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Duarte v. City of Lewisville

United States Court of Appeals, Fifth Circuit

July 22, 2014

AURELIO DUARTE; WYNJEAN DUARTE; S. D., A Minor, By and through Wynjean Duarte, acting as her Next Friend; BRANDI DUARTE, Plaintiffs--Appellants
v.
CITY OF LEWISVILLE, TEXAS, Defendant--Appellee

Appeal from the United States District Court for the Eastern District of Texas.

For Aurelio Duarte, Wynjean Duarte, S. D., A Minor, By and through Wynjean Duarte, acting as her Next Friend, Brandi Duarte, Plaintiffs - Appellants: Richard Scott Gladden, Law Office of Richard Gladden, Denton, TX.

For City of Lewisville, Texas, Defendant - Appellee: William Andrew Messer, Jennifer Avalon DeCurtis, Messer, Rockefeller & Fort, P.L.L.C., Frisco, TX.

Before SMITH, WIENER, and PRADO, Circuit Judges.

OPINION

Page 515

EDWARD C. PRADO, Circuit Judge:

Plaintiffs--Appellants Aurelio Duarte (" Duarte" ) together with his wife and two children (collectively " the Duartes" ) sued Defendant--Appellee the City of Lewisville, Texas (" Lewisville" ) for damages and injunctive relief under 42 U.S.C. § 1983. Duarte and his family challenge the constitutionality of a Lewisville ordinance that prohibits registered child sex offenders from residing within 1,500 feet of " where children commonly gather." Duarte is a registered child sex offender, and he asserts that he and his family have tried to find a house to rent or buy in Lewisville but cannot because of the challenged ordinance. The district court dismissed the Duartes' constitutional claims for lack of standing and, alternatively, as moot. We reverse and remand.

I. BACKGROUND

Duarte challenges the constitutionality of a Lewisville ordinance. The ordinance provides:

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 a conviction(s) involving a minor.

The ordinance defines " premises where children commonly gather" to include " 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." The ordinance enforces this restriction with the following penalties:

A person who violates any of the provisions of this ordinance shall be guilty of a misdemeanor and upon conviction, shall be fined a sum not to exceed $500.00 for each offense, and each and every violation or day such violation shall continue or exist, shall be deemed a separate offense.

The ordinance also " grandfathers" certain residences. The ordinance provides an affirmative defense if the person " established the permanent or temporary residence . . . prior to the date of the adoption of this ordinance," or if " [t]he premises where children commonly gather . . . was opened after the person established the permanent or temporary residence."

Page 516

A. Aurelio Duarte's Attempts to Find Housing in ...


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