Residency Restrictions in Texas: The Ongoing

Legal Battles

Origin of Sex Offender Residency

Restrictions in Texas

Bellaire, Texas, City Council Minutes,

May 1, 2006 (Workshop Session)

http://www.ci.bellaire.tx.us/Archive.aspx?A

DID=1130

“Mayor Ken Corley, Brazoria, Texas,addressed City Council regarding theproposed sex offender ordinance on theevening’s agenda. In August of 2005, theCity of Brazoria, Texas, passed a sexoffender ordinance, and they were the firstcity to do so.”

“Mayor Corley advised that he was in Austin,Texas, at a Texas Municipal League (TML)meeting and was visiting with their StateRepresentative. He advised that he wished toimprove the quality of life in the City of Brazoriaand wanted to present an ordinance to CityCouncil that would prevent sex offenders fromliving in Brazoria, Texas. Mayor Corley was toldthat this could not be done.”

“Subsequently, Mayor Corley was watching BillO’Reilly on television who was interviewing theMayor of Miami Beach, Florida. Such anordinance was passed by the City of MiamiBeach in June of 2005. The very next day,Brazoria contacted Miami Beach for a copy oftheir ordinance and began working on it. The[Brazoria] ordinance was passed in August of2005.”

“At the time the ordinance was passed, therewere ten (10) registered sex offenders living inthe City of Brazoria. Today, there were three (3).Five (5) more sex offenders went to the BrazoriaPolice Department to register and weredenied….Th[ey] [were] sent down the road toanother city.”

The sex offender residencyrestriction ordinance which the Cityof Brazoria had enacted on August15, 2005, provided:

“It is an offense for any person whohas been convicted of a [reportable sexoffense], …regardless of whether theadjudication was deferred, in which thevictim of the offense was less thansixteen (16) years of age, …

“…to establish a permanent residenceor temporary residence within 1,000feet of any premises where childrencommonly gather, including but notlimited to a school, day care facility,playground, public or private youthcenter, public swimming pool, or videoarcade, as those terms are defined insection 481.134 of the [Texas] Healthand Safety Code of the state.”

The City of Brazoria’s ordinancefurther provided that:

“Any person who violates [thisordinance] shall be guilty of amisdemeanor, and upon convictionthereof shall be subject to a fine not toexceed five hundred and no/100 dollars($500.00).”

Shortly after the City of Brazoriaenacted its ordinance, on August 25,2005, the Houston Chronicle publisheda news story, written by itscorrespondent Thayer Evans, aboutBrazoria’s action.

http://www.chron.com/neighborhood/pearland-news/article/City-puts-limits-on-sex-offenders-1487394.php

In its story, which was entitled CityPuts Limits on Sex Offenders, theChronicle quoted Mayor Corley:

“This is the best thing, in my opinion,to happen to the state of Texas,” hesaid.

“Corley said he is not concerned bypotential legal challenges to theordinance. ‘I want it to spread,’ he said.‘This is not about Brazoria, Texas. Thisis not about the state of Texas. This is anational issue and it needs to beaddressed.’”

As the Chronical further reported,“Since City Council’s approval of theordinance, the city has received about adozen requests from other citiesstatewide asking for copies of it,[Brazoria City Secretary Teresa]Borders said.”

“Frank Fields, a Brazoria native whohas lived in the city his entire life, saidhe is against the new ordinance. Hesaid it is unfair to lump all types of sexoffenders together. ‘You still haverights,’ said Fields, 72, a retired DowChemical Co. employee. ‘These peoplehave done their time and they're stillpaying.’”

On December 28, 2015, the City ofBrazoria was sued in a Texas StateDistrict Court by Texas Voices forReason and Justice, which brought suiton behalf of its Members.

On February 9, 2016, the City Councilof Brazoria, including its celebratedMayor, Ken Corley, unanimously votedto repeal Brazoria’s sex offenderresidency restriction ordinance, but didso only after being sued by TexasVoices for Reason and Justice.

As part of the settlement agreementbetween TVRJ and the City ofBrazoria, the City Council ofBrazoria, including Mayor Corley,agreed to pay to TVRJ all court costsTVRJ had incurred in filing thelawsuit, in addition to repealing itsordinance.

“Corley said he is not concerned bypotential legal challenges to theordinance.” Thayer Evans, City PutsLimits on Sex Offenders (HoustonChronicle, August 25, 2005).

http://www.chron.com/neighborhood/pearland-news/article/City-puts-limits-on-sex-offenders-1487394.php

Texas sex offender residencyrestriction ordinances have beenchallenged with the aid of financialassistance from Texas Voices, andmore recently, with the directinvolvement of TVRJ as a Plaintiff.These challenges have been raised onboth Federal and Texas Constitutionalgrounds.

FEDERAL CONSTITUTIONAL

CHALLENGE:

Duarte v. City of Lewisville

Protected “Liberty Interests” under

the Fourteenth Amendment

Procedural Due Process under

the Fourteenth Amendment:

Mathews v. Eldridge, 424 U.S. 319 (1976).

1) The nature of “the private interestthat will be affected by the officialaction”;

2) “the risk of an erroneous deprivationof such interest through the proceduresused, and the probable value, if any, ofadditional or substitute proceduralsafeguards”; and

3) “the Government’s interest,including the function involved and thefiscal and administrative burdens thatthe additional or substitute proceduralrequirement would entail.”

On September 28, 2015, the U.S.District Court for the Eastern Districtof Texas, Sherman Division, per JudgeAmos L. Mazzant III, entered an orderand final judgment dismissing theDuartes’ claims.

Judge Mazzant based his decisionsolely upon his conclusion that in orderto be a constitutionally cognizable“private interest” for procedural dueprocess purposes under Mathews v.Eldridge, the asserted interest…

… must be so “deeply rooted in thisNation’s history and tradition, andimplicit in the concept of orderedliberty, such that neither liberty orjustice would exist” without itsrecognition.

TEXAS STATE CONSTITUTIONAL

CHALLENGES:

Article XI, Section 4 of the Texas Constitution

When adopting Article XI, Section 4 ofthe Texas Constitution at the TexasConstitutional Convention of 1875, itsFramers understood and intended thatArticle XI, Section 4 of the TexasConstitution would encompass what atthat time had become known as“Dillon’s Rule.”

“Dillon’s Rule,” as expressed in 1873by local government law authority (andChief Justice of the Iowa SupremeCourt) John Forrest Dillon in hiswidely recognized legal treatise TheLaw of Municipal Corporations, §55(2nd ed.), provided then, as it does now,that:

“It is a general and undisputedproposition of law that amunicipal corporationpossesses, and can exercise,the following powers, and noothers:

“First, those granted in expresswords; second, those fairly ornecessarily implied in, or incidentto the powers expressly granted;third, those essential to thedeclared objects and purposes ofthe corporation---not simplyconvenient, butindispensable(emphasis inoriginal)…

“Any fair, reasonable doubt concerningthe existence of power is resolved bythe courts against the corporation, andthe power is denied. Of everymunicipal corporation the charter orstatute by which it is created is itsorganic act. Neither the corporation,nor its officers, can do any act, ormake any contract, or incur anyliability, not authorized thereby. Allacts beyond the scope of the powersare void.”

Under the Texas Constitution, cities or“municipal corporations” having apopulation of 5,000 residents or lessmust be “created” by an Act of theTexas Legislature, in accordanceArticle XI, Section 4 of the TexasConstitution. These cities are called“general law” cities or towns.

In contrast, under Article XI, Section 5of the Texas Constitution the TexasConstitution, cities or “municipalcorporations” having a population ofmore than 5,000 residents may beformed without an act of the TexasLegislature, and may create powers intheir Charters which are notinconsistent with any statutory lawsenacted by the Texas Legislature.These cities are called “Home Rule”cities.

Unlike “Home Rule” cities, “GeneralLaw” cities are limited in their abilityto enact local ordinances by “Dillon’sRule.” In other words, they have nopower to enact an ordinance unless theTexas Legislature has “expresslygranted” them, or has expresslydelegated power to them through astate statute, the power to do so.

In March of 2007, then-AttorneyGeneral Greg Abbott, in apublished opinion, determinedthat “general law” cities in Texashave no constitutional authority,under Article XI, Section 4 of theTexas Constitution, to enactordinances which prohibit whereregistered “sex offenders” mayreside.

Specifically, then-Attorney GeneralAbbott determined that he “found nolaw authorizing a general-lawmunicipality to adopt this type ofresidence restriction [ordinance]” andthat “unless the Legislature expresslyauthorizes it, a general-lawmunicipality may not adopt anordinance restricting where aregistered sex offender may live.”Tex.Att’y Gen.Op. GA-0526 (March 6,2007)(italics added).

Since issuance of the aforementionedlegal opinion by the Texas AttorneyGeneral in 2007, and as recently as the84th Session of the Texas Legislatureimmediately preceding this conference,legislation has been repeatedlyintroduced biennially in the TexasLegislature proposing to expresslydelegate this “power or privilege” toTexas’ general law cities.

Without exception, each of theselegislative efforts has unqualifiedlyfailed. See, Tex. H.B. 1224, 81st Leg.,R.S. (2009); Tex. H.B. 1681, 81st Leg.,R.S. (2009); Tex. H.B. 764, 82nd Leg.,R.S. (2011); Tex. H.B. 1177, 83rd

Leg., R.S. (2013); Tex. H.B. 601, 83rd

Leg., R.S. (2013); Tex. H.B. 1872,84th Leg., R.S. (2015); and, Tex. H.B.384, 84th Leg., R.S. (2015).

On November 4, 2015, TVRJ,through its attorney (yours truly)mailed notice to 46 Texas generallaw cities threatening to sue them,on behalf of its Members, unlessthey repealed their sex offenderresidency restriction ordinanceswithin 45 days.

The 46 Texas “general law” cities thatoriginally received the aforementioned noticefrom TVRJ are: Archer City (Archer Co.);Argyle (Denton Co.); Balcones Heights(Bexar Co.); Brazoria (Brazoria Co.);Bullard (Cherokee Co.); Chandler(Henderson Co.); Clear Lake Shores(Galveston Co.); Cottonwood Shores(Burnet Co.); Eagle Lake (Colorado Co.); ElLago (Harris Co.); Farmersville (CollinCo.); Fulton (Aransas Co.); Goliad (GoliadCo.)…; Gunter (Grayson Co.); Hamlin(Jones Co.); Henrietta (Clay Co.); HickoryCreek (Denton Co.)….

Hollywood Park (Bexar Co.); Hubbard(Hill Co.); Jamaica Beach (Galveston Co.);Justin (Denton Co.); Maypearl (Ellis Co.);Meadows Place (Fort Bend Co.); Milano(Milam Co.); Mount Enterprise (Rusk Co.);Mount Vernon (Franklin Co.); Oak Point(Denton Co.); Oak Ridge (Cooke Co.);Orchard (Fort Bend Co.); Ponder (DentonCo.); Pottsboro (Grayson Co.); Rhome(Wise Co.); Saint Jo (Montague Co.)… SanSaba (San Saba Co.)….

…Shiner (Lavaca Co.); Springtown (ParkerCo.); Sunnyvale (Dallas Co.); Van Horn(Culberson Co.); West (McLennan Co.);West Lake Hills (Travis Co.); WestworthVillage (Tarrant Co.); Whitewright (GraysonCo.); Whitney (Hill Co.); Winona (SmithCo.); Winters (Runnels Co.); and Woodville(Tyler Co.).

To date, 23 Texas general law citieshave repealed their sex offenderresidency restriction ordinances indirect response to TVRJ’s challenges;20 cities did so before being sued byTVRJ, and 3 cities (Alvarado, Brazoriaand Mount Vernon) only did so afterbeing sued.

Presently, in addition to a lawsuitfiled in March of 2015 against theCity of Krum (which wasindependently filed by yours trulyon behalf of Plaintiff TaylorRice), there are 7 lawsuitspending against 11 Texas generallaw cities.

Approximately 12 cities,including but not limited to thoseremaining from the original list of46 cities, will likely be sued in thenear future (the Cities of West,Gunter and Gregory, Texas, are atthe top of the list. Hi Ya’ll!!!).

Notable Events in the

Ongoing Litigation

Duarte v.

City of Lewisville

City of Krum v.

Rice

TVRJ v.

Cities of Argyle, Hickory Creek, Oak Point, and

Ponder (“AHOP”)

City of Westworth Village v.

TVRJ

THE END