Creekmore v. Attorney General of Texas
| Citation | 341 F.Supp.2d 648 |
| Decision Date | 30 September 2004 |
| Docket Number | No. 1:00-CV-264.,1:00-CV-264. |
| Parties | Meredith Trent CREEKMORE v. ATTORNEY GENERAL OF TEXAS, Sheriff of Jefferson County, Chief of Police of the City of Beaumont, and Thomas A. Davis, in his official capacity as the director of the Texas Department of Public Safety |
| Court | U.S. District Court — Eastern District of Texas |
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Robert Charles Griffin, Shimon Kaplan, East Texas Legal Services Inc., Beaumont, TX, for Plaintiff.
Robert B. Maddox, Austin, TX, Richard F. Baker, Dean Jerome Johnson, Beaumont, TX, for Defendants.
This action is before the undersigned for trial and entry of judgment by written consent of all parties.
This opinion states the court's reasons underlying its disposition of competing motions for summary judgment.1 It also constitutes findings of fact and conclusions of law for purposes of Rules 52 and 65, Federal Rules of Civil Procedure.
Meredith Trent Creekmore indulged "urges" through despicable sexual abuse of his daughter when she was two to four years of age.2 With a level of gall that doesn't compute, he objects to registering as a sex offender.
The sheriff of Jefferson County, Texas, required Creekmore to register shortly after he discharged a federal prison sentence. Creekmore perceives that action, together with attendant public notification, as violating a laundry list of federal and state constitutional rights. Proceeding in forma pauperis — and represented by Legal Aid attorneys — Creekmore now seeks a declaration that the Texas Sex Offender Registration Program (TSORP) violates his constitutional rights. He also requests an injunction preventing the Attorney General of Texas; the Sheriff of Jefferson County, Texas; the Chief of Police for the City of Beaumont, Texas; and the Director of the Texas Department of Public Safety (TDPS) from enforcing the Texas program with respect to him.3
Creekmore was a member of the United States armed forces and stationed at Ft. Sill, Oklahoma, when he engaged in the abhorrent conduct described earlier. His iniquity was discovered and punished. He was convicted in a general court martial of several sex offenses under the Uniform Code of Military Justice (UCMJ).4 He received a sentence of six years in the custody of the United States Department of Justice, Bureau of Prisons (BOP).
Creekmore satisfied this sentence after serving a term of three years and ten months. He was released from the Federal Correctional Complex in Beaumont, Jefferson County, Texas, and thereafter resides in Beaumont, located within the territorial jurisdiction of this court.
Federal prison officials notified Creekmore that he was subject to registration as a sex offender "in any state in which you reside, are employed, carry on a vocation, or are a student." Fed. Correctional Inst.-Low Security, Beaumont, Sex Offender Registration and Treatment Notification, REG. No. 05243-000 (Dec. 14, 1998) (italics added).5 BOP officials further notified local law enforcement agencies of Creekmore's impending discharge and of his federal convictions. That notice informed local authorities that "[t]his individual is subject to registration as a sex offender under federal law." Fed. Bureau of Prisons, Sex Offender Release Notification (CDFRM), REG. No. PS 5141.02 (Dec. 9, 1999) (italics added).6
Creekmore was released on December 23, 1999, but he ignored his pre-release instructions to register. After more than a month, a Jefferson County sheriff's office employee notified Creekmore by formal letter that he was required to register.7 The letter informed Creekmore that he was required to register "[p]ursuant to Chapter 62 of the State of Texas Code of Criminal Procedures (sic) and in accordance with the provisions of 18 U.S.C. s 4042 © (sic)." The letter also stated "[Y]ou have been convicted of several sexual offenses which makes your registration a mandatory requirement every ninety-(90) days for the rest of your life." Finally, the letter established a deadline for compliance, and advised that continued refusal to comply would constitute a third degree felony punishable with state jail time of up to ten years.8
Creekmore stalled again. He instituted suit pro se in state district court seeking an order restraining the Jefferson County sheriff from requiring him to register. Creekmore's application for temporary restraining order was heard and denied by written order. See Meredith Trent Creekmore v. G. Mitch Woods, et al., Sheriff Jefferson County, Texas, No. A-162, 151, 58th Judicial District Court of Jefferson County, Texas (order entered February 2, 2000).
Creekmore then registered under protest, dismissed his pro se state court action, and brought this federal action with assistance of counsel.
"If you like laws and sausages, you should never watch either one being made."
— attributed to Otto Von Bismarck
One unfamiliar with American democracy and its unique concept of dual sovereigns would never suspect that the Texas Sex Offender Registration Program is a practical mechanism for obtaining federal funding for a variety of state and local law enforcement activities. 42 U.S.C. § 14071(g) and § 3756. This strange-but-true phenomenon emanates from federal statutes establishing a national policy favoring registry of sex offenders and community notification, and prodding individual states to enact sex offender registries by threatening a loss of ten percent of the funds that otherwise would be available.
These federal statutes are known by their popular names as the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Wetterling Act),9 "Megan's Law",10 the Pam Lychner Sexual Offender Tracking and Identification Act of 1996 (Lychner Act),11 and Protection of Children from Sexual Predators Act of 1998.12 A comprehensive survey of the evolution of federal requirements for state registration programs was stated in an earlier opinion. See Creekmore v. Attorney General of Texas, 116 F.Supp.2d 767, 773-775 (E.D.Tex., 2000) (Creekmore I).
To be eligible for full funding, a state registration program must survive a United States Department of Justice review. Congress directed the Department of Justice to develop minimum standards — derived from federal statutes — for state programs. Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub.L. No. 103-322 § 170101, 108 Stat. 1796 (1994) (codified at 42 U.S.C. § 14071). The Department of Justice reviews each program, and must certify it as compliant with minimum requirements before the state becomes eligible for a full measure of this federal subsidy. 42 U.S.C. § 14071(g).
Texas enacted its program in 1991.13 Texas subsequently amended its program four times: in 1993,14 1995,15 1997,16 and 199917 to insure that the program met minimum federal requirements. Under TSORP, persons with a reportable conviction or adjudication for certain sex-related offenses must register with the local law enforcement authority where they reside or intend to reside for more than seven days.18 Registration requires offenders to provide, inter alia, their full name, date of birth, sex, race, physical description, social security number, driver's license number, home address, photograph, and fingerprints.19 Generally, persons with reportable convictions must register annually for ten years.20 Persons convicted of a sexually violent offense must register annually for life.21 Persons convicted two or more times for sexually violent offenses must register for life, and must report to the local law enforcement authority at least once every ninety days.22
TSORP requires TDPS to maintain a computerized central database containing information required for registration.23 The information contained in the database is public information, available upon written request.24 The statute mandates that this information, including a recent photograph, must be available on the Internet. Tex.Code Crim. Proc. Ann. art. 62.08(c) (Vernon Supp.2004).
Article 62.01(J) declares that UCMJ offenses with elements substantially similar to elements of Texas offenses listed under Paragraph (A) — (E) and (G) of Article 62.01(5) are reportable. Unfortunately, TSORP does not list UCMJ offenses that meet this requirement. Moreover, when Creekmore registered, TSORP did not designate an entity for making those determinations, nor did it provide process whereby potential registrants could be heard in the matter.
During pendency of this suit — perhaps in response to it — Texas further amended TSORP in two respects. First, Article 62.0101, enacted in 2001, delegates to the TDPS the responsibility for determining whether a UCMJ offense contains elements substantially similar to elements of a Texas offense. It further provides that an appeal of such determinations may be brought in a district court in Travis County, Texas. Second, Article 62.021, amended in 2001 and 2003, now requires that any person required to register as a sex offender under federal law or the Uniform Code of Military Justice must register in Texas if not otherwise required to register under TSORP.
Following an early status conference, the court addressed the issue of its subject-matter jurisdiction sua sponte.25 The court ultimately determined that a justiciable controversy existed, and that the plaintiff had standing to assert the claims contained in his complaint. Creekmore I, 116 F.Supp.2d at 776.
Once jurisdiction was settled, plaintiff's attorney in charge candidly informed the court that he considered plaintiff's strongest claim to be based on denial of procedural due process. Counsel invited the court to address that issue first, as it might moot remaining claims. The court accepted that invitation....
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