In re D.L.C., 2-02-163-CV.

CourtCourt of Appeals of Texas
Citation124 S.W.3d 354
Docket NumberNo. 2-02-172-CV.,No. 2-02-170-CV.,No. 2-02-163-CV.,No. 2-02-171-CV.,No. 2-02-164-CV.,2-02-163-CV.,2-02-164-CV.,2-02-170-CV.,2-02-171-CV.,2-02-172-CV.
PartiesIn the Matter of D.L.C., Appellant and In the Matter of D.L.G., Appellant and In the Matter of R.W.W., Appellant and In the Matter of C.S.P., Appellant.
Decision Date18 December 2003

Kimberly Cawley McCary, Lewisville, for Appellant.

Bruce Isaack, Crim. Dist. Atty., Charles E. Orbison, Kristin Kidd, Sheila Bowles, Asst. Dist. Attys., Denton, for State.

PANEL F: CAYCE, C.J.; WALKER, J.; and SAM J. DAY, J. (Retired, Sitting by Assignment).


SUE WALKER, Justice.

I. Introduction

This is a consolidated appeal involving issues of first impression in Texas. The five consolidated cases involve juvenile probation conditions that were amended to require Appellants D.L.C., D.L.G., C.S.P., and R.W.W. (collectively "Appellants") to submit blood samples or other specimens for the purpose of creating a DNA record. See Tex. Fam.Code Ann. § 54.0405(a)(2), (b) (Vernon 2002). In four issues, Appellants contend that: (1) requiring them to submit a DNA sample is unconstitutional based on ex post facto and double jeopardy protections; (2) requiring them to submit a DNA sample is unconstitutional based on the protections against unlawful search and seizure; (3) requiring them to submit a DNA sample violates Appellants' rights against self-incrimination; and (4) the evidence was legally and factually insufficient to support the trial court's finding that they should be subject to the DNA statute. We will affirm.


The factual and procedural background in each of the five consolidated cases is similar. At the adjudication hearings conducted in accordance with Texas Family Code section 54.03, each Appellant pleaded guilty to either indecency with a child or aggravated sexual assault of a child, or both. Id. § 54.03 (Vernon Supp.2004). Subsequently, the trial court conducted disposition hearings, and each Appellant was placed on probation and was required to register in the sex offender registration program. See id. § 54.04; TEX.CODE CRIM. PROC. ANN. ch. 62 (Vernon Supp.2004).

After Appellants were placed on probation, the Legislature passed section 54.0405 of the Texas Family Code. Tex. Fam.Code Ann. § 54.0405. That section requires a child who must register as a sex offender to also submit, as a condition of probation, a blood sample or other specimen for the purpose of creating a DNA record. Id. Based on the new legislation, the State sought to amend the terms and conditions of Appellants' probation to require them to submit a DNA sample for inclusion in the DNA databank. Following contested hearings, the court granted the State's motions to amend and ordered Appellants to submit a blood sample or other specimen for the purpose of creating a DNA record.1

After being ordered to submit a blood sample, R.W.W. filed a motion to excuse further sex offender registration. See Tex. Code Crim. Proc. Ann. art. 62.13(l). The trial court granted R.W.W.'s motion to excuse further sex offender registration, and R.W.W. then filed a motion to rescind the DNA order. The trial court refused to rescind R.W.W.'s DNA order.


If possible, we interpret a statute in a manner that renders it constitutional. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex.2000); Quick v. City of Austin, 7 S.W.3d 109, 115 (Tex. 1998). A party raising a facial challenge to the constitutionality of a statute must demonstrate that the statute always operates unconstitutionally. Wilson v. Andrews, 10 S.W.3d 663, 670 (Tex.1999). In other words, a challenger must establish that no set of circumstances exists under which the statute would be valid. Id. In reviewing a facial challenge to a statute's constitutionality, we consider the statute as written, rather than as it operates in practice. See Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 626-27 (Tex.1996).

However, an "as applied challenge" only requires the challenger to demonstrate that the statute operates unconstitutionally when applied to the challenger's particular circumstances. In re B.S.W., 87 S.W.3d 766, 771 (Tex.App.-Texarkana 2002, pet. denied). When reviewing the constitutionality of a statute as applied, we presume the statute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting it. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978); Sisk v. State, 74 S.W.3d 893, 901 (Tex.App.-Fort Worth 2002, no pet.). It is the challenger's burden to show that the statute is unconstitutional. Ex parte Anderson, 902 S.W.2d 695, 698 (Tex.App.-Austin 1995, pet. ref'd).


Appellants contend in their first issue that the DNA statute, as applied to them, unconstitutionally violates the ex post facto and double jeopardy protections of the United States and Texas Constitutions. Specifically, Appellants argue that the DNA statute's retroactive application to them is unconstitutional because the statute was not enacted until after they had committed their offenses and had accepted agreed dispositions. And, they argue that the statute is punitive on its face, as well as punitive in purpose and effect. The State responds that the DNA statute violates neither ex post facto nor double jeopardy protections because neither the purpose nor the effect of the statute is punitive.

A. The DNA Statute

Texas Family Code section 54.0405 ("the DNA statute") provides:

(a) If a court or jury makes a disposition under Section 54.04 in which a child described by Subsection (b) is placed on probation, the court:


(2) shall require as a condition of probation that the child:

(A) register under Chapter 62, Code of Criminal Procedure; and

(B) submit a blood sample or other specimen to the Department of Public Safety under Subchapter G, Chapter 411, Government Code, for the purpose of creating a DNA record of the child, unless the child has already submitted the required specimen under other state law.

(b) This section applies to a child placed on probation for conduct constituting an offense for which the child is required to register as a sex offender under Chapter 62, Code of Criminal Procedure.

Tex. Fam.Code Ann. § 54.0405(a)(2), (b). The Legislature made the change in law applicable to an offense committed before, on, or after the effective date of the statuteSeptember 1, 2001. Act of May 8, 2001, 77th Leg., R.S., ch. 211, §§ 18(a), 23, 2001 Tex. Gen. Laws 399, 405.

B. Ex Post Facto Analysis

The U.S. Constitution provides that "No ... ex post facto Law shall be passed" by Congress. U.S. Const. art. I, § 9, cl. 3.2 The Ex Post Facto Clause prohibits two types of laws that purportedly are at issue in this case: (1) a law that criminalizes an action done before the passing of the law; and (2) a law that inflicts greater punishment for a crime than was possible when the crime was committed. Rogers v. Tennessee, 532 U.S. 451, 456, 121 S.Ct. 1693, 1697, 149 L.Ed.2d 697 (2001); Carmell v. Texas, 529 U.S. 513, 521-25, 120 S.Ct. 1620, 1626-28, 146 L.Ed.2d 577 (2000); United States v. Reynard, 220 F.Supp.2d 1142, 1157 (S.D.Cal. 2002); Rodriguez v. State, 93 S.W.3d 60, 66 (Tex.Crim.App.2002).

Appellants argue that the DNA statute, as applied to them, violates the first ex post facto prohibition because it "became effective after the date of their offenses and after they had accepted agreed adjudications and dispositions in their cases." While Appellants' position is procedurally accurate, the DNA statute does not retroactively criminalize acts performed by Appellants before the DNA statute was passed. Appellants were adjudicated delinquent based on qualifying sex offenses. These offenses constituted criminal acts before the DNA statute was passed. The DNA statute does not retroactively alter the definition of a particular criminal act. See Reynard, 220 F.Supp.2d at 1158. To the contrary, under the statute, DNA material is extracted after adjudication and has no effect on the underlying offense or punishment. See Tex. Fam. Code Ann. § 54.0405. Thus, the DNA statute does not criminalize an act that occurred prior to enactment of the statute. See In re Appeal in Maricopa County Juvenile Action Nos. JV-512600 and JV-512797, 187 Ariz. 419, 930 P.2d 496, 499 (Ariz.Ct.App.1996).

Appellants also contend that the retroactive application of the DNA statute violates the Ex Post Facto Clause because the statute is punitive on its face, or in the alternative, it is punitive in its purpose and effect. The State, on the other hand, contends that the statute is not penal in nature. No Texas court has addressed whether the DNA statute constitutes retroactive punishment forbidden by the Ex Post Facto Clause.3 The framework for our ex post facto analysis is, however, well established. See Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 1146, 155 L.Ed.2d 164 (2003) (holding Alaska's retroactive sex offender registration statute not violative of the Ex Post Facto Clause); Rodriguez, 93 S.W.3d at 67-68 (holding Texas's retroactive amendments to sex offender registration statute not violative of the Ex Post Facto Clause). Under the required analysis, we must ascertain whether by enacting the statute the Legislature meant the statute to establish "civil" proceedings. Smith, 538 U.S. at 92, 123 S.Ct. at 1146-47 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 2082, 138 L.Ed.2d 501 (1997)). If the Legislature manifested an expressly punitive intent, the inquiry is at an end and the statute is a violation of the Ex Post Facto Clause. Id. at 92, 123 S.Ct. at 1147; Rodriguez, 93 S.W.3d at 67. If, however, the Legislature intended to enact a civil, nonpunitive regulatory scheme, then we must further examine whether the statutory scheme is nonetheless "`so punitive...

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