Untitled Texas Attorney General Opinion

GREG A B B O T T

March 6,2007

The Honorable Jane Nelson Opinion No. GA-0526

Chair, Committee on Health and Human Services

Texas State Senate Re: Whether a municipality may prohibit

Post Office Box 12068 registered sex offenders from living in

Austin, Texas 7871 1-2068 certain locations within the municipality

(RQ-0526-GA)

Dear Senator Nelson:

You state that n~unicipalities"across the state either have passed or are considering passing

municipal ordinances that prohibit registered sex offenders from living within a specified distance

from locations where children typically congregate, including day-care facilities, schools, public

swimming pools, and parks and playgrounds."' You ask whether a municipality may adopt such

ordinances. See Request Letter, supra note 1, at 1. You particularly ask us to address two issues:

(1) whether Chapter 508, Government Code, Article 42.12, Code of

Criminal Procedure, or Chapter 62, Code of Criminal Procedure,

preempts or otherwise limits a municipality's authority in this regard

and (2) whether Section 3 or 19, Article I, Texas Constitution, or any

other provision of the Texas Constitution limits a municipality's

authority in this regard.

Id. at 2.

We note preliminarily that no particular adopted or proposed ordinance is at issue. Thus, our

answer is general and does not speak to the preemption or constitutionality of a specific ordinance.

In addition, we note that you do not specify whether your question concerns general-law or

home-rule municipalities. See id. at 1-2. A general-law municipality is a political subdivision

"created by the State and, as such, possess[es] those powers and privileges that the State expressly

confers upon [it]." Tex. Dep 't of Transp. v. City of Sunset Valley, 146 S.W.3d 637,645 (Tex. 2004).

We have found no law authorizing a general-law municipality to adopt this type of residence

'Letter from Honorable Jane Nelson, Chair, Committee on Health and Human Services, Texas State Senate, to

Honorable Greg Abbott, Attorney General of Texas, at 1 (Aug. 29, 2006) (on file with the Opinion Committee, also

available at http://www.oag.state.tx.us) [hereinafter Request Letter].

The Honorable Jane Nelson - Page 2 (GA-0526)

restriction. Thus, unless the Legislature expressly authorizes it, a general-law municipality may not

adopt an ordinance restricting where a registered sex offender may live.

On the other hand, a home-rule municipality "do[es] not depend on the legislature for specific

grants of authority but, instead, ha[s] a constitutional right of self-government and look[s] to the

legislature only for specific limitations on [its] power." City ofLaredo v. Webb County, No. 03-05-

00168-CV, 2005 WL 3234768, at *3 (Tex. App.-Austin Dec. 1,2005, no pet.); see TEX.CONST.

art. XI, tj 5; Quick v. City of Austin, 7 S.W.3d 109, 122 (Tex. 1998); Dallas Merchant's &

Concessionaire's Ass 'n v. City of Dallas, 852 S.W.2d 489,490-91 (Tex. 1993). We thus consider

whether the Legislature has specifically limited a home-rule municipality's authority to adopt

ordinances like those you generally describe.

I. Whether Residence Restrictions Adopted by Home-Rule Municipalities are Preempted

by Government Code Chapter 508, Code of Criminal Procedure Article 42.12, or Code

of Criminal Procedure Chapter 62

Despite its broad authority, a home-rule municipality may not adopt an ordinance that is

"inconsistent with the Constitution of the State, or [with] the general laws enacted by the Legislature

of this State." Dallas Merchant S & Concessionaire 's Ass 'n, 852 S.W.2d at 490 (quoting TEX.

CONST.art. XI, 5 5); see City of Corpus Christi v. Five Citizens of Corpus Christi, 103 S.W.3d 660,

663 (Tex. App.-Corpus Christi 2003, pet. denied). Consequently, a municipal ordinance "that

attempts to regulate a subject matter preempted by a state statute is unenforceable to the extent it

conflicts with the state statute." Dallas Merchant's & Concessionaire S Ass 'n, 852 S.W.2d at 49 1.

Nevertheless, "the mere fact that the legislature has enacted a law addressing a subject does not mean

[that the] subject matter is completely preempted." Id. (quoting City of Richardson v. Responsible

Dog Owners, 794 S.W.2d 17, 19 (Tex. 1990)). A court will not hold a general law and a municipal

ordinance "repugnant to each other if any other reasonable construction leaving both in effect can

be reached." Id. (quoting City of Beaumont v. Fall, 291 S.W. 202, 206 (Tex. 1927)). And if the

Legislature chooses to preempt a subject matter usually encompassed within a home-rule

municipality's broad powers, "it must do so with unmistakable clarity." Id.

You suggest that Government Code section 508.187, Code of Criminal Procedure article

42.12, or Code of Criminal Procedure chapter 62 may preempt the home-rule municipalities'

ordinances. See Request Letter, supra note 1, at 2. We will discuss chapter 62 of the Code of

Criminal Procedure first.

Chapter 62 establishes a sex-offender-registration program under which persons with a

"reportable conviction or adjudication" or who are "required to register as a condition of parole,

release to mandatory supervision, or community supervision" must register "with the local law

enforcement authority in any municipality where the person resides or intends to reside for more than

seven days." TEX.CODECRIM.PROC.ANN.art. 62.051(a) (Vernon Supp. 2006); see also id. art.

62.001(1) (defining "Department"); id. art. 62.004 (requiring the Department of Public Safety to

determine "which local law enforcement authority serves as [a] person's primary registration

authority"). The phrase "reportable conviction or adjudication" is defined to include various sex

offenses, such as indecency with a child, possessing or promoting child pornography, burglary with

The Honorable Jane Nelson - Page 3 (GA-0526)

intent to commit a sex offense, and aggravated kidnapping with intent to sexually abuse a person

younger than 17 years old. Id. art. 62.001(5). Compare Act of May 26,2005,79th Leg., R.S., ch.

1008, 5 1.01, 2005 Tex. Gen. Laws 3385, 3386-87 (defining "reportable conviction or

adjudication"), with Act of May 25,2005,79th Leg., R.S., ch. 1273, 5 2,2005 Tex. Gen. Laws 4049,

4050-5 1 (same). Depending on the precise sex offense the person committed, a person's duty to

register as a sex offender expires when the person dies or on the tenth anniversary of the date on

which (1) the person was released from a penal institution or discharged from community

supervision, or (2) the court dismissed the criminal proceedings against the person. TEX.CODE

CRIM.PROC.ANN.art. 62.101 (Vernon Supp. 2006). Failing to register as required is a criminal

offense. See id. art. 62.102.

The statutory duty to register as a sex offender does not conflict with a municipal ordinance

limiting the area in which a sex offender must live. Accordingly, chapter 62 does not preempt the

municipal ordinances.

Article 42.12, section 13B of the Code of Criminal Procedure and section 508.187 of the

Government Code (the "child-safety-zone statutes") both provide in similar terms for the

establishment of a child-safety zone that certain sex offenders may not enter. Code of Criminal

Procedure article 42.12, section 13B pertains to defendants placed on community supervision, while

Government Code section 508.187 pertains to convicted defendants who have served a sentence

for a sex offense and are placed on parole. See id. art. 42.12, 5 13B(a); TEX.GOV'TCODEANN.

5 508.187(a)-(b) (Vernon 2004). Under both statutes, a defendant or convicted defendant who, as

a condition of community supervision or parole, must adhere to child-safety-zone provisions may

not:

(A) supervise or participate in any program that includes as

participants or recipients persons who are 17 years of age or younger

and that regularly provides athletic, civic, or cultural activities; or

(B) go in, on, or within [1,000 feet, under article 42.12,

section 13B or a distance specified by the panel under Government

Code section 508.187(b)(l)(B)] of premises where children

commonly gather, including a school, day-care facility, playground,

public or private youth center, public swimming pool, or video arcade

facility.

TEX.GOV'TCODEANN. 5 508.187(b)(l) (Vernon 2004); cJ: TEX.CODECRIM.PROC.ANN.art. 42.12,

5 13B(a)(l) (Vernon Supp. 2006). Subsection (B) of the child-safety-zone statutes is particularly

relevant to our preemption inquiry.

The child-safety-zone statutes are not inconsistent with home-rule municipality residence

restrictions as you have described them. See Dallas Merchant's & Concessionaire S Ass 'n, 852

S.W.2d at 490 (quoting TEX.CONST.art. XI, 5 5). A sex offender may comply with both the child-

safety-zone statutes and a home-rule municipality's residence restrictions by staying out of the areas

described in both. In this way, the state statutes and the municipal ordinances are not repugnant;

instead, they are complementary. See id. at 491 (quoting City of Beaumont, 29 1 S.W. at 206).

The Honorable Jane Nelson - Page 4 (GA-0526)

Moreover, nothing in either of the child-safety-zone statutes evidences an unmistakably clear

legislative intent to preempt a home-rule municipality's authority to regulate where sex offenders

may live. See id. at 49 1. Certainly, neither child-safety-zone statute expressly preempts municipal

regulation. CJ: TEX. ALCO.BEV. CODEANN. 5 109.57(a)-(b) (Vernon Supp. 2006) (expressly

restricting a home-rule municipality's authority to impose stricter standards on premises or

businesses required to have a license or permit under the Alcoholic Beverage Code and setting out

the Legislature's intent that the Alcoholic Beverage Code "shall exclusively govern the regulation

of alcoholic beverages in this state"); Dallas Merchant S & Concessionaire S Ass 'n, 852 S.W.2d at

491-92 (stating that the Alcoholic Beverage Code "clearly preempts an ordinance of a home-rule

city that regulates where alcoholic beverages are sold"). In addition, nothing in the child-safety-zone

statutes' legislative history suggests an intent to preempt municipal regulation. See generally

SENATECOMM.ON CRIM.JUSTICE,BILL ANALYSIS 1, Tex. C.S.S.B. 111, 74th Leg., R.S. (1995);

HOUSECOMM.ON CRIM.JURISPRUDENCE 1, Tex. C.S.S.B. 111,74th Leg., R.S. (1995); see HOUSE

RESEARCH ORG.,BILLANALYSIS 1,3, Tex. C.S.S.B. 111,74th Leg., R.S. (1995).

Because the child-safety-zone statutes and municipal residence restrictions are not

inconsistent and because the child-safety-zone statutes do not "with unmistakable clarity" preempt

a home-rule municipality's authority to legislate in this area, we conclude that state law does not

preempt municipal residence restrictions generally.2 Dallas Merchant's & Concessionaire S Ass 'n,

852 S.W.2d at 491.

11. Whether Residence Restrictions Adopted by Home-Rule Municipalities Contravene

Various Provisions of the Texas Constitution

You also ask whether article I, section 3 or 19, "or any other provision of the Texas

Constitution" limits a home-rule municipality's authority to adopt residence restrictions. Request

Letter, supra note 1, at 2. Article I, section 3, like its federal counterpart found in the Fourteenth

Amendment to the United States Constitution, guarantees "all persons similarly situated . . . equal

protection under the laws of this [sltate and of the United States." Nonn v. State, 117 S.W.3d 874,

881-82 (Tex. Crim. App. 2003); see TEX.CONST.art. I, 5 3; see also U.S. CONST.amend. XIV,

5 1. Texas cases apply federal standards "when determining whether a statute violates equal

protection under either provision." Rose v. Doctors Hosp., 801 S.W.2d 841,846 (Tex. 1990). Under

those standards, when a law creates a classification that "does not infringe upon fundamental rights

or does not burden an inherently suspect class, equal protection requires only that the statutory

classification . . . rationally relate[] to a legitimate state interest." Id. "In determining whether or

not a state law violates the Equal Protection Clause," a court must "consider the facts and

circumstances behind the law, the interests [that] the State claims to be protecting, and the interests

of those who are disadvantaged by the classification." Williams v. Rhodes, 393 U.S. 23,30 (1968).

Given that we have no particular municipal ordinance before us here, we cannot perform an equal-

protection analysis. Courts that have considered specific state statutory residence restrictions in the

'Several bills already have been filed for the Eightieth Legislative Session that prescribe state-wide residence

restrictions for sex offenders. See, e.g., Tex. S.B. 94,SOth Leg., R.S. (2007); Tex. S.B. 88,SOth Leg., R.S. (2007); Tex.

H.B. 203,XOth Leg., R.S. (2007); Tex. H.B. 62,SOth Leg., R.S. (2007). We do not consider in this opinion whether any

of these bills, if adopted, will preempt municipal residence restrictions.

The Honorable Jane Nelson - Page 5 (GA-0526)

context of an equal-protection analysis, however, have held that the residence restrictions do not

impinge upon fundamental rights or burden an inherently suspect class and that the residence

restrictions rationally relate to the state's legitimate interest in promoting children's safety. The

residence restrictions that have been considered thus were found not to violate the Federal Equal

Protection C l a ~ s e . ~

Article I, section 19 of the Texas Constitution, which prohibits the deprivation "of life,

liberty, property, privileges, or immunities" without "due course of the law," is nearly identical to

the Federal Due Process Clause, which is found in the Fourteenth Amendment to the United States

Constitution. See Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). Compare

TEX.CONST.art. I, tj 19, with U.S. CONST.amend. XIV, 5 1. In matters of procedural due process,

Texas courts traditionally follow "contemporary federal due process interpretations of procedural

due process issues." Than, 901 S.W.2d at 929. A court's review of a due-process claim requires a

two-part analysis: (1) whether the liberty or property interests allegedly involved are entitled to

procedural due-process protection; and (2) if so, what process is due. Id. The Texas Supreme Court,

quoting the United States Supreme Court, has indicated that the liberty interests protected by

procedural due process mirror those protected by the constitutional equal-protection guarantees:

In defining the scope of protected liberty interests under the

Fourteenth Amendment, the United States Supreme Court has stated

that a liberty interest:

[Dlenotes not merely freedom from bodily restraint but also the right

of the individual to contract, to engage in any of the common

occupations of life, to acquire useful knowledge, to m k y , establish

a home and bring up children, to worship God according to the

dictates of one's own conscience, and generally to enjoy those

privileges long recognized . . . as essential to the orderly pursuit of

happiness by free men.

Id. at 929-30 (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 572 (1972)). A

property interest to which procedural due process applies is one that is either vested or springs from

state law. See Pickell v. Brooks, 846 S.W.2d 421,426 (Tex. App.-Austin 1992, writ denied).

3See Weems v. Little Rock Police Dep't, 453 F.3d 1010, 1013, 1016 (8th Cir. 2006) (considering the

constitutionality of an Arkansas law prohibiting certain high-risk sex offenders fi-om residing within 2,000 feet of the

property on which a public or private elementary or secondary school or daycare facility is located); Doe v. Miller, 405

F.3d 700, 704, 71 1-14 (8th Cir.) (considering the constitutionality of an Iowa statute that prohibits a person convicted

of certain sex offenses from residing within 2,000 feet of a school or registered child-care facility), cert, denied, 126 S.

Ct. 757 (2005); Graham v. Henry, No. 06 CV 381 TCK FHM, 2006 WL 2645130, at *1, *8 (N.D. Okla. 2006)

(considering the constitutionality of an Oklahoma statute prohibiting certain sex offenders fi-om residing within 2,000

feet of a public or private school, educational institution, playground, park, or licensed child-care facility); People v.

Leroy, 828 N.E.2d 769,775,778 (Ill. App. Ct. 2005) (considering the constitutionality of an Illinois statute prohibiting

certain sex offenders from knowingly residing within 500 feet of a playground or a facility providing programs or

services exclusively directed toward persons under 18 years of age).

The Honorable Jane Nelson - Page 6 (GA-0526)

Whether, in a particular instance, a sex offender subject to a municipal residence restriction

can succeed in a case alleging that the residence restriction violates his or her constitutional right to

procedural due process is a question that a court must decide after determining the relevant facts.

See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the

opinion process."). To date no sex offender has successfully persuaded a court that a residence

restriction violated the offender's procedural due process rights. See, e.g., Doe, 405 F.3d at 709

(concluding that the absence of an individualized hearing to determine a sex offender's

dangerousness "does not offend principles of procedural due process"); State v. Seering, 70 1N. W.2d

655, 666 (Iowa 2005) (finding that the plaintiff "has not even explained how the [Iowa] residency

restriction statute" violates "a private interest in freedom of choice in residence").

Finally, you ask if any other provision of the Texas Constitution limits a home-rule

municipality's authority to impose residence restrictions. See Request Letter, supra note 1, at 2. We

know of no Texas case considering challenges to residence restrictions on state constitutional

grounds. We note, however, that sex offenders in other states have raised numerous federal

constitutional provisions, but none have successfully argued that a residence restriction was

unconstit~tional.~ Given the fact-intensive nature of any constitutional analysis of a specific home-

rule municipality's ordinance, we will not consider the possible claims generally here.

4See,e.g., Weems, 453 F.3d at 1015, 1017 (holding that Arkansas statutory residence restriction does not violate

constitutional substantive due-process principles, does not violate a constitutional right to travel, and is not an

unconstitutional ex post facto law); Doe, 405 F.3d at 708, 709-23 (holding that Iowa's statutory residence restriction

is not unconstitutionally vague, does not violate substantive due process, does not violate the right against self-

incrimination, and is not an ex post facto law); Graham, 2006 WL 2645130, at *4-*10 (concluding, in the context of

a motion for a preliminary injunction, that Oklahoma's statutory residence restriction did not violate the constitutional

prohibition against double jeopardy, substantive due-process principles, or the Privileges and Immunities Clause of the

Fourteenth Amendment); Coston v. Petro, 398 F. Supp. 2d 878, 880, 887 (S.D. Ohio 2005) (noting sex offender's

arguments that an Ohio statutory residence restriction that prohibits a sex offender from residing within 1,000 feet of a

school premises infringes on the fundamental right of privacy in family matters and the fundamental right of intrastate

travel and violates the constitutional right against impairment of contracts, the right against self-incrimination, the Ex

Post Facto Clause, and the Takings Clause ofthe Fifth Amendment); Seering, 701 N.W.2d at 665,66649,670 (holding

that Iowa's statutory residence restriction does not violate substantive due process, the Ex Post Facto Clause, or the right

against self-incrimination, and did not constitute unconstitutionally cruel and unusual punishment); Leroy, 828 N.E.2d

at 776-77,778-84 (holding that Illinois statutoryresidence restrictions do not violate substantive due-process principles,

constitute an ex post facto law, violate the prohibition against self-incrimination, or constitute cruel and unusual

punishment); Denson v. Georgia, 600 S.E.2d 645, 6 4 6 4 7 (Ga. Ct. App. 2004) (concluding that Georgia's statutory

residence restriction, which prohibits a sex offender from residing within 1,000 feet of a day-care facility, is not an ex

post facto law because the sex offender can be punished only if he "prospectively chooses to violate the law by

continuing to reside" within the prohibited zone).

The Honorable Jane Nelson - Page 7 (GA-0526)

S U M M A R Y

State law does not preempt a home-rule municipality's

ordinance prohibiting registered sex offenders from living within a

specified distance from locations where children typically congregate.

Whether a particular ordinance is permitted by the Texas Constitution

is a question that must be determined by a court after considering all

of the relevant facts applicable to a specific ordinance; to date,

however, no court has found that a statutory residence restriction

violates any federal constitutional provision.

Very truly yours,

Attorney M e r a l of Texas

KENT C. SULLIVAN

First Assistant Attorney General

ELLEN L. WITT

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Kymberly K. Oltrogge

Assistant Attorney General, Opinion Committee