     Case: 13-20092      Document: 00512555164         Page: 1    Date Filed: 03/10/2014




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


                                      No. 13-20092                              FILED
                                                                          March 10, 2014
                                                                           Lyle W. Cayce
REGINALD KING,                                                                  Clerk

                                                 Plaintiff-Appellant
v.

STEVEN C. MCCRAW, Director of the Texas Department of Public Safety;
CHIEF KENITH ADCOX, Chief of the La Porte Police Department,

                                                 Defendants-Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:10-CV-321


Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       I.     FACTUAL AND PROCEDURAL HISTORY
       In November 1990, Appellant Reginald King (“King”) was charged with
indecency with a child. Tex. Penal Code Ann. § 21.11(a)(2). He pleaded guilty
as charged in Harris County, Texas district court.                The court entered a
deferment of adjudication of guilty and placed him on probation for 10 years.
King was required as a condition of probation to complete sex offender


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 13-20092       Document: 00512555164         Page: 2    Date Filed: 03/10/2014



                                      No. 13-20092
counseling. On June 13, 1996, the court entered an order dismissing the
proceedings against him and terminating his probation.
       In 1990, at the time King pleaded guilty and was placed on deferred
adjudication for indecency with a child, the Texas Sex Offender Registration
Act (SORA) had not yet been enacted. It was enacted the next year in 1991.
See Sex Offender Registration Act, 72d Leg., R.S., ch. 572, § 1, 1991 Tex. Gen.
Laws 2029.       SORA required any person with a “reportable conviction or
adjudication,” including a conviction or adjudication for indecency with a child,
to register as a sex offender. At that time, SORA did not include a deferred
adjudication for indecency with a child as a reportable adjudication. 1
       In 2005, SORA was amended to include as a reportable conviction
deferred adjudications for indecency with a child that occurred on or after
September 1, 1970. TEX. CODE CRIM. PRO. ANN. § 62.001(5)(A) & § 62.002(a).
Thus, the 2005 SORA amendment included King’s deferred adjudication as a
reportable conviction. In 2006, the City of La Porte passed an ordinance
prohibiting sex offenders whose violation involved a victim under 17 years of
age from residing within 1,000 feet of any premises where children commonly
gather, including playgrounds, schools, and public swimming pools. La Porte,
Tex., Gen. Ordinances ch. 42, art. V, § 42-104.
       Meanwhile, in 2001, King had been charged with two burglaries of a
habitation. He pleaded guilty to both as charged and was sentenced to a 20-
year term of imprisonment. In 2008, King was released on parole with the




       1  In 1993, SORA was amended to include “deferred adjudication” for indecency with
a child as a reportable conviction of adjudication. However, the amendment did not apply to
King because it only included offenses that occurred on or after September 1, 1991, or if the
date of the order of deferred adjudication was on or after September 1, 1993.
                                             2
    Case: 13-20092     Document: 00512555164     Page: 3   Date Filed: 03/10/2014



                                  No. 13-20092
statutorily mandated condition that he register as a sex offender and be
evaluated to determine whether he needed sex offender counseling.
      In 2009, La Porte Police Detective Huckabee contacted King and
informed him that he was required to register as a sex offender with the La
Porte Police Department, and King complied. King, represented by counsel,
filed the instant lawsuit against the Director of the Texas Department of Public
Safety, Steven McCraw, and the Chief of the La Porte Police Department,
Kenith Adcox, both in their official capacities. 42 U.S.C. §§ 1983 & 1988. In
his complaint, King alleged that SORA’s requirement that he register as a sex
offender violated his Fourteenth Amendment rights to substantive and
procedural due process and equal protection. He further argued that SORA
was unconstitutional because it violates the Ex Post Facto Clause. He argued
that his deferred adjudication was dismissed and therefore he does not have a
“reportable conviction” as defined by SORA. In his complaint, King did not
challenge the constitutionality of the City of La Porte’s sex offender ordinances.
      Adcox moved to dismiss the complaint, asserting insufficient service of
process.   The district court granted the motion and dismissed the claims
against Adcox without prejudice. The court allowed King until August 31,
2011, to serve the Attorney General of Texas, and King timely effected service.
      McCraw filed a motion for summary judgment, and Adcox subsequently
filed a motion to join McCraw’s motion for summary judgment. The court
granted summary judgment in favor of McCraw. In its opinion, the court noted
that although Adcox had filed a motion “purporting to join in McCraw’s motion
for summary judgment,” King’s claims against Adcox had been dismissed
based on insufficient service of process.
      King filed a motion for reconsideration of summary judgment, asserting
that in the order granting summary judgment the court had erroneously stated
                                        3
    Case: 13-20092     Document: 00512555164      Page: 4   Date Filed: 03/10/2014



                                  No. 13-20092
that the cause of action against Adcox had been dismissed. The court granted
King’s motion to reconsider, explaining that there was a “clear error of fact:
now that proof of service of Adcox has been introduced in the record, there is
no basis for the order dismissing all claims against him for insufficient service
of process.” With respect to summary judgment, the court explained that the
only claim that needed to be reconsidered was the claim that SORA violates
the Ex Post Facto Clause. The court stated that it is undisputed that the City
of La Porte promulgated sex offender residency restrictions. The court ruled
that those ordinances cannot form the basis of King’s challenge to SORA
because SORA does not impose any residence restrictions. The court explained
that King has “stated a claim against the City of La Porte that was not made
in his original complaint—and which the Court is not free to consider because
such a claim is not properly before it.” Accordingly, the court entered an
amended judgment, granting summary judgment in favor of both McCraw and
Adcox. King now appeals.
      II.   ANALYSIS
            A.     Standard of Review

      We review a grant of summary judgment de novo, applying the same
standards as the district court. Am. Home Assurance Co. v. United Space
Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). “A summary judgment
motion is properly granted only when, viewing the evidence in the light most
favorable to the nonmoving party, the record indicates that there is no genuine
issue as to any material fact, and that the moving party is entitled to judgment
as a matter of law.” Id.; see also FED. R. CIV. P. 56(a).




                                        4
    Case: 13-20092       Document: 00512555164     Page: 5   Date Filed: 03/10/2014



                                   No. 13-20092
             B.       Ex Post Facto Claim
      King argues that SORA is unconstitutional as applied to him because it
violates the Ex Post Facto Clause.          He points out that SORA was not in
existence at the time he pleaded guilty to the offense of indecency with a child.
He contends that the restrictions on where he may live, work, and with whom
he may associate are punitive.       In its original opinion granting summary
judgment, the district court explained that SORA did not impose the
complained of restrictions; instead, the City of La Porte’s ordinances contain
these restrictions. Opinion at p. 11 (Sept. 7, 2012).           In its opinion on
reconsideration, the district court ruled that it was “not free to consider” a
challenge to the La Porte ordinances because that claim was “not properly
before it.” Opinion at p. 11 (Jan. 15, 2013). The court concluded that it would
not grant leave to amend at that point because it would be futile, opining that
“even if [King] amended his complaint to claim an ex post facto violation by the
La Porte ordinance, this claim would still fail to survive summary judgment.”
Id. at 12. On appeal, King fails to argue that the district court erred in ruling
that the challenge to the La Porte restrictions was not properly before it.
King’s failure to argue this claim renders it abandoned. See Brinkmann v.
Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (explaining
that the Court “will not raise and discuss legal issues that [appellant] has
failed to assert”).
      King does argue that the district court erred in rejecting his claim that
the application of SORA to him violates the Ex Post Facto Clause.                In
unpublished opinions, this Court has repeatedly affirmed a district court’s
dismissal as frivolous the claim that the retroactive application of Texas law
requiring sex offender registration and notification violates the Ex Post Facto
Clause. See Hayes v. Tex., 370 F. App’x 508 (5th Cir. 2010); Hall v. Att’y Gen.
                                            5
     Case: 13-20092       Document: 00512555164          Page: 6     Date Filed: 03/10/2014



                                       No. 13-20092
of Tex., 266 F. App’x 355 (5th Cir. 2008); Herron v. Cockrell, 78 F. App’x 429
(5th Cir. 2003).       Although our unpublished decisions are not controlling
precedent, all these decisions relied on the Supreme Court’s holding in Smith
v. Doe, 538 U.S. 84 (2003). In Smith v. Doe, the Supreme Court rejected an ex
post facto challenge to Alaska’s sex-offender-registration statute. Id. Although
King recognizes the holding in Smith v. Doe, he contends that SORA’s
application to him is excessive in relation to the statute’s stated purpose of
public safety. The only challenge he makes to SORA’s application to him is the
requirement to re-register annually. However, the Supreme Court explained
that “registration requirements make a valid regulatory program effective and
do not impose punitive restraints in violation of the Ex Post Facto Clause.” Id.
at 102.     Contrary to King’s assertion, SORA’s requirement to re-register
annually cannot be said to be excessive. Cf. id. at 104 (opining that the
“duration of the reporting requirements is not excessive” because research has
shown that a child molester may commit a “re-offense” as many as 20 years
after being released).         The Supreme Court has instructed that “only the
clearest proof will suffice to override legislative intent and transform what has
been denominated a civil remedy into a criminal penalty.” Id. at 92 (internal
quotation marks omitted). As stated by the district court, King’s evidence and
allegations are insufficient as a matter of law to show that SORA is a criminal
penalty. Thus, the district court properly denied King’s claim of an ex post
facto violation. 2



       2 King points out that at the time of his plea agreement in 1990, Article 42.12 section
5(c) of the Code of Criminal Procedure provided that a dismissal and discharge under the
deferred adjudication section is not a conviction for the purposes of disqualifications or
disabilities that could be incurred for a conviction of this type. King cites Scott v. State, 55
S.W.3d 593, 597—98 (Tex. Crim. App. 2001), and in that case, the Court found that because
of the preceding statutory language, the use of the Appellant’s previously dismissed deferred
                                               6
     Case: 13-20092        Document: 00512555164          Page: 7     Date Filed: 03/10/2014



                                        No. 13-20092
              C.     Procedural Due Process Claim

       King contends that SORA’s “policies and procedures that were adopted,
implemented, and imposed” violate his right to procedural and substantive due
process. With respect to procedural due process, King complains that the
statute automatically classified him as a sex offender without notice or any
individualized determination of his purported danger to the community. We
have held that “[w]hen an individual is convicted of a sex offense, no further
process is due before imposing sex offender conditions.” Meza v. Livingston,
607 F.3d 392, 401 (5th Cir. 2010) (citing Conn. Dep’t of Pub. Safety v. Doe, 538
U.S. 1, 7—8 (2003)). 3 We explained that an individual convicted of a sexual
offense in a “prior adversarial setting, whether as the result of a bench trial,
jury trial, or plea agreement, has received the minimum protections required


adjudication conviction to enhance a sentence for a subsequent conviction constituted an ex
post facto violation. Of course, it “is beyond cavil that we are not bound by a state court’s
interpretation of federal law.” Grantham v. Avondale Indus., Inc., 964 F.2d 471, 473 (5th
Cir. 1992). In any event, unlike in Scott, King’s deferred adjudication is not being used to
enhance a criminal sentence. As previously discussed, a retroactive application of SORA does
not constitute an ex post facto violation.
         Moreover, the 2005 amendments to SORA require people with a conviction or a
deferred adjudication to register as a sex offender. See Tex. Crim. Proc. Code art. 62.001(5)
(2005) (“‘Reportable conviction or adjudication’ means a conviction or adjudication, including
an adjudication of delinquent conduct or a deferred adjudication . . . .” (emphasis added)).
Accordingly, the statute provides for those with a deferred adjudication as a distinct category
of people who must register under the law. The requirement that King must register as a
sex offender, therefore, is due to the fact that he received a deferred adjudication. Thus,
King’s argument that he should not be subject to the registration requirement because such
a requirement is a “disqualification or disability” that is only incurred by an actual conviction
is inapposite. Thus, this argument affords him no relief.
         3 King cites this Court’s opinion in Meza for the proposition that “an individual has a

liberty interest in being free from the SORA.” King misconstrues Meza. In that case, we
concluded that Meza had a liberty interest in being free from sex offender registration and
therapy because he had not been convicted of a sexual offense. Meza, 607 F.3d at 401
(“‘[P]risoners who have not been convicted of a sex offense have a liberty interest created by
the Due Process Clause in freedom from sex offender classification and conditions.’”).
(quoting Coleman v. Dretke, 395 F.3d 216, 222 (5th Cir. 2004)). Unlike Meza, King did plead
guilty to a sex offense, indecency with a child.
                                               7
    Case: 13-20092     Document: 00512555164   Page: 8   Date Filed: 03/10/2014



                                No. 13-20092
by due process.” Id. (internal quotation marks omitted); Doe, 538 U.S. at 7
(explaining that the “the law’s requirements turn on an offender’s conviction
alone—a fact that a convicted offender has already had a procedurally
safeguarded opportunity to contest”). Thus, King has not shown that his
procedural due process rights were violated.
              D. Substantive Due Process Claim
          With respect to substantive due process, King contends that the
burdens of SORA are excessive in relation to its stated purpose. “While the
core of substantive due process is protection from arbitrary government action,
only the most egregious official conduct is arbitrary in the constitutional
sense.”     Coleman v. Dretke, 395 F.3d 216, 224 (5th Cir. 2004) (internal
quotation marks and citation omitted). It has been explained that “behavior
most likely to shock the conscience and thus support a substantive due process
claim is conduct intended to injure in some way unjustifiable by any
government interest.” Id. at 224—25 (internal quotation marks and citation
omitted). See also Williams v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006)
(noting that Coleman foreclosed the petitioner’s argument that he was
deprived of substantive due process by the parole condition that he register as
a sex offender under SORA and receive therapy even though he had never been
convicted of a sex offense). We are not persuaded that SORA’s registration
requirements are unjustified or that they are imposed with the intent to injure
him. King has not shown that the restrictions rise to the level of shocking the
conscience. Thus, we affirm the district court’s denial of King’s substantive
due process claim.
      For the above reasons, the district court’s judgment is AFFIRMED.




                                      8
