Sex offender registration--in parts of Texas

Tawakkol v. Texas Dept. of Public Safety, Sex Offender Registration Bureau, et al., No. 1:19-CV-513-LY (W.D. Texas, March 29, 2022).

Plaintiff was a USAFA cadet convicted at court-martial. "All three charges stemmed from attempted or actual violations of UCMJ Art. 120c(a)(2), Indecent Viewing, Visual Recording, or Broadcasting."

"He was also convicted of one count of Invasive Visual Recording on March 27, 2018, in a Texas state-court proceeding. Tex. Penal Code Ann. § 21.15(b). Tawakkol's conviction under Section 21.15(b) is not included in the definition of a "reportable conviction or adjudication" 
under Section 2 l. 15(b) for the purposes of the registration required by Texas law. Tex. Code. Crim. Proc. Ann. § 62.001(5)."

Defendants argue that Tawakkol must register as a sex offender because he is an "extrajurisdictional registrant" under Texas law. An extrajurisdictional registrant is required to register as a sex offender in Texas. An extrajurisdictional registrant
 
         (A) is required to register as a sex offender under:
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                  . . . (iii) federal law or the Uniform Code of Military Justice. . . and
 
         (B) is not otherwise required to register under this chapter because:
 
                           (i) the person does not have a reportable conviction for an offense under the laws of the other state, federal law, the laws of the foreign country, or the Uniform Code of Military Justice containing elements that are substantially similar to the elements of an offense requiring registration under this chapter ...
 
Tex. Code Crim. Proc. Ann. § 62.00 1(10). Article 120c(a)(2), the statute under which Tawakkol was convicted, does not "contain[] elements that are substantially similar to the elements of any offense requiring registration" in Texas. Tex. Code Crim. Proc. Ann. § 62.00 l(l0)(B)(i).

The judge then reviewed SORNA and DoD Instruction No. 1325.07, Administration of Military Correctional Facilities and Clemency and Parole Authority, to determine if the classification of Tawakkol's convictions are properly listed or the classification is ultra vires and unenforceable.

In reviewing the validity of a military law or regulation, the court gives "great deference to professional judgment of military authorities." See Goldman v. Weinberger, 475 U.S. 503, 507 (1986); Or/off v. Willoughby, 345 U.S. 83, 94 (1953) ("Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters"). The Supreme Court has explained this deference: "the special relationships that define military life have 'supported the military establishment's power to deal with its own personnel' [because] 'courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have." Chappell v. Wallace, 426 U.S. 296, 305 (1983) (quoting Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. Rev. 181, 188 (1962)).

After discussing UCMJ art. 120c(a)(2), the judge concludes that,

Article 1 20c(a)(2) cannot be considered an offense requiring sex offender-registration, at
least in cases where the victim is not a minor. Such a determination by the Secretary is not
permitted by the plain language of the rulemaking authority delegated to Congress. As such, any act requiring registration for a violation of Article 120c( a)(2) is not authorized by the congressional act requiring registration for a violation of Article 120c(a)(2) is not authorized by the congressional delegation of rulemaking power and is ultra vires. As such, this court finds that Tawakkol is not required to register as a sex offender under "federal law or the Uniform Code of Military Justice" as required to trigger Texas's interjurisdictional registrant requirement. Tex. Code Crim. Proc. Ann. 62.001(10).