     Case: 18-11620   Document: 00515238278     Page: 1   Date Filed: 12/16/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                             December 16, 2019
                                 No. 18-11620
                                                                Lyle W. Cayce
                                                                     Clerk
JOHN DOES 1-7, individually and on behalf of all others similarly situated,

             Plaintiff - Appellant

v.

GREG ABBOTT, GOVERNOR OF THE STATE OF TEXAS; STEVEN
MCCRAW, Colonel, Director of the Texas Department of Public Safety,

             Defendants - Appellees




                Appeals from the United States District Court
                     for the Northern District of Texas


Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.
PER CURIAM:
      The Appellants, John Does One through Seven, are registered sex
offenders who appeal the dismissal for failure to state a claim of their
challenges to the Texas Sex Offender Registration Program. We AFFIRM.

                               I. Background
      The Texas Sex Offender Registration Program is codified at Chapter 62
of the Texas Code of Criminal Procedure. Its registration requirements apply
retroactively to all persons with a “reportable conviction or adjudication
occurring on or after September 1, 1970,” for several enumerated sex offenses.
TEX. CODE CRIM. PROC. ANN. arts. 62.001(5), .002(a).
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       Chapter 62 imposes various requirements on registrants. A few are
especially relevant to this case. Most registrants are assigned a “risk level” of
“one (low),” “two (moderate),” or “three (high)” using an “objective point
system.” Id. arts. 62.007, .053(a), (c). The “risk assessment review committee,”
a court, or a state corrections agency may override a risk level only if it believes
that the assigned level does not accurately predict the registrant’s risk to the
community. Id. art. 62.007(d). Registrants must report in person at varying
intervals depending on their offenses to verify their information. Id. arts.
62.058(a), .202. A registrant that intends to move, whether within or outside
the state, must report in person within seven days before and after moving.
Id. art. 62.055(a). The statute also prohibits registrants from living on the
campus of an institution of higher education unless they are low-risk and the
institution assents. Id. art. 62.064. The duty to register generally lasts for ten
years after specified events of adjudication, but certain serious offenses can
lead to lifetime registration. Id. art. 62.101.
       The Does are men listed in the Texas sex-offender registry because of
convictions that occurred before 2017, when Chapter 62 was last amended.
They filed suit in the Northern District of Texas against Greg Abbott, Governor
of Texas, and Colonel Steven McCraw, Director of the Texas Department of
Public Safety. 1 The Does challenged Chapter 62 under 42 U.S.C. § 1983 on
several constitutional grounds. 2 The district court dismissed all the Does’
claims with prejudice under both Federal Rule of Civil Procedure 12(b)(1) for
lack of standing to bring the claims against Abbott and Rule 12(b)(6) for failure
to state a claim upon which relief may be granted. Does #1–7 v. Abbott, 345 F.


       1The Does moved for class-action certification for seven classes, but the district court
denied the motion without prejudice for being premature.
       2These were the Due Process Clause, First Amendment, Equal Protection Clause, Ex
Post Facto Clause, Eighth Amendment, Double Jeopardy Clause, and Contracts Clause.
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Supp. 3d 763, 784 (N.D. Tex. 2018).
       The Does timely appealed challenging only the Rule 12(b)(6) dismissal of
four of their facial challenges: 3 that Chapter 62 violates (1) the Due Process
Clause by classifying sex offenders into three tiers of present dangerousness
with insufficient procedural due process, (2) the Ex Post Facto Clause by
imposing additional punishment for offenses committed before the 2017
amendments to Chapter 62, (3) the Eighth Amendment by imposing “excessive
and arbitrary” punishment, and (4) the Double Jeopardy Clause by imposing
additional punishment after sentencing requirements have been completed.

                               II.   Standard of Review
       “We review de novo a district court’s dismissal under Rule 12(b)(6),
accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff.” Sullivan v. Leor Energy, LLC, 600 F.3d 542,
546 (5th Cir. 2010). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).

                                     III. Discussion
       We have previously held that constitutional challenges to Chapter 62 on



       3  The district court determined that the claims at issue on appeal were all facial
challenges to Chapter 62. Abbott, 345 F. Supp. 3d at 773–74. We agree. The Does did not
explicitly state that these were as-applied challenges, they did not object to the Appellees’
characterizing their challenges as facial below, they did not plead sufficient facts to support
an as-applied challenge, and the complaint made only general allegations of
unconstitutionality. See Justice v. Hosemann, 771 F.3d 285, 292 (5th Cir. 2014) (holding that
“a developed factual record” with “[p]articularized facts” is “essential” to support an as-
applied challenge); Int’l Women’s Day March Planning Comm. v. City of San Antonio, 619
F.3d 346, 356 (5th Cir. 2010) (holding that a party must “clearly raise[]” an as-applied
challenge and “must press and not merely intimate the argument . . . before the district
court”).
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                                        No. 18-11620
ex post facto, Eighth Amendment, due process, and other similar grounds
either are frivolous or fail to state a plausible claim. Procedural due process
challenges fail because conviction of a sex offense entails all requisite process
for the state to impose sex-offender conditions. 4 Conn. Dep’t of Pub. Safety v.
Doe (CDPS), 538 U.S. 1, 6–8 (2003); Meza v. Livingston, 607 F.3d 392, 401 (5th
Cir. 2010). Ex post facto, Eighth Amendment, and double jeopardy challenges
do not cross the minimum pleading threshold because Chapter 62 is
nonpunitive. 5 None of the arguments in this case steer us in a different
direction.

  A. Procedural Due Process Claims
       The district court dismissed the Does’ procedural due process claim,
citing two unpublished opinions of our court. Abbott, 345 F. Supp. 3d at 777–
78 (citing Hollier v. Watson, 605 F. App’x 255, 258 n.12 (5th Cir. 2015) (per
curiam); King v. McCraw, 559 F. App’x 278, 283 (5th Cir. 2014) (per curiam)).
These two opinions relied on Meza v. Livingston, in which we held, “When an
individual is convicted of a sex offense, no further process is due before
imposing sex offender conditions.” 607 F.3d at 401 (citing CDPS, 538 U.S. at


       4 We have affirmed dismissals of and summary judgment on, and dismissed appeals
of, similar due process challenges to Chapter 62 on at least four occasions. See Hollier v.
Watson, 605 F. App’x 255, 258–59 (5th Cir. 2015) (per curiam) (affirming dismissal for failure
to state a claim); King v. McCraw, 559 F. App’x 278, 282–83 (5th Cir. 2014) (per curiam)
(affirming summary judgment); Hall v. Att’y Gen. of Tex., 266 F. App’x 355, 356 (5th Cir.
2008) (per curiam) (affirming dismissal for failure to state a claim and as frivolous); Herron
v. Cockrell, 78 F. App’x 429, 430 (5th Cir. 2003) (per curiam) (dismissing an appeal as
frivolous).
       5 For a discussion of why Chapter 62 is nonpunitive, see King, 559 F. App’x at 281–82
(affirming summary judgment on an ex post facto claim). In other opinions, we relied on
Smith v. Doe and its holding that the Alaska statute was nonpunitive. 538 U.S. 84, 105
(2003); see Hayes v. Texas, 370 F. App’x 508, 509–10 (5th Cir. 2010) (per curiam) (dismissing
an appeal of ex post facto and double jeopardy claims as frivolous); Hall, 266 F. App’x at 356
(affirming the dismissal of an ex post facto claim for failure to state a claim and as frivolous).
See also Hollier, 605 F. App’x at 258–59 (affirming dismissal of ex post facto and double
jeopardy claims for failure to state a claim).
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7–8). Because the Does stated in their complaint that Chapter 62’s “[t]ier
classifications are based solely on the offense(s) of conviction,” the district court
held that the Does “show[ed] that they have already been afforded all that due
process requires.” Abbott, 345 F. Supp. 3d at 778.
       When a state interferes with a liberty interest, “the procedures
attendant upon that deprivation [must be] constitutionally sufficient.” Ky.
Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). Even assuming for the
sake of argument that a convicted sex offender has a liberty interest in being
free from registration as such, 6 it is settled that conviction or similar
adjudication of a sex offense supplies sufficient due process for the imposition
of sex offender conditions, including registration. See CDPS, 538 U.S. at 6–8;
Meza, 607 F.3d at 401. “The individual convicted of a sex crime in a prior
adversarial setting, whether as the result of a bench trial, jury trial, or plea
agreement, has received the minimum protections required by due process.”
Meza, 607 F.3d at 401 (internal quotation marks omitted). Therefore, when a
registry’s requirements “turn on an offender’s conviction alone—a fact that a
convicted offender has already had a procedurally safeguarded opportunity to
contest”—persons convicted of sexual offenses are owed no additional process. 7
CDPS, 538 U.S. at 7–8; see Meza, 607 F.3d at 401.
       The Does argue that the classification of present risk provided for in
Chapter 62 compels additional process. But they stated in their complaint to



       6In Meza, we held that a person not convicted of a sexual offense has “a liberty interest
in being free from sex offender registration and therapy.” 607 F.3d at 401.
       7 John Does Three and Five received deferred adjudication, which is a reportable
adjudication under Chapter 62 and provides sufficient due process to subject a person to
registration requirements. See King, 559 F. App’x at 280–83 & n.2 (affirming summary
judgment on ex post facto and procedural due process claims by a person with a deferred
adjudication for a sex offense who was required to register under Chapter 62). The other
Does were convicted after a trial or guilty plea.
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                                      No. 18-11620
the district court that the “classifications are based solely on the offense(s) of
conviction,” and they did not argue otherwise in district court. 8 They have
therefore waived any argument that risk classifications are not based solely on
the fact of conviction. See N. Alamo Water Supply Corp. v. City of San Juan,
90 F.3d 910, 916 (5th Cir. 1996) (“We will not consider an issue that a party
fails to raise in the district court, absent extraordinary circumstances.”). In
light of this waiver, we consider only the arguments before the district court
on these issues and, based upon those arguments, hold that the Does have been
afforded enough due process to be placed under Chapter 62’s strictures,
including risk-level designation. CDPS, 538 U.S. at 6–8; Meza, 607 F.3d at
401.
        We also reject the Does’ contention that Chapter 62 fails the stigma-plus
test from Paul v. Davis, 424 U.S. 693 (1976). To show a due process violation
under this theory, “a section 1983 plaintiff [must] show stigma plus an
infringement of some other interest.” Blackburn v. City of Marshall, 42 F.3d
925, 935–36 (5th Cir. 1995).           “[T]he infliction of a stigma on a person’s
reputation by a state official, without more, does not infringe upon a protected
liberty interest.” Id. (citing Paul, 424 U.S. at 710–11). Instead, “we have found
sufficient stigma only where a state actor has made concrete, false assertions
of wrongdoing on the part of the plaintiff.” Blackburn, 42 F.3d at 936. When
a sex offender is required to register or is assigned a risk level, there is no false


        8 The Does admit that they expressly pleaded to the district court that the tier
classifications are based “solely” on the offense of conviction. They did not argue that other
factors are considered in making the tier determination until their brief on appeal, when they
contended that their pleading in the district court was “in error.” Because they made a
contrary argument in the trial court, we do not reach the question of whether additional due
process is owed when a registrant’s risk level is determined using factors other than the
offense of conviction. See Myers v. Manchester Ins. & Indem. Co., 572 F.2d 134, 134 (5th Cir.
1978); Aspire Commodities, L.P. v. GDF Suez Energy N. Am., Inc., 640 F. App’x 358, 362 (5th
Cir. 2016) (holding that a plaintiff cannot make an argument on appeal opposite to the
argument made in district court).
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assertion of fact, and thus there is no stigma. See Ex parte Robinson, 80 S.W.3d
709, 714 (Tex. App—Houston [1st Dist.] 2002), aff’d, 116 S.W.3d 794 (Tex.
Crim. App. 2003).
      As for the infringement component, “[n]either harm to reputation nor the
consequent     impairment     of    future      employment    opportunities     are
constitutionally cognizable injuries.” Vander Zee v. Reno, 73 F.3d 1365, 1369
(5th Cir. 1996) (citing Siegert v. Gilley, 500 U.S. 226, 233–35 (1991)). The Does
identify no direct infringement on the part of the state, but only secondary
harms resulting from their placement on the registry, such as housing and
lending hardships. They have therefore failed to show a due process violation
under the stigma-plus test.
      Because the Does fail to state a plausible due process claim, we affirm
the district court’s dismissal of that claim.

  B. Ex Post Facto, Eighth Amendment, and Double Jeopardy Claims
      The district court addressed the Does’ ex post facto, Eighth Amendment,
and double jeopardy claims collectively because their plausibility depended
upon the threshold question of “whether Chapter 62’s scheme is punitive in
nature.” Abbott, 345 F. Supp. 3d at 774. Relying on Smith v. Doe, 538 U.S. 84
(2003), in which the Supreme Court found the Alaska sex-offender registration
statute to be nonpunitive, the district court held that Chapter 62 is also
nonpunitive, meaning the Does’ claims could not meet the pleading threshold.
Abbott, 345 F. Supp. 3d at 775–77 (citing Smith, 538 U.S. at 92, 97–106). The
district court also cited three of our unpublished opinions that reached the
same conclusion. Id. at 776 (citing King, 559 F. App’x at 281; Hall v. Att’y Gen.
of Tex., 266 F. App’x 355 (5th Cir. 2008) (per curiam); Herron v. Cockrell, 78 F.
App’x 429 (5th Cir. 2003) (per curiam)).
      A statute can violate the Ex Post Facto Clause, the Eighth Amendment,
or the Double Jeopardy Clause only if the statute is punitive. See Smith, 538
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U.S. at 92–93, 96–97. 9         Courts use an intents–effects test to make that
determination: “If the intention of the legislature was to impose punishment,
that ends the inquiry”; but if the law was not intended to be punitive, the
question becomes whether it is “so punitive either in purpose or effect as to
negate the State’s intention to deem it civil.” Id. at 92 (brackets and internal
quotation marks omitted) (quoting Kansas v. Hendricks, 521 U.S. 346, 361
(1997)). “[O]nly the clearest proof will suffice to override legislative intent and
transform what has been denominated a civil remedy into a criminal penalty.”
Smith, 538 U.S. at 92 (internal quotation marks omitted).
       The Supreme Court has identified five non-dispositive factors, taken
from Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), 10 that are especially
apt for determining whether a sex-offender registry is punitive:
              whether, in its necessary operation, the regulatory
              scheme: [1] has been regarded in our history and
              traditions as a punishment; [2] imposes an affirmative
              disability or restraint; [3] promotes the traditional
              aims of punishment; [4] has a rational connection to a
              nonpunitive purpose; or [5] is excessive with respect to
              this purpose.
Smith, 538 U.S. at 97. “[A] most significant factor” is whether the law has a


       9 The Court in Smith explicitly tied this inquiry only to ex post facto challenges. 538
U.S. at 92–93. But it applies with equal force in double jeopardy and Eighth Amendment
contexts. See Kansas v. Hendricks, 521 U.S. 346, 368–69 (1997) (holding that a statute did
not violate the ex post facto or double jeopardy prohibitions because it was not punitive); John
Corp. v. City of Hous., 214 F.3d 573, 580 (5th Cir. 2000) (“[A] crucial question under the
Eighth Amendment is whether a confiscation of property is punishment, not whether the
proceeding culminating in property confiscation is a criminal or civil proceeding.”); see also
Hinds v. Lynch, 790 F.3d 259, 264 n.5 (1st Cir. 2015) (“The common inquiry across the
[Supreme] Court’s Eighth Amendment, ex post facto, and double jeopardy jurisprudence is
determining whether the government’s sanction is punitive in nature and intended to serve
as punishment.”).
       10The Court in Mendoza-Martinez listed seven factors; the two not addressed in Smith
were “whether [the sanction] comes into play only on a finding of scienter” and “whether the
behavior to which it applies is already a crime.” 372 U.S. at 168–69 (footnotes omitted).
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                                       No. 18-11620
“rational connection to a nonpunitive purpose.”                Id. at 102 (brackets and
internal quotation marks omitted).
       There is no question that Chapter 62 was not intended to be punitive.
But the Does argue that its “cumulative effects . . . , retroactively imposed,
qualify as punishment.” The district court concluded that “[a]lthough . . . some
of Chapter 62’s requirements are more burdensome than the Alaska statute in
Smith v. Doe, they do not rise to the level of harshness to constitute
punishment.” Abbott, 345 F. Supp. 3d at 776. We agree. Smith suggests that
sex-offender registry statutes are generally not punitive. See 538 U.S. at 105.
On several occasions, we have extended that holding to Chapter 62
specifically. 11 See King, 559 F. App’x at 281–82; Hayes v. Texas, 370 F. App’x
508, 509 (5th Cir. 2010) (per curiam); Hall, 266 F. App’x at 356; Herron, 78 F.
App’x at 430.
       The Does rely heavily on a Sixth Circuit opinion that found the Michigan
sex-offender registry to be punitive. See Does #1–5 v. Snyder, 834 F.3d 696,
705 (6th Cir. 2016). But they identify no feature of Texas’s scheme, which does
not share the most burdensome features of Michigan’s, 12 that would compel a



       11 The Texas Court of Criminal Appeals reached the same conclusion for the 1999
version of the statute. Ex parte Robinson, 116 S.W.3d at 797–98. We have also held that the
federal sex-offender registry is not punitive. United States v. Young, 585 F.3d 199, 204–06
(5th Cir. 2009) (per curiam).
       12 Especially important to the holding in Snyder was a provision that prohibited
registered sex offenders from living, working, or loitering within 1,000 feet of a school zone.
Snyder, 834 F.3d at 698, 701–04. The residency restriction added to Chapter 62 in 2017, the
only substantive amendment since we last considered similar claims, is far less burdensome.
See TEX. CODE CRIM. PROC. ANN. art. 62.064 (prohibiting registrants from living on a
university campus unless they are low-risk and the university assents). At least two circuits
have found stricter residency limits to be nonpunitive. See, e.g., Shaw v. Patton, 823 F.3d
556, 570–71 (10th Cir. 2016) (holding that the Oklahoma sex-offender registry was
nonpunitive even though it prohibited registrants from residing within 2,000 feet of a school
or a number of other sites with children); Doe v. Miller, 405 F.3d 700, 705, 718–23 (8th Cir.
2005) (holding that a 2,000-foot residency restriction on those convicted of certain sexual
offenses against minors was nonpunitive).
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departure from Smith or our prior decisions. Even if the Texas statute is
harsher than the Alaska statute considered in Smith, and even if the Does are
correct that sex-offender registries have questionable efficacy, Chapter 62 still
advances the nonpunitive public purpose of defending public safety.                       See
Smith, 528 U.S. at 103. “A statute is not deemed punitive simply because it
lacks a close or perfect fit with the nonpunitive aims it seeks to advance.” Id.
We will not re-weigh the Smith factors here but instead defer to the analysis
of the district court and our prior panels.
       Because Chapter 62 is not punitive, we affirm the dismissal of the Does’
ex post facto, Eighth Amendment, and double jeopardy claims.
       AFFIRMED.




       Additionally, the Michigan statute at issue in Snyder had a stricter in-person
reporting requirement than Chapter 62’s. Compare MICH. COMP. LAWS ANN. § 28.725
(requiring registrants to report in person “immediately” after various triggering events), with
TEX. CODE CRIM. PROC. ANN. art. 62.055(a) (requiring registrants to report changes of
address in person within seven days).
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