     Case: 15-41456   Document: 00514011478     Page: 1   Date Filed: 05/30/2017




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

                                                                       FILED
                                 No. 15-41456                        May 30, 2017
                                                                    Lyle W. Cayce
                                                                         Clerk
AURELIO DUARTE; WYNJEAN DUARTE; S. D., A Minor, By and through
Wynjean Duarte, acting as her Next Friend; BRANDI DUARTE,

             Plaintiffs - Appellants

v.

CITY OF LEWISVILLE, TEXAS,

             Defendant - Appellee


                Appeal from the United States District Court
                     for the Eastern District of Texas


Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Aurelio 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.
                                       I.
      In 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
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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supervision was revoked, and he was sentenced to a three-year term of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 commonly gather.” 1
        The 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.
        The 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



        1 The term “premises where children commonly gather” is defined as including “all
improved and unimproved areas on the lot where a public park, public playground, private
or public school, public or semi-public swimming pool, public or non-profit recreational
facility, day care center or video arcade facility is located.”
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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.
      Appellants 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.
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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.
                                      II.
      We 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).
                                      III.
      Duarte 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.


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       As the 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 by jury, was found guilty of the
underlying sex offense, and was ultimately sentenced to three years of
imprisonment following revocation of his community supervision term. Thus,
the absence of an additional hearing allowing Duarte to contest current
dangerousness does not offend the principles of procedural due process. 2


       2 Duarte contends that the Lewisville ordinance is so restrictive that it effectively
banishes him from the city, thus infringing on his constitutionally protected liberty interest
to reside in the location of his choice. As we have set forth above, in light of the Supreme
Court’s holding in Connecticut Department of Public Safety, we need not decide whether the
Ordinance deprives Duarte of a constitutionally protected liberty interest, nor do we need to
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                                       No. 15-41456
       This conclusion applies with equal force to Appellants’ similar claim that
the Ordinance deprives the Duarte Family collectively of a constitutionally-
protected liberty interest in “family consortium” without procedural due
process. The only procedural defect Appellants identify is the Ordinance’s
“complete failure to provide [the Duarte Family] with a pre-deprivation
opportunity to be heard on the issue of whether . . . Duarte currently poses (or
has ever posed) any threat to anyone by reason of a lack of sexual control.” As
is the case with Duarte’s individual claim, procedural due process does not
entitle the Duarte Family to a hearing to “establish a fact that is not material”
under the Ordinance. Id.
       As the Supreme Court observed in Connecticut Department of Public
Safety, “[i]t may be that [Appellants’] claim is actually a substantive challenge
to [the] statute ‘recast in procedural due process terms.’” Id. at 8 (quoting Reno
v. Flores, 507 U.S. 292, 308 (1993)). However, because Appellants insist that
they intend only to bring a procedural due process claim, we do not reach the
substantive due process question. 3
                                             IV.
       Duarte next alleges that the Ordinance deprives him of his constitutional
right to equal protection of law in violation of the Fourteenth Amendment.



apply the test set forth in Matthews v. Eldridge, 424 U.S. 319 (1976), concerning the
constitutional adequacy of procedural protections. However, we note that whether an
ordinance or statute like the one at issue here constitutes effective banishment remains an
open question.
        3 While the procedural element of the Due Process Clause protects individuals “from

the mistaken or unjustified deprivation of life, liberty, or property[,]” Carey v. Piphus, 435
U.S. 247, 259 (1978), the substantive element “forbids the government to infringe . . .
‘fundamental’ liberty interests at all, no matter what process is provided, unless the
infringement is narrowly tailored to serve a compelling state interest.” Washington v.
Glucksberg, 521 U.S. 702, 720–21 (1997) (quoting Reno, 507 U.S. at 302). Because Duarte
explicitly waived any arguments about whether effective banishment would infringe
substantive due process, both in his briefing and at oral argument, we do not address whether
the Ordinance infringes on a fundamental right or liberty interest.
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                                  No. 15-41456
“The Equal Protection Clause of the Fourteenth Amendment commands that
no State shall ‘deny to any person within its jurisdiction the equal protection
of the laws,’ which is essentially a direction that all persons similarly situated
should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). To establish an
equal protection claim, Duarte must first show that “two or more classifications
of similarly situated persons were treated differently” under the statute.
Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012); see also
Stefanoff v. Hays Cty., 154 F.3d 523, 525–26 (5th Cir. 1998). Once that
threshold element is established, the court then determines the appropriate
level of scrutiny to apply. “Strict scrutiny is required if the legislative
classification operates to the disadvantage of some suspect class or impinges
upon a fundamental right explicitly or implicitly protected by the
Constitution.” Richard v. Hinson, 70 F.3d 415, 417 (5th Cir. 1995) (citing San
Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973)). If neither a
suspect class nor a fundamental right is implicated, the classification need only
bear a rational relation to a legitimate governmental purpose. Id. at 417.
      Notably, Duarte does not challenge the Ordinance’s classification
between child sex offenders and the general population. Instead, he brings a
more narrow challenge to the differing treatment of child sex offenders subject
to state-imposed community supervision versus those who are not. The
Magistrate Judge determined that this classification was subject to rational
basis review, because it neither disadvantaged a suspect class nor impinged on
a fundamental right. Appellants failed to object to this conclusion below, and,
although they now make a cursory argument that strict scrutiny should apply,
they fail to explain why, much less show that the Magistrate Judge’s




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                                      No. 15-41456
conclusion constituted plain error. See Douglass, 79 F.3d at 1428–29. 4
Therefore, we limit our analysis to whether the Ordinance’s differing
treatment of the two groups identified by Duarte bears a rational relation to a
legitimate governmental purpose.
       As an initial matter, Lewisville argues that Duarte failed to identify a
classification that would allow this court to perform an equal protection
analysis at all, reasoning that the Ordinance “does not create multiple classes
of child sex offenders,” because the “defense in the Ordinance is equally
available to anyone who meets its terms.” We disagree. The Ordinance divides
child sex offenders into two categories: (1) those subject to state-imposed
community supervision and who are therefore permitted to avail themselves of
the exemptions incorporated from state law, and (2) those who are not subject
to community supervision and are therefore, by definition, unable to avail
themselves of the same exemptions. As a result, the Ordinance provides a form
of relief to one category of child sex offenders that is not available to another.
This imposition of differing treatment based on delineated categories of sex
offenders satisfies the threshold classification requirement. See Sonnier v.
Quarterman, 476 F.3d 349, 368–69 (5th Cir. 2007).
       We agree, however, that this classification “rationally further[s] a
legitimate state interest.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). “Rational
basis review begins with a strong presumption of constitutional validity.”
Malagon de Fuentes v. Gonzales, 462 F.3d 498, 504 (5th Cir. 2006). A court will




       4 Because Appellants have failed to adequately brief the issue, we do not reach the
question of whether the Ordinance “operates to the disadvantage of some suspect class or
impinges upon a fundamental right explicitly or implicitly protected by the Constitution.”
Richard, 70 F.3d at 417. This court previously has held that sex offenders are not a suspect
class for equal protection purposes. See Stauffer v. Gearhart, 741 F.3d 574, 587 (5th Cir.
2014). As with Appellants’ Due Process Clause claim, we also do not reach the question of
whether the Ordinance impinges on a fundamental right. See supra Note 3.
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uphold the classification “if there is a rational relationship between the
disparity of treatment and some legitimate governmental purpose.” Heller v.
Doe, 509 U.S. 312, 320 (1993). Because “[r]ational basis scrutiny requires only
that the legislative classification rationally promote a legitimate governmental
objective[,]” Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987) (emphasis
added), we focus on the specific classification challenged by Duarte. In other
words, the “appropriate standard of review is whether the difference in
treatment between” child sex offenders on community supervision and child
sex offenders not on community supervision “rationally furthers a legitimate
state interest.” Nordlinger, 505 U.S. at 11 (examining whether the difference
of treatment between newer and older homeowners for property tax purposes
furthered a legitimate state interest).
       Lewisville’s explanation for the challenged classification is that it “is
little more than legislative deference to an existing court order and seeks to
avoid potentially conflicting orders.” Duarte complains that this is the first
time Lewisville has articulated such a justification. However, “the Equal
Protection Clause does not demand for purposes of rational-basis review that
a legislature or governing decisionmaker actually articulate at any time the
purpose or rationale supporting its classification.” Id. at 15. Instead, the court’s
review merely requires “that a purpose may conceivably or ‘may reasonably
have    been   the   purpose   and    policy’   of   the   relevant    governmental
decisionmaker.” Id. (quoting Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522,
528–529 (1959)). “As long as there is a conceivable rational basis for the official
action, it is immaterial that it was not the or a primary factor in reaching a
decision or that it was not actually relied upon by the decisionmakers or that
some other nonsuspect irrational factors may have been considered.” Reid v.
Rolling Fork Pub. Util. Dist., 854 F.2d 751, 754 (5th Cir. 1988). The burden is
on the challenging party to counter “any reasonably conceivable state of facts
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                                  No. 15-41456
that could provide a rational basis for the classification.” Heller, 509 U.S. at
320 (quoting F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)).
      “[C]lassifications serving to protect legitimate expectation and reliance
interests do not deny equal protection of the laws.” Nordlinger, 505 U.S. at 13.
Indeed, “[t]he protection of reasonable reliance interests is not only a
legitimate governmental objective: it provides ‘an exceedingly persuasive
justification[.]’” Heckler v. Mathews, 465 U.S. 728, 746 (1984) (quoting
Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981)). Here, the affirmative defense
provided by the Ordinance—and the classification it creates—is rationally
related to a legitimate government interest in deferring to an existing state
court judgment and protecting the expectation and reliance interests of those
who have already sought and received a judicial determination that they are
entitled to relief from geographic restrictions.
      Further, the fact that some individuals are eligible for an exemption
while others are not is not necessarily fatal under rational basis review.
“[L]egitimate public policies [may] justify the incidental disadvantages [laws]
impose on certain persons.” Romer v. Evans, 517 U.S. 620, 635 (1996). “Like all
rational actors with limited resources, [a government actor] must reach its
abstract goal . . . by a series of practical requirements and easily-administered
rules judged to be reasonable surrogates for it.” Brennan v. Stewart, 834 F.2d
1248, 1259 (5th Cir. 1988). As the Supreme Court has explained, “the fact that
. . . exemptions exist . . . does not render [a law] violative of equal protection”
if there are “valid reasons for [the] exemptions . . . and no evidence to dispel
them.” McGowan v. Maryland, 366 U.S. 420, 427 (1961).
      Because the Ordinance’s challenged classification “rationally further[s]
a legitimate state interest[,]” Nordlinger, 505 U.S. at 10, we conclude that it
does not violate the Equal Protection Clause.


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                           No. 15-41456
                                 V.
  For the foregoing reasons, we AFFIRM the district court’s judgment.




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