EX PARTE Jonathan Hoss KIBLER, Applicant
Has a person convicted of multiple charges of indecency with a child in the same proceeding received one reportable conviction or adjudication “before or after” another, such that the person has a duty to register as a sex offender for life? Yes. Article 62.101(a)(4) of the Code of Criminal Procedure, which establishes when the duty to register as a sex offender expires, does not require that one conviction be final before the second conviction is received. Thus, a sex offender can be required to register for life if he or she receives two separate convictions for the offense of indecency with a child, even if they are adjudicated in the same proceeding.
The parties in this case have entered an agreed stipulation to the facts, and the habeas court has made findings pursuant to those stipulations. In 2002, a grand jury returned two indictments in two separate cause numbers each charging Applicant with three counts of aggravated sexual assault of a child. Pursuant to a plea agreement, Applicant pleaded guilty to two charges of indecency with a child by exposure as alleged in count three in each cause number.1 Count three of both indictments alleged conduct that was committed on the same day, March 1, 2000, but against different victims. The trial court accepted the plea agreements and placed Applicant on deferred adjudication community supervision for a concurrent period of eight years in each case on February 20, 2003. One of the conditions of Applicant's probation required him to comply with the Sex Offender Registration Program.
In 2006, the State filed motions to adjudicate Applicant's guilt in both cases. On March 1, 2007, Applicant entered negotiated pleas of “true” to the allegations contained in each of the State's motions to adjudicate. During the same proceeding, the trial court adjudicated Applicant guilty and sentenced him to two years confinement in the Institutional Division of the Texas Department of Criminal Justice in each case, with the sentences to run concurrently. Applicant did not appeal his convictions. Applicant presents no reporter's record of either the plea or adjudication proceedings, but the parties have stipulated that Applicant received one conviction “contemporaneously” with the other.
After discharging his sentences in 2008, Applicant received conflicting information regarding the duration of his duty to register as a sex offender. In 2013, an attorney with the Texas Department of Public Safety and Debbie Nemeth, a field representative with the Texas Department of Public Safety's “Sex Offender Registration Unit,” separately advised Applicant by email that he was required to register for life based on his two convictions for indecency with a child. But in 2015, Nemeth sent an email to a sex offender registrar employed by the Sheriff's Department of Tom Green County, where Applicant was residing. Nemeth asked the registrar to correct the website for the Texas Sex Offender Registry to show Applicant as only being required to register as a sex offender for ten years, with an ending registration date of March 12, 2018. Later that year, the State's registry and database were updated accordingly and identified Applicant as a person required to register as a sex offender for ten years, not life. In 2018, however, officials with the Texas Sex Offender Registration Bureau, a division of the Texas Department of Public Safety, informed Applicant once again that he was required to register for life.
Contemporaneous vs. Simultaneous
Applicant filed this application for a writ of habeas corpus, alleging that he is being improperly required to register as a sex offender for life based on an erroneous interpretation of Article 62.101(a)(4) of the Texas Code of Criminal Procedure. The trial court entered findings of fact and conclusions of law and recommended that Applicant be denied relief. We filed and set the application to consider whether a person who receives multiple convictions in the same proceeding for two separate offenses of indecency with a child has received one conviction “before or after” the other.
Much of the persuasive force of Applicant's arguments flows from his assertion that he was convicted of or adjudicated for the two separate offenses “simultaneously.” However, Applicant has not established that fact.2 The agreed fact-finding regarding the plea hearing recites that Applicant “simultaneously” entered “a plea” of guilty to both offenses at the same plea hearing. However, there is no reporter's record of the plea proceedings to support the contention that he was simultaneously placed on deferred adjudication community supervision for both offenses. Rather, the agreed findings note that the trial court followed the State's recommendation “and entered an order in each case accordingly,” suggesting that Applicant was not placed on deferred adjudication in each case “simultaneously.”
Similarly, the fact finding regarding the adjudication proceeding only recites that Applicant was adjudicated guilty and “convicted” in each case “contemporaneously the same day (during the same proceeding).” While the word “contemporaneous” can include situations where two events occur “simultaneously,” it also encompasses situations in which two events occur during a period of time.3 The most these findings establish is that Applicant was convicted and adjudicated in each case within the same proceeding. Consequently, we need only answer in this case whether the legislature's use of the phrase “before or after” in Article 62.101(a)(4) precludes reliance upon two convictions obtained contemporaneously in the same proceeding. As we will explain in greater detail below, we hold that it does not.
Standard of Review
On post-conviction review of habeas corpus applications under Article 11.07 of the Texas Code of Criminal Procedure, the convicting court is the “original factfinder,” but this Court is the ultimate fact finder.4 The habeas court's findings of fact are not automatically binding upon us, but we will ordinarily defer to and accept them if they are supported by the record.5 When reviewing the habeas court's legal conclusions, we apply a de novo standard of review.6
This case primarily involves a question of statutory interpretation. Statutory construction is a question of law that we review de novo.7 When we interpret statutes, we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation.8 In so doing, we necessarily focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of the text at the time of its enactment.9 In interpreting the text of the statute, we must presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.10 We do not focus solely upon a discrete provision; we look at other statutory provisions as well to harmonize provisions and avoid conflicts.11 And we construe a statute that has been amended as if it had originally been enacted in its amended form, mindful that the legislature, by amending the statute, may have altered or clarified the meaning of earlier provisions.12
No one disputes that Applicant was required to register as a sex offender based on his two convictions for indecency with a child. Chapter 62 of the Texas Code of Criminal Procedure governs the Texas Sex Offender Registration Program. Article 62.051 imposes a duty to register on a person who has a reportable conviction or adjudication.13 And a conviction for indecency with a child in violation of Section 21.11 of the Penal Code is a reportable conviction, under both current law and the law in effect at the time Applicant committed the offenses in 2000.14 Accordingly, Applicant was required to register as a sex offender.
Instead, the dispute in this case centers solely on the duration of Applicant's duty to register as a sex offender. Generally, a person's duty to register extends for one of two time periods—either ten years or the person's lifetime—depending on certain conditions.15 These two alternatives for the expiration of the duty to register have existed since 1997 and have remained the same throughout the relevant time periods pertaining to this case.16 However, the conditions warranting lifetime registration, as opposed to the 10-year registration period, have evolved over the years.
Under the law in effect at the time Applicant committed the underlying offenses, Applicant's duty to register would be limited to ten years. As it read in 2000, then-Article 62.12 imposed a lifetime registration requirement only on a person with a reportable conviction or adjudication for a “sexually violent offense” or for one of three specifically enumerated offenses, which did not include indecency with a child.17 Moreover, the definition of a “sexually violent offense” did not include indecency with a child by exposure.18 Because Applicant's offenses were not defined as sexually violent offenses at the time he committed the offenses, Applicant's duty to register as a sex offender would end on the 10th anniversary of the date on which the court discharged community supervision.19
At the time Applicant pleaded guilty and was placed on deferred adjudication, another version of the statute was in effect as a result of a legislative amendment to Article 62.12(a) in 2001.20 As amended, the statute provided that a person with a reportable conviction for indecency with a child by exposure was required to register as a sex offender for life “if before or after the person is convicted or adjudicated for the offense under Section 21.11(a)(2), Penal Code, the person receives or has received another reportable conviction or adjudication, other than an adjudication of delinquent conduct, for an offense or conduct that requires registration under this chapter ․”21 This amendment applies to an offense committed before, on, or after the effective date of the Act, which was September 1, 2001.22 Thus, this version of the statute applies to Applicant regardless of the fact that he committed the offenses at issue prior to the effective date of the statute.23 The substance of this amendment remained in effect in 2007, when Applicant was adjudicated guilty, convicted, and sentenced to prison, though the 79th Legislature had renumbered the statute from Article 62.12 to Article 62.101 in 2005.24 The current statute contains the same language.25 Because the two statutes are identical in relevant part and this opinion will apply to the new statute, we will refer to the current statutory provision, Article 62.101(a)(4), in our analysis as Applicant does.
Therefore, Applicant's duty to register as a sex offender continues for his lifetime if “before or after” he was adjudicated or convicted for one offense of indecency with a child by exposure, he “received” another reportable conviction or adjudication for a reportable offense.26 Applicant argues that the “before or after” language in Article 62.101(a)(4) precludes reliance upon two convictions for indecency with a child that were both “received” during the same proceeding to establish a duty to register as a sex offender for life. We disagree.
Considering the words “before” and “after” as they appear in the statute, we apply the ordinary meaning to each word unless they have acquired a technical meaning.27 These words are not defined in the statute and have not otherwise acquired any technical meaning. Consequently, we must discern their ordinary meaning. The Merriam-Webster Dictionary defines “before” to mean “in advance” or “at an earlier time.”28 And it defines “after” as “following in time or place.”29
Reading the text in context, the legislature's use of “before” and “after” reflects an understanding of the practical realities of plea practice. A trial court has discretion on how to control its docket and can consider multiple cases in separate proceedings or in the same proceeding.30 But even when the trial court considers separate cases in the same proceeding the trial court will still recite one cause number before the other. The legislature did not need to allow for a simultaneous receipt of a conviction in the text of the statute because, as a practical matter, one conviction will be received either before or after the other.
Further, this interpretation of the text is bolstered by the absence of limitations on the broad applicability of the words “before” or “after.” Compared to other statutes that require the sequential commission of offenses, Article 62.101(a)(4) contains no language requiring that the underlying offenses be committed sequentially. There is no requirement that the imposition of two or more convictions be in a specific order relative to the commission of the underlying offenses. The text does not require that the defendant receive each conviction on a different day or in a separate proceeding. Simply put, we do not believe the legislature's use of “before or after” in the statute suggests a categorical exemption from the lifetime registration requirement for sex offenders who have been convicted of two indecency-with-a-child offenses simply because both convictions were “received” during the same proceeding. To hold to the contrary, we would have to re-write the statute to say either “at least a day before or after” or “before or after the proceeding in which the person is convicted or adjudicated.”
Moreover, writing this type of “separate day” requirement into the statute would subject defendants with identical criminal histories to different registration requirements. As mentioned above, the text of the statute does not tie the length of the registration requirement to the commission of the offense or the finality of a particular conviction. Instead, the statute ties it to the receipt of a reportable conviction or adjudication. Under Applicant's reading of the statute, a defendant who receives a conviction for indecency with a child by exposure and some other reportable conviction will only be required to register as a sex offender for ten years if the defendant receives both in the same proceeding. But a defendant who receives those same two reportable convictions will be required to register for life if he receives each one on a different day. This is the type of absurd outcome the legislature could not have possibly intended.31
In the context of sentencing enhancement, the legislature has used specific language to prohibit the State from using multiple convictions obtained in the same proceeding for enhancement purposes by specifically tying the propriety of enhancement to both the commission of the underlying offense and the finality of the conviction. For example, enhancement under Section 12.42(d) of the Texas Penal Code clearly requires that a defendant not only receive multiple convictions in a specific, sequential order, but also that the defendant must commit the second offense after the conviction for the first offense becomes final. Section 12.42(d) provides in relevant part:
[I]f it is shown on the trial of a felony offense ․ that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.32
In explaining how Section 12.42(d) operates, we have said that “[t]he sequence of events must be proved as follows: (1) the first conviction becomes final; (2) the offense leading to a later conviction is committed; (3) the later conviction becomes final; (4) the offense for which defendant presently stands accused is committed.”33 In this way, the legislature foreclosed enhancement of a defendant who received multiple convictions in the same proceeding. By comparison, the language in Article 62.101(a)(4) is nowhere near as explicit.
Section 12.425 of the Penal Code provides another useful illustration. In Campbell v. State, we interpreted the language of then-Section 12.42(a), which was later moved to Section 12.425.34 The relevant language of the statute read as follows:
(a)(1) If it is shown on the trial of a state jail felony ․ that the defendant has previously been finally convicted of two state jail felonies, on conviction the defendant shall be punished for a third-degree felony.
(2) If it is shown on the trial of a state jail felony ․ that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.35
We concluded in Campbell that subsection (a)(1) [now Section 12.425(a)] did not contain a sequential requirement, while subsection (a)(2) [now Section 12.425(b)] did.36 We reasoned that, “by failing to include the language used elsewhere in the Penal Code, including subsection (a)(2), to specify a specific order of the prior offenses, the legislature chose not to require that the prior state jail felony convictions be sequential.”37 “Thus, under subsection (a)(1), the state must prove that there are two prior final convictions for state jail felonies, but does not need to prove that the prior convictions occurred sequentially, as it must under subsection (a)(2).”38 In this way, the text of subsection (a)(2) specifically forecloses the State from enhancing a defendant with two prior state jail felony convictions received in the same proceeding, while (a)(1) does not.
In contrast, Section 49.09(b) of the Penal Code does not contain sequential language. Section 49.09(b) provides:
(b) An offense under Section 49.04, 49.045, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:
(1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or
(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.39
In Gibson v. State, we found that this language only required “a showing that a defendant has been convicted twice before for offenses relating to the operation of a motor vehicle, aircraft or watercraft while intoxicated.”40 In reaching this conclusion, we compared the language of Section 49.09 to Section 12.42(d).41 We reasoned that, “[i]n writing this statute, the Legislature did not say the convictions had to occur in a specified order, or that they needed to arise from separate transactions. The Legislature expressed only that the State must prove a defendant had two prior convictions for intoxication-related offenses.”42
The same reasoning applies here. We have said that the rules of statutory construction require us “to presume that the Legislature selected and used language in a careful and deliberate manner[,]” and “[t]he same rules should apply to the failure of the Legislature to include language.”43 We have also said that “when the Legislature desires to convey a certain level of specificity within a statutory provision, it knows how to do it.”44 Had the legislature intended to foreclose reliance upon two prior convictions obtained in the same proceeding to determine when the duty to register as a sex offender expires, it could have crafted the statute to do so, as it did in both Section 12.42(d) and Section 12.425(a)(2) of the Penal Code.45 The legislative choice to use less explicit language in Article 62.101 suggests that the legislature did not intend to preclude reliance upon the receipt of a conviction for indecency with a child and another reportable conviction or adjudication in the same proceeding when determining the expiration of a duty to register as a sex offender.46
Applicant, however, argues that the legislature intended to exempt sex offenders who commit indecency with a child by exposure and another reportable offense from lifetime registration because there is some language in the statute requiring sequential ordering of the convictions. Applicant points to the legislature's use of the phrase “before, on, or after” in the bill amending the statute as justification for his position that the legislature's failure to include “on” in the relevant subsection shows an intent to exclude situations in which two convictions are received in the same proceeding.47 We acknowledge that the language in the statute can cover situations involving sequential convictions, but we disagree that this language affirmatively excludes reliance upon convictions or adjudications obtained or received in the same proceeding.
As discussed above, the text of the statute does not specifically foreclose situations in which a defendant receives multiple convictions in the same proceeding. The legislature has demonstrated its ability to draft statutes that completely foreclose use of multiple convictions received in the same proceeding, albeit in the context of sentence enhancement.48 In the statute at issue in this case, the legislature did not write into the statute a specific requirement that either conviction must be final or that each conviction must be received in separate proceedings for the Texas Department of Public Safety to determine when the duty to register as a sex offender expires.
Moreover, the legislature's use of the “before or after” language does not foreclose the possibility that a defendant could receive one conviction for indecency with a child either before or after another one even within the same proceeding. As a practical matter, in accepting a plea bargain that disposes of multiple charges, a trial judge has the ability to make a finding of guilt and assess punishment in each case individually, even while doing so within the same proceeding.
Further, as discussed above, Applicant has not established as a matter of fact that he received both convictions for indecency with a child at the same time. Consequently, we need only address the question of whether Applicant's contemporaneous receipt of two indecency-with-a-child convictions within the same proceeding satisfies the “before or after” language in the statute. And, without a record of the adjudication proceeding, we cannot say that Applicant's “contemporaneous” receipt of both adjudications during the same proceeding falls outside the text of the statute's requirement that receipt of one adjudication occur either “before or after” the other.49
Finally, we disagree with Applicant's argument that the common-law rule for calculating time requires us to construe events that occur on the same day as taking place “at the same time” for purposes of analyzing the statute at issue. In Hyde v. White, the Texas Supreme Court recognized that, for questions involving the computation of time, “the law recognizes no fraction of a day.”50 But this case does not involve a question about the computation of time; it involves a question about the priority of acts done in the same day, which, as the Supreme Court recognized in Hyde, was a different inquiry than the computation of time.51 The other cases cited by Applicant are similarly distinguishable because they address computation of time, which is not at issue here.52
This case is not about when Applicant's sentences began to run, or when the duty to register as a sex offender commenced. It is about when Applicant's duty to register as a sex offender expires. By statute, the duty to register as a sex offender is not affected by a defendant's appeal or even a pardon.53 That is because the duty to register as a sex offender is not a criminal sanction, and statutes imposing such a duty were enacted amid public outcry that sex offenders were particularly likely to re-offend and that the communities in which sex offenders lived were entitled to be warned of the offender's presence in order to protect themselves from future harm.54 So while the text of various punishment enhancement statutes may provide useful analogies regarding the interpretation of statutory text, those illustrative analogies do not turn a non-punitive sanction into an enhanced sentence. The text of the statute at issue in this case does not tie the determination of the expiration of a duty to register as a sex offender to the day that the sentence for a prior reportable conviction or adjudication begins to run. Accordingly, we disagree with Applicant that we should apply precedent regarding when a sentence commences to the interpretation of statutory text involving an order or sequence of events. We see no conflict between our holding in this case and the common-law rule regarding the computation of time.
We also disagree that our reading of the statute will place an undue burden on the Texas Department of Public Safety (DPS) in determining when a duty to register as a sex offender expires. Indeed, in this case DPS was able to ascertain, without the aid of a clerk or reporter's record, when Applicant's duty to register as a sex offender expired. Further, this issue will only arise when courts deal with two discrete types of offenses. First, this case will apply when a defendant receives a conviction for indecency with a child by exposure along with another reportable conviction or adjudication on the same day. Second, this case would apply when a defendant receives a conviction for unlawful restraint, abduction, or aggravated kidnapping (without the intent to violate or abuse the victim sexually) against a child along with an additional reportable conviction or adjudication on the same day. This case would not impact cases in which those reportable convictions are received on different days. We are not persuaded that DPS will be unduly burdened by having to ascertain when a defendant's duty to register expires in these discrete situations.
However, if we are to assume that these scenarios will arise so often that they would be unduly burdensome to DPS, then it is worth noting that applying Applicant's reading of the statute would likely place an undue burden on trial courts. For example, Applicant's reading would require trial courts to coordinate with counsel to facilitate two different pleas on two different days. It would require a defendant to appear in court on two separate days, sometimes with transportation arrangements secured by the trial court. And it will likely increase county budgets to cover reimbursement for the additional plea proceedings. If we can accept these administrative burdens for one interpretation of the statute, we can accept the other.
Ultimately, however, we are not in a position to construe the statute in a manner that substitutes what we believe is right or fair for what the legislature has written.55 “[J]udicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.”56 Consequently, we are not at liberty to disturb the legislature's policy decision in this case.
Accordingly, we conclude that Article 62.101(a)(4) does not require that multiple convictions for indecency with a child by exposure occur in separate proceedings to subject a person with multiple reportable convictions to a lifetime duty to register as a sex offender. Applicant's two convictions for indecency with a child by exposure qualify as first and second reportable convictions requiring lifetime registration under Article 62.101(a)(4). Consequently, Applicant is not entitled to habeas corpus relief. Applicant's post-conviction writ is denied.
I agree with most of the Court's plurality opinion today, but there are several passages with which I simply cannot agree. First, I object to the way the plurality frames its approach to statutory interpretation. Plurality Opinion at ––––, –––– – ––––. And second, I disagree with the plurality's perpetuation of what I consider to be an incorrect construction of Section 12.42(d) of the Texas Penal Code. Plurality Opinion at –––– – –––– (discussing Tex. Penal Code § 12.42(d)). As a result, even though I agree with the plurality's ultimate holding, and most of its rationale, I can ultimately only concur in the result it reaches.
I. Legislative Intent
The plurality frames its approach to statutory construction in terms of effectuating the collective intent of the legislature. See Plurality Opinion at –––– (“When we interpret statutes, we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation.”) (emphasis added); id. at –––– – –––– (“The legislative choice to use less explicit language in Article 62.101 suggests that the legislature did not intend to preclude reliance upon the receipt of a conviction for indecency with a child and another reportable conviction or adjudication in the same proceeding when determining the expiration of a duty to register as a sex offender.”) (emphasis added). I do not agree that statutory interpretation should be a matter of judges discerning amorphous legislative intent. See Antonin Scalia & Bryan A. Garner, Reading Law: the Interpretation of Legal Texts 394 (2012) (“[R]eferences to intent have led to more poor interpretations than any other phenomenon in judicial decision-making.”). We should not be “seek[ing] to effectuate” anyone's “intent or purpose” unless that simply means construing and giving meaning to the words that are “the literal text of the statute in question[.]” Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991); see also Lang v. State, 561 S.W.3d 174, 187–88 (Tex. Crim. App. 2018) (Yeary, J., dissenting) (“I continue to believe that, if the literal language and structure of a statute render it of sufficient clarity that its proper construction cannot be reasonably doubted, it would improperly encroach upon the Legislative Department for this Court to engage in further construction of it.”).
Courts seeking to ascertain legislative intent beyond the plain statutory text risk injecting the judiciary's estimation about policy choices into every possible matter involving statutory interpretation, degrading the Legislature's constitutional prerogative to make the law. In this case, the statute's words—“before or after”—mean what they say, not something else the Legislature perhaps may have intended them to mean. Tex. Code. Crim. Proc. art. 62.101(a)(4). To the degree that Boykin says what the plurality relies on it for, and with specific reference to the part of that opinion with which I take issue here, I believe Boykin should be abrogated. We should stop saying that our purpose is to effectuate legislative intent.
II. Penal Code § 12.42(d)
The plurality also quotes two prior cases interpreting “how Section 12.42(d) [of the Penal Code] operates[.]” Plurality at –––– – –––– & n.33 (citing Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987) (en banc), and Jordan v. State, 256 S.W.3d 286, 290–91 (Tex. Crim. App 2008)). By doing so, the plurality continues to perpetuate an incorrect interpretation of Section 12.42(d)—that the felony on trial must have been committed after the second enhancing felony became final. This interpretation is a perfect example of reading a requirement into a statute that simply does not exist in its text.1 See Ex parte Westerman, 570 S.W.3d 731, 737, 738 (Tex. Crim. App. 2019) (Yeary, J., dissenting) (“Nothing in Section 12.42(d) requires that ‘the offense for which defendant presently stands accused’ must be committed after the second (more recent) enhancing conviction becomes final.”) (citing Tomlin, 722 S.W.2d at 705).
I agree with the plurality that “Article 62.12(a)(4) contains no language requiring that the underlying offenses be committed sequentially[,]” that “the imposition of two or more convictions be in a specific order relative to the commission of the underlying offenses[,]” or “that the defendant receive each conviction on a different day or in a separate proceeding.” Plurality Opinion at –––– – –––– (emphasis added). I only wish that, over the years, the Court had similarly construed Section 12.42(d) of the Penal Code, according to its plain literal terms.
But for these objectionable and, moreover, superfluous passages, I could have joined the plurality opinion. Instead, I must respectfully concur only in its result.
Under the sex-offender registration statute, Appellant's convictions subject him to lifetime registration only if one of the convictions is “before or after” the other. The Court concludes that one of the convictions can be “before or after” the other if the judge pronounced judgment on one of them before the other, even if both pronouncements occurred on the same day in the same proceeding. This holding is at odds with the general principle that judicial acts occurring on the same day are considered to have occurred at the same time. The Court contends that this case involves the “priority” exception to that general principle, but I think it does not. Moreover, the Court's holding imposes a burden on registration authorities that the legislature almost certainly did not contemplate: the need to review a court-reporter's record to determine how long someone is required to register.
Lifetime registration is required for “a reportable conviction ․ for ․ an offense under Section 21.11(a)(2) ․ if before or after the person is convicted ․ for the offense under Section 21.11(a)(2), ․ the person receives or has received another reportable conviction ․ for an offense or conduct that requires registration under this chapter.”†1 The question before us is: What does it mean to say that one conviction is “before or after” another conviction?
Ordinarily, when the law computes time, everything that happens on a particular day is considered to have happened at the same time. Lord Coke espoused the principle that “regularly the law maketh no fraction of a day.”2 The United States Supreme Court has explained: “For most purposes the law regards the entire day as an indivisible unit.”3 The Supreme Court also articulated the “priority” exception to that general principle: “But when the priority of one legal right over another, depending upon the order of events occurring on the same day, is involved, this rule is necessarily departed from.”4 In Hyde v. White, the Texas Supreme Court pointed out that, usually, when judicial interpretations are involved, a “day” is not considered a “measure of time” but is “a mere point of time,” as long as “the priority of several acts, done on the same day, do not have to be adjudged.”5
The Court says that this case involves a “priority” issue so that the rule against fractions of a day does not apply. In doing so, the Court construes “priority” as referring simply to what act is prior in time. But as the Supreme Court has explained, the “priority” at issue here is “the priority of one legal right over another.” This priority issue arises when two acts occur on the same day and the question is which act controls over the other.6 For instance, if two liens are filed on the same day, we need to know which is first to determine which is the superior lien.7 The present case does not involve an issue of the priority of legal rights. We are not trying to determine whether one sex-offense judgment has controlling effect over a different sex-offense judgment. There is no sense in which the judgments compete against each other, so as to require giving effect to one and not the other or preference to one over the other. To the contrary, it is the effect of the conjunction of the two judgments that is at issue in this case.
If the legislature wanted to allow the two convictions to trigger lifetime registration when they occurred on the same day, it had a number of options. If the legislature really intended the mere presence of an extra conviction to be determinative, it could have simply omitted the “before or after” language from the sex-offender statute. The statute could have provided that lifetime registration occurs for “a reportable conviction ․ for ․ an offense under Section 21.11(a)(2) ․ if ․ the person has another reportable conviction ․ for an offense or conduct that requires registration under this chapter.” Or the legislature could have added “on” to the “before or after” phrase, which, as Applicant points out, is how the legislature phrased the savings clause for the enacting act that added this provision.8
Given the rule that fractions of a day are not generally recognized, it is unlikely that the legislature intended to impose lifetime registration for two convictions that occur on the same day, but not if those two convictions were received in the same proceeding. In the unlikely event that the legislature did intend such a thing, it could have added a phrase to clarify that (“if ․ the person has another reportable conviction ․ for an offense or conduct that requires registration under this chapter unless both convictions are received in the same proceeding”). The joinder statute shows that the legislature knows how to attach consequences to trying or not trying cases in the same proceeding.9 And I think it is unlikely that the legislature intended to impose lifetime registration for a defendant sentenced on the same day in the same proceeding but not if the judge simultaneously pronounces judgment on both offenses. But if the legislature did intend such a thing, it could have added a phrase to clarify that (“if ․ the person has another reportable conviction ․ for an offense or conduct that requires registration under this chapter unless both convictions are pronounced simultaneously”).
And the Court's holding places an unexpected burden on the authorities. At some point, local law enforcement or the Department of Public Safety has to verify whether a convicted person's duty to register has expired.10 The obvious, relatively easy, way to verify whether one conviction is before or after another, so as to determine whether lifetime or ten-year registration applies, is to look at the judgments in both convictions. Even without the actual judgment, authorities will likely be able to determine what the offenses were and the dates of the convictions. But if “before or after” means something other than different days, then authorities will have to review court records to determine whether the registration period has expired. If “before or after” can include separate proceedings on the same day, then authorities might have to look at a docket sheet or a court reporter's record to get the pertinent information. And if “before or after” means what the Court says it means—everything other than a simultaneous pronouncement of judgment—then, whenever two of these types of convictions occur on the same day, authorities will have to scrutinize a court reporter's record just to eliminate the extremely unlikely possibility of a simultaneous pronouncement. I think it unlikely in the extreme that the legislature intended this.11
To support its claim that “before or after” does not impose a sequential requirement regarding the dates of conviction, the Court points to our construction of two statutes that specified two prior convictions enhancing a third offense in some way. Neither of these examples supports the Court's position, and in fact, both are contrary to it. First, the Court points to a state-jail-felony enhancement provision stating that if the defendant has “previously been finally convicted of two state jail felonies,” the defendant would be punished for a third-degree felony.12 Second, the Court points to a statute providing that DWI is a felony offense if “the person has previously been convicted two times” of an offense relating to the operating of a motor vehicle while intoxicated.13 In both cases, the Court points out that we held that the two prior convictions did not have to be final or sequential with respect to each other.14
But that is because there is no language in either of these enhancement statutes suggesting that one of the two prior convictions had to occur before the other. So, when a particular part of statute specifies no time requirement at all, then the relevant acts can occur on the same day. For example, because the felony DWI statute does not require either of the two prior convictions to precede the other, they can occur on the same day. But the sex-offender registration statute does contain a time requirement with respect to the two convictions to which it refers—one conviction must be “before or after” the other.
Pointedly, the two enhancement statutes discussed by the Court do contain temporal language—the prior convictions were in fact prior convictions, having to be prior to the primary offense. And it would not be possible under either statute for the third conviction (for the primary offense) to occur on the same day as the two prior convictions. The state-jail enhancement statute specified that the two prior convictions had to be final at the time of the trial of the third offense. The DWI enhancement statute simply specified that the two prior convictions had to be “previous,” but a different subsection of the statute references the finality of prior convictions,15 and because the prior convictions are elements of the offense of felony DWI, they would have to be “final” before the commission of the third DWI, or else an indictment for felony DWI could be undone by a reversal of a non-final prior conviction on direct appeal. We have said that our construction of a statute should avoid “the potential for making an indictment's enhancement allegations untrue.”16
The Court says that the legislature knew how to impose a sequential finality requirement because it has done so in some statutory provisions but not others. The Court's contention in that regard is not entirely accurate. In Arbuckle v. State, we held that, when a prior conviction was used to enhance the punishment of a subsequent offense, the term “conviction” in the statute meant “final conviction.”17 More recently, with respect to the general prior-conviction enhancement statute, Penal Code § 12.42, we said about the principle articulated in Arbuckle, “[W]e have always held that prior convictions must be final under the statute, even for those provisions that did not contain the word ‘final.’”18 So, this Court has regularly construed a finality requirement when the statute merely specified that a conviction must occur before another offense. For those statutes, the construed finality requirement means that it is never possible for a prior conviction to occur on the same day as the primary conviction that is being enhanced.
So when the issue is the relationship between a prior offense and the primary offense, we have construed a finality requirement as to the prior offense regardless of whether one is explicitly in the statute. But when the issue is the relationship of prior offenses with each other, we have seen two situations: (1) the legislature expressly imposing a sequential finality requirement, and (2) the legislature declining to impose a sequential requirement of any kind. What we have not seen is a middle ground in which the legislature imposes a sequential requirement for prior offenses with each other without also imposing a finality requirement. That is probably because, if the legislature were to draft language saying that prior offenses must be sequential with each other, we would likely impose a finality requirement under the Arbuckle rule of construction.
The sex-offender registration chapter contains a provision that might eliminate any requirement of finality. Article 62.002 provides that the duty to register is not affected by an appeal of the conviction.19 Assuming this means that there is no finality requirement attaching to a “conviction” occurring “before or after” another “conviction,” under the registration statute, that still does not mean that the convictions can occur on the same day. The Court sets up a false choice when it says that the words “before or after” must either incorporate notions of finality or else be broad enough to encompass actions that may be mere seconds apart. A middle ground between those positions is obvious: Article 62.002 might supersede the usual rule that the word “conviction” means “final conviction” but it does not displace the usual rule that actions occurring on the same day are treated as occurring at the same time. Under that middle ground, neither conviction would have to be final as to each other, but each conviction would have to occur on a different day, even if they were only a day apart.
To summarize: The general rule is that events occurring on the same day are treated as occurring at the same time. The case before us is not a “priority” case where we have to decide which of two events takes precedence over the other. The legislature could have crafted the language of the statute to avoid the result Applicant is arguing for, but it did not, despite the fact that the savings provision of the enacting statute contains the type of language it could have used. The Court's construction of the statute allows for an exception to lifetime registration in the two-conviction scenario that is so limited that it is hard to believe that was the intent of the legislature. And the Court's construction imposes a burden on law enforcement to scrutinize a court reporter's record just in case the trial judge's pronouncement of judgment fits that limited exception.
I agree with Applicant. His convictions, occurring on the same day, were not “before or after” each other. I respectfully dissent.
Today, in construing Texas Code of Criminal Procedure art. 62.101(a)(4), the majority essentially holds that two convictions or adjudications occurring in the same criminal proceeding will invariably occur “before or after” one another which, in specified sex cases, results in a lifetime sex offender registration requirement. I cannot agree. Our principles of statutory construction state that “[w]e presume that the legislature intended for every word to have a purpose, and we should give effect if reasonably possible to each word, phrase, and clause of the statutory language.” Sims v. State, 569 S.W.3d 634, 640 (Tex. Crim. App. 2019). Under the majority's reasoning, the convictions would have to occur “simultaneously”—at the same, exact, discrete point in time—to not be considered “before or after” one another. The problem with the majority's reasoning is that it does not actually leave room for two convictions to occur simultaneously, as there will always be aspects of one case that will be articulated before the other. For example, if a judge adjudicates an individual for two offenses in one proceeding, the judge will still repeat one cause number before the other, even if pronouncing guilt on both cause numbers in the same breath. The majority's opinion would not consider this to be simultaneous; simultaneous convictions would be nearly, if not completely, impossible.
If the Legislature intended for an indecency with a child conviction to result in an automatic life registration requirement if the defendant has another reportable conviction, it would have said so; it would not have included the temporal “before or after” requirement. The majority did not say, and I do not believe, that the article in this case is ambiguous. And “[w]here the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed[.]” Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (quoting Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991)). Here, if we accept the majority's reasoning, there was no reason for the Legislature to express a “before or after” requirement at all.
In following our principles of statutory construction, we must presume that the Legislature used the words “before or after” for a purpose. See Sims, 569 S.W.3d at 640. It seems clear to me that the purpose was to leave open the possibility of two simultaneous guilty pleas without the result of a lifetime sex offender registration requirement.1 In order to respect this purpose and to avoid rendering the Legislature's language superfluous, we should interpret the statute to find that convictions or adjudications occurring in a singular proceeding occur at the same time—not before or after one another. Because I believe the majority's interpretation violates our statutory construction principles and does not give effect to the Legislature's expressed language, I respectfully dissent.
1. See Tex. Pen. Code § 21.11(a)(2). Indecency with a child by exposure is a lesser-included offense of aggravated sexual assault of a child. See Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009) (holding, in the context of a double-jeopardy claim, that indecency with a child is a lesser-included offense of aggravated sexual assault of a child when both offenses are predicated on the same act).
2. See, e.g., Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002) (“To prevail upon a post-conviction writ of habeas corpus, applicant bears the burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief.”); Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016) (same).
3. Bryan A. Garner, Garner's Modern Legal Usage 212 (2016) (“Contemporaneous does not mean precisely “simultaneous”; rather it means ‘belonging to the same time or period; occurring at about the same time.’ ”). For example, the “contemporaneous objection” rule necessarily contemplates that an objection can be lodged before error occurs and yet the objection is still considered “contemporaneous.” See e.g., Ex parte Medellin, 280 S.W.3d 854, 860 (Tex. Crim. App. 2008) (“[A] contemporaneous objection permits the trial judge to remedy potential error before it occurs.”).
4. Ex parte Kussmaul, 548 S.W.3d 606, 634 (Tex. Crim. App. 2018).
5. Id.; Ex parte Garcia, 353 S.W.3d 785, 787–88 (Tex. Crim. App. 2011) (citing Ex parte Reed, 271 S.W.3d 698, 727–28 (Tex. Crim. App. 2008)).
6. Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App. 2015).
7. Watkins v. State, 619 S.W.3d 265, 273 (Tex. Crim. App. 2021) (citing Ramos v. State, 303 S.W.3d 302, 306 (Tex. Crim. App. 2009)).
8. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
10. State v. Rosenbaum, 818 S.W.2d 398, 400–01 (Tex. Crim. App. 1991) (citing Tex. Gov't Code §§ 311.025(b), 311.026(a)); State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997).
11. See, e.g., Murray v. State, 302 S.W.3d 874, 877–79 (Tex. Crim. App. 2009) (interpreting the phrase “included in the indictment” in Article 4.06 of the Code of Criminal Procedure after considering Articles 37.08 and 37.09 of the Code of Criminal Procedure).
12. Powell v. Hocker, 516 S.W.3d 488, 493 (Tex. Crim. App. 2017); see also Mahaffey v. State, 316 S.W.3d 633, 642 (Tex. Crim. App. 2010) (citing Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005)).
13. Tex. Code Crim. Proc. art. 62.051(a).Article 62.051 was renumbered from its predecessor, Article 62.02, in 2005. See Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385, 3392. Article 62.02, as it read in 2000 when the underlying conduct occurred in this case, similarly imposed a duty to register on a “person who has a reportable conviction or adjudication.” See Act of May 27, 1999, 76th Leg., R.S., ch. 1415, § 10, 1999 Tex. Gen. Laws 4831, 4835 (codified at Tex. Code Crim. Proc. art. 62.02).
14. See Tex. Code Crim. Proc. art. 62.001(5)(A); Tex. Code Crim. Proc. art. 62.01(5)(A) (West 2000). Article 62.01 was renumbered to Article 62.001 in 2005. See Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385, 3386.
15. See Tex. Code Crim. Proc. art. 62.101.
16. Compare Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1, 1997 Tex. Gen. Laws 2253, 2261 (codified at Tex. Code Crim. Proc. art. 62.12), with Tex. Code Crim. Proc. art. 62.101.
17. See Tex. Code Crim. Proc. art. 62.12 (West 2000), as amended by Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1, 1997 Tex. Gen. Laws 2253, 2261.
18. See Tex. Code Crim. Proc. art. 62.01(6) (West 2000), as amended by Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1, 1997 Tex. Gen. Laws 2253, 2254.
19. See Tex. Code Crim. Proc. art. 62.12(b) (West 2000), as amended by Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1, 1997 Tex. Gen. Laws 2253, 2261.
20. See Tex. Code Crim. Proc. art. 62.12(a)(3) (West 2001), as amended by Act of May 8, 2001, 77th Leg., ch. 211, § 12, 2001 Tex. Gen. Laws 399, 402.
22. Act of May 8, 2001, 77th Leg., ch. 211, § 22, 2001 Tex. Gen. Laws 399, 405. Sex offender registration requirements do not constitute punishment, so the retroactive application of the amendment creates no ex post facto issue. Rodriguez v. State, 93 S.W.3d 60, 69, 79 (Tex. Crim. App. 2002); see also Smith v. Doe, 538 U.S. 84, 102–03, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).
23. See Tex. Gov't Code § 311.025(b) (“[I]f amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each.”). Applicant does not argue that this provision does not apply to him. Instead, Applicant accepts that the current statute applies to him but contends that it has been interpreted erroneously.
24. See Tex. Code Crim. Proc. art. 62.101(a)(3) (West 2007), amended by Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385, 3405.
25. See Tex. Code Crim. Proc. art. 62.101(a)(4).
26. See Tex. Code Crim. Proc. art. 62.101(a)(4).
27. Watkins, 619 S.W.3d at 272.
28. Before, Merriam-Webster Collegiate Dictionary 110 (11th ed. 2020).
29. After, Merriam-Webster Collegiate Dictionary 23 (11th ed. 2020).
30. See, e.g., Stone v. State, 146 Tex.Crim. 70, 171 S.W.2d 364, 367 (Tex. Crim. App. 1943) (“The order in which cases are called for trial, unless cases have been previously set for a certain date, rests largely within the discretion of the trial court, and unless it is made to appear that the court has abused its discretion with respect thereto the injury of the appellant, this court would not be authorized to reverse the case by reason thereof.”).
31. See, e.g., Griffith v. State, 116 S.W.3d 782, 785 (Tex. Crim. App. 2003) (noting that courts should apply an interpretation of a statute that does not lead to absurd results over one that does).
32. Tex. Pen. Code § 12.42(d) (emphasis added).
33. Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987) (en banc); Jordan v. State, 256 S.W.3d 286, 290–91 (Tex. Crim. App. 2008).
34. See Campbell v. State, 49 S.W.3d 874 (Tex. Crim. App. 2001).
35. Tex. Pen. Code § 12.42(a) (West 2001) (emphasis added), redesignated as Tex. Pen. Code § 12.425 by Act of May 25, 2011, 82nd Leg., R.S., ch. 834, § 5, 2011 Tex. Gen. Laws 2104, 2105.
36. Campbell, 49 S.W.3d at 876.
39. Tex. Pen. Code § 49.09(b).
40. Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999).
43. Ex parte Perez, 612 S.W.2d 612, 614 (Tex. Crim. App. 1981).
44. Cornet v. State, 359 S.W.3d 217, 222 (Tex. Crim. App. 2012).
45. See, e.g., Long v. State, 931 S.W.2d 285, 290 (Tex. Crim. App. 1996) (“[H]ad the legislature intended to apply a reasonable person standard, they easily could have specified one, or a clear synonym.”); Hatch v. State, 958 S.W.2d 813, 816 (Tex. Crim. App. 1997) (“Chapter 62 of the Government Code shows that the Legislature knew how to restrict statutes to civil cases. For example, the very next section of the Texas Government Code, Section 62.202, is restricted to ‘a civil case.’ ”).
46. See, e.g., Cornet, 359 S.W.3d at 222 (reasoning that the legislature's decision to refer “simply to ‘medical care’ ” in Tex. Pen. Code § 22.011(d) and not “provide for different standards” as it did in Tex. Pen. Code § 22.04(k) suggested that the legislature intended the same standard to “apply to all persons, health-care professional or not, who can otherwise validly claim the defense[.]”); Yazdchi v. State, 428 S.W.3d 831, 849 n.12 (Tex. Crim. App. 2014) (Price, J., concurring) (noting, based on the legislature's decision in another section of the statute to make consideration of a prior deferred adjudication that is later discharged relevant only to a particular issue, that the legislature knew how to specifically limit the factfinder's consideration of a particular circumstance; and concluding that the legislature's failure to include any such limitations in another section suggested that the legislature did not intend to limit consideration under that section).
47. See Act of May 8, 2001, 77th Leg., ch. 211, § 22, 2001 Tex. Gen. Laws 399, 405.
48. See, e.g., Tex. Pen. Code § 12.42(d); Tex. Pen. Code § 12.425(a)(2).
49. See Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985) (“In a postconviction collateral attack, the burden is on the applicant to allege and prove facts which, if true, entitle him to relief.”).
50. Hyde v. White, 24 Tex. 137, 138 (1859). Indeed, the Supreme Court in Hyde was faced with the constitutional provision that required the Court to examine the meaning of the phrase “one day” to determine how to calculate a “day”. Id. The Court considered a situation in which a bill was passed less than 24 hours before it was presented but still presented to the governor on the next calendar day. Id. This is a completely different scenario than the one presented in this case. Here, we are asked to consider the phrase “before or after” to determine whether one event occurred before or after another. We are not faced with a question of the computation of time.
51. See id. (“The first important rule to be observed, and which should be kept constantly in mind, is, that in the computation of time (except where the priority of acts, done on the same day, is in question), the law recognizes no fraction of a day.”)
52. See Nesbit v. State, 227 S.W.3d 64 (Tex. Crim. App. 2007) (addressing the proper calculation of time in the context of a motion to revoke a defendant's probation); State v. Aguilera, 165 S.W.3d 695, 698, 698 n.8 (Tex. Crim. App. 2005) (in holding that a trial court had authority to modify a defendant's sentence minutes after it was originally pronounced, noting that that a defendant's sentence begins to run on the day that it is pronounced, regardless of the time at which the sentence was pronounced).
53. Tex. Code Crim. Proc. art 62.002(b). The duty to register as a sex offender is terminated after a defendant receives a pardon or has his or her conviction set aside on appeal. Tex. Code Crim. Proc. art. 62.002(c).
54. Rodriguez v. State, 93 S.W.3d 60, 74, 79 (Tex. Crim. App. 2002).
55. Tamez v. State, 11 S.W.3d 198, 203 (Tex. Crim. App. 2000) (Keller, J. dissenting); see also Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979).
56. Vandyke v. State, 538 S.W.3d 561, 569 (Tex. Crim. App. 2017) (quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979)).
1. Section 12.42(d) reads:Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years. A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under this subsection.Tex. Pen. Code § 12.42(d).
1. Tex. Code Crim. Proc. art. 62.101(a)(4).
2. Lagandaon v. Ashcroft, 383 F.3d 983, 991 (9th Cir. 2004) (quoting 3 Edward Coke, Institutes of the Laws of England 53 (photo. reprint 1986) (1797 ed.)).
3. Nat'l Bank v. Burkhardt, 100 U.S. 686, 689, 25 L.Ed. 766 (1879).
5. 24 Tex. 137, 145 (1859). The appellant's attorney in the case cited the principle thusly, “[I]n the computation of time, (except where the priority of acts, done on the same day, is in question,) the law recognizes no fraction of a day.” Id. at 138. Not being part of the opinion of the Texas Supreme Court, this statement was not authority but appears to be accurate.
6. Scoville v. Anderson, 131 Cal. 590, 596, 63 P. 1013, 1015 (1901) (“But where the question before the court is one where the determination of private rights depends upon the order in point of time of the performance of two or more acts usually done upon the same day, the courts are, of necessity, required to find and fix the priority and sequence of these events, and to this end always, as of need they must, consider parts and fractions of days.”).
7. Burkhardt, 100 U.S. at 689 (“[W]here a mortgage[ ] took effect from the time it was deposited for record on a particular day, and a judgment became a lien upon the premises on the same day, proof was received to show that the mortgage was deposited before the court sat, and it was held that the mortgage must be first satisfied.”); Scoville, supra (“[W]here the question is that of priority of time in the levy of two or more attachments, the recording of deeds, and the like, the actual time of performance becomes the essential question, and fractions of days are scrupulously regarded.”); German Sec. Bank v. Campbell, 99 Ala. 249, 251, 12 So. 436, 436-37 (1892) (Courts give “controlling importance to the precise moment of time at which judgments are registered so that priority of registration, to the extent of any fraction of a day, will carry with it priority and superiority of the lien which arises and attaches upon registration.”).
8. See Acts 2005, 79th Leg., ch. 1008, § 4.01(a) (“․ the changes in law made by this Act in amending Chapter 62 ․ apply to a person subject to Chapter 62 ․ for an offense or conduct committed or engaged in before, on, or after the effective date of this Act.”).
9. See Tex. Penal Code § 3.03(a) (concurrent sentencing for convictions of offenses arising out of a single criminal episode and prosecuted in a single criminal action).
10. See Tex. Code Crim. Proc. art. 62.251.
11. And should we really penalize the failure to make a record, or have one transcribed, that might have documented a simultaneous pronouncement?
12. See Campbell v. State, 49 S.W.3d 874, 875 (Tex. Crim. App. 2001).
13. See Gibson v. State, 995 S.W.2d 693, 695 (Tex. Crim. App. 1999).
14. See Campbell, 49 S.W.3d at 876; Gibson, 995 S.W.2d at 696.
15. Tex. Penal Code § 49.09(d) (“For the purpose of this section, a conviction for an offense under Section 49.04 ․ that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.”).
16. Beal v. State, 91 S.W.3d 794, 796 (Tex. Crim. App. 2002). As noted above, the DWI enhancement scheme allows for a conviction to be “final” for its purposes even if the sentence is probated. What exactly “finality” means can vary from one context to another, and while a probated sentence is not final for some purposes, it is final for other purposes so long as no appeal was taken or the trial court's judgment was affirmed on appeal and mandate has issued. Jordan v. State, 36 S.W.3d 871, 875-76 (Tex. Crim. App. 2001).
17. Arbuckle v. State, 132 Tex. Crim. 371, 377, 105 S.W.2d 219, 222 (1937).
18. Jordan, 36 S.W.3d at 873.
19. Tex. Code Crim. Proc. art. 62.002(b)(1).
1. The majority's holding would not allow for a defendant to plea to indecency and another reportable conviction simultaneously without the defendant having to register as a sex offender for life. This appears to circumvent the clear and unambiguous language of the statute. Multiple scenarios come to mind that the Legislature may have considered when they enacted the temporal “before or after” requirement. One such scenario is where a nineteen-year-old is engaged in an intimate consensual relationship with an individual that is barely under sixteen years of age. The nineteen-year-old is arrested after the fifteen-year-old's mother finds out about the relationship and is charged with two counts of sexual assault. All the parties agree that probation is appropriate and that the defendant should not be required to register as a sex offender for his or her entire life. The prosecutor offers to reduce the two charges to indecency with a child. Under the majority's reasoning, even though the State did not desire for the defendant to have to register as a sex offender for life, he or she would be required to do so even if both counts are pled in the same proceeding. Because the majority would allow for the “before or after” requirement to be met by two charges being pled in a singular proceeding, any individual convicted of multiple counts of indecency with a child—no matter the circumstances—would have to register for life, even when the pleas occur in the same proceeding or stem from the same set of circumstances. See Tex. Code Crim. Proc. Ann. art. 62.101(b). Under the majority's holding, the Legislature's temporal “before or after” requirement is essentially meaningless.
Newell, J., announced the judgment of the Court and delivered an opinion in which Richardson, Slaughter and McClure, JJ., joined.
Yeary, J., filed a concurring opinion. Keller, P.J., filed a dissenting opinion. Walker, J., filed a dissenting opinion in which Keller, P.J., joined. Hervey and Keel, JJ., dissented.