SEX OFFENDER RESIDENCY ORDINANCE CHALLENGED IN FEDERAL DISTRICT COURT
The City of Commerce recently received notice of a suit filed against the city in federal district court challenging the city’s sex offender ordinance. The ordinance states that no sex offender may live within one thousand feet of a college, school, daycare facility, park, or playground; and no child sex offender may knowingly be present in or loiter within 300 feet of those places. The plaintiff, filing anonymously as a “John Doe,” challenged the ordinance on the grounds that it is : (1) unconstitutionally vague; (2) in violation of the ex post facto clause of the United States Constitution; and (3) is in violation of the substantive due process clause of the Fifth Amendment to the U.S. Constitution and impairs the sex offender’s property rights.
In March 2007, the Texas attorney general’s office released an opinion holding that 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. The opinion specifically declined to address whether such an ordinance would be permitted by the Texas Constitution, but pointed out that, up to that point, no court had found that such a residency restriction violated the United States Constitution.
The complaint against the city was filed in federal court on February 25, 2008. Many Texas cities have similar ordinances, and TML will follow this litigation closely. If you have questions regarding sex offender ordinances or this litigation, please contact Lauren Crawford at (512) 231-7400 or lauren@tml.org.