Creekmore v. Attorney General of Tex., 1:00-CV-264.

• Decision Date: 30 August 2000
• 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

116 F.Supp.2d 767

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

No. 1:00-CV-264.

United States District Court, E.D. Texas, Beaumont Division.

August 30, 2000.

Robert Charles Griffin, East Texas Legal Services Inc., Shimon Kaplan, East Texas Legal Services, Beaumont, TX, for Meredith Trent Creekmore, plaintiffs.

Robert B. Maddox, Attorney General's Office, Law Enforcement Defense Division, Austin, Richard F. Baker, District Attorney's Office, Jefferson County, Dean Jerome Johnson, City of Beaumont, Beaumont, for Attorney General of Texas, Sheriff of Jefferson County, Chief of Police of the City of Beaumont, Thomas A. Davis, in his official capacity as the Director of the Texas Dept of Public Safety, defendants.

MEMORANDUM REGARDING SUBJECT MATTER JURISDICTION

HINES, United States Magistrate Judge.

Meredith Trent Creekmore, plaintiff, was convicted of sex offenses under the Uniform Code of Military Justice (UCMJ), and served three years and ten months of a six-year federal sentence in custody of the United States Department of Justice, Bureau of Prisons (BOP). Upon his release in Texas, local authorities required Creekmore to register as a sex offender under Texas law. Creekmore now challenges the constitutionality of the Texas law, primarily on procedural due process grounds.

For reasons explained herein, the court sua sponte questioned its subject matter jurisdiction. This memorandum contains the court's analysis supporting the subsequent determination that subject matter jurisdiction exists.

I. NATURE OF SUIT

According to Creekmore's Complaint, he pleaded guilty to violating Article 134 of the UCMJ on January 11, 1996. Specifically, Creekmore pleaded guilty to one specification of "Indecent Assault" and four specifications of "Indecent Acts or Liberties with a Child."¹ As a result of his plea of guilty, he was sentenced to six years imprisonment.

Creekmore served two years at the Federal Correctional Institute in Fort Leavenworth, Kansas, and completed serving his sentence at the Federal Correctional Complex in Beaumont, Texas. Creekmore alleges that prior to his release, BOP notified him that after release he would be subject to registration in Texas as a sex offender. Creekmore avers that BOP also notified the Sheriff of Jefferson County, the Attorney General of Texas, the Texas Department of Public Safety, and the Chief of Police of the City of Beaumont of Creekmore's release. The notice allegedly provided other information, including the assertion that Creekmore would be required to register as a sex offender.

On December 23, 1999, BOP released Creekmore from federal custody. On, January 24, 2000, an official within the Jefferson County sheriff's office wrote Creekmore informing him that he was required to register. The letter stated:

According to the United States Bureau of Federal Prisons you have been convicted of several sexual offenses which makes your registration a mandatory requirement every ninety-(90) days for the rest of your life.

(Letter from R. Boles to Creekmore of 01/24/00.) The letter also set a deadline for completing registration, and advised that failure to comply would be a third degree felony punishable with state jail time of up to ten years. See id.

Creekmore, proceeding pro se, filed an action in the 58th Judicial District Court of Jefferson County challenging the registration requirement and seeking a temporary restraining order. The state court denied Creekmore's application for temporary restraining order on February 2, 2000.²

Creekmore thereafter registered under protest. He asserts that when he registered, local authorities advised him that his protest would be submitted to the Attorney General of Texas for a decision within two weeks. He further avers that no decision by the Attorney General was forthcoming.

Creekmore's Motion for Preliminary Injunction alleges that he then obtained counsel, non-suited the state court lawsuit, and instituted this federal action. For a cause of action, Creekmore's complaint challenges the constitutionality of the Texas Sex Offender Registration Program ("the Program"). See TEX. CODE CRIM. PROC. ANN. art. 62.01 et seq. (Vernon Supp.2000).

The complaint avers that the Program violates several clauses of the United States and Texas constitutions. Creekmore's counsel, however, acknowledges that the primary attack is based on procedural due process grounds. Specifically, Creekmore urges that the Program is infirm because: (1) it does not indicate who determines whether an offense under UCMJ is substantially similar to a listed offense under the Texas Penal Code; (2) it does not provide any process by which an individual determined to have a reportable conviction may challenge that determination; and (3) it does not give clear notice as to when one is deemed convicted two or more times of an offense; and (4) it does not provide a process by which an individual determined to have been convicted two or more times of a sexually violent offense may challenge that determination.

For relief, Creekmore requests the court to:

(1) Declare that the Program violates his constitutional rights, and that he is not required to register;

(2) Enjoin defendants from enforcing the Program against him;

(3) Order defendants to remove his name from any database or list of sex offenders maintained;

(4) Costs of suit; and

(5) Other appropriate injunctive relief.

(Pl.'s Comp. at 8.) Creekmore does not seek money damages.

II. PROCEEDINGS

Shortly after instituting suit, Creekmore moved for a preliminary injunction. After reviewing of the motion and Complaint, the court convened a status conference to consider the advisability of consolidating hearing of the application for a preliminary injunction with an advanced trial of the action on the merits.³ At the status conference, the court invited Creekmore's counsel to describe the general parameters of Creekmore's claims. Moreover, the court inquired as whether Creekmore contends that his UCMJ offenses are not substantially similar to offenses under the Texas Penal Code.

Creekmore's counsel responded ambivalently with "I really do not know." (June 29, 2000 Hearing.)⁴ This indistinct response raised the court's concern as to whether this action is based on actual or threatened injury, or on purely abstract, conjectural, speculative, or hypothetical harm. The response also raised the specter of a suit based on mere ideological disagreement with the law. In either case, the controversy would not constitute a justiciable action.⁵

Accordingly, the court sua sponte scheduled oral arguments on the question of subject matter jurisdiction, and invited briefing from counsel.⁶ Counsel for Creekmore and for defendant, Chief of Police of the City of Beaumont, each submitted briefs. Moreover, all counsel of record participated in oral argument at a hearing convened on August 10, 2000.

III. DISCUSSION AND ANALYSIS

The court has carefully considered the briefs and arguments of counsel on this issue. The analysis begins with a description of relevant statutes. It proceeds next to a discussion of general principles of the standing doctrine. Finally, it concludes with an application of those principles to Creekmore's allegations in this case.

A. Statutory Schemes

1. Wetterling Act

In 1947, the state of California became the first to enact a sex offender registration statute.⁷ In 1990, the state of Washington became the first to enact a sex offender community notification statute.⁸ The idea was politically popular, and by 1993, twenty-four states, including Texas,⁹ enacted various versions of such statutes. 139 CONG. REC. H10320 (daily ed. Nov. 20, 1993) (statement of Rep. Ramstad).

Congress concluded the national interest would be served if all states enacted such laws. See id. at H10321. Thus, on September 13, 1994, as part of the Violent Crime Control and Law Enforcement Act of 1994,¹⁰ Congress passed the Jacob Wetterling¹¹ Crimes Against Children and Sexually Violent Offender Registration Act (Wetterling Act).¹² The intention of Congress in passing the Wetterling Act was to prod all states to enact similar sex offender registration and community notification laws and to provide for a national registration system to handle offenders who move from one State to another. See 139 CONG. REC. H10320-21 (daily ed. Nov. 20, 1993) (statement of Rep. Ramstad).

The Wetterling Act contained minimum requirements for federally approved state statutes, and it directed the Attorney General of the United States to establish guidelines for state programs.¹³ First, the Act required that states regulate three categories of individuals. These categories were: (1) "a person convicted of a criminal offense against a victim who is a minor";¹⁴ (2) a person "convicted of a sexually violent offense";¹⁵ and (3) a person who is "a sexually violent predator."¹⁶

Next, to be federally approved, a state statute would require prison authorities— before releasing the above offenders from confinement—to notify the person being released of a duty to register; obtain the offender's fingerprints, photographs, and other registration information; and transmit that information to local authorities.¹⁷ The Act then required state and local law enforcement agencies to register the offenders and maintain records.¹⁸ The Act also designated the registry information as private, but it could be released when necessary to protect the public, for other law enforcement purposes, or when conducting confidential background checks.¹⁹ The Act further required state authorities to transmit the offenders' "conviction data" to the Federal Bureau of Investigation.²⁰

The Act also specified minimum registration requirements for offenders.²¹ The Act further required that states...