finding that out- of-state offense was not “substantially similar” to Texas offense and noting that, while the Massachusetts “indecent assault” statute requires sex-offender registration, as does the Texas sexual-assault statute, the latter requires life-time registration while the former requires reporting for only twenty years
How later courts described this case
- finding that out- of-state offense was not “substantially similar” to Texas offense and noting that, while the Massachusetts “indecent assault” statute requires sex-offender registration, as does the Texas sexual-assault statute, the latter requires life-time registration while the former requires reporting for only twenty years
- applying Prudholm factors and concluding that Massachusetts "indecent assault” law that proscribes a wide variety of "indecent" touching was not “substantially similar” to Texas's sexual-assault statute
- noting that the plaintiff “complied with the registration requirement, but also appealed the DPS’s determination to the district court in Travis County”
- affirming trial court’s determination that appellee did not have a “reportable conviction” for purposes of sex offender registration
Written by the judges who cited it.
The opinion
JEFF ROSE, Justice,
concurring.
I concur in the majority’s judgment. For substantially the same reasons identified in the majoritys opinion, I agree that the elements of the Massachusetts offense of indecent assault and battery on a person over fourteen years of age are not substantially similar to the elements of the Texas offense of sexual assault.
I do not agree, however, with the major-itys conclusion that the Sex Offender Registration Act (SORA) 1 allows consideration of the “facts and circumstances” underly *540 ing out-of-state criminal convictions in certain “unusual cases.” While I recognize that this Court’s opinion in Texas Department of Public Safety v. Garcia 2 expanded SORA’s inquiry to look into the conduct underlying the out-of-state conviction, I find no support for that expansion in SORA’s text. The plain language of SORA confínes the inquiry to whether the elements of the out-of-state offense are “substantially similar” to the elements of a SORA offense. 3 In that respect, I would have decided Garcia differently.
Accordingly, I join in the judgment and, with these qualifications, the majority’s opinion. 4
. Tex.Code Crim. Proc. Ann. arts. 62.001-408 (West 2006 & Supp.2011).
.Texas Department of Public Safety v. Garcia, 327 S.W.3d 898, 905-06 (Tex.App.-Austin 2010, pet. denied).
. See Tex.Code Crim. Proc. Ann. art. 62.001(5)(H).
. Justice Pemberton joins in this concurrence.