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Duarte v. City of Lewisville, Texas

United States Court of Appeals, Fifth Circuit

May 30, 2017

AURELIO DUARTE; WYNJEAN DUARTE; S. D., A Minor, By and through Wynjean Duarte, acting as her Next Friend; BRANDI DUARTE, Plaintiffs - Appellants

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

          Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.

          STEPHEN A. HIGGINSON, Circuit Judge

         Aurelio Duarte together with his wife and two children challenge the constitutionality of a Lewisville, Texas, ordinance ("the Ordinance") that restricts where certain individuals convicted of sex offenses may live within the city. Specifically, they allege that the Ordinance deprives both Duarte individually and the Duarte Family as a whole of procedural due process and violates Duarte's constitutional right to equal protection. The district court granted summary judgment in favor of Lewisville. We affirm.


         In 2006, Duarte was found guilty after a jury trial of Online Solicitation of a Minor, in violation of Texas Penal Code § 15.031, and was sentenced to eight years in prison. The confinement term was suspended and he was placed on community supervision for a term of ten years. In 2007, Duarte's community supervision was revoked, and he was sentenced to a three-year term of confinement. Duarte's sentence was fully discharged in June 2010. Upon his release, Duarte returned to Lewisville, Texas, where he had resided with his wife and two daughters prior to his incarceration. As a result of his conviction, Duarte is required by Texas law to register annually with the Texas Department of Public Safety as a child sex offender. Because Duarte must so register, he must also comply with residency restrictions set forth in Lewisville's "Regulation of Sex Offender Residency" Ordinance, which prohibits registered child sex offenders from residing anywhere in the city limits that is within 1, 500 feet of "premises where children commonly gather."[1]

         The collective area covered by the Ordinance encompasses the majority of Lewisville. According to Appellants, of the 39, 967 residential housing units in Lewisville in November 2012, only eight were legally available to them for purchase and two for rent, constituting .025 percent of the total housing stock. From approximately 2010 through 2013, the Duartes resided together in a one-bedroom motel room in Lewisville and searched for a residence that complied with the Ordinance to no avail. Ultimately, the Duartes moved to a nearby town.

         The Ordinance sets forth a number of affirmative defenses, which essentially establish exemptions for eligible individuals. Relevant to Duarte's equal protection claim is an exemption available to certain individuals who are subject to community supervision under Texas law as a result of their sex offense convictions. Under Texas law, individuals sentenced to a term of community supervision following a child sex offense conviction must adhere to a state-imposed condition that they not "go in, on, or within 1, 000 feet of a premises where children commonly gather" during the pendency of their community supervision term. Tex. Crim. Proc. Code art. 42.12 § 13B(a)(1)(B). However, a court may waive or modify this restriction if: (1) the defendant is a student at a primary or secondary school; (2) the restrictive zone interferes with the ability of the defendant to attend school or hold a job and consequently constitutes an undue hardship for the defendant; or (3) the restrictive zone is broader than necessary to protect the public, given the nature and circumstances of the offense. § 13B(d), (e). Individuals who have successfully sought a judicial waiver of the state's geographic restriction are afforded a parallel exemption from Lewisville's Ordinance. However, child sex offenders-like Duarte-who have been fully discharged or were never subject to state-imposed community supervision, cannot seek a judicial waiver of the state's geographic condition, because the condition does not actually apply to them. Those individuals are therefore unable to avail themselves of the parallel exemption provided by the Ordinance.

         Appellants initially filed this suit on March 26, 2012, seeking compensatory damages, as well as equitable, declaratory, and injunctive relief under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Double Jeopardy Clause of the Fifth Amendment, the Ex Post Facto guarantee, and 42 U.S.C. §§ 1983 and 1988. The district court initially dismissed all of Appellants' claims for lack of standing. This court reversed, holding that both Duarte and his family had shown actual injury sufficient for standing purposes and that their constitutional claims were not rendered moot by their decision to move from Lewisville to a nearby town. See Duarte ex rel. Duarte v. City of Lewisville, 759 F.3d 514, 517-21 (5th Cir. 2014). In June 2015, Lewisville moved for summary judgment on the merits of Appellants' claims. The Magistrate Judge recommended that the district court grant the motion, and the district court adopted the Magistrate Judge's Report and Recommendation. See Duarte v. City of Lewisville, 136 F.Supp.3d 752 (E.D. Tex. 2015). On appeal, Appellants challenge only the district court's grant of summary judgment with respect to their procedural due process and equal protection claims.


         We review a grant of summary judgment de novo, applying the same standards as the district court. Am. Home Assurance Co. v. United Space All., LLC, 378 F.3d 482, 486 (5th Cir. 2004). Summary judgment is only appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). However, we review for plain error any of the Magistrate Judge's factual findings and legal conclusions that were accepted by the district court and to which Appellants failed to object. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).


         Duarte first asserts that the Ordinance violates his right to due process of law under the Fourteenth Amendment, because it deprives him of a constitutionally-protected liberty interest-namely, the ability to reside in the location of his choice-without adequate procedural protection. Duarte seeks a hearing to prove that he is not currently dangerous and therefore should not be deprived of the liberty to live in the areas prohibited by the Ordinance. The district court rejected Duarte's procedural due process claim on the ground that the Ordinance did not deprive him of a constitutionally-protected liberty interest. However, we need not reach that question.

         As the Supreme Court explained in a similar challenge to a Connecticut sex offender registration law, "even assuming" that the Ordinance deprives Duarte of a liberty interest, "due process does not entitle him to a hearing to establish a fact that is not material under the . . . statute." Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 7 (2003); see also Meza v. Livingston,607 F.3d 392, 401 (5th Cir. 2010) ("When an individual is convicted of a sex offense, no further process is due before imposing sex offender conditions." (citing Conn. Dep't of Pub. Safety, 538 U.S. at 7-8)); Doe v. Miller, 405 F.3d 700, 709 (8th Cir. 2009) (concluding that an "Iowa residency restriction [did] not contravene principles of procedural due process under the Constitution" because "[t]he restriction applie[d] to all offenders who [had] been convicted of certain crimes against minors, regardless of what estimates of future dangerousness might be proved in individualized hearings."). The fact that Duarte seeks to prove- his current dangerousness-is "of no consequence" under the Ordinance. Conn. Dep't of Pub. Safety, 538 U.S. at 7. The sole relevant question is whether Duarte "is required to register on the Texas Department of Public Safety's Sex Offender Database . . . because of a conviction involving a minor." That fact is not in dispute, and Duarte's underlying conviction is a fact that he "has already had a procedurally safeguarded opportunity to contest." Id. As noted, Duarte exercised his constitutional right to a trial ...

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