Case Summary - Ex parte Phillip Alan Harbin

The State of California incarcerated Phillip Harbin for the 1994 offense of annoying or molesting a child under 18 and the 1988 offense of engaging in lewd and lascivious acts with a child under 14. When he got out of the California prison, he moved to Texas to live with his brother. He went to his local police department to register, but the told him to wait for the department to determine whether he was required to register. DPS contacted the management of Harbin's brother's apartment to let them know Harbin was a sex offender. The management threatened to evict Harbin's family if Harbin was seen on the premises. He went to stay in a hotel, and informed police of his change of address. Later, he moved in with his mother, but could not register a residential address because his mother lived in the same apartment complex that had threatened to evict Harbin's family if he was seen on the premises. As a result, he was arrested for failing to register as a sex offender.

Harbin then moved into a hotel in Plano, and registered with the Plano police. When he was subsequently kicked out of the Plano hotel the next day, he moved in with his mother in her new apartment in Dallas. He promptly contacted the Plano police to let them know he had relocated. The following week, Harbin contacted DPS to inform them of his registration problems and his intent to register. He attempted to register in Dallas, but the Dallas Police Department required an affidavit from Harbin's mother's apartment complex manager stating it was okay for Harbin to be living there. The Dallas Police did not issue a registration receipt, but told Harbin to call them if there were any problems. The next day DPS arrested Harbin at his mother's apartment complex for failure to register.

Harbin plead guilty to two offenses for failure to register. While Harbin also had a 1996 California convictions for indecent exposure and and a 1995 one for sexual battery, the indictment only listed the 1994 and 1988 convictions as a basis for his duty to register as a sex offender. Harbin later filed writs to overturn his conviction based on the unconstitutionality of the statute, the involuntariness of his plea, and the ineffectiveness of his representation, but the CCA denied relief without a written order. Harbin filed a subsequent writ based upon a determination by DPS in 2008 that the California crime of annoying or molesting a child is not substantially similar to a Texas offense requiring registration. He also alleged that his convictions prior to September 1, 1995 did not require him to register as a sex offender in Texas based upon the savings clause in the 1997 legislation.

The Court of Criminal granted relief. Judge Meyers, writing for an eight-judge majority, explained that under the Sex Offender registration Act in effect at the time of Harbin's failure to report, out-of-state, sex-offense convictions before September 1, 1995 were not reportable offenses. In 1997, the legislature changed that law and allowed for such offense to become reportable if the defendant was incarcerated in a Texas Penal institution on the offenses or still on community supervision for them on September 1,1997. Harbin was neither, so he was not required to register for those two offenses. However, the CCA held that Harbin will have to register for the California offenses of lewd and lascivious conduct with a child, indecent exposure, and sexual battery, just not the annoying or molesting charges, which DPS has not declared substantially similar. But, because those offenses were not listed in the indictment, the CCA granted relief.

Presiding Judge Keller dissented without an opinion. Here's a link to the CCA case information on AP-76,092 and AP-76,093. Because they were both writs, there are no underlying published opinions for which I can provide a link.