In a 6-3 decision Ex parte Danny Richard Lane, the state’s highest criminal appeals court ruled that Texas’ historical doctrine of “judicial clemency” does not forgive sex offender registration.
The Texas Legislature in 1965 created this doctrine which gives a trial court the authority to, after a defendant has successfully completed the terms of probation, “set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime …”
This legislation morphed into what has become known in the state’s criminal justice system as an act of “judicial clemency”—similar to its cousin “executive clemency.”
1994 to 2023
Prior to 1994, there were few states that required offenders convicted of sex offenses to register with local authorities—a registration that allows local law enforcement to monitor the location of sex offenders in their jurisdiction. The 1994 Jacob Wetterling Crimes Against Children and Sexually Violent Offender Act enacted by Congress required all states to implement sex offender registration programs.
In 1996, Congress expanded the Wetterling Act with Megan’s Law which requires all states to create information-based internet sites containing all relevant data about sex offenders registered in their states.
Between 1997 and 2016, Congress enacted eight additional sex offender-related statutes, all of which are designed to either enhance or improve the tracking of sex offenders of every stripe through registration.
According to the National Center for Missing and Exploited Children, there are currently an estimated 787,000 registered sex offenders in all fifty of the United States, of which roughly 7 out of ten are white.
Texas overwhelmingly leads the nation with more than 100,000 registered sex offenders followed by a distant second California with nearly 62,000 such offenders.
Speaking of Texas, the Texas Court of Criminal Appeals on June 28, 2023, had a thing or two to say about registered sex offenders in the Lone Star State.
The Case of Danny Richard Lane
In June 1982, a jury convicted Danny Richard Lane of aggravated rape. He was given a 10-year probated sentence. He successfully completed that probation.
In 1987, the trial court “set aside” the rape conviction through a “judicial clemency” order. Lane assumed, as all recipients of judicial clemency assumed, that the judicial clemency order “wiped away his conviction for all purposes.”
The judicial clemency statute, however, had a provision that if a defendant committed a future crime, the judicial clemency offense could be considered by the court imposing the sentence on any future crime.
The Texas Legislature in 1991 enacted the state’s first sex offender registration program.
In the wake of all the federal sex offender registration laws passed after the 1994 Wetterling Act, the Texas Legislature in 2005 made its sex offender registration program retroactive to any sex offense that occurred on or after 1970.
That 2005 legislation defined a “reportable conviction” as “a conviction or adjudication, including an adjudication of delinquent conduct or a deferred adjudication, that, regardless of the pendency of appeal, is a conviction for or an adjudication or based on” a number of designated sex offenses, including aggravated sexual assault which replaced the state’s older offense of aggravated rape.
The 2005 legislation requires a lifetime registration for any conviction of aggravated sexual assault (or its predecessor aggravated rape).
In 1998, following his release from a Texas prison on a drug charge, Lane was added to the state’s sex offender registry. He registered in Pasadena, Texas that same year.
However, in 2007 after his arrest on another charge, law enforcement discovered that he was not living at the residence used in the 1998 registration and had not completed his registration requirements in the ensuing years.
When questioned about these compliance failures, Lane told investigators he did not have to register because of the “judicial clemency” order he had received from the court on the 1982 rape charge. The investigators disagreed, informing him that he had a lifetime duty to register.
The investigators then set an appointment date for Lane to come in and register. He assured investigators that he would keep the appointment, signing a form acknowledging a duty to register and that criminal charges would be filed if he did not do so.
Lane did not keep the appointment.
A few months later in 2007 Lane was arrested and charged with a third-degree felony for failure to register as a sex offender. Given his criminal history, he faced a sentence of 25 years to life in prison. His criminal defense attorney, however, managed to secure a 10-year plea deal which he accepted in October 2007.
In 2015, Lane was again released from prison, this time on parole with a continuing duty to register. Once again, he did not register and again was charged in 2017 with failure to register.
In August of 2017, Lane pled guilty to that charge and was given an additional five years to run concurrently with the remainder of his parole violation sentence.
That is where Lane’s case took a bizarre, convoluted turn.
In September 2017, two attorneys with the Texas Department of Criminal Justice Office of State Counsel for Offenders informed Lane that based on a recent opinion from one of the state’s appeals court he no longer had a duty to register and would be removed from the state’s sex offender registry.
In September 2018, Lane challenged his 2007 conviction for failure to register based on the new appeals court decision. The trial court recommended that the 2007 conviction be set aside because of the 1987 “judicial clemency” order in the rape case.
The Texas Court of Criminal Appeals, however, rejected that recommendation, finding that a sex offender’s duty to register can be terminated only for two reasons: 1) the sex offense conviction requiring registration is reversed on appeal; or 2) the offender receives a full pardon based on proof of actual innocence.
Judicial clemency, the court said, does not fall within these parameters.
The Lane case is instructive for one basic reason beyond the judicial clemency issue:
Even if a sex offender receives a pardon based on “rehabilitation” or other individual meritorious reasons, they still must register as a sex offender. Only a pardon based on actual innocence forecloses the duty to register.
There is no wiggle room on the duty to register as a sex offender, at least not in Texas.