Deferred Adjudication is Conviction for Federal Sex Registration Purposes
Article 42.12, § 3d(a) of the Texas Code of Criminal Procedure provides: “When in its opinion the best interest of society, and the defendant will be served, the court may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on probation on reasonable terms and conditions, as the court may require and for a period as the court may prescribe not to exceed 10 years.”
Deferred adjudication has one primary advantage in Texas—successful completion of the probation period means the individual does not have a conviction on his record.
In 2006, Congress enacted, and the President signed into law, the Adam Walsh Child Protection and Safety Act. An important feature of that Act is the Sex Offender Registration and Notification Act (“SORNA”). The purpose of SORNA is to protect the public from sex offenders through a system of national registration of any individual convicted of a sex offense. Registration must occur in any community in which the sex offender resides. Failure to register or notify proper authorities of any change of address can result in a sentence up to 10 years.
The question, then, is whether a state deferred adjudication qualifies as a conviction within the meaning of SORNA. Congress did not define the term “convicted” in SORNA, rather it granted the U.S. Attorney General the authority to “issue guidelines and regulations” in order to interpret and implement the Act. The ensuing guidelines created by the Attorney General—known as the SMART Guidelines—provide that a sex offender is “convicted” so long as he “remains subject to penal consequences … however [the conviction] may be styled.”
Preliminarily, it must be stated that Federal law, not state law, controls the question of what constitutes a “conviction” under SORNA.
On January 27, 2014, the Fourth Circuit Court of Appeals, in United States v. Bridges, held that a deferred adjudication under Florida law was a “conviction” within the meaning of SORNA. In February 1999, William David Bridges entered a plea of nolo contendere to a charge of Attempted Sexual Battery upon a Child under 16 years of age. The state trial court entered a written judgment ordering that adjudication of guilt be withheld and placed him on two years’ probation.
Florida law required Bridges to register as a sex offender. He failed to register. He was arrested in September 2000, entered a plea of nolo contender, and was placed on one-year probation. That probation was later revoked because he did not report to his probation officer. The court in September 2001 sentenced him to 68 days in jail.
Nine years later, in 2010, Bridges moved to Virginia where he registered as a sex offender. However, in August 2011, local authorities learned that Bridges no longer lived at his reported address in Weber City, Virginia, and had not updated his registration with a new address. He was ultimately located in Gaylord, Michigan where he had also failed to register as a sex offender.
A Federal grand jury in Virginia in July 2012 indicted Bridges under SORNA for traveling interstate commerce and failing to update his sex offender registration in violation of 18 U.S.C. 2250. His attorneys sought to have the indictment dismissed because Bridges “entered a plea of nolo contendere and was not adjudged guilty by the state of Florida of a sex offense … [and thus] he has never been ‘convicted’ of a sex offense” within the guidelines of SORNA. The district court denied the motion, and that was the sole issue addressed by the Fourth Circuit on Appeal. The appeals court concluded:
“Appellant pled nolo contender to the attempted sexual battery of a child. The state court entered a judgment order and sentenced him to two years’ probation, a sentence that attached immediately, and withheld only the formal adjudication of guilt. Whatever the ultimate length of Appellant’s probationary term or the status of his conviction under state law, he was required ‘to serve what amounts to a criminal sentence for [his] offense.’ He was thus ‘convicted’ of a sex offense under 42 U.S.C. § 16911(1) and was required to register under SORNA.”
The Fourth Circuit in Bridges followed the lead of two others circuits, the Eleventh and Eighth, which held that a plea with adjudication withheld is a “conviction” under Federal law.
Like in Florida, adult defendants given deferred adjudication in Texas courts must register under the Texas Sex Offender Registry for 10 years following discharge from supervision for any offense that does not require lifetime registration under the state’s “sexually violent offenses” (such as aggravated sexual assault of a child, indecency with a child by contact, etc.).
Thus, a deferred adjudication for almost any sex offense in Texas triggers registration requirements under SORNA, especially if a person is required to register in a particular jurisdiction, state, in which they reside. Thus, it is foreseeable that a sex offender’s requirement to register in Texas could lapse, if, for example, the registration period was ten years, and the offender could move to another state that still required registration for life. Failure to register in this example could result in state prosecution, as well as federal prosecution, for failure to register.