Richard Gladden Conference Presentation

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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)
“Mayor Ken Corley, Brazoria, Texas,
addressed City Council regarding the
proposed sex offender ordinance on the
evening’s agenda. In August of 2005, the
City of Brazoria, Texas, passed a sex
offender ordinance, and they were the first
city to do so.”
“Mayor Corley advised that he was in Austin,
Texas, at a Texas Municipal League (TML)
meeting and was visiting with their State
Representative. He advised that he wished to
improve the quality of life in the City of Brazoria
and wanted to present an ordinance to City
Council that would prevent sex offenders from
living in Brazoria, Texas. Mayor Corley was told
that this could not be done.”
“Subsequently, Mayor Corley was watching Bill
O’Reilly on television who was interviewing the
Mayor of Miami Beach, Florida. Such an
ordinance was passed by the City of Miami
Beach in June of 2005. The very next day,
Brazoria contacted Miami Beach for a copy of
their ordinance and began working on it. The
[Brazoria] ordinance was passed in August of
“At the time the ordinance was passed, there
were ten (10) registered sex offenders living in
the City of Brazoria. Today, there were three (3).
Five (5) more sex offenders went to the Brazoria
Police Department to register and were
denied….Th[ey] [were] sent down the road to
another city.”
restriction ordinance which the City
of Brazoria had enacted on August
15, 2005, provided:
“It is an offense for any person who
has been convicted of a [reportable sex
offense], …regardless of whether the
adjudication was deferred, in which the
victim of the offense was less than
sixteen (16) years of age, …
“…to establish a permanent residence
or temporary residence within 1,000
feet of any premises where children
commonly gather, including but not
limited to a school, day care facility,
playground, public or private youth
center, public swimming pool, or video
arcade, as those terms are defined in
section 481.134 of the [Texas] Health
and Safety Code of the state.”
The City of Brazoria’s ordinance
further provided that:
“Any person who violates [this
ordinance] shall be guilty of a
misdemeanor, and upon conviction
thereof shall be subject to a fine not to
exceed five hundred and no/100 dollars
Shortly after the City of Brazoria
enacted its ordinance, on August 25,
2005, the Houston Chronicle published
a news story, written by its
correspondent Thayer Evans, about
Brazoria’s action.
In its story, which was entitled City
Puts Limits on Sex Offenders, the
Chronicle quoted Mayor Corley:
“This is the best thing, in my opinion,
to happen to the state of Texas,” he
“Corley said he is not concerned by
potential legal challenges to the
ordinance. ‘I want it to spread,’ he said.
‘This is not about Brazoria, Texas. This
is not about the state of Texas. This is a
national issue and it needs to be
As the Chronical further reported,
“Since City Council’s approval of the
ordinance, the city has received about a
dozen requests from other cities
statewide asking for copies of it,
[Brazoria City Secretary Teresa]
Borders said.”
“Frank Fields, a Brazoria native who
has lived in the city his entire life, said
he is against the new ordinance. He
said it is unfair to lump all types of sex
offenders together. ‘You still have
rights,’ said Fields, 72, a retired Dow
Chemical Co. employee. ‘These people
have done their time and they're still
On December 28, 2015, the City of
Brazoria was sued in a Texas State
District Court by Texas Voices for
Reason and Justice, which brought suit
on behalf of its Members.
On February 9, 2016, the City Council
of Brazoria, including its celebrated
Mayor, Ken Corley, unanimously voted
to repeal Brazoria’s sex offender
residency restriction ordinance, but did
so only after being sued by Texas
Voices for Reason and Justice.
As part of the settlement agreement
between TVRJ and the City of
Brazoria, the City Council of
Brazoria, including Mayor Corley,
agreed to pay to TVRJ all court costs
TVRJ had incurred in filing the
lawsuit, in addition to repealing its
“Corley said he is not concerned by
potential legal challenges to the
ordinance.” Thayer Evans, City Puts
Limits on Sex Offenders (Houston
Chronicle, August 25, 2005).
restriction ordinances have been
challenged with the aid of financial
assistance from Texas Voices, and
more recently, with the direct
involvement of TVRJ as a Plaintiff.
These challenges have been raised on
both Federal and Texas Constitutional
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
1) The nature of “the private interest
that will be affected by the official
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
including the function involved and the
fiscal and administrative burdens that
the additional or substitute procedural
requirement would entail.”
On September 28, 2015, the U.S.
District Court for the Eastern District
of Texas, Sherman Division, per Judge
Amos L. Mazzant III, entered an order
and final judgment dismissing the
Duartes’ claims.
Judge Mazzant based his decision
solely upon his conclusion that in order
to be a constitutionally cognizable
“private interest” for procedural due
process purposes under Mathews v.
Eldridge, the asserted interest…
… must be so “deeply rooted in this
Nation’s history and tradition, and
implicit in the concept of ordered
liberty, such that neither liberty or
justice would exist” without its
Article XI, Section 4 of the Texas
When adopting Article XI, Section 4 of
the Texas Constitution at the Texas
Constitutional Convention of 1875, its
Framers understood and intended that
Article XI, Section 4 of the Texas
Constitution would encompass what at
that time had become known as
“Dillon’s Rule.”
“Dillon’s Rule,” as expressed in 1873
by local government law authority (and
Chief Justice of the Iowa Supreme
Court) John Forrest Dillon in his
widely recognized legal treatise The
Law of Municipal Corporations, §55
(2nd ed.), provided then, as it does now,
“It is a general and undisputed
proposition of law that a
possesses, and can exercise,
the following powers, and no
“First, those granted in express
words; second, those fairly or
necessarily implied in, or incident
to the powers expressly granted;
third, those essential to the
declared objects and purposes of
the corporation---not simply
“Any fair, reasonable doubt concerning
the existence of power is resolved by
the courts against the corporation, and
the power is denied. Of every
municipal corporation the charter or
statute by which it is created is its
organic act. Neither the corporation,
nor its officers, can do any act, or
make any contract, or incur any
liability, not authorized thereby. All
acts beyond the scope of the powers
are void.”
Under the Texas Constitution, cities or
“municipal corporations” having a
population of 5,000 residents or less
must be “created” by an Act of the
Texas Legislature, in accordance
Article XI, Section 4 of the Texas
Constitution. These cities are called
“general law” cities or towns.
In contrast, under Article XI, Section 5
of the Texas Constitution the Texas
Constitution, cities or “municipal
corporations” having a population of
more than 5,000 residents may be
formed without an act of the Texas
Legislature, and may create powers in
their Charters which are not
inconsistent with any statutory laws
enacted by the Texas Legislature.
These cities are called “Home Rule”
Unlike “Home Rule” cities, “General
Law” cities are limited in their ability
to enact local ordinances by “Dillon’s
Rule.” In other words, they have no
power to enact an ordinance unless the
Texas Legislature has “expressly
granted” them, or has expressly
delegated power to them through a
state statute, the power to do so.
In March of 2007, then-Attorney
General Greg Abbott, in a
published opinion, determined
that “general law” cities in Texas
have no constitutional authority,
under Article XI, Section 4 of the
Texas Constitution, to enact
ordinances which prohibit where
registered “sex offenders” may
Specifically, then-Attorney General
Abbott determined that he “found no
law authorizing a general-law
municipality to adopt this type of
residence restriction [ordinance]” and
that “unless the Legislature expressly
municipality may not adopt an
registered sex offender may live.”
Tex.Att’y Gen.Op. GA-0526 (March 6,
2007)(italics added).
Since issuance of the aforementioned
legal opinion by the Texas Attorney
General in 2007, and as recently as the
84th Session of the Texas Legislature
immediately preceding this conference,
legislation has been repeatedly
introduced biennially in the Texas
Legislature proposing to expressly
delegate this “power or privilege” to
Texas’ general law cities.
Without exception, each of these
legislative efforts has unqualifiedly
failed. 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 general
law cities threatening to sue them,
on behalf of its Members, unless
they repealed their sex offender
residency restriction ordinances
within 45 days.
The 46 Texas “general law” cities that
originally received the aforementioned notice
from TVRJ are: Archer City (Archer Co.);
Argyle (Denton Co.); Balcones Heights
(Bexar Co.); Brazoria (Brazoria Co.);
(Henderson Co.); Clear Lake Shores
(Galveston Co.); Cottonwood Shores
(Burnet Co.); Eagle Lake (Colorado Co.); El
Lago (Harris Co.); Farmersville (Collin
Co.); Fulton (Aransas Co.); Goliad (Goliad
Co.)…; Gunter (Grayson Co.); Hamlin
(Jones Co.); Henrietta (Clay Co.); Hickory
Creek (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 (Denton
Co.); Pottsboro (Grayson Co.); Rhome
(Wise Co.); Saint Jo (Montague Co.)… San
Saba (San Saba Co.)….
…Shiner (Lavaca Co.); Springtown (Parker
Co.); Sunnyvale (Dallas Co.); Van Horn
(Culberson Co.); West (McLennan Co.);
West Lake Hills (Travis Co.); Westworth
Village (Tarrant Co.); Whitewright (Grayson
Co.); Whitney (Hill Co.); Winona (Smith
Co.); Winters (Runnels Co.); and Woodville
(Tyler Co.).
To date, 23 Texas general law cities
have repealed their sex offender
residency restriction ordinances in
direct response to TVRJ’s challenges;
20 cities did so before being sued by
TVRJ, and 3 cities (Alvarado, Brazoria
and Mount Vernon) only did so after
being sued.
Presently, in addition to a lawsuit
filed in March of 2015 against the
City of Krum (which was
independently filed by yours truly
on behalf of Plaintiff Taylor
Rice), there are 7 lawsuits
pending against 11 Texas general
law cities.
including but not limited to those
remaining from the original list of
46 cities, will likely be sued in the
near future (the Cities of West,
Gunter and Gregory, Texas, are at
the top of the list. Hi Ya’ll!!!).
Notable Events in the
Ongoing Litigation
City of Lewisville
City of Krum
Cities of Argyle, Hickory
Creek, Oak Point, and
Ponder (“AHOP”)
City of Westworth Village

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