AURELIO DUARTE; WYNJEAN DUARTE; S. D., A Minor, By and through Wynjean Duarte, acting as her Next Friend; BRANDI DUARTE, Plaintiffs - Appellants
CITY OF LEWISVILLE, TEXAS, Defendant-Appellee
from the United States District Court for the Eastern
District of Texas
DAVIS, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge
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.
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Duarte's community supervision was revoked, and he was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
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.
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.
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.
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).
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.
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 ...