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.

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).

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

See Tex. Code Crim. Proc. Ann. art. 62.001(5)(H).

Justice Pemberton joins in this concurrence.