MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report and recommendation of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On August 21, 2015, the report of the Magistrate Judge was entered containing proposed findings of fact and recommendations that Defendant’s Motion for Summary Judgment (Dkts. #70-75) be granted, and Plaintiffs’ claims be dismissed with prejudice. Having received the report and recommendation of the Magistrate Judge (Dkt. # 91), having considered Plaintiffs timely filed objections (Dkt. #94), and having conducted a de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and hereby adopts the Magistrate Judge’s report (Dkt. #91) as the findings and conclusions of the Court.
BACKGROUND
The facts in this case originate from a child sex offender residency restriction ordinance (the “Ordinance”), enacted by Defendant City of Lewisville, Texas (the “City”), its application to Plaintiff. Aurelio Duarte (“A. Duarte”) and, by extension, its effects on A. Duarte’s wife, Wynjean Duarte (“W. Duarte”), and children (“S.D.” and “B.D.”). The facts are set out in detail by the Magistrate Judge, and need not be repeated herein (see Dkt. # 91). In summary, A. Duarte is a convicted child sex offender and is required to register with the Texas Department of Public Safety’s Sex Offender Database (the “Database”) because of his conviction involving a minor; thus, Plaintiff is prohibited by the City’s' Ordinance from residing in the City “within 1,500 feet of any premises where children commonly gather,” subject to a number of affirmative defenses (Dkt. # 70, Exs. 1, 3; Dkt. # 1 at 3, ¶ A). Plaintiffs’ Complaint is comprised of two' sets of claims: (1) claims asserted by Plaintiff A. Duarte himself, and (2) claims asserted by W. Duarte, S.D., and B.D. (the “Duarte Family”) (Dkt,,# 1 at 7, 9, 10). Plaintiffs assert that the imposition of a child predator buffer .zone, or a restriction on where persons required to register on the Database because of convictions regarding a minor, may live in relation to “premises where children commonly gather,” is a violation of the rights afforded them by and/or through the United States Constitution. Id.
The procedural posture of this case is lengthy, and is fully recited by the Magistrate Judge (Dkt. #91 .at 9-10). The Court will describe only those procedural events related to the instant motion and occurring since the Magistrate Judge’s report and recommendation was entered. On June 5, 2015, the City filed its Motion for Summary Judgment and Brief in Support (Dkt. # 70-75) seeking summary judgment on all claims. On July 7, 2015, Plaintiffs filed their response (Dkt. # 84), and on July 17, 2015, the City filed its reply (Dkt. #89). On August 21, 2015, after a thorough analysis of Plaintiffs’ claims and the parties’ summary judgment arguments, the Magistrate Judge entered
On September 4, 2015, Plaintiffs timely filed their Written Objections to Magistrate’s Findings, Conclusions, Report and Recommendation on Defendant’s Motion for Summary Judgment (Dkt. # 94). Plaintiffs make essentially two objections to the report and recommendation of the Magistrate Judge: (1) A. Duarte objects to the Magistrate Judge’s finding that the Ordinance does not deprive him of equal protection in violation of the Fourteenth Amendment; and (2) all Plaintiffs argue that they have been deprived of procedural due process under the Fourteenth Amendment by-application and enforcement of the Ordinance, and that they hold a “liberty interest” in residing together with immediate family within the areas of the City that are prohibited by the Ordinance (Dkt. # 91 at 34; Dkt. # 94 at 2-3). ■ Notably, Plaintiff specifically states in his objections, “A. Duarte confines his objections, in this response to the Magistrate’s report, to the claims stated above, denial of procedural Due Process «and Equal Protection, and hereby abandons all other claims” (Dkt. # 94 at 3). Accordingly, the report and recommendation of the Magistrate Judge is hereby adopted regarding A. Duarte’s claims for violations of the. Ex Post Facto Clause, the Double Jeopardy Clause, and his civil rights under 42 U.S.C. § 1983, and the Court finds these claims should be dismissed with prejudice. The Court will now consider Plaintiffs’ objections related to the equal protection and procedural due process claims in turn.
I. Equal Protection
A. Duarte asserts that the Ordinance deprives him of his constitutional right to Equal Protection of Law in violation of the Fourteenth' Amendment to the United States Constitution (Dkt. # 1 at 12; Dkt. # 91 at 29). A. Duarte asserts that the Ordinance places persons into two classes, both of which involve persons who are required to register as child sex offenders under Texas law (Dkt. #84 at 16; Dkt. # 91 at 30). The first class of individuals (which includes A. Duarte) is comprised of child sex offenders who are not on community supervision and are subject to the residency restrictions in the Ordinance. Id. The -second class encompasses sex offenders who at the time the Ordinance went into effect were on community supervision and were judicially relieved from compliance with the one-thousand (1,000) foot residency restriction otherwise required as a condition of their supervision under Section 13B of Article 42.12 of the Texas Code of Criminal-Procedure (which will be discussed in greater detail infra). Id. Individuals in the second class are not required to comply with the residency restrictions under one of the six (6) affirmative defenses available in the Ordinance (Dkt. # 70, Ex. 1 at 4-5; Dkt. # 91 at 30). A. Duarte argues that the imposition of the residency restriction on him, but not the second class of sex offenders, deprives
The Magistrate Judge first analyzed whether the Ordinance involves a suspect class or a fundamental right in order to determine which judicial scrutiny test is appropriate to use, and found that sex .offenders and/or persons included on the Texas sex offender registry are not a suspect class (Dkt. #91 at 30-31 (citing Stauffer v. Gearhart,
A. The Magistrate. Judge Properly Applied the Rational Basis. Test
A. Duarte does not object to the Magistrate Judge’s finding that the Ordinance should be analyzed using the “more deferential” rational basis test (Dkt. # 94 at 13). Accordingly, the- Court focuses on A. Duarte’s argument that the Magistrate Judge failed to properly analyze — under the test set forth in Cleburne v. Cleburne Living Center, Inc.,
As an initial matter, the “test” advocated by A. Duarte is not the test described by the Supreme Court in Cleburne, arid the quotes and citations from Cleburne are somewhat taken out of context.
This is the proper test; the Magistrate Judge undertook such an analysis here. The Magistrate Judge first determined whether any fundamental rights or suspect classifications were implicated by the Ordinance. Finding, none, the Magistrate Judge assessed whether the Ordinance was “rationally related to a legitimate government purpose” (See Dkt. #91 at 34), “As long as there is a conceivable rational basis for the official action, it is immaterial that it was not the or a primary factor in reaching a decision or that it was not actually relied upon by the decision makers or that some other non-suspect irrational factors may have been considered.” Reid v. Rolling Fork PUD,
B.The Ordinance Itself Does Not Classify Child Sex Offenders
A. Duarte’s argument that the Ordinance further divides sex offenders into two classifications is false. The Ordinance requires all convicted child sex offenders' who must register oñ thé Database to comply with the 1,500 residency restriction; however, the Ordinance offers an affirmative defense for those child sex offenders who are currently on community supervision and the imposition of the required 1,000 foot restriction from places where children commonly gather has either been reduced or waived by the state court. See Tex. Code of Crim. P., Art. 42.12, See. 13B. Notably, the waiver of this restriction must be raised and determined before the trial court presiding over the, community supervision.
C. The Magistrate Judge Correctly Found No Disparate Treatment
In addition, A. Duarte objects that the Magistrate Judge concluded there is no disparate treatment regarding the application of the Ordinance because the affirmative defense available to the first class of registrants does not depend on “individualized findings of dangerousness.” (Dkt. # 94 at 14). A. Duarte states that the availability of the affírmativé defense “clear[ly]” depends on - judicial findings that a “child safety zone” is not “necessary to protect the public, given the nature and circumstances of the offense” (Dkt. # 94 at 14). As previously enumerated (see n. 4), there are a variety of scenarios in which the 1,000 foot “child safety zone” can be waived or modified by a state court, and only one of those involves a court making a determination that the “child safety zone” is not necessary to protect the public under the particular circumstances of the offense. * Plaintiffs objection to the conclusion of the Magistrate Judge that the Ordinance’s affirmative defenses do not require “individualized findings of dangerousness” is overruled.
D. The Magistrate Judge Did Not Rely on A. Duarte’s “Moderate” Risk Level
A. Duarte further objects that the Magistrate Judge erroneously relied on the
II. Procedural Due Process (A. Duarte)
As set'forth in his summary judgment response brief, A. Duarte’s procedural due process argument is that the Due Process Clause entitles him to notice and a hearing prior to the imposition of the Ordinance because he has been fully discharged from his sentence for conviction of a sex offense, he is neither on community supervision or parole, and he was deprived of the right to show that he, as an individual, is not dangerous to the community (Dkt. # 84 at 26-27; Dkt. #91 at 36). As noted by the Magistrate Judge, A. Duarte asserted only a procedural due process claim (expressly disclaiming a substantive claim), and postured that such claim could be resolved by determining whether he has a fundamental right to live where he wishes to live (Dkt. # 91 at 36).
The Magistrate Judge found that “to the extent that A. Duarte’s argument is that the application of the Ordinance to him deprives him of a fundamental right — the right to live where he wishes to live— without notice and a hearing, this argument fails” (Dkt, # 91 at 37). The Magistrate Judge found that there is no such fundamental right, and the Court agrees (Dkt. #91 at 31-32). The Magistrate Judge explained:
[O]ver thirty years ago, the Eighth Circuit said “we cannot agree that the right to choose one’s place of residence is necessarily a fundamental right. Cases too numerous to mention have upheld restrictions on this interest.” Prostrollo v. Univ. of S.D.,507 F.2d 775 , 781 (8th Cir.1974) (citations omitted). There is no basis to conclude that' this law has changed in the intervening years. Miller, 405 F.3d at 713-14. Indeed, in recent years, courts have repeatedly rejected Plaintiffs’ contention that-there is a fundamental, constitutional right to “reside in a certain place, i.e., with family members,” saying “courts have determined there is no fundamental right to live where one pleases.” Graham,2006 WL 2645130 , at *7, By way of example, in People v. Leroy, an Illinois appellate court determined that a probationer had no fundamental constitutional right to live with his mother when she lived within 500 feet of a restricted area.357 Ill.App.3d 530 ,293 Ill.Dec. 459 ,828 N.E.2d 769 , 776 (2005). In Spangler v. Collins, a federal court in Ohio determined that a residency restriction of 1,000 feet did not implicate a fundamental right and therefore the statute was entitled to rational basis review. No. 2:11-cv-00605,2012 WL 1340366 , at *5 (S.D.Ohio Apr. 16, 2012). Further, in Miller, the Eighth Circuit considered and specifically rejected the argument that A. Duarte makes in this case that the Constitution establishes a fundamental right to reside at a location of your choosing.405 F.3d at 714 . As a result the court found that strict scrutiny should not apply, and that the residency statute would only be a violation if it was not rationally related ’tó a legitimate government purpose. Id. Likewise,‘this Court concludes that- the right to reside in a location of one’s choosing is not a fundamental right.
Id. at 32. The Magistrate Judge continued to find that the Ordinance applies to all child sex offenders required to register on the Database, and that the affirmative defenses do not allow individualized find-
A. Inapplicability of the Mathews Test
In his objections, A. Duarte modifies his contention and now argues that the Magistrate Judge must apply a three-factor test set forth in Mathews v. Eldridge,
(1) the private interest that will be effected by the official action;
(2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and
(3) the government’s interest, including the function involved and the fiscal and administrative burdens, that the additional or substitute procedural requirement would entail.
(Dkt. # 94 at 5 (citing Mathews,
After a review of the case law cited by the Parties, and also the recent Supreme Court decision, Kerry v. Din, — U.S. — ,
There can be no legitimate argument (and none has been made) that A. .Duarte has-been deprived of a life or property interest as these rights are described both historically and in case law precedent. Id. at 2133. And it is precisely this fact that makes the Supreme Court’s decision and its three-factor test in Mathews, which is relied on heavily by A. Duarte, inapplicable to the present decision before the Court.
The Magistrate Judge found that neither A. Duarte (nor any other Plaintiff) has such a liberty interest (See Dkt. # 91 at 32 and supra at p. 10). The Magistrate Judge’s conclusion is well supported as courts have repeatedly rejected Plaintiffs’ contention that there is a right to choose one’s place of residence, a right to reside in a certain place, and/or a right to reside with family members. Id. This conclusion is further buttressed by the Supreme Court’s recent holding in Din.
B. The Magistrate Judge Did Not Consider.the Number of Available Properties .
A. Duarte also objects to the Magistrate Judge’s reliance on the number of avail
C. The Magistrate Judge Applied the Correct Law
A. Duarte also objects to the Magistrate Judge’s reliance on “decisional law that involves the scope of liberty enjoyed by confined prisoners, parolees and persons on community supervision” (Dkt. #94 at 7). Plaintiff contends that he has fully discharged his criminal sentence, is no longer confined or on community supervision, and is entitled to the full scope of liberty enjoyed by others similarly situated. Id. This statement is not entirely accurate, as A. Duarte is still a convicted felon,, and, as noted by the Magistrate Judge, “convicted felons are properly subjected to many restrictions on their constitutional rights which would be objectionable if imposed on non-felons.” (Dkt. # 91 at 38 n. 25 (citing Jones v. Helms,
A. Duarte further asserts that the Magistrate Judge ignored the difference between sex offender “registration” statutes and sex offender “residency” statutes, and thus, ignored the greater intrusion that the residency restriction imposes on A. Duarte (Dkt. # 94 at 7). This is incorrect.
D. The Magistrate Judge Correctly Found that Moore Does Not Apply
A. Duarte also objects to the Magistrate Judge’s finding that Moore v. City of East Cleveland,
E. The Magistrate Judge Did Not Rely on A. Duarte’s “Moderate” Risk Level
A. Duarte again objects that the Magistrate Judge erroneously relied on the assignment of a “moderate” risk level to A. Duarte when finding that A. Duarte’s procedural due process claim be dismissed (Dkt. # 94 at 9). Contrary to A. Duarte’s assertion, the- Magistrate Judge did not rely on A. Duarte’s risk level in making its procedural due process finding, and Plaintiffs objection is overruled.
III. Procedural Due Process (Duarte Family)
The Duarte Family contends that they hold a constitutionally protected liberty interest in residing together as a family with A. Duarte within- the areas in which A. Duarte is prohibited by the Ordinance from residing, i.e., within the bufferzone (Dkt. # 94 at 3). The Duarte Family further argues that before they can be deprived of this constitutionally protected liberty interest, they must be afforded procedural due process. Id. The Magistrate Judge fully addressed the Duarte Family’s claims, finding that the Duarte Family failed to identify what procedure was due, lacking, and/or inadequate (Dkt. #91 at 38-40). It is important to note that the Duarte Family members are not convicted child sex offenders, are not required to register on the Database, and are not prohibited from doing anything by the Ordinance;
The Magistrate Judge further found that the Duarte Family does not have a fundamental right and/or liberty interest in residing wherever they want, including within the buffer zone (Dkt. #91 at 39). As discussed. supra, the ' Magistrate Judge’s finding is bolstered by the recent Supreme (Court decision in Din, in which the Supreme Court stated “[t]here is a simple distinction between government action that directly affects a citizen’s legal rights, or imposes a direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or .incidentally.”
TV. Conclusion
Having considered each of Plaintiffs’ timely filed objections (Dkt. #94), and having conducted a de novo review, the Court is of the opinion that the findings and conclusions' of the Magistrate Judge are correct and adopts the Magistrate Judge’s report (Dkt, # 91) as the findings and conclusions of the Court.
Accordingly, it is ORDERED.that Defendant’s Motion for Summary Judgment and . Brief in Support (Dkt. # 70) is GRANTED. Plaintiff A. Duarte’s claims for violations of (1) the Ex Post Facto Clause of Article 1, Section 10 to the United States Constitution; (2) the Double Jeopardy " Clause of the Fifth Amendment; (3) the Equal Protection Clause of the Fourteenth Amendment; (4) his civil rights under 42 U.S.C. § 1983; and (5) the Due Process Clause of the Fourteenth Amendment are dismissed with prejudice. The Duarte Family’s procedural due process claim and all Plaintiffs’ claims for declaratory judgment "and injunctive "relief are likewise dismissed with prejudice.
All relief not previously granted is DENIED, including specifically Defendant’s Motion to Exclude Plaintiffs’ Designated Expert Phillip David Taylor (Dkt. # 90).
IT IS SO ORDERED.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Now before the Court is Defendant’s Motion for Summary Judgment and Brief in Support [Dkts. 70-75]. After reviewing the Motion, Response, Reply, and any other relevant filings, the Court recommends that the Motion be GRANTED.
BACKGROUND
Plaintiffs Aurelio Duarte (“A. Duarte” or “Plaintiff’),. Wynjean Duarte (“W. Duarte”), S.D., a minor (“S.D.”), and Brandi Duarte (“B.D.”), bring this suit alleging that the ordinance entitled “Regulation of Child Predator Offender Residency” (the “Ordinance”)
Plaintiffs’ Complaint is comprised of two sets of claims: (1) claims, by Plaintiff A. Duarte himself, and (2) claims by W. Duarte, S.D. and B.D. (the “Duarte Family”) [Dkt. 1 at 7, 9, 10]. The elaims are considered herein in this order. Defendant is a municipal corporation incorporated under the laws of the State of Texas situated in Denton County, Texas, and is a
In 2004, Plaintiff A. Duarte was indicted by a Dallas County Grand Jury for the third degree felony offense of Online Solicitation of a Minor, in violation of Texas Penal Code § 15.031 [Dkt. 70, Ex. 3; Dkt. 1 at 3, ¶ A]. On May 19, 2006, A. Duarte was found guilty of that offense, and was sentenced to eight (8) years confinement in the Institutional Division of the Texas Department of Criminal Justice (“TDCJ”), and was placed on community supervision for a term of ten (10) years. Id. On May 31, 2007, the State of Texas filed a motion to revoke A Duarte’s probation or proceed with an adjudication of guilt because A. Duarte violated the conditions of his probation [Dkt. 70, Ex. 3, at 13, 15], On June 5,2007, A. Duarte’s community supervision was revoked by the 282nd District Court of Dallas County, and he was sentenced to a term of confinement of three (3) years in the Institutional Division of the TDCJ [Id. at 17; Dkt. 1 at 4, ¶ B], A. Duarte’s sentence to confinement was fully discharged in June of 2010 [Dkt. 1 at 4, ¶ C], and A. Duarte admits that the Ordinance applies to him because he is required to register as a convicted child “Sex Offender” with the Texas Department of Public Safety [Dkt. 1 at 5, ¶ E], The Duarte Family is not required to register as convicted sex offenders [Dkt. 70 at 33, n. 103].
In May of 2006, A. Duarte was referred to Central Psychological
Since his release from prison in June of 2010, A. Duarte is required to annually register in person with the local law enforcement authority where he resides [Dkt. 70, Ex. 4; Ex. 5; Ex. 6 (2012 deposition) at 131:19-21]. The registration requires A Duarte to report, within seven (7) days of a change, information regarding: his name; job status (includes beginning and leaving employment and changing work locations); education status (includes a transfer from one educational facility to another); among other requirements [Dkt. 70, Ex. 4 at 2-3; Ex. 8 at 4, ¶ 14], The failure' to comply with any registration requirement is a felony offense.
Because ‘ of the requirement that A. Duarte register with the Texas Department of Public Safety as a child sex offend
REGULATION OF CHILD PREDATOR OFFENDER RESIDENCY WHEREAS, the City Council of the City of Lewisville, Texas,, .finds, determines and declares that child predator offenders are a serious, threat to public safety; and,
WHEREAS, the City Council finds and determines that the recidivism rate for released sex offenders is alarmingly high, especially for those who commit their, crimes against children; and, WHEREAS, the City Council finds and determines that establishing a policy to restrict the property available for residence of certain sex offenders will provide better protection for children gathering in the City; and,
WHEREAS, the City Council finds that persons convicted of offenses that involve either physical contact with minors or preparatory steps towards physical contact with minors are a greater risk to the safety of children who gather near areas where such offenders reside; and, WHEREAS, the City Council determines that establishing regulations that restrict certain offenders from residing in areas that are at and near where there is a high concentration of children will provide better protection for children in the City by minimizing immediate access and proximity to children who are at and going to and from schools, parks, and day care centers, and that .this residency restriction will foster the public safety of its citizens; and,
WHEREAS, it is, the. determination :by the City Council that every effort should be made to protect its citizens from harm at the hands of certain sex offenders, and that, the City’s children are worthy of protection to the greatest extent afforded under the law;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LEWISVILLE, TEXAS, THAT:
SECTION 1. The findings set forth above are incorporated into the body of this Ordinance as if fully set forth herein.
SECTION 2. The Lewisville City Code is hereby amended by adding a new section, which shall read as follows:
ARTICLE 1. REGULATION OF SEX OFFENDER RESIDENCY
Sec. 1. Definitions. For the purpose of this article, the following terms-, words and the derivatives thereof shall have the meanings given below:
Premises where children commonly gather. Includes all improved and unimproved areas on the lot where a public park, public playground, private or public school, public" or semi-public swimming pool, public or non-profit recreational facility, day care center or video arcade facility is located, as those terms are or may be defined in Section 481.134 of the Texas Héalth and Safety Code, as amended. For purposes of this article, landscaped street medians are not public parks.
Sec. 2. Offenses. It is unlawful for a person to establish a permanent or temporary residence within 1,500 feet of any premises where children commonly gather if the person is required to register on the Texas Department of Public Safety’s Sex . Offender -Database (the ’Database’) because of conviction(s) involving a minor. ■
Both Parties seemingly agree Plaintiffs have deep roots in the City of Lewisville, and desire to live there as a family [Dkt. 1 at 4, ¶ C; Dkt. 70 at 9, ¶ 15]. In part due to the Plaintiffs’ deep roots, prior to A. Duarte’s release from prison W. Duarte began communicating with City representative Leslie Peck (“Ms. Peck”), the sex offender registrar in the Criminal Investigation. Section of the Lewisville Police Department, to assist her and A. Duarte with finding available housing for their family that complied with the Ordinance
Chronologically, the Court has ascertained that W. Duarte contacted Ms, Peck and inquired about the following residential properties: (1) On February 22, 2010, W. Duarte -inquired with the City about 120 Ridgeway Circle, and was told it was a “NO,” meaning that residence was within a protected zone and A. Duarte could not reside there [Dkt. 70, Ex. 7 at 9-11]; (2)
From approximately 2010 through 2013, A. Duarte and his family resided at 324 E. Corporate Drive, Lewisville, Texas, in a one bedroom motel room [Dkt. 70, Ex. 5 at 2, 8; Ex. 6 (2012 deposition) at 138:4-7; Ex. 8 at ¶ 12]. At the time the Duarte family moved into the motel room it was not located within a buffer zone; however, it is now within a buffer zone due to the construction of a new public or semi-public swimming pool [Dkt. 70, Ex. 8 at 4, ¶ 12]. See also Duarte ex rel. Duarte v. City of Lewisville,
As of June 5, 2015, there were 495 residential properties outside the buffer zones that a registered child sex offender could legally reside in within the City of Lewisville [Dkt. 70, Ex. 8 at 1 ¶ 4]. Neither party has presented the Court with any evidence of exactly how many residential properties (for purchase or rent) were available outside the protected zones that a registered child sex offender could legally reside in at the time Plaintiffs filed their Complaint on or about March 26, 2012, and/or during the time frame of 2009-2013, when W. Duarte made inquiries. The Court has, however,
Plaintiffs assert that the U.S. Census Bureau reports that in 2010, the City of Lewisville had 39,967 residential housing units within its city limits and that the City had a total population of 95,210 residents [Dkt. 84 at 7, ¶1]. Of the total 39,967 residential housing units in the City of Lewisville, Texas in November of 2012, Plaintiff states that only eight (8) residential properties were legally available for purchase and only two (2) were available for lease [Dkt. 84 at 7, ¶ J]. Plaintiffs contend these ten (10) total properties constituted .025 percent of the total number of residential properties in Lewisville, Texas, at that time [Dkt. 84 at 8, ¶ K].
On or around August of 2013, the Duartes moved to Lake Dallas, Texas [Dkt. 70, Ex. 6 (2015 deposition) at 5:3-13; Ex. 5 at 15]. While Plaintiffs‘no longer live in Lewisville, Texas, it is undisputed that they continue to visit, work, shop, and attend school in Lewisville frequently [Dkt. 70, Ex. 6 (2015 deposition) at 13:24-14:13]. Indeed, Plaintiffs are “constantly in Lewisville,” and visit W. Duarte’s mother as a family at least every week, who resides in Lewisville inside a buffer zone [Dkt. 70, Ex. 6 (2015 deposition) at 14:3-13]. Both W. Duarte and B.D. work at Sears in. Lewisville, and S.D. attends school at Lewisville High School and works at Raising Cane’s restaurant in Lewisville after school [Dkt. 70, Ex. 13 (2015 deposition) at 27:13-23; Ex. 15 at 5:11-14, 6:1-5, 7:17-19]. The Duartes describe themselves as very close, and state that their relationship has not been affected by this lawsuit or the Ordinance [Dkt. 70, Ex. 13 (2015 deposition) at 29:10-16, 28:16-17; Ex. 6 (2015 deposition) at 7:21-8:17; Ex. 14 at 10:9-19, 14:2-11; Ex. 15 at 9:19-22, 10:1-14].
Procedurally, this case was filed on March 26, 2012 [Dkt. 1], and the City moved for dismissal based on lack of standing under Federal Rule of Civil Procedure 12 [Dkt. 6]. On October 23, 2012, the Court dismissed W. Duarte, S.D., and B.D.’s claims for lack of standing [See Dkt. 18; Dkt. 20]. Later, the City moved for summary judgment on A. Duarte’s claims, and the Court found that there was no genuine dispute of material fact that A. Duarte lacked standing to challenge the Ordinance [Dkt. 26; Dkt. 50; Dkt. 53]. On July 3, 2013, the Court entered a final judgment dismissing Plaintiffs’ claims with prejudice [Dkt. 54].
On July 24, 2013, Plaintiffs timely appealed [Dkt. 55] See Duarte, 759 F.3d at 516. The Fifth Circuit reviewed the decision to dismiss for -lack, of standing de novo, and determined that (1) A. Duarte suffered an actual injury because he. “is the target of the Lewisville ordinance restricting where registered child sex offenders, like him, can live” and; (2) W. Duarte, S.D., and B.D. also have standing to challenge the ordinance because it “interferes with the Duartes’ lives ‘in a concrete and personal way’ which the Supreme Court has held is .sufficient to confer standing,” Id. at 518-19. The Fifth Circuit found .that “the Duartes need not show they were ’legally foreclosed from purchasing or
On June 5, 2015, the City filed its Motion for Summary Judgment and Brief in Support [Dkts. 70-75] seeking summary judgment on all claims. On July 7, 2015, Plaintiffs filed their Response [Dkt. 84]. On July 17, 2015, the City filed its Reply [Dkt. 89],
LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett,
The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247,
ANALYSIS
Plaintiff A. Duarte seeks monetary damages, declaratoiy and injunctive relief, and
In 1994, the Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act was enacted. 42 U.S.C. § 14071. By 1996, every state, the District of Columbia, and the federal government responded by enacting a registry statute for those convicted of crimes against children and/or various sexual offenders. Smith v. Doe,
In addition to the sex offender registry statutes, by 2008, many Texas cities, like Lewisville, had enacted residency restrictions for those persons registered as a sex offender with the Texas Department of Public Safety. See, e.g., Plano City Code Sec. 14-123 (2006); City of Arlington Ord. No. 7-079 (2006); City of Mesquite Ord. No. 3809 (2006); City of Richland Hills Ord. No. 1064-06 (2006); City of Saginaw Ord. No.2007-20 (2007); City of West Orange Ord. No. 35 (2006); City of League City Ord. Np.2006-81 (2006). It is the Lewisville Ordinance imposing the residency restrictions that is at issue in this case.
A. Defendant’s Evidentiary Objections
As an initial matter, in its Reply, the City objects to certain exhibits to Plaintiffs’ Response. Specifically, Defendant objects to Plaintiffs’ Exhibit 1 (and its subparts) [Dkt. 84, Ex. 1], pursuant to Federal Rule of Evidence 801(c) as inadmissible hearsay in the form of expert designation [Dkt. 90].
Defendant also objects to Plaintiffs’ Exhibit 2 [Dkt. 84, Ex. 2], which Defendant describes as a document made by W. Duarte a week before her deposition at the request of Plaintiffs’' counsel listing the homes that W. Duarte allegedly spoke to Ms. Peck about [Dkt. 89]. Defendant objects under Federal Rules of Evidence 612 and 803(5) on' the basis that the document constitutes “impermissible past recollection recorded and present recollection revived” [Dkt. 89 at 10]. Notably, however, Plaintiffs’ Exhibit 2 is the affidavit of W. Duarte, and not a listing of homes as allegéd by Defendant. W. Duarte’s affidavit, which is based on her personal knowledge, is admissible summary judgment evidence under Federal Rule of Civil Procedure 56, and, as such, Defendant’s objection to Plaintiffs’ Exhibit 2 is OVERRULED.
B. A. Duarte’s Claims
1. Violations of the Ex Post Facto Clause
A. Duarte alleges that the Ordinance violates the Ex Post Facto Clause by subjecting him to, additional or “retroactive” punishment following his 2008 conviction for Online Solicitation of a Minor [Dkt. 1 at 15]. “The Ex Post Facto Clause of Article I, Section 10 of the Constitution prohibits the States from enacting laws that increase punishment for. criminal acts after they have been committed.” Doe v. Miller,
Whether a statute is civil or criminal in nature is a question of statutory construction. Helvering v. Mitchell,
The next determination is whether the Ordinance is so punitive in purpose or effect that it negates the City’s intent to be nonpunitive. See Smith,
The Supreme Court established a framework in Kennedy v. Mendoza-Martinez,
i. Whether the Ordinance imposes an affirmative disability or restraint
A. Duarte argues only that Defendant concedes that the Ordinance imposes “an affirmative disability or restraint” [Dkt. 84 at 10]. While the City agrees that the Ordinance imposes a minor restraint' (in that child sex offenders are precluded from living within certain designated areas of the City) [Dkt. 70 at 16], the City also notes that there are no physical restraints imposed by the statute, and further asserts that any minor restraint imposed does not rise to the level of a disability contemplated by the Kennedy factors [Id.; Dkt. 89 n. 2]. See Hendricks,
ii. Whether the Ordinance has been regarded in our history and traditions as a punishment
The Ordinance on its face does not impose a circumstance that has been regarded in our history and traditions as punishment. Notwithstanding, A. Duarte asserts that the Ordinance essentially constitutes “banishment” of the child sex offenders subject to its residency restrictions [Dkt. 84 at 10-11]. “Banishment” refers to being sent away from a city, place, or country for a specified period of time or life, United States v. JuToy,
In support of his proposition [Dkt. 84 at 10], A. Duarte cites to certain language from Doe v. Baker, No. 1:05-CV-2265,
Under the record presented here, similar to the Court in Doe v. Baker, the Court cannot conclude that A. Duarte is subjected to banishment under the Ordinance. Although the record indicates that W. Duarte inquired about suitable residences on a number of occasions and was told that certain residences were within a protected zone, it is undisputed there were homes for sale that were not within a protected zone [see Dkt. 70, Ex. 7 at 1, 20; Ex. 8]. Indeed, Plaintiffs acknowledge they were informed of at least two such properties] which they purport to have attempted to purchase [see Dkt. 70, Ex. 13 (2012 deposition) at 27:1-21; 31:21-25]. The City has presented evidence that, as of June 5, 2015, there were 495 residential properties.in Lewis-ville that were outside the protected zones where a registered child sex offender could legally reside [Dkt. 70, Ex. 8 at 1, ¶ 4]. The City’s evidence also indicates that there were 92 -housing units for -sale and actually sold and 36 housing units for lease and actually leased outside the Ordinance protected zones between 2010 and 2015 [Dkt. 70, Ex. 12 at 2, ¶ 8].
Hi. Whether the Ordinance promotes the traditional aims of punishment
A. Duarte contends that the Ordinance promotes the traditional aims of punishment — specifically, deterrence and retribution — and is therefore punitive in nature [Dkt. 84 at 11-12]. Defendant ágrees that the Ordinance is désigned to address the dangers of recidivism among persons previously convicted of -sex offenses against children, and asserts that it is likely that the Ordinance also deters future offenders from committing these crimes [Dkt. 70 at 19]. However, in Smith, the Supreme Court made clear that “[t]o hold that the mere presence of a deterrent purpose renders such sanctions ‘criminal’... would severely undermine the Government’s ability to engage in effective regulation.”
It is undisputed that the Ordinance prevents convicted child sex offenders from residing in areas near where children commonly gather, such as schools, pools, parks, and daycares [see Dkt. 70, Ex; 1]. While the residency requirement of the Ordinance is different than the registration statute upheld in Smith, the analysis employed remains the .same and demands the same result herein — the mere existence of a deterrent effect does not provide a strong enough inference that the restriction is punishment.’ See Smith,
iv. Whether the Ordinance comes into play only on a finding of scienter and whether the Ordinance applies to behavior that is 'already a crime
In Smith, the Supreme Court held that these two factors (consolidated herein) were of little weight in determining whether the sex offender registration statute was a violation of the Ex Post Facto Clause.
v. Whether the Ordinance has a rational connection to a nonpunitive purpose
The most important factor in an ex post facto analysis is whether there is a rational connection between the challenged statute and its nonpunitive purpose.. Smith,
A. Duarte asserts that there is no rational connection betwéen the Ordinance’s requirement that he live at least 1,500 feet away from a location where children commonly gather, and the nonpunitive purpose of providing better protection for children in the City [Dkt. 84 at 12]. A. Duarte acknowledges that providing better protection for children is a legitimate and laudable objective; however, A. Duarte argues that this objective cannot be rationally or legally accomplished by the Ordinance. Id. Specifically, A. Duarte relies on the expert testimony of Dr. Taylor who attests that at the time'the Ordinance was enacted in 2008, there was an “undiluted consensus among behavioral scientists and criminologists ...' that sex offender residency restrictions provide absolutely no ’better protection for children’ against the risk of being subjected to sexual abuse” [Dkt. 84
Because the testimony of Dr. Taylor has been stricken (see supra at 12), the Court cannot rely on it in deciding this Motion; notably however, even if the Court were to rely upon and/or consider A. Duarte’s expert report and bibliography the result would be unchanged. The Court need only determine if the Ordinance has a rational connection between the stated purpose and the restriction placed on convicted child sex offenders; a perfect fit between ends and means need not exist. See generally Moore v. Avoyelles Correctional Center,
Here, there is a rational connection between prohibiting convicted child sex offenders from living within 1,500 feet of places where children commonly gather and the nonpunitive goal of protecting children from recidivist sex offenders. Again, federal courts have consistently found that child sex offenders pose a high risk of recidivism, and even if this Ordinance is not the most effective means of offering protection to the community, specifically to its children, it is rationally connected to this goal, and “[w]here there is such a rational connection to a non-punitive purpose, it is not for the courts to second-guess the state legislature’s policy decision as to which measures best effectuate that purpose.” Bredesen,
We think the decision whether to set a limit on proximity of ’across the street’ (as appellees suggest), or 500 feet or 3000 feet (as the Iowa Senate considered and rejected),... or 2000 feet (as the Iowa General Assembly and the Governor eventually adopted), is the sort of task for which the elected policymaking officials of a State, and not the federal courts, are properly suited. The legislature is institutionally equipped to weigh the benefits and burdens of various distances ... 'Where individuals in a group, such as convicted sex offenders, have distinguishing characteristics relevant to interests the State has authority to implement, the courts have been very reluctant. .. to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.
Miller,
Accordingly, the Court finds that the Ordinance has a rational connection to its nonpunitive purpose. “Obviously, no law protects every person in every situation, just as, no law ever stops a criminal who is determined to commit crime. That does not mean, however, that the legislature should not or cannot do what it can to reduce the risk of harm that recidivists actually present.” Doe v. Petro, No. 1:05— cv-125,
vi. Whether the Ordinance is excessive in relation to its purpose
A. Duarte contends that the Ordinance is excessive in' relation to its purpose because' “it does not even attempt to distinguish among its targets those who may, and those who under ' ho circumstances would, pose a threat to children by reason of a lack of sexual control” [Dkt. 84 at 13]. A. Duarte asserts that the findings of Dr. Henschel, attached as an exhibit to the City’s Motion, are not properly used to determine a sex offender’s relative risk of recidivism, and the City did not. consider these findings when it applied or enforced its Ordinance against A. Duarte. Id. at 14. A. Duarte further argues that .the statute is clearly punitive, and urges the Court to consider three cases’(not cited by the City) in support of his proposition: (1) Doe v. Miller,
The Court, having examined each, finds Plaintiffs cited cases unpersuasive. Doe v. Miller and the reasoning contained therein has been overturned by the Eighth Circuit.
The Ordinance at issue in this case has a “grandfather” clause that allows a sex offender who has already established a residence at a particular location to be exempt from the Ordinance [Dkt. 70, Ex. 1 at 4-5]. It also does not require a sex offender to move from a residence upon the construction of some new location where children commonly gather. Id., see also Duarte,
The Court’s examination of the above factors and the evidence presented leads to the determination that Plaintiff A. Duarte cannot show by “clearest proof,” that the effects of the Ordinance aré so punitive as to negate the City’s intent to impose a' civil regulatory scheme. A. Duarte also contends that there are genuine issués of material fact that remain to be resolved under his ex post facto claims, which preclude dismissal [Dkt. 84 at 13]. However, A. Duarte does not state which facts are in dispute and has not disputed any of Defendant’s evidence. It is clear the only issues for the Court to determine under A. Duarte’s Ex Post Facto claim are legal issues. Therefore, the Court finds that the Ordinance is not a violation the Ex Post Facto Clause of the United States Constitution, and, accordingly, recommends that this claim be dismissed.
vii. Conclusion
A. Duarte asserts that the Ordinance at issue here constitutes “successive, multiple ’punishments,’ arising directly from Plaintiff Aurelio Duarte’s prior conviction for a reportable ’sex offense,’ which are prohibited by the Double Jeopardy Clause” [Dkt. 1 at 14-15]. The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V; Hendricks,
A. Duarte’s double jeopardy claim fails for the same reasons that his ex post facto claim fails.
3. Violations of the Equal Protection ClauselRight' of Association Claim
A. Duarte, claims that the Ordinance deprives him of his constitutional right to Equal Protection of Law in violar tion of the Fourteenth Amendment to the United States Constitution [Dkt. 1 at 12]. The Equal Protection Clause “demands that similarly situated persons be treated similarly under the law.” Sonnier v. Quarterman,
[t]he Fourteenth Amendment’s promise that no person shall be denied the .equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. We have attempted to reconcile the principle with the reality that by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.
The first step is to identify whether the Ordinance involves a suspect class or a fundamental right in order for the Court to determine which test applies to its review of the Ordinance.
As a preliminary matter, sex offenders and/or persons included on the Texas sex offender registry are not a suspect class. Stauffer v. Gearhart,
A. Duarte argues that he has a fundamental right to live where he wishes and also that the Ordinance constitutes a direct regulation on family affairs and/or his right to associate [Dkt. 1 at 7]. Fundamental rights are those that are so implicit in the concept of ordered liberty that neither liberty nor justice would exist if they were sacrificed. See Williams v. Attorney Gen of Alabama,
Defendant points out that over thirty years ago, the Eighth Circuit said “we cannot agree that the right to choose one’s place of residence is necessarily a fundamental right. Cases too numerous to mention have upheld restrictions on this interest.” Prostrollo v. Univ. of S.D.,
Turning now to A. Duarte’s claim that he is being denied the right to associate with family members, and that,. as such, the Ordinance constitutes an infringement on the familial relationship and/or regulates family affairs, the Court finds the Ordinance does not affect the family relationship. This claim has repeatedly failed before other courts and also fails before this Court. See, e.g., McGuire v. City of Montgomery, No. 2:11-cv-1027-WKW,
In support of his argument, A. Duarte cites Moore v. City of East Cleveland,
Accordingly, as Plaintiff has failed to identify a fundamental right or liberty interest, the Court finds that the Ordinance will be upheld as long as it is rationally related to a legitimate government purpose. Hines v. Alldredge,
4. Liability under 42 U.S.C. § 1983/1988
A. Duarte asserts a claim against the City for municipal liability pursuant to 42 U.S.C. § 1983. “[R]espondeat superior does not apply to municipalities for claims under § 1983.” Deville v. Marcantel,
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.
Bennett v. City of Slidell,
Without an underlying violation of constitutional rights pursuant to a policy, practice, or custom, A. Duarte may not proceed on a § 1983 claim against the City. See Hernandez v. City of El Paso, No. EP-08-CV-222-PRM,
5. Due Process Claims
A. Duarte contends that he is entitled to procedural due process because he is a person who is fully discharged from his sentence for conviction of a sex offense, he is neither on community supervision or parole, and he was deprived of the right to show that hé, as an individual, is not dangerous to the community [Dkt. 84 at 26-2,7]. The Due Process Clause of the Fourteenth Amendment guarantees that a State will not deprive a person of life, liberty, or property without some form of notice and opportunity to be heard. See Hamdi v. Rumsfeld,
In its .Motion, the City argues that A. Duarte’s “fundamental right” and “liberty interest” to live where he wants is not a procedural due process claim, but appears to be a substantive due process claim because A. Duarte complains about the City’s interference with his liberty interests [Dkt. 70 at 29]. However, A. Duarte specifically states that he is not raising a substantive due process claim, and affirms that his claim is intended to be a procedural due process claim only. “On several prior occasions Plaintiffs have expressly disavowed ever having- alleged in this suit á -claim based on a violation of ’substantive- due process.’ Suffice it to say once again, Plaintiffs’ claims concerning the violation of their ’substantive’ constitutional right to ’liberty’ protected by the Fourteenth Amendment, invokes the procedural due process analysis... which does not inquire into whether an alleged deprivation of liberty should be subjected to, or satisfies, a ’strict’ or some less demanding degree of ’scrutiny* ” [Dkt. 84 at 30-31]. Therefore, the Court will evaluate A. Duarte’s claim as a procedural due process, claim and will not consider substantive due process other than noting Plaintiff does not appear to satisfy the requirements to prevail on such a claim.
First and foremost, to the extent that A. Duarte’s argument is that the application of the Ordinance to him deprives him of a fundamental right — the right to live where he wishes to live — without notice and a hearing, this argument fails. As determined by the Court supra, A. Duarte does not have a fundamental right to live wherever he wishes. If this is indeed the lynchpin of A. Duarte’s procedural due process argument, then his argument fails based on- the Court’s previous determination.
Moreover, similar to the statute at issue in Miller, the residency restriction in this case applies to all child sex offenders, regardless of what estimates of future dangerousness might be proven in individualized hearings.
The person was at the time of the violation subject to community services supervision pursuant to-Section 13B of Article 42.12 of the Texas Code of Criminal Procedure, as amended, and the court reduced or waived the one thousand foot (1,000’) restriction for a child free zone under Section 13B(a)(1)(B) of Article 42.12 of the Texas Code of Criminal Procedure, as amended, as it applies to the person’s residence.
[Dkt. 70, Ex. 1 at 6]. This affirmative defense essentially means that a defendant that, at the time of the violation, was granted community services supervision and the judge determined that the one-thousand (1,000) foot restriction was waived or reduced, then that person has an affirmative defense to the application of the residency restriction. This affirmative defense does not allow for individualized findings of dangerousness. Moreover, even if it did, A. Duarte’s risk level is currently moderate, and has been since its increase in March of 2009, indicating that he poses a moderate danger to the community and may continue to engage in criminal sexual conduct [Dkt. 70, Ex. 4 at 5-9], a finding that A. Duarte has not challenged with the Texas Department of Public Safety, or in these proceedings. As such, a finding of dangerousness is not relevant to the application of the Ordinance, and procedural due process does not entitle A. Duarte to a hearing to prove a fact that is not relevant to the' City’s Ordinance. Miller,
C. The Duarte Family’s Due Process Claims
W. Duarte, S.D., and B.D. also assert a procedural due process claim against the City, arguing that they have a “fundamental right” and “liberty interest” to “reside with her husband... at the location of her choice” and of “parental consortium,” including a right to a “custodial, caring, and nurturing relationship” with A. Duarte [Dkt. 70 at 33; Dkt. 84 at 33-34]. Like A. Duarte’s procedural due process claim, the City argues that W. Duarte, S.D.,' and B.D.’s due process claims appear to be more akin to a substantive due process claim. However, W. Duarte, S.D., and B.D. confirm that their claims are procedural due process claims only, and this Court will treat it as such [Dkt. 84 at 33].
These three Plaintiffs contend that “the question is whether [the Ordinance], by imposing upon a. family the dual [sic] of banishment or residential separation, infringes upon the liberty interest that is, at least in part, inherent in a family relationship” [Dkt. 84 at 33], Plaintiffs fail ’ to identify in either their Complaint or Response what procedure was lacking or inadequate. W. Duarte, S.D., and B.D. are not sex offenders and are not due any process under the Ordinance. As discussed supra, A. Duarte received all the process he was due, and Plaintiffs have not identified any further-procedural’require
D. Plaintiffs’Miscellaneous Claims 1, Plaintiffs’ Declaratory Judgment Claim
All Plaintiffs assert a claim for declaratory judgmént, seeking the Court to declare the Ordinance unconstitutional. However, the Declaratory Judgment Act is remedial, and a party seeking declaratory relief must have an underlying cause of action. See Collin County, Texas v. Homeowners Assoc. for Values Essential to Neighborhoods,
2. Plaintiffs’ Claim for Injunctive Relief
Plaintiffs seek a permanent injunction pursuant to 28 U.S.C. § 1343, prohibiting the City from applying or enforc
Moreover, a claim for injunctive relief is a remedy that does not stand alone, but requires a viable underlying legal claim. See Horne v. Time Warner Operations, Inc.,
CONCLUSION AND RECOMMENDATION
Based on the foregoing, the Court recommends that Defendant’s Motion for Summary Judgment and Brief in Support [Dkt. 70] be GRANTED. The Court recommends Plaintiff A. Duarte’s claims for violations of (1) the Ex Post Facto Clause of Article 1, Section 10 to the United States Constitution; (2) the Double Jeopardy Clause of the Fifth Amendment; (3) the Equal Protection Clause of the Fourteenth Amendment; (4) his civil rights under 42 U.S.C. § 1983; and (5) the Due Process Clause of the Fourteenth Améndment be dismissed with prejudice. The Court further recommends that the Duarte Family’s procedural due process claim be dismissed with prejudice. Moreover, the Court recommends that all Plaintiffs’
Additionally, the Court finds that Defendant’s objection to Plaintiffs Exhibit 1 is SUSTAINED, and Plaintiffs’ Exhibit 1 is hereby STRICKEN from the record as hearsay; and further finds that Defendant’s objection to Plaintiffs Exhibit 2 is OVERRULED.
Within fourteen (14) days after service of the magistrate judge’s report, any party must serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific.
Failure to file specific, written objections will bar the party from, appealing the unobjected — to factual findings and legal conclusions of the magistrate judge that are accepted by the district court, except upon grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. See Douglass v. United Services Automobile Ass’n,
SIGNED this 21st. day of August, 2015.
Notes
. In Cleburne, the United States Supreme Court ’ considered whether an ordinance, which required a home for the intellectually disabled to acquire a special use permit prior to leasing a building for the operation of the facility, violated the Equal Protection Clause.
. A. Duarte’s proposed "test” comes from a portion of Cleburne in which the. Supreme Court discussed the application of heightened review to differential treatment based on age and cited its decision in Massachusetts Board of Retirement v. Murgia,
The lesson of Murgia is that where individuals in the group affected by a law have distinguishing characteristics relevant to interests, the State has the authority to implement, the courts have been very reluctant. .. to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued. In such cases, the Equal Protection Clause requires a rational means to serve a legitimate end.
Cleburne,
. See, e.g., Graham v. Henry, No. 06CV381,
. The reduction or waiver of the 1,000 foot restriction may be raised in various ways, for example: (1) a judge is not required to impose this condition if the defendant is a student at a primary or secondary school or if a defendant is required to reside at a particular residence or facility as a condition of community supervision; (2) a defendant may request that the child safety zone be modified because it creates an undue hardship for the defendant, or is broader than necessary to protect the public, given the nature and circumstances of the offense; and (3) a community supervision officer may permit a defendant to enter on an evdnt-by-event basis into the child safety zone in certain circumstances. See Tex Code of Crim. P., Art. 42.12, Sec. 13B.
. In Mathews, the Supreme Court addressed Whether the 'Due Process Clause required, ‘prior to the termination of Social Security disability benefit payments, that the recipient . be afforded an opportunity for an evidentiary hearing. Id. at 323, 96 S.Ct. $93. The Supreme Court opened its discussion by noting it was undisputed in Mathews that "the interest of an individual in continued receipt of these benefits is a statutorily created ’property’ interest protected by the Fifth Amendment.” Id. at 333,
. Accordingly, even if the Court were to apply the three-factor test from Mathews, Plaintiff’s argument would still fail.
. The Magistrate Judge specifically stated, "[t]his [analysis] applies regardless of whether the statutory scheme involves a sex offender registration statute or a sex offender residency restriction ordinance” (Dkt. #91 at 38). Moreover, throughout the Magistrate Judge’s report and recommendation, the Magistrate Judge noted whether each case relied upon involved a sex offender registration and/or residency statute.
. The Magistrate Judge also found, and the Duarte Family does not object, that there is no evidence that S.D. or B.D. were deprived of “parental consortium" or a "custodial, caring, and nurturing relationship” with A. Duarte (Dkt. #91 at 39). The Magistrate Judge found that the Duartes describe themselves as very close, and state that their relationship has not been affected by this lawsuit or the Ordinance (Dkt. #70, Ex. 13 (2015 deposition) at 28:11-25, 28:16-17; Ex. 6 (2015 deposition) at 7:21-23, 8:3-17; Ex. 14 at 10:9-18, 14:2-11; Ex. 15 at 9:19-22, 10:1-14).
. Both Parties intermittently cite the Ordi- • nance using different names and/or ordinance numbers. By way of example, Plaintiffs, in their Complaint, cite, to “Ordinance No. 3522-01-2008, § II, eff. 1-20-2008” [Dkt. 1 at 4-5]. Defendant, in its Motion for Summary Judgment, cites to both Ordinance No. 3533-01-2008, enacted January 28, 2008, and to Ordinance No. 3522-01-2008 [Dkt. 70 at 2, 6]. And Plaintiffs sometimes refer to the Ordinance as “SORRO” [Dkt. 1 at 5], After the Court's review of the evidence, it is clear the Ordinance is properly denominated as Ordinance No. 3533-01-2008 (“the Ordinance"), which is how the Court refers to the Ordinance herein [See Dkt. 70, Ex. 1).
. Tex. Code of Crim. P. Art. 62.102.
. Section 5 of the Ordinance contains a number of affirmative defenses to prosecution, including: (1) the sex offender has already complied with all sex offender registration laws prior to the date of the adoption of the Ordinance; (2) the sex offender was a minor when he or she was convicted; (3) the sex offender is a minor; (4) the premises where children commonly gather was opened after the sex offender established the permanent or temporary residence and complied with all sex offender registration laws; (5) the information on the sex offender database is incorrect; and (6) the sex offender, at the time of the violation, was subject to community services supervision pursuant to Section 13B of Article 42.12 of the Texas Code of Criminal Procedure and the court reduced or waived the 1,000 foot restriction for a child free zone under Section 13B(a)(1)(B) of Article 42.112 of the Texas Code of Criminal Procedure, as it applies to the sex offender’s residence [Dkt. 70, Ex. 1 at 4-5].
. Ms. Peck frequently assists convicted child sex offenders in determining whether a residence is located within or outside of a protected zone [Dkt. 70, Ex. 7 at ¶ 4]. The City of Lewisville also maintains a publicly-available website that allows a person to access an interactive map of Lewisville that includes the Ordinance protected zones. Id. On the website, a user may enter a particular residence and the interactive map will place a marker on the residence on the map. Id. The address iseserv.ices.cityoflewisville.com/citymaps, and has been available since approximately July 2012, but was not available to A. Duarte at the time the instant suit was filed. Id.
. The affidavit of Ms. Peck states that W. Duarte began contacting her in 2009, and the records indicate that W. Duarte continued inquiring about various residences through March 12, 2013 [See Dkt. 70, Ex. 7], The Court notes that inconsistencies in these dates appear in the Parties’ factual statements; however, after a review of the evidence submitted, the Court finds that regardless of the dates alleged, the result is unchanged.
. Defendant’s Motion states that W. Duarte made eight (8) inquiries; however, upon the Court’s review of the evidence submitted, the evidence reflects that W. Duarte made additional inquiries (at least nine (9)) [See Dkt. 70 .at 7],. Regardless of the number of inquiries made by W. Duarte, the'result reached by the Court is unchanged.
. In her 2015 deposition, W. Duarte testified that she had many other undocumented phone‘calls or email inquiries with Ms. Peck regarding whether residences that were for sale or-lease-were within a protected zone [Dkt. 70, Ex. 13 (2015 deposition) at 12:15— 25]. W. Duarte could not recall the specific conversations or inquiries made, and there are no records of'these conversations; regardless of whether W. Duarte contacted the City additional times via phone regarding particular addresses, the result reached by the Court is unchanged.
. Plaintiffs did not contest any of Defendant’s evidence.
. Plaintiff has made no response to -any of Defendant’s evidentiary objections.
. The Supreme Court in Smith found the factors most relevant to the analysis are (1), (2), (3), (6), and (7). Smith,
. These factors, which are neither exhaustive nor dispositive, are "useful guideposts" for whether the punitive effect negates the civil .nonpunitive purpose.
. Plaintiff also cites Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders, 85 Wash.U.L.Rev. 101, 135 (2007), which states, "sex offender exclusion zones fit all three of the elements of banishment” which are (1) expulsion in fact from a particular community, (2) removed with no institutional support, and (3) enforced extrajudicially with no opportunity for appeal and Zgoba, Residence Restriction Buffer Zones and the Banishment of Sex Offenders: Have We Gone One Step Too Far? (Criminology & Public Policy, 10(2) 391-399 (2011)).
. The City’s evidence on this issue was provided in large part by Master Peace Officer Kevin Deaver ("Officer Deaver”) and Urban Planner Dan Sefko ("Mr. Sefko”) [Dkt. 70, Ex. 8, 12]. Both Mr. Deaver and Mr. Sefko relied on the MLS and GIS databases in determining the number of available residences [Dkt. 70, Ex, 8 at 3; Ex. 12,at 2]. Officer Deaver also personally inspected each site, in support of his affidavit [Dkt. 70, Ex. 8 at 3 ¶ 7],
. Of note, other courts considering whether a sex offender residency statute .constituted
. A. Duarte analogizes his ability to still freely travel within the City to incarcerated persons working along the highway during the day [Dkt. 84 at 11], The Court is not swayed by this analogy.
. Nor is there any evidence in the record that Plaintiffs were or have been unable to assimilate into their new community in Lake Dallas, which is another traditional aspect of banishment.
. The fact that failure to comply with the Ordinance subjects a sex offender to criminal prosecution does not transform the statute from a civil scheme to a criminal punishment. It is not whether violation of the ordinance could result in punishment, but whether the restrictions contained therein constitute “punishment.” Smith,
. See footnote 15.
., Many courts, federal and state, have consistently and repeatedly rejected ex post facto challenges to laws that retroactively require sex offenders convicted before their effective date to comply with registration, surveillance, residence, and/or reporting requirements. See, e.g., Roe v. Office of Adult Prob.,
. See Hendricks,
.Notably, in March of 2007, the Texas Attorney General issued an opinion concerning whether municipal sex offender residency restrictions adopted by home-rule municipalities, such as the Ordinance, are preempted by the Texas Code of Criminal Procedure. See GA-0526 Tx. Op. Att'y Gen. (2007). The Attorney General explained that a sex offender may comply with both the child-safety-zone state statutes and the municipal ordinances by staying out of the areas described in both. Id. at 3 And, in this way, "the state statutes and the municipal ordinances are not repugnant; instead, they are 'complementary.” Id. The Attorney General further opined that "residence restrictions do not impinge upon fundamental rights or burden an inherently suspect class and that the residence restrictions rationally relate to the state’s legitimate interest in promoting. children's safety. The residence restrictions that have been considered thus were found not to violate the Federal Equal Protection Clause.” Id. at 4-5.
. A. Duarte previously argued in the Federal Rule of Civil Procedure 12(b) proceedings that the Ordinance contained three classes [Dkt. 9 at 11 (identifying a third class of "non-sex-offenders” who are not subject to the restrictions) ]. A. Duarte appears to have retreated from, this position, and the City argues that the Court should reject A. Duarte’s shifting position [Dkt. 70 at 5 n. 4], Although the Court acknowledges that A. Duarte's position appears to have changed, nonetheless, the Court will consider his argument that the Ordinance separates sex offenders into two classes.
. As previously noted, the Ordinance provides an affirmative defense that excuses a registered sex offender from compliance with the 1,500 foot residency restriction if .that registered sex offender is already required to abide by a 1,000 foot residency restriction as a condition of commupity supervision under Article 42.12, Section 13B of the Texas Code of Criminal Procedure [Dkt 70, Ex. 1 at 5; Dkt. 1 at 5-6, ¶ G].
. Plaintiffs’ Complaint includes a claim for attorney’s fees and costs under various avenues, including 42 U.S.C. § 1988 [Dkt. 1 at 16]; however, since the Court has determined that Plaintiffs cannot be the "prevailing part[ies]” under 42 U.S.C. § 1983, Plaintiffs’ claim for attorney's fees and costs under § 1988 should likewise be dismissed.
. Moreover, A. Duarte’s procedural due process claim fails for the. additional reason that convicted felons are properly subjected to many restrictions on their constitutional rights which would be objectionable if imposed on non-felons. See, e.g., Jones v. Helms,