Opinion
08-22-00237-CR
09-01-2023
EX PARTE: JASON JONES
Do Not Publish
Appeal from the 171st Judicial District Court of El Paso County, Texas Cause No. 970D08935-171-1
Before Rodriguez, CJ, Palafox, and Soto, JJ
MEMORANDUM OPINION
GINA M PALAFOX, JUSTICE
Appellant Jason Jones filed an application for habeas corpus relief, requesting a 1998 judgment of deferred adjudication be vacated on the grounds of ineffective assistance of counsel, involuntary plea, and a claim of actual innocence. The trial court denied Jones a hearing, and denied, as well, his request for habeas relief. He appeals those rulings. Finding no error, we affirm.
I. BACKGROUND
In 1997, Jones was indicted on one count of indecency with a child by sexual contact. See TEX. PENAL CODE ANN. § 21.11(A)(1). The indictment alleged that jones intentionally and knowingly engaged in sexual contact with the complainant, who was younger than 17 years of age, by touching the anus of said complainant. on march 20, 1998, pursuant to a plea agreement, jones pleaded guilty to the allegations as charged by the indictment. in accordance with the plea agreement, jones waived his right to trial by jury, to which the state consented and approved. the State recommended the trial court defer a finding of guilt, place Jones on deferred adjudication for eight years, order 200 hours of community service, prohibit his contact with the complaining witness, and require his participation in a sex offender program.
The trial court accepted Jones's guilty plea and entered an order deferring adjudication of guilt in accordance with the provisions of Article 42.12, Section 5(a) of the Texas Code of Criminal Procedure. Without entering a judgment of guilt, the trial court deferred further proceedings and ordered that Jones be placed on probation for a period of 8 years under the terms and conditions set out in an attached exhibit. On the same day, Jones signed a Texas Department of Public Safety Sex Offender Registration notice in which he reported he had received deferred adjudication for eight years on a charge of indecency with a child by contact. Item 31 of the pre-printed registration form included a box with a check mark indicating that verification was required annually, with a handwritten "lifetime" included in the space nearby.
Thereafter, on May 8, 2006, a community supervision officer reported to the trial court that Jones had successfully completed the period of community supervision under Article 42.12, Section 5(c) of the Texas Code of Criminal Procedure. On May 11, 2006, the trial court then signed and entered an order discharging Jones from community supervision under deferred adjudication and "ordered, adjudged, and decreed that the proceedings entered against [Jones] in this case be hereby dismissed."
In 2022, more than 24 years after pleading guilty under deferred adjudication, and more than 16 years after the dismissal of his case, Jones filed an application for writ of habeas corpus in the deferred adjudication trial court under Article 11.072 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.072. Jones noted, "[w]hile 11.072 does not have a custody requirement, Applicant is restrained by lifetime sex offender registration." Asking the trial court to entertain challenges to the validity of proceedings, Jones alleged four bases for relief: (1) the trial court lacked jurisdiction because he was a juvenile at the time of the alleged offense; (2) he was actually innocent of the charged offense; (3) he was deprived of effective assistance of counsel at trial as constitutionally guaranteed; and (4) his plea was involuntary in violation of his constitutional rights. On these bases, Jones requested the trial court issue a writ of habeas corpus, conduct a hearing on the grounds for relief, and "set aside the Applicant's conviction in this case." Responding to the application, the State asserted, among other things, that laches barred Jones's claims.
The trial court did not hold an evidentiary hearing on Jones's habeas application. See TEX. CODE CRIM. PROC. ANN. ART. 11.072, § 6(B)-(C). It denied the relief sought by jones and issued findings of fact and conclusions of law. See TEX. CODE CRIM. PROC. ANN. ART. 11.072, § 7(A). This appeal followed.
II. STANDARD OF REVIEW
We apply an abuse of discretion standard when reviewing a trial court's decision to grant or deny habeas corpus relief. Ex parte Wheeler, 203 S.W.3d 317, 323-24 (Tex. Crim. App. 2006). We view the facts in the light most favorable to the trial court's ruling and defer to the trial court's implied factual findings supported by the record. Id. at 325-26. This degree of deference applies even where, as here, "no witnesses testify[,] and all of the evidence is submitted in written affidavits." Id. at 326.
We only reverse the trial court's ruling if we conclude it is arbitrary, unreasonable, and made without reference to guiding rules or principles. Ex parte Medrano, No. 08-21-00016-CR, 2022 WL 1681860, at *2 (Tex. App.-El Paso May 26, 2022, pet. ref'd). We must review the record evidence in the light most favorable to the trial court's ruling, and we must uphold that ruling absent an abuse of discretion. Wheeler, 203 S.W.3d at 324. We review de novo mixed questions of law and fact that do not depend upon credibility and demeanor. Ex parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014).
Texas Code of Criminal Procedure Article 11.072 governs habeas corpus proceedings involving a person who is serving or who has completed a term of community supervision. See TEX. CODE CRIM. PROC. ANN. art. 11.072; Ex parte Vasquez, 499 S.W.3d 602, 606 (Tex. App.- Houston [1st Dist.] 2016, pet. ref'd). In a proceeding under Article 11.072, the trial court is the sole finder of fact. See TEX. CODE CRIM. PROC. ANN. ART. 11.072, §§ 6-7 (Providing that trial court shall enter written order granting or denying relief sought and shall enter written order including findings of fact and conclusions of law).
III. ISSUES ON APPEAL
Jones brings five issues on appeal wherein he asserts separate grounds for establishing the trial court abused its discretion in denying habeas relief. First, he urges his plea was involuntary. Second, he claims he was deprived of effective assistance of counsel. Third, he argues he was harmed by his trial counsel's errors. Fourth, he contends his claims were not barred by laches. Fifth, he asserts he was wrongly deprived of a hearing on his claims of actual innocence.
Because the trial court expressly ruled that laches barred habeas relief, and a bar of laches is potentially dispositive of other issues, we address laches first and begin with the fourth issue.
IV. THE DOCTRINE OF LACHES
In his habeas application, Jones asserted among other claims that he entered a plea of guilty and waived his right to trial based on erroneous advice from his counsel that he would not have to register as a sex offender after he completed probation. He claims this erroneous advice rendered his plea involuntary. Relatedly, he further asserts that trial counsel misinformed him about the law regarding the charge of indecency by contact, and that he would be criminally responsible as an adult despite the fact that the alleged conduct took place when he was 16 years old. In response, the State asserted that Jones's claims were barred by laches and otherwise lacked merit.
The trial court made the following relevant findings of fact and conclusions of law pertaining to laches:
FINDINGS OF FACT
8. On May 2, 20
...
28. The Court finds that Jones's unreasonable delay in filing his writ is not justified.
29. The Court finds that the State has been prejudiced in its ability to retry the case.
30. The Court finds that the State has been prejudiced in its ability to respond to Jones's writ allegations.
CONCLUSIONS OF LAW
1. Jones's writ claims are barred by the common-law doctrine of laches. See Ex parte Perez, 398 S.W.3d 206, 215 (Tex. Crim. App. 2013).
A. Applicable law
The writ of habeas corpus is an extraordinary remedy and granting the writ "must be underscored by elements of fairness and equity." Ex parte Smith, 444 S.W.3d 661, 666 (Tex. Crim. App. 2014). Thus, equity and fairness "require a consideration of unreasonable delay." Ex parte Bowman, 447 S.W.3d 887, 888 (Tex. Crim. App. 2014).
The Court of Criminal Appeals has determined that the doctrine of laches was appropriate for application in the habeas corpus context. Perez, 398 S.W.3d at 210; Bowman, 447 S.W.3d at 888 (holding "that laches applies to Art. 11.072"). It has defined the common law doctrine of laches as follows:
[The] neglect to assert [a] right or claim which, taken together with lapse of time and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. Also, it is the neglect for an unreasonable and unexplained length
of time under circumstances permitting diligence, to do what in law, should have been done.Perez, 398 S.W.3d at 210. The two considerations in determining whether laches should apply are "unreasonable delay by the opposing party and prejudice resulting from the delay." Id. at 210 n. 3; see also Smith, 444 S.W.3d at 666. A showing of prejudice to the State includes consideration of "anything that places the State in a less favorable position, including the State's ability to retry a defendant[.]" Perez, 398 S.W.3d at 215. Proof of "mere passage of time" is insufficient to raise laches. Id. at 219.
Whether the doctrine of laches applies is a question of fact to be considered on a case-by-case basis. Bowman, 447 S.W.3d at 888. Courts may consider "the totality of the circumstances in deciding whether to grant equitable relief," including "the diminished memories of trial participants and the diminished availability of the State's evidence." Perez, 398 S.W.3d at 21516.
The Court of Criminal Appeals has addressed relevant factors proper to consider in whether a claim for habeas relief should be barred by laches. See id. at 217. These include, "among all relevant circumstances, factors such as the length of the applicant's delay in filing the application, the reasons for the delay, and the degree and type of prejudice resulting from the delay." Id. "No single factor is necessary or sufficient," but "courts must 'engage in a difficult and sensitive balancing process' that takes into account the parties' overall conduct." Id. "[A] court may draw reasonable inferences from the circumstantial evidence to determine whether excessive delay has likely compromised the reliability of a retrial." Id. When prejudice is shown, the court "must then weigh that prejudice against any equitable considerations that militate in favor of granting habeas relief." Id. The degree of proof required is a "sliding scale" approach where "the longer an applicant delays filing his application . . . the less evidence the State must put forth in order to demonstrate prejudice." Id. at 217-18. Additionally, when determining whether habeas relief is warranted, we must consider "the State's broad interest in the finality of a long-standing conviction." Id.
Courts may reject the State's reliance on laches when the record shows that (1) an applicant's delay was not unreasonable because it was the result of a justifiable excuse or excusable neglect; (2) the State would not be materially prejudiced as a result of the delay; or (3) the applicant is entitled to equitable relief for other compelling reasons, such as new evidence showing that he is actually innocent of the offense or, in some cases, that he is reasonably likely to prevail on the merits. Id. at 218. The Court of Criminal Appeals declined to impose a requirement that a defendant assert a claim for habeas relief within a specific period of time, stating instead that it "will continue to apply laches as a bar to relief when an applicant's unreasonable delay has prejudiced the State, thereby rendering consideration of his claim inequitable." Id. at 219. The Court noted, however, that a delay of more than five years "may generally be considered unreasonable in the absence of any justification for the delay." Id. at 216 n.12.
B. Analysis
It is undisputed that Jones pleaded guilty to the charged offense and was placed on deferred adjudication community supervision in March 1998. After he successfully completed the full period of community supervision, the trial court discharged him from further supervision, and ordered the proceeding against him dismissed under Article 42.12, section 5(a), of the Texas Code of Criminal Procedure. Neither Jones nor the State, respectively, appealed the 1998 deferred judgment or the 2006 order of discharge and dismissal. On May 2, 2022, Jones filed his application for habeas relief. Jones's application comes more than 24 years after entering his guilty plea, and 16 years after discharge from community supervision and dismissal of his case.
Jones explains the delay by asserting he was advised by counsel that his requirement to register as a sex offender would end upon his completion of community supervision. Upon his discovery that he was still on the sex offender registry, Jones rehired his trial counsel to remedy what he thought was simply a mistake. Trial counsel wrote the Department of Public Safety (DPS) about this issue on May 14, 2008. Eight years after that letter to the DPS, Jones consulted another attorney, who then requested the State's file in late 2017. Jones's newer counsel averred in his declaration under penalty of perjury that the State would not reveal anything in their file, but the prosecutor he met with otherwise claimed there was nothing in the file indicating that the offense had occurred before Jones's 17th birthday. In 2021, counsel again requested the file from a newly elected district attorney, and counsel was provided with the State's file on September 27, 2021.
On review of the record, Jones offered no explanation for the two-year delay between the end of his community supervision and his trial counsel's request that DPS remove Jones's name from the sex offender registry. Likewise, Jones offered no explanation for the eight-year delay between that inquiry and his hiring of another attorney to look into the matter, except that he ultimately sought different counsel "because of the expanding restrictions on sex offenders and the ever increasing, unpredictable and unfair burden on [his] growing family[.]"
The trial court expressly found Jones's delay was unreasonable and was not justified. Although there is no bright-line time period in which a defendant must seek habeas relief under Article 11.072, Jones's delay is well past the five-year mark that the Court of Criminal Appeals has recognized as the point that "may generally be considered unreasonable in the absence of any justification for the delay." Perez, 398 S.W.3d at 216 n. 12.
Additionally, the trial court found that the State has been prejudiced both in its ability to retry Jones's case and it its ability to respond to his writ allegations. The trial court found that at the time of trial the victim was already experiencing difficulty in differentiating the instances in which Jones fondled different parts of her body and when he touched her anus. The court also found Jones's trial counsel did not recall many of the particulars of his representation of Jones. We find support for these findings of fact in the record in the victim's statement and in trial counsel's affidavit. In addition, the trial court found that due to the passage of time, it may be more difficult for the State to locate witnesses and the witnesses' memories may have significantly diminished. These are reasonable inferences that the reliability of a retrial would be compromised by this 24-year delay. See id.
Ultimately, the trial court concluded that Jones's delay was not justified and that the State demonstrated it had been prejudiced by Jones's delay. The trial court also determined that Jones failed to present evidence of any compelling reason why laches should not apply. Viewing the record in the light most favorable to the trial court's findings and affording almost total deference to same, especially those that turn on credibility and demeanor, we conclude the trial court did not abuse its discretion by determining that the doctrine of laches applied such that it barred Jones's claims for habeas relief. Ex parte Becciu, 615 S.W.3d 482, 496 (Tex. App.-Houston [1st Dist.] 2020, no pet.); Medrano, 2022 WL 1681860, at *3.
We overrule Jones's fourth issue. Because of our disposition of this issue, we need not address Jones's first, second, or third issues. See TEX. R. APP. P. 47.1.
V. THE HEARING REQUIREMENT
Next, we address Jones's fifth issue and consider whether the trial court otherwise erred by failing to hold an evidentiary hearing on Jones's claim of actual innocence.
A. Article 11.072's requirements
"Article 11.072 does not require a hearing when the issues can be resolved without one." Ex parte Arjona, 402 S.W.3d 312, 319 (Tex. App.-Beaumont 2013, no pet.); see also Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.-Fort Worth 2005, no pet.). "In making its determination, the court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court's personal recollection." Tex. Code Crim. Proc. Ann. art. 11.072, § 6(b); see also Cummins, 169 S.W.3d at 757 (Article 11.072 does not require trial court to conduct hearing before rendering decision on relief sought).
Jones contends that several appellate courts, including this Court, have held that trial courts should hold an evidentiary hearing to address claims of actual innocence under Article 11.072. However, to be more precise, this Court has declined to impose a per se hearing requirement when a claim of actual innocence is raised. See Ex parte Salazar, 510 S.W.3d 619, 627-28 (Tex. App.- El Paso 2016, pet. ref'd). Rather, this Court and other appellate courts have held that under certain circumstances there can be an entitlement to a hearing on a claim of actual innocence. See id.; Ex parte Franklin, 310 S.W.3d 918, 922-23 (Tex. App.-Beaumont 2010, no pet.). The right is triggered when an applicant presents evidence that constitutes an affirmative showing of innocence as set forth by the Court of Criminal Appeals. Franklin, 310 S.W.3d at 921-22 (citing Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006) (recognizing two types of innocence claims-a Herrera claim and a Schlup claim)). To obtain a hearing when asserting a bare claim of actual innocence, the applicant must show:
(1) by clear and convincing evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror could have found the applicant guilty in light of the new evidence and (2) the evidence the applicant relies upon is "newly discovered" or "newly available" meaning it was not known to the applicant at the time of trial and could not have been known to the applicant even with the exercise of due diligence.Ex parte Harris, No. 05-18-00008-CR, 2018 WL 2749686, at *1 (Tex. App.-Dallas May 31, 2018, no pet.).
In Franklin, the newly discovered evidence involved a recantation by the complainant of the allegation that led to the applicant's conviction for aggravated sexual assault of a child. See Franklin, 310 S.W.3d at 920. In Salazar, there was evidence of a child witness's affidavit reversing the previous stance on her accusation made against the applicant. See Salazar, 510 S.W.3d at 628. In both, the appellate court reversed and remanded for the trial court to conduct a hearing on the actual innocence claim, without expressing an opinion on the merits of the appellant's actual innocence claim. See id.; Franklin, 310 S.W.3d at 920.
B. Analysis
The "newly discovered or newly available evidence" Jones brings forth is the "newly obtained prosecution file" which he asserts he only received in 2021 after the State had earlier refused to disclose it in 2017. From this file, Jones asserts the victim mentions he had touched her on her buttocks, but nowhere did she mention he touched her anus. He also asserts his forensic psychologist report independently confirms that he never touched the victim's anus. Jones also relies on a 1997 psychologist's report, as well as the 1997 statements of the victim and her mother, to assert the touching occurred prior to Jones's 17th birthday.
Jones asserts the State's file was never provided to his defense counsel and, even if it had been obtained, the records were never made available to Jones himself. The trial court specifically made a finding that the offense reports were available to Jones at the time of his guilty plea in 1998. On this record, we conclude that Jones's evidence is not newly discovered evidence, as it was all available to him in 1997, prior to his entering of a guilty plea.
Even so, the existing investigation report-which Jones asserts is insufficient to meet the allegations of the indictment-significantly differs from the conflicting statements from a complaining witness obtained in Franklin and Salazar. That type of conflicting evidence is a more compelling demonstration of innocence than Jones's contention about a report that he only recently contends as being insufficient to support the elements of the offense. His reliance on the newly discovered evidence is based only on his assertion that the State would not have been able to sufficiently prove the charged offense at trial. On this record, however, we are not persuaded. Notably, the habeas record also includes a transcript of Jones's testimony at the plea hearing wherein he admitted to the allegations in the indictment and confessed to having committed the charged offense.
Because we conclude that Jones has not brought forward newly discovered affirmative evidence that unquestionably establishes his innocence, he has failed to trigger an entitlement to an evidentiary hearing. See Ex parte Harris, 2018 WL 2749686, at *5 (holding appellant had failed to present newly discovered affirmative evidence that unquestionably established her innocence, and she was not entitled to a hearing on her 11.072 habeas corpus application); cf. Franklin, 310 S.W.3d at 920; Salazar, 510 S.W.3d at 628.
We overrule Jones's fifth issue.
VI. CONCLUSION
Finding no error, we affirm the trial court's order denying Jones relief under Article 11.072
CONCURRING OPINION
GINA M. PALAFOX, JUSTICE
I write separately from the Court to address the issue driving Jones's appeal: that is, a purported obligation to register as a sex offender for the remainder of his life. And this supposed obligation is imposed regardless of his long ago discharge from deferred adjudication community supervision, and formal dismissal of the underlying criminal charge without a conviction or adjudication. Because I have serious doubts about this understanding, I follow two recent precedents of this Court in writing a concurring opinion after otherwise writing for the Court. See Hudspeth Cnty. v. Ramirez, 657 S.W.3d 103 (Tex. App.-El Paso 2022, no pet.) (Rodriguez, C.J., for majority and concurring); El Paso Tool &Die Co. v. Mendez, 593 S.W.3d 800 (Tex. App.- El Paso 2019, no pet.) (Alley, J., for majority and concurring).
Because the doctrine of laches bars Jones from challenging his plea of guilty on the grounds asserted, I agree he is not entitled to vacate or set aside the 1998 judgment that placed him on deferred adjudication community supervision for a period of eight years, which he successfully completed in 2006. Yet, for me, the notion that he is required to register for the remainder of his life unattached from any pending deferred adjudication is questionable on its face. What needs further consideration is the effect of the 2006 dismissal order upon this purported registration requirement. Given the lack of an adjudication against Jones, and an ultimate dismissal of the underlying charge brought against him, I am not convinced there exists a legal basis for its support. Resolving that question, however, requires an examination of the relevant statutes in effect both when Jones was initially placed on deferred adjudication community supervision, and when he was later discharged from supervision and his case dismissed without conviction or adjudication.
Such an examination would necessarily begin with a review of the Sex Offender Registry Program (SORP), and further include statutes pertaining to deferred adjudication community supervision. To begin, the Texas Legislature first enacted the sex offender registration statutes in 1991. Act of May 26, 1991, 72nd Leg., R.S., ch. 572, §§ 1, 4-5, 1991 Tex. Gen. Laws 2029-30, 2032 (amended, codified, and redesignated); Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002). When originally enacted, the registration requirements "applied only to a reportable conviction or adjudication [of delinquent conduct] occurring on or after September 1, 1991." Act of May 26, 1991, 72nd Leg., R.S., ch. 572, § 1, secs. 1(5), 8(a), 1991 Tex. Gen. Laws 2029, 2030. And, two years later, in 1993, the Legislature expanded the definition of "reportable conviction or adjudication" to include deferred adjudications for specific offenses, including indecency with a child, and the expanded definition applied to offenses "for which an order of deferred adjudication [was] entered by the court on or after September 1, 1993." Act of May 30, 1993, 73rd Leg., R.S., ch. 866, § 1, sec. 1(5)(E), §§ 3, 8(a)(2), 1993 Tex. Gen. Laws 3420-21 (amended, codified, and redesignated). Finally, in 1997, the Legislature made the registration requirements retroactively applicable to "any reportable conviction or adjudication occurring on or after September 1, 1970." Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1(5)(H), 8, 1997 Tex. Gen. Laws 2253, 2260.
In current form and relevant here, Chapter 62 imposes a duty to register upon any person who has "a reportable conviction or adjudication occurring on or after September 1, 1970;" and, in this context, a "[r]eportable conviction or adjudication" is defined as "a conviction or adjudication, including an adjudication of delinquent conduct or a deferred adjudication, that, regardless of the pendency of an appeal, is a conviction for or an adjudication for or based on . . . a violation of [s]ection . . . 21.11 (Indecency with a child), . . . Penal Code." Tex. Code Crim. PROC. ANN. art. 62.001(5)(A), 62.002(a), (b); Ex parte Lane, 670 S.W.3d 662, 678 (Tex. Crim. App. 2023); McCraw v. C.I., 525 S.W.3d 701, 705 (Tex. App.-Beaumont 2017). The Court of Criminal Appeals addressed the legislative purpose underlying the registration program in Rodriguez, 93 S.W.3d at 79. There, the Court observed that the program was enacted by the Legislature to promote public safety. Id. Ultimately, Rodriguez held the program was "civil and remedial," not criminal or punitive. Id. at 69.
In my view, a duty to register was imposed on a defendant placed on deferred adjudication for a qualifying offense at least as of September 1, 1993. As Jones was so counseled by his attorney, he was required to register under SORP when he was ordered to complete eight years of deferred adjudication community supervision in March 1998. Jones complied with the registration requirement as shown by his signed DPS form in our record. Because the charge against Jones was dismissed in 2006, however, I would further suggest it remains necessary to consider the effect of this dismissal, based on the relevant deferred adjudication statutes, to determine whether an obligation of registration continued long after that date.
Looking first to the dismissal of a deferred adjudication as the statute appeared when Jones entered into a plea bargain with the State, it provided in relevant part:
On expiration of a probationary period imposed under Subsection (a) of this section, if the court has not proceeded to adjudication of guilt, the court shall dismiss the proceedings against the defendant and discharge him.... A dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense, except that upon conviction of a subsequent offense, the fact that the defendant had previously received probation shall be admissible before the court or jury to be considered on the issue of penalty.Act of May 21, 1985, 69th Leg., R.S., ch. 427, § 1, sec. 3d(c), 1985 Tex. Gen. Laws 1531, 1534 (amended 1999 and recodified 2017) (current version at Tex. Code Crim. Proc. Ann. art. 42A.111(b)) (emphasis added). Upon expiration of a community supervision term, if a trial court had not earlier proceeded to an adjudication of guilt, the mandatory language of this provision imposed a duty upon a trial court to dismiss the underlying criminal charge. Moreover, for purposes of "disqualifications or disabilities imposed by law for conviction of an offense," the statute in effect at the time when Jones was placed on deferred adjudication provided that a dismissal and discharge could not be deemed a conviction for the purpose of imposing disqualifications or disabilities required by law. See Act of May 21, 1985, 69th Leg., R.S., ch. 427, § 1, sec. 3d(c), 1985 Tex. Gen. Laws 1531, 1534.
I would further note that it appears at first blush that the Legislature did not change the predecessor to current Article 42A.111(b), until after Jones had already entered his plea agreement with the State. See Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 5(a), sec. 5(c), 1999 Tex. Gen. Laws 4831, 4832. Notably, the later revision prohibited the dismissal of proceedings involving offenses reportable under the SORP. See Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 5(a), sec. 5(c), 1999 Tex. Gen. Laws 4831, 4832. And even when that change went into effect, it was made expressly applicable only to a defendant who received deferred adjudication for an offense occurring on or after September 1, 1999. Act of May 29, 1999, 76th Leg., R.S., ch. 1415, §§ 5(c), 34, 1999 Tex. Gen. Laws 4831, 4833, 4843. As a result, a defendant like Jones who received deferred adjudication prior to September 1, 1999, was "covered by the law in effect when the defendant received deferred adjudication . . . and the former law [was] continued in effect for that purpose." Act of May 29, 1999, 76th Leg., R.S., ch. 1415, §§ 5(c), 34, 1999 Tex. Gen. Laws 4831, 4833, 4843. In sum, under the deferred adjudication statutes applicable to Jones, it remained mandatory for a trial court to dismiss all proceedings against a defendant, and in doing so, the dismissal and discharge could not be deemed a conviction for the purposes of any disqualifications or disabilities imposed by law.
Here, the record shows-after successful completion of community supervision by Jones-the trial court rendered such order discharging him from deferred adjudication community supervision imposed under former Article 42.12, Section 5(a), and it also dismissed the criminal proceeding initiated against him. At the time, former Article 42.12, Section 5(c) imposed a mandatory requirement on a trial court to dismiss all proceedings against a defendant "[o]n expiration of a probationary period imposed under Subsection (a) of this section, if the court has not proceeded to adjudication of guilt[.]" Id. And this applicable provision expressly decreed that:
[a] dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense, except that upon conviction of a subsequent offense, the fact that the defendant had previously received probation shall be admissible before the court or jury to be considered on the issue of penalty.See Act of May 21, 1985, 69th Leg., R.S., ch. 427, § 1, sec. 3d(c), 1985 Tex. Gen. Laws 1531, 1534.
Reviewing Jones's 2006 order of discharge and dismissal under the former version of Article 42.12, Section 5(c), as was in effect, it would seem to me that his case falls under the former requirements, not those applying after September 1, 1999. Moreover, the State has not challenged the validity of the 2006 order. The record establishes, then, that Jones was discharged from the 1998 judgment of deferred adjudication-without an adjudication of guilt-and his case was dismissed. Further, it follows from that disposition that Jones may not be deemed as having a conviction for purposes of disqualifications or disabilities imposed by law, nor can it currently be said that he "has" a deferred adjudication of a qualifying offense. Cf. Lane, 670 S.W.3d at 675 (providing that any person who "has" a conviction for a qualifying offense is obligated to register under Tex. Code Crim. Proc. Ann. art. 62.001(5), and a discretionary order setting aside the conviction, such as a judicial clemency order, does not alter the requirement).
In sum, because Jones is no longer subject to an order of deferred adjudication, and because the trial court dismissed his case without proceeding to an adjudication of guilt, I am not convinced there remains a legal basis to support an ongoing obligation to register for a dismissed, unadjudicated case of the era of Jones's case. Indeed, no order requiring a lifetime obligation is seemingly included in the record of this case. Yet, according to Jones, authorities of DPS or other officials appear to be asserting such requirement exists. My attention is thus drawn to a somewhat similar case from our sister court of appeals which may be substantively analogous though not procedurally the same. In that case, a complaint about a purported lifetime registration requirement was challenged through the means of a civil action where an individual sought declaratory and injunctive relief from efforts by state and local officials who were requiring him to register under SORP. See McCraw, 525 S.W.3d at 70; see also Rodriguez, 93 S.W.3d at 69 (determining a penalty of that nature would be considered "civil and remedial," not criminal or punitive). In McCraw, the Beaumont Court of Appeals held the individual pleaded a facially valid claim of ultra vires actions and denied the officials' plea to the jurisdiction. Id. at 708. Thus, even though I agree that habeas relief to set aside Jones's 1998 plea is barred by laches, I remain unconvinced about the correctness of an ongoing registration requirement that is, in any event, a civil and remedial penalty, and not one that is criminal and punitive. For all these reasons, I write this separate concurrence.