There are, out of the tens of thousands of homes and apartment units in the city of Lewisville, a total of 466 places where a registered sex offender can legally reside.
Theoretically. In reality, since all or almost all of these homes, which fall outside the city's 1,500-foot sex-offender buffer zone around places where children "commonly gather," are occupied at any given time, a registered sex offender will find it all but impossible to find a place to stay.
That's how Aurelio Duarte came to inhabit a 275-square-foot motel room on the I-35 service road with his wife and two teenage daughters.
Duarte, 54, was convicted in 2006 of online solicitation of a minor while working as a technology facilitator with the Lewisville Independent School District. Upon his release from prison in 2010, he moved into the motel room. The room is no longer outside the 1,500-foot buffer zone -- a public pool has since been built nearby but Duarte was grandfathered in.
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The Duartes didn't want to live in a motel room. They also didn't want to leave Lewisville, where they'd lived before Duarte went to prison. It was where the girls had grown up and gone to school, and it provided easy access to Wynjean's two jobs. Duarte's wife, Wynjean, began looking for a home while her husband was still in prison, though Lewisville's sex offender registrar cautioned against it, just in case a day care went up nearby before his release. Of the nine homes Wynjean ultimately inquired about, six fell within the prohibited zone, two were sold to other buyers, and a third the Duartes passed on on the registrar's advice.
So in 2012, the couple sued the city in federal court, claiming that its sex-offender residency restriction was unconstitutional. Rather than decide whether or not that was the case, U.S. District Judge Ron Clark granted the city of Lewisville's motion for summary judgment on the grounds that the Duartes lacked standing to bring the suit. Wynjean and the kids couldn't sue because they weren't registered sex offenders and thus weren't directly affected by the residency ordinance. Aurelio couldn't because he had been grandfathered into their motel room and thus hadn't suffered any injury.
On Tuesday, though, a three-judge panel of the Fifth Circuit Court of Appeals ruled unanimously that the Duartes do have standing to bring their suit and that their relocation to Lake Dallas in 2013 after the district court awarded Lewisville summary judgment didn't change that.
"In order to find a place to rent or buy where the family could reside together, ultimately, the Duartes moved away, forcing the children to change schools and taking [wife] Wynjean Duarte farther from her job," Justice Edward C. Prado wrote. "The ordinance therefore interferes with the Duartes' lives 'in a concrete and personal way' which the Supreme Court has held is sufficient to confer standing."
Now, the case heads back to district court, where it's future is likely dim, says Corey Rayburn Yung, a law professor at the University of Kansas.
Courts have routinely held that residency restrictions, along with sex-offender registries and, in some cases, post-incarceration civil commitment, are "not punitive, not a form of punishment. They are regulatory." This means the constitutional rights and protections afforded defendants in criminal proceedings have no bearing on restrictions a state or municipality sees fit to impose to convicted criminals.
The few challenges to residency restrictions that have been successful have been in cases in which offenders are forced out of homes they've been residing in -- a situation some courts have ruled violated the Fifth Amendment -- and laws that apply to offenders convicted before residency restrictions went into effect passed, which some state courts have deemed illegal.
The impact on an offender's family typically has little bearing, Yung says. As proof, he cites the case of a Georgia woman charged as an accessory to statutory rape when she let her daughter's older boyfriend live in her house in lieu of having them run off together. Though no one would seriously argue that the posed any real threat to children, she was forced to move several times because of residency restrictions. Her appeals were all struck down in court.
The Duartes' attorney, Richard Gladden, is more optimistic. Sex offender registry restrictions like Lewisville's have existed only decade or so, hardly long enough to have a well-established body of case law around them. In a California court's decision to overturn local restrictions and in the Fifth Circuit's opinion, which, while it directly addressed only the question of standing, suggests that the justices have constitutional concerns about such laws, he sees the tide turning.
"The problem with these ordinances -- they're in over 100 cities in Texas now -- is that they aren't tailored," Gladden says. "They aren't predicated on an individualized assessment over whether somebody does or does not pose a threat to children or the community." Just whether their name is on a list.
Think of it this way, Gladden says: it's hypothetically possible for someone to be placed on Texas' sex offender registry after getting caught peeing on a tree -- it can be prosecuted as indecent exposure -- twice.
"There's not a damn thing sexual about peeing on a tree," Gladden says. He suspects that Lewisville is full of people who have peed on trees on two or more occasions. "In fact, I may have peed on a tree in Lewisville. I don't really know." He might be concerned about the consequences but says he has no interest in living in Lewisville.
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