground that it required registration

in the absence of any individualized assessment of dangerousness or risk of

recidivism have nonetheless found the statutes constitutional. See, e.g. , State v. Druktenis ,

2004-NMCA-032 , 135 N.M. 223, 241 , 86 P.3d 1050, 1068 (N.M. Ct. App. 2004); see

also People v. Hood , 790 N.Y.S.2d 757 , 758 B 59 (2005). As stated by the New Mexico Court in Druktenis ,

Presumably, the unfairness to any who might present evidence that they

do not pose a significant risk of recidivism is, in the Legislature = s view, outweighed by the

risk that citizens may be harmed notwithstanding such evidence. SORNA = s [Sex Offender Registration and Notification Act = s] message is that no

chance should be taken, even were a sex offender able to present evidence in an

individualized hearing that he or she is integrateable into society and neither

a recidivist nor a current danger, since the risk of harm to society, no matter

what the evidence, is still too great if exceptions were permitted, a risk the

Legislature simply refuses to take.

135 N.M. at 241 , 86 P.3d at

1068 . Likewise, the New York Supreme

Court in the Hood case rejected a defendant = s assertion

that the sex offender registration statute violated substantive due process by

failing to include a A no risk @

category exempting purportedly non-dangerous offenders from registration. 790 N.Y.S.2d at 758 B 59. The court noted that the statute mandated

registration based on a defendant = s

conviction of an enumerated sex offense, not his level of dangerousness. Id .

Because the SORP required Chamberlain = s

compulsory registration based on his conviction of a crime that meets the SORP = s

definition of a A sexually violent offense, @ we hold

that the SORP = s initial registration

requirement is rationally related to the legitimate state interest of

protecting citizens from sexual predators.

See Druktenis , 135 N.M. at

241 , 86 P.3d at 1068 ; Hood , 790 N.Y.S.2d at 758 B 59. Consequently, we hold Chamberlain has failed

to establish that the SORP = s

initial registration requirement, as applied to him, violates substantive due

process.

We next

address Chamberlain = s argument that the SORP as

applied to him violates substantive due process because it requires him to

continue to register for his entire life and provides no mechanism for a

determination that, at some point in his life, he is no longer dangerous or a

recidivism risk. The court of criminal

appeals has rejected the exact constitutional challenge to the SORP that

Chamberlain makes when that challenge was framed as a procedural due

process challenge. See Ex parte

Robinson , 116 S.W.3d 794 , 797 B 98 (Tex.

Crim. App. 2003). In Ex parte

Robinson , the court of criminal appeals discussed the United States Supreme

Court = s

decision in Connecticut Department of Public Safety v. Doe and wrote:

The [U.S. Supreme] Court held that A the fact that respondent seeks to prove C that he is not currently

dangerous C is of no consequence

under Connecticut = s Megan = s Law. @ The Court explained that A even if respondent could

prove that he is not likely to be currently dangerous, Connecticut has decided

that the registry information of all sex offenders C currently dangerous or

not C must be publicly

disclosed. @

. . . .

Robinson . . . argues that this is the very flaw with the SORP C that it does not

distinguish between dangerous and non-dangerous offenders. He seeks a hearing to establish that he is

not dangerous. This is the same argument

that Doe made and, like Doe, Robinson specifically limits his argument in this

court to one of procedural due process, not substantive due process. As the Supreme Court explained, there is no

right to establish facts that are irrelevant under the statutory scheme. And we need not address the issue of

substantive due process because it is not before us.

116 S.W.3d at 797 B 98

(citations and footnotes omitted).

Turning

specifically to an examination of the Texas sex offender registration statute,

the SORP, reveals that a statutory mechanism does exist for persons subject to

lifetime registration to seek early termination of their obligation to

register. See Tex. Code Crim.

Proc. Ann. arts. 62.401 B .408 (Vernon 2006). First, article 62.101 provides that A [e]xcept

as provided by . . . Subchapter I [the early termination of

registration chapter] @ a person is subject to lifetime

registration. See id. art.

62.101(a). Thus, the SORP clearly

creates an exception to lifetime registration; it authorizes a person who is

required to register for life to seek early termination of that obligation. Second, Subchapter I, article 62.403 provides

for an A individual

risk assessment @ to be performed upon A the

written request of a person with a single reportable adjudication @ that

requires the person to register longer under Texas law than under federal law. See

id. art. 62.403(b); see also id. art. 62.007 (Vernon 2006). An individual risk assessment evaluates the

criminal history of a person required to register and seeks to predict the

person = s risk

of recidivism and the level of continuing danger the person poses to the

community. Id . art.

62.043(a)(1)(2)(A), (B). A person who is

required to register and has requested and received an individual risk

assessment may file a motion for early termination of the person = s

obligation to register. See id.

art. 62.404. The trial court may hold a

hearing to determine whether to grant or to deny a motion for early termination

of registration. See id. art.

62.405. To the extent that the SORP = s

rational relationship to the State = s

legitimate interest in protecting its citizens from sex offenders diminishes as

a sex offender over time establishes his lack of dangerousness and low risk of

recidivism, the SORP does provide a vehicle for such an offender (with a single

reportable adjudication) to obtain an individualized assessment of

dangerousness and risk of recidivism and possibly obtain early release from his

obligation to register as a sex offender. [9]

The SORP

as applied to Chamberlain does not violate substantive due process. The SORP = s

initial compulsory registration requirement is rationally related to and

furthers a legitimate state interest, and the SORP contains a mechanism that

allows sex offenders who are purportedly not dangerous and who pose a low risk

of re-offending to petition for early termination of the registration requirements. The record before us is thus insufficient to

rebut the presumption that the SORP is constitutional as applied to

Chamberlain. We overrule Chamberlain = s second

issue.

VI. Conclusion

Having

overruled both of Chamberlain = s issues

and because there is no relief from this court that is available to

Chamberlain, we affirm the trial court = s order

denying habeas corpus relief.

SUE WALKER

JUSTICE

PANEL: GARDNER, WALKER, and

MCCOY, JJ.

PUBLISH

DELIVERED: December 17, 2009

[1] A A sexually violent offense @ is defined to include an

offense under section 22.011 of the penal code (sexual assault) committed by a

person seventeen years of age or older. See

Act of June 1, 1997, 75th Leg., R.S., ch. 668, ' 1, 1997 Tex. Gen. Laws

2253 , 2254 (current version at Tex. Code Crim. Proc. Ann. art. 62.001(6)(A)

(Vernon Supp. 2009)).

[2] In September 1999, the

State filed a petition to proceed to adjudication. The trial court subsequently dismissed that

petition pursuant to the State = s motion to dismiss.

[3] In his brief, Chamberlain

relies on the Fifth Circuit case of Hall v. Quarterman , 534 F.3d 365

(5th Cir. 2008), for the proposition that he should be entitled to a

hearing. In Hall , the Fifth

Circuit applied the deferential standard mandated by the Antiterrorism and

Effective Death Penalty Act to determine that Hall was entitled to an

evidentiary hearing on his claim that he was mentally retarded. The Hall facts are distinguishable

from the present facts.

[4] In his application for

writ of habeas corpus in the trial court, Chamberlain argued,

Applicant

was required to register as a sex offender without any individualized

assessment of how dangerous he was or the likelihood of re-offending. The trial court had no discretion in whether

to require registration, and no official of the State of Texas has discretion

to alter the requirement. While it is

certainly the case that certain people who plead guilty to or are convicted of

a sex offense may present a high risk of re-offending, many do not. The Texas Statute does not allow for any

assessment of the risk of re-offending by the individual defendant and does not

allow the Court any discretion in whether to require the defendant to register,

and in this case to register for life.

In this rigid approach to sex offender registration, the statute offends

the due process clause of the 14th Amendment to the United States Constitution

in that it deprives the defendant of the fundamental liberty of a good

reputation and the opportunity to rehabilitate his reputation without allowing

for any serious evaluation of the threat the defendant presents to society.

Chamberlain

thereafter prayed that the trial court would A find and declare the Sex

Offender Registration laws of this state deprive him of liberty to which

he is entitled under the 14th Amendment to the United States

Constitution and Article 1, ' ' 10 and 19 of the Texas Constitution. @ [Emphasis added.] See Karenev v. State , 281 S.W.3d 428,

435 (Tex. Crim. App. 2009) (Cochran, J., concurring) (stating that the

difference between a facial challenge and an A as applied @ challenge to the

constitutionality of a penal statute is evidence; A [a] facial challenge is

based solely upon the face of the penal statute and the charging instrument,

while an applied challenge depends upon the evidence adduced at a trial or

hearing @ ).

[5] To the extent Chamberlain

asserts any different interest, it does not meet the requirement of being a

fundamental right or liberty A objectively, deeply rooted in this Nation = s history and tradition,

and implicit in the concept of ordered liberty, such that neither liberty nor

justice would exist if they were sacrificed. @ See

Glucksberg , 521 U.S at 720 B 21, 117 S. Ct. at 2268 .

[6] Chamberlain does not

attack the statutory notification provisions.

Indeed, two well-known pieces of federal legislation address the issues

of sex offender registration and community notification: the Jacob Wetterling Crimes Against Children

and Sexually Violent Offender Registration Act, passed in 1994, requiring all

states to enact a program mandating that designated offenders register with

state or local authorities or risk losing ten percent of the states = federal anti-crime

funding, see H.R. 3355, 103d Cong. ' 170101 (1994) (outlining original version of act

adopted by Congress and signed into law), and Megan = s Law, enacted in 1996,

as an amendment to the Jacob Wetterling Act, requiring community notification

when sex offenders move into a neighborhood.

See 42 U.S.C. ' 14071 (2003).

[7] With regard to this

challenge, Chamberlain argues that A in the absence of some individualized assessment

that he presents a danger to [the] community . . . [t]he SORP . . . arbitrarily

creates a lifetime wall of shame . . . for people who pose no significant

risk of further crimes[, and] it is unconstitutional. @

[8] Texas = s compulsory lifetime

registration SORP applies to specifically delineated offenses. See Tex. Code Crim. Proc. Ann. art.

62.101(a). Registration for other

reportable offenses is generally for ten years after the person exits the penal

system. See id. art.

62.101(c). Many states = statutory sex offender

registration schemes, like Texas = s, create multi-tiered registration requirements

based on the type of offense committed. See,

e.g. , Ark. Code Ann. ' 12-12-919 (West 2004

& Supp. 2009); D.C. Code ' ' 22-4001(6), 22-4002 (2001 & Supp. 2009);

N.Y. CORRECT. LAW ' 168-h (McKinney 2003

& Supp. 2009); Okla. Stat. tit. 57, ' 583 (2004 & Supp. 2009).

[9] To the extent that

Chamberlain complains about any other aspect of the SORP, such complaints are

for the legislature = s consideration. See M.A.H. , 20 S.W.3d at 864 B 65 (stating that whether

application of SORP should be contingent upon juvenile = s age or the seriousness

of the offense was a question left to the legislature). Moreover, whether the duration of the

registration for nonviolent sex offenders should be further limited is also a

matter better left to the legislature. See

J.W. , 787 N.E.2d at 760.