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Local Sex Offender Residency Restrictions Challenged in Texas

by Matt Clarke

In many U.S. cities, local ordinances prohibit registered sex offenders from living in certain areas – generally within 1,000 feet or more of schools, playgrounds and daycare centers. But when a city is just a few dozen blocks in size, such ordinances can effectively force sex offenders to move out of the area altogether. The Texas legislature has taken up that issue on behalf of the state’s smallest cities – those with fewer than 5,000 residents – which are known as “general-law” municipalities.

In November 2015, Texas attorney Richard Gladden – who represents Texas Voices for Reason and Justice, Inc. (TVRJ), a nonprofit organization that advocates for better legislation on sex offender residency and registration ordinances – sent 46 Texas general-law cities a letter of intent to sue over allegedly unlawful residency restrictions. The letter maintained that such ordinances violate state law because a general-law city is only authorized to enact ordinances mandated by the state government. Along with his letter of intent, Gladden enclosed a copy of a 2007 letter from the Texas Attorney General’s Office to the chair of the Committee on Health and Human Services that explained the AG’s position on the issue.

“We have found no law authorizing a general-law municipality to adopt this type of residence 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,” the letter stated.

According to the Texas Municipal League (TML), state law sets forth the requirements for general-law cities’ municipal laws and functions. Cities with over 5,000 residents may adopt a city charter and become a home-rule city with greater latitude in enacting local ordinances.

“Small town kids are just as valuable and precious as big city kids,” said Mayor Elicia Sanders of Eustace, a city with a population of 991. “[Residents] don’t understand why big city kids get safety zones and small town kids don’t get ‘em.”

Sanders, along with Mayor Adele Mooney of Maypearl (population 934) and Mayor Charles Jessup of Meadows Place (population 4,060), testified at the request of TML general counsel Scott Houston before the Texas House Urban Affairs Committee, chaired by state Rep. Jim Murphy. TML wanted Rep. Murphy’s committee to recommend legislation specifically authorizing the adoption of ordinances restricting where registered sex offenders can live in general-law municipalities.

But there is another side to the issue. Citing the example of residency restrictions enacted by the City of West – which prohibits any registered sex offender whose offense involved a child from living within 2,000 feet of locations where children congregate – TVRJ’s Gladden pointed out that such ordinances victimize the family of the offender, too, often making the entire city off-limits and requiring the family to move or split up.

“It kind of fouls things up as far as the family goes,” he said.

Of the three mayors who testified, only Sanders had a registered sex offender living in her jurisdiction at the time. James Cassells, convicted of sexually abusing a 5-year-old boy in Alaska, had moved into town across the street from a school.

Josh Gravens, a criminal justice reform advocate who is also a registered sex offender, noted that residency restrictions “don’t stem child sex abuse whatsoever.”

“Let’s be real about what these ordinances are: they are about banishment,” he said.

Gravens noted that in some small towns, it’s almost impossible for a registered sex offender to not live within 2,000 feet of a playground, school or church with a daycare center.

“They would be breaking the law all of the time,” he added.

Half of the 46 cities contacted by Gladden repealed their local ordinances soon after receiving the TVRJ’s letter. Mayor Michelle Pittman of Rhome (population 1,522) said the reason was financial.

“Any litigation has a financial impact,” she said. “Our big concern was whether we could bear that, being a small city.”

However, some of the remaining municipalities decided to put up a fight. That did not deter Gladden. In May 2016, he announced plans to file suit against the City of West because, three months after receiving his letter, the city still had not repealed its ordinance. Instead, it asked for another month to consider the issue.

“I don’t see how a functioning city government could take three months,” Gladden stated.

West Mayor Tommy Muska said he intended to get advice from city attorney Charles Buenger and TML before taking action. Buenger added he thought the ordinance was authorized, citing a state statute that gives general-law cities the authority to enact an ordinance “necessary for the government, interest, welfare, or good order of the municipality.”

If the Texas legislature doesn’t act, then the courts will determine whether he is right or not, and whether sex offenders can be forced out of small towns due to local ordinances that impose residency restrictions.

Meanwhile, TVRJ has filed suit against the Cities of Alvarado, Argyle, Hickory Creek, Meadows Place, Oak Point, Ponder, West Lake Hills and Westworth Village. In December 2016, in another lawsuit filed by Gladden, the 2nd District Court of Appeals in Fort Worth held the City of Krum did not have authority to adopt its sex offender residency ordinance, and struck it down.

However, in May 2017, Meadows Place prevailed in a challenge to its ordinance, which prohibits sex offenders from living within 2,000 feet of a place where children regularly gather. The court ruled in favor of the city on a jurisdictional issue; the other lawsuits remain pending, with 14 general-law cities defending their sex offender residency restrictions. 



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