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Does v. Abbott

United States Court of Appeals, Fifth Circuit

December 16, 2019

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).

         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.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 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 ...


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