City of Krum v. Rice
| Decision Date | 15 December 2016 |
| Docket Number | NO. 02–15–00342–CV,02–15–00342–CV |
| Citation | 508 S.W.3d 808 |
| Parties | CITY OF KRUM, Texas, Appellant v. Taylor RICE, Appellee |
| Court | Texas Court of Appeals |
Clark McCoy, Wolfe, Tidwell & Mccoy L.L.P., Frisco, TX, for Appellant.
Richard Gladden, Law Office of Richard Gladden, Denton, TX, for Appellee.
Scott Houston, General Counsel, Texas Municipal League, Austin, TX, for Amici Curiae.
PANEL: DAUPHINOT and GARDNER, JJ.; and KERRY FITZGERALD (Senior Justice, Retired, Sitting by Assignment).
In this interlocutory appeal, Appellant the City of Krum complains of the trial court's denial of its plea to the jurisdiction in the suit brought against it by Appellee Taylor Rice.1 Rice brought this suit challenging Krum's sex offender residency restrictions ordinance (SORRO). In five issues, Krum argues that the trial court does not have jurisdiction over Rice's claims because the SORRO is a penal ordinance, that Rice has no standing to challenge the SORRO, that the trial court erred by allowing deemed admissions to be withdrawn, that the trial court erred by not dismissing Rice's claim for failure to provide pre-suit notice, and that it had the authority to enact the SORRO. Because we hold that the SORRO is a civil ordinance and that the trial court did not err by not dismissing Rice's claims, we affirm.
Krum enacted its SORRO in 2012.2 The SORRO applies to any person who, because of a violation involving a person less than sixteen years of age, is required to register on the Texas Department of Public Safety's sex offender database.3 The SORRO prohibits such a person from establishing a residence in Krum that is within 2,000 feet of any place where children commonly gather.4 A violation under the SORRO is a misdemeanor subject to a fine of up to $500.5 Each day a person is in violation of the SORRO constitutes a separate offense.6 The ordinance contains a severability clause.7
In 2014, Rice pled guilty under a plea agreement to sexual assault of a fourteen-year-old girl.8 Under the terms of his deferred adjudication community supervision, Rice was required to comply with sex offender registration procedures and to not go in, on, or within 1,000 feet of "a premise where children commonly gather, including a ... playground."
Rice was twenty-two at the time he filed this suit. Prior to his arrest, Rice had been living with his parents in Krum at a house that is directly adjacent to Krum Municipal Park. The distance between the park and the house is seventy-seven feet, and thus Rice is prohibited by the SORRO from living at the house and is prohibited by his probation terms from going to the house.
Rice sued Krum alleging that he had been ordered by two officers with the City of Krum Police Department to vacate his residence at his parents' house and that Krum police officers informed him that under Krum's SORRO, he would be subject to a $500 fine for each day that he continued to live at the house. Rice stated that it was his desire to return to live in Krum, with his parents or at another unspecified location.
Rice alleged that as a general law city, Krum did not have the authority to enact the SORRO. He sought a declaratory judgment that Krum's SORRO violated article XI, section 4 of the Texas Constitution9 and was therefore void. He also sought temporary and permanent injunctions prohibiting Krum from enforcing its SORRO against him.
Prior to his filing suit, Rice's attorney sent a letter to Krum's attorney notifying him of Rice's intention to sue. The letter stated that it was "[p]ursuant to our telephone conversation late last month" and had been sent (1) to confirm that the attorney was acting as Krum's city attorney and (2) to provide the pre-suit notice required under section 101.101 of the civil practice and remedies code.10 The letter informed Krum's attorney that Rice would be suing Krum unless it repealed its SORRO within thirty days.
In the letter, Rice's attorney stated that because of the SORRO, approximately two months prior to the date of the letter, Rice had been ordered to vacate his residence at his parents' house and had been told he would be subjected to a $500 fine for each day that he stayed at the residence. The letter notified Krum's attorney that the Texas Attorney General's office had issued an opinion concluding that general law cities such as Krum do not have the legal authority under article XI, section 4 of the Texas Constitution to enact SORROs, and that since the date of that Attorney General opinion, the Texas legislature had not enacted legislation to provide such authority to general law cities.
The letter further stated that because of Krum's SORRO, Rice, "under threat of prosecution under the void ordinance, has been forced to vacate his residence, and is unable to return and live in his residence without fear of such prosecution." Krum's attorney received the letter on January 28, 2015, and Rice filed suit nearly two months later.
In June 2015, Krum's attorney faxed written discovery requests to Rice's attorney, including a request for admissions. Rice did not timely respond, and thus the admissions were deemed admitted.11 In August 2015, Krum filed a plea to the jurisdiction, based in part on the deemed admissions.
Rice's attorney then filed a motion to withdraw the deemed admissions against his client. He asserted that he had first discovered his failure to respond to the discovery requests when he reviewed Krum's plea to the jurisdiction. He stated that the failure to respond arose from his moving offices and the resulting change of his fax number, that he had notified the county and district clerks of the change of his fax number, that he had attempted to provide the same notice to all opposing counsel having pending cases against his clients, and that he must have inadvertently not provided that notice to Krum.
After a hearing, the trial court granted Rice's motion to withdraw the deemed admissions and denied Krum's plea to the jurisdiction. Krum then filed this interlocutory appeal.
"Whether a court has subject matter jurisdiction is a question of law," and "[w]hether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law reviewed de novo ."12 "When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause."13 "If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend."14 If the plea to the jurisdiction challenges the existence of jurisdictional facts, a court must also consider relevant evidence necessary to resolve the jurisdictional issues raised.15
In Krum's first issue, it argues that its SORRO is a penal ordinance,16 and therefore the trial court did not have jurisdiction of Rice's suit because he did not allege the violation of a property right. Krum did not raise this argument in the trial court. Alternatively, Krum argues that Rice's unclean hands bar his request for equitable relief.
Because of Texas's bifurcated court system, the validity of a criminal law "ordinarily should be determined by courts exercising criminal jurisdiction to avoid conflicting decisions between civil and criminal courts of last resort regarding the statute's meaning and validity."17 A civil court thus generally does not have jurisdiction to hear a challenge to a criminal law's validity.18 There is, however, an exception to that rule. When the plaintiff seeks equitable relief based on the unconstitutionality of a criminal law, and the law is being enforced and actual or imminent prosecution is threatened, a civil court has jurisdiction to enjoin enforcement of the statute when there is a threat of irreparable injury to the plaintiff's property rights.19
Criminal laws proscribe certain conduct and punish individuals who commit that conduct.20 Because Krum's SORRO proscribes certain conduct and sets out a punishment for its violation, the purpose of which is to redress a wrong to the public rather than to correct a wrong to an individual, it appears at first to be a criminal law.21 However, the question of whether the residency restrictions in the SORRO are criminal cannot be determined by the simple test of "whether the wrong sought to be redressed is a wrong to the public or a wrong to the individual."22 Higher courts construing similar laws intended to protect the public from sex offenders have held that the laws in those cases are civil. We must therefore look at the SORRO in light of those cases.
"Whether a statutory scheme is civil or criminal is first of all a question of statutory construction."23 We first determine "whether the legislature meant the statute to establish ‘civil’ proceedings," and "[i]f so, we ordinarily defer to the legislature's stated intent."24 "[W]e will reject the legislature's manifest intent only where a party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme (is) so punitive either in purpose or effect as to negate (the State's) intention’ to deem it ‘civil.’ "25
In Kansas v. Hendricks , the United States Supreme Court considered a Kansas law providing for civil commitment of those likely to engage in acts of sexual violence.26 Hendricks sued after Kansas sought to have him committed under that law upon his release from prison.27 Raising double jeopardy and ex post facto claims, Hendricks argued that Kansas's law established criminal proceedings, and, therefore, confinement under the law constituted punishment.
The Court noted that Kansas had described the act as establishing a...
To continue reading
Request your trial
-
McCraw v. C.I.
...we find that Morales does not deprive the trial court of jurisdiction under these facts. See City of Krum v. Rice , 508 S.W.3d 808, 818 (Tex. App.—Fort Worth 2016, pet. filed) (finding that the trial court had jurisdiction over offender's request for declaratory and injunctive relief in cha......
-
Calleja-Ahedo v. Compass Bank
... ... Calleja lives in Mexico City, but he directed the Bank to send his monthly account statements to his brother, who lives in The ... ...
-
City of Krum v. Rice
...contended was a penal ordinance. A divided court of appeals affirmed the order denying Krum’s plea to the jurisdiction. 508 S.W.3d 808 (Tex. App.—Fort Worth 2016). The court held that Rice had standing because the restriction in Krum’s SORRO (2,000 feet from a place where children gather) w......