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Due Process Mandatory Before Texas Requires Sex Offender Registration for Crimes not Covered by Statute

by Matt Clarke

On August 8, 2017, a Texas federal district court determined that requiring a person on community supervision to register as a sex offender for a crime not covered by the Texas Sex Offender Registration Act, Art. 62.001 et seq., Texas Code of Criminal Procedure, without first affording them any due process, violated their due process rights.

Angel Dawn Littlepage was indicted on two counts of sexual assault of a person younger than 17 years old in Denton County, Texas. Pursuant to a plea bargain, she pleaded guilty to the lesser offense of unlawful restraint in violation of Texas Penal Code § 20.02. Terms of the plea bargain included the trial court not making an affirmative finding of the victim’s age, and Littlepage being placed on deferred adjudication community supervision for five years. The court’s order expressly stated that sex offender registration was not required.

Once Littlepage began her community supervision, a Texas Department of Public Safety official notified the Denton County Adult Community Supervision Department (DCACSD) that she should be required to register as a sex offender. A probation officer told Littlepage that she was required to register and told her to fill out registration forms. Afraid of losing her community supervision, she did so.

Littlepage then retained an attorney who received assurances from DCACSD officials that neither the department nor prosecutors would seek to revoke her community supervision over her attempts to have her registration rescinded. However, her photograph and personal information had already appeared on the state’s online sex offender registry, and Gainesville Police Department officials informed the attorney that Littlepage was at risk of being arrested for failure to register as a sex offender.

Littlepage filed a federal civil rights suit alleging her substantive due process rights were violated when she was required to register as a sex offender for an offense not covered by the Sex Offender Registration Act, absent due process. The court noted the statute only requires registration for unlawful restraint if the trial court makes an affirmative finding that the victim was younger than 17. No such finding was made, therefore the law did not require registration. The federal district court specifically rejected the state’s argument that the statement of the victim’s age in the indictment was sufficient, noting that indictments are allegations and not “affirmative findings” of fact which must have some support in the trial record.

The court then found that Littlepage had a liberty interest in not being required to register as a sex offender, noting the stigma and host of obligations required of registrees. A defendant who was not convicted of a sex offense must be given additional post-trial process before being required to register as a sex offender. As Littlepage received no post-trial process, requiring her to register as a sex offender violated her substantive due process rights under the Fourteenth Amendment.

The district court therefore granted declaratory relief, holding that Littlepage did not have a reportable conviction and causing her to register as a sex offender violated her due process rights.

On March 5, 2018, the court granted Littlepage’s motion for attorney fees, awarding $27,595 in fees and $940.75 in costs. See: Littlepage v. Trejo, U.S.D.C. (W.D. Tex.), Case No. 1:17-cv-00190-RP.


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Related legal case

Littlepage v. Trejo