JOHN DOES 1-7, individually and on behalf of all others similarly situated, Plaintiff - Appellant
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
OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.
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.
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),
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.
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. The Does challenged Chapter 62 under 42
U.S.C. § 1983 on several constitutional
grounds. 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).
Does timely appealed challenging only the Rule 12(b)(6)
dismissal of four of their facial challenges: 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.
Standard of Review
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)).
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. 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. None of the arguments in
this case steer us in a different direction.