Texas Department of Public Safety v. Anonymous Adult Texas Resident

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00602-CV Texas Department of Public Safety, Appellant v. Anonymous Adult Texas Resident, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT

NO. D-1-GN-10-000869, HONORABLE TIM SULAK, JUDGE PRESIDING

CONCURRING OPINION I concur in the majority’s judgment. For substantially the same reasons identified in the majority’s 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 majority’s conclusion that the Sex Offender Registration Act (SORA)1 allows consideration of the “facts and circumstances” underlying out-of-state criminal convictions in certain “unusual cases.” While I recognize that this Court’s opinion in Texas Department of Public Safety v. Garcia2 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 confines 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

__________________________________________

Jeff Rose, Justice

Before Chief Justice Jones, Justices Pemberton and Rose; Concurring Opinion by Justice Rose, joined by Justice Pemberton Filed: August 30, 2012