A Sex Offender's Fight to Live in Lewisville

AurelioDuarte.jpg
Texas Department of Public Safety Sex Offender Database
Aurelio Duarte
There are, out of the tens of thousands of homes and apartment units in the city of Lewisville, a total of 466 places where a registered sex offender can legally reside.

Theoretically. In reality, since all or almost all of these homes, which fall outside the city's 1,500-foot sex-offender buffer zone around places where children "commonly gather," are occupied at any given time, a registered sex offender will find it all but impossible to find a place to stay.

That's how Aurelio Duarte came to inhabit a 275-square-foot motel room on the I-35 service road with his wife and two teenage daughters.

Duarte, 54, was convicted in 2006 of online solicitation of a minor while working as a technology facilitator with the Lewisville Independent School District. Upon his release from prison in 2010, he moved into the motel room. The room is no longer outside the 1,500-foot buffer zone -- a public pool has since been built nearby but Duarte was grandfathered in.

See also: Grapevine Has Effectively Banned Child Molesters

The Duartes didn't want to live in a motel room. They also didn't want to leave Lewisville, where they'd lived before Duarte went to prison. It was where the girls had grown up and gone to school, and it provided easy access to Wynjean's two jobs. Duarte's wife, Wynjean, began looking for a home while her husband was still in prison, though Lewisville's sex offender registrar cautioned against it, just in case a day care went up nearby before his release. Of the nine homes Wynjean ultimately inquired about, six fell within the prohibited zone, two were sold to other buyers, and a third the Duartes passed on on the registrar's advice.

So in 2012, the couple sued the city in federal court, claiming that its sex-offender residency restriction was unconstitutional. Rather than decide whether or not that was the case, U.S. District Judge Ron Clark granted the city of Lewisville's motion for summary judgment on the grounds that the Duartes lacked standing to bring the suit. Wynjean and the kids couldn't sue because they weren't registered sex offenders and thus weren't directly affected by the residency ordinance. Aurelio couldn't because he had been grandfathered into their motel room and thus hadn't suffered any injury.

On Tuesday, though, a three-judge panel of the Fifth Circuit Court of Appeals ruled unanimously that the Duartes do have standing to bring their suit and that their relocation to Lake Dallas in 2013 after the district court awarded Lewisville summary judgment didn't change that.

"In order to find a place to rent or buy where the family could reside together, ultimately, the Duartes moved away, forcing the children to change schools and taking [wife] Wynjean Duarte farther from her job," Justice Edward C. Prado wrote. "The ordinance therefore interferes with the Duartes' lives 'in a concrete and personal way' which the Supreme Court has held is sufficient to confer standing."

Now, the case heads back to district court, where it's future is likely dim, says Corey Rayburn Yung, a law professor at the University of Kansas.

Courts have routinely held that residency restrictions, along with sex-offender registries and, in some cases, post-incarceration civil commitment, are "not punitive, not a form of punishment. They are regulatory." This means the constitutional rights and protections afforded defendants in criminal proceedings have no bearing on restrictions a state or municipality sees fit to impose to convicted criminals.

The few challenges to residency restrictions that have been successful have been in cases in which offenders are forced out of homes they've been residing in -- a situation some courts have ruled violated the Fifth Amendment -- and laws that apply to offenders convicted before residency restrictions went into effect passed, which some state courts have deemed illegal.

The impact on an offender's family typically has little bearing, Yung says. As proof, he cites the case of a Georgia woman charged as an accessory to statutory rape when she let her daughter's older boyfriend live in her house in lieu of having them run off together. Though no one would seriously argue that the posed any real threat to children, she was forced to move several times because of residency restrictions. Her appeals were all struck down in court.

The Duartes' attorney, Richard Gladden, is more optimistic. Sex offender registry restrictions like Lewisville's have existed only decade or so, hardly long enough to have a well-established body of case law around them. In a California court's decision to overturn local restrictions and in the Fifth Circuit's opinion, which, while it directly addressed only the question of standing, suggests that the justices have constitutional concerns about such laws, he sees the tide turning.

"The problem with these ordinances -- they're in over 100 cities in Texas now -- is that they aren't tailored," Gladden says. "They aren't predicated on an individualized assessment over whether somebody does or does not pose a threat to children or the community." Just whether their name is on a list.

Think of it this way, Gladden says: it's hypothetically possible for someone to be placed on Texas' sex offender registry after getting caught peeing on a tree -- it can be prosecuted as indecent exposure -- twice.

"There's not a damn thing sexual about peeing on a tree," Gladden says. He suspects that Lewisville is full of people who have peed on trees on two or more occasions. "In fact, I may have peed on a tree in Lewisville. I don't really know." He might be concerned about the consequences but says he has no interest in living in Lewisville.

Send your story tips to the author, Eric Nicholson.


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18 comments
The Judge
The Judge

Let him move in behind Red Neck Heaven. 

nikk
nikk

I would like to see a study of how many people would see any sense and support these restrictions if they were not certain that their own house would be in the middle of one of those buffer zones.


Also, if criminals in general and those required to register as sex offenders were not marginalized to the point of chronic unemployment, these people would be out of the house and at work during the hours when school is in session and the chillun are playing at the park (seriously - how many kids do you see playing at the park during the day, anyways?).


The concept that someone who was intent on molesting some kids on the school playground at recess and would do so when he only had 1,499 feet to walk from his own home (1,501 feet - apparently would be some sort of deterrent) is nothing short of bizarre.

nikk
nikk

I would like to see a study of how many people would see any sense in and support these restrictions if they were not certain that their own house would be in the middle of one of those buffer zones.


Also, if criminals in general and those required to register as sex offenders were not marginalized to the point of chronic unemployment, these people would be out of the house and at work during the hours when school is in session and the chillun are playing at the park (seriously - how many kids do you see playing at the park during the day, anyways?).


The concept that someone who was intent on molesting some unknown kids on the school playground at recess and would do so only when he had 1,499 feet to walk from his own home (1,501 feet - apparently would be some sort of deterrent) is nothing short of bizarre.

fred.garvin.mp.713
fred.garvin.mp.713

Back in my day we didn't have trees to pee on in Lewisville. We peed on each other, and we liked it!

vespasian
vespasian

As as a student of History, I find many similarities between current sex offender laws and past legalized injustices. Take for example the "Nuremberg Laws" passed to surpress the Jewish populations of Germany and Poland by the Nazi Party in 1936. Similarities abound. The Nuremberg Laws: a) restricted where Jews could live, confining them to zones later referred to as "Ghettos". b) restricted their travel..."Show me your papers"...c) required Jews to wear the "Star of David" on their person at all times so as to be easliy identifed by regular Germans. d) retricted their job options---to slave labor camps. e) allowed, vigilantism. [question: did we (USA) enter WWII in part to stop this type of tyranny?] Concomitantly, sex offender laws: a) restrict where they live, with so called "child safety zones". b) restrict travel, no sex offender can travel interstate or intrastate. c) internet identification, today's version of the "Star of David". d) restrict job opportunities, sex offenders are limited to the types job they can take and licenses for any profession is out of the question. e) sex offenders are very easy targets for vigilantes, research recent murders of sex offenders in multiple states. So, to the proponents of sex offender laws, I recommend that you first take hold of your emotions then apply logic and reasoning to this issue.

roo_ster
roo_ster

This dude can diaf for all i care.

It is funny to see the usual progressive sorts making the argument that administrative regulations are too broadly used and causing folk harm.

I can see this sort of restriction while he is on parole as a legitimate part of punishment but not thrreafter.

shellystow
shellystow

Ridiculous arguments--"let him live next to you"--and juvenile foul language aside, most of these comments are missing the point. These restrictions do nothing to aid public safety and in actuality have negative consequences that even law enforcement acknowledges. State after state and some victims' advocacy groups have spoken out against residency restrictions. These are only a few:


"Because residency restrictions have been shown to be ineffective at preventing harm to children, and may indeed actually increase the risks to kids, the Jacob Wetterling Resource Center does not support residency restriction laws. Such laws can give a false sense of security while sapping resources that could produce better results used elsewhere.” (The Jacob Wetterling Resource Center).


Tom Tobin, vice chairman of the California Sex Offender Management Board: “There’s not a shred of research that supports residence restrictions. “We do things that are not so wise, because we want to do something.”


“In New Hampshire, there are no statewide laws governing residency restrictions. Because the State ‘failed to produce any evidence showing a substantial relationship between the residency restrictions of sex offenders and the protection of minors, the ordinance was invalid because it violated equal protection rights.”


“New Mexico: The SOMB has been unable to locate research that indicates residency restrictions have resulted in reduced re-offenses, reduced victimization or had, or will have, any positive impact on public safety.”

“From Maine's Criminal Justice & Public Safety Committee Study of Sex Offender Registration Laws, Page 19: ‘Hearing testimony on these bills and educating ourselves about other states' experiences with residency restrictions, the committee finds, and the research supports, that SUCH RESTRICTIONS DO NOT INCREASE PUBLIC SAFETY.’"

“From ‘Effective Sex Offender Management in New York State’: ‘All of the empirical research examining the effectiveness of residency restrictions shows that residency restrictions do not work to reduce the risk of harm to children.’ ”

do_youthink
do_youthink

"Though no one would seriously argue that the [sic] posed any real threat to children"

There have been so many stupid mistakes in DO blog posts lately.

Let him come live with you and your kiddies, Eric. Hire him as an editor and proofreader.

Rudy101
Rudy101

It is interesting, the law is supposed to protect the community, and does so solely through banishing the person from the community by leaving no legal places to live.  There seems to be no right in the U.S. for a person to have any family, therefore, the banishment thus falls on the family equally.


Nothing is more common than for a free people, in times of heat and
violence, to gratify momentary passions, by letting into the
government, principles and precedents which afterwards prove fatal to
themselves. Of this kind is the doctrine of disqualification,
disfranchisement and banishment by acts of legislature. The dangerous
consequences of this power are manifest. If the legislature can
disfranchise any number of citizens at pleasure by general
descriptions, it may soon confine all the votes to a small number of
partizans, and establish an aristocracy or an oligarchy; if it may
banish at discretion all those whom particular circumstances render
obnoxious, without hearing or trial, no man can be safe, nor know when
he may be the innocent victim of a prevailing faction. The name of
liberty applied to such a government would be a mockery of common

sense. Alexander Hamilton.


The State is allowed complete discretion in making the list and has no limitations on who can be placed on the list, and there can be no challenge, or any interest of anyone placed on the list.  


The list clearly causes harm, has no evidence of doing anything but causing harm.  


Can the State force people to follow laws that are enacted through legislative fiat, does nothing but harms the individual and has no mechanisms for challenge?


The answer is clear:  A person, under those circumstances has the legal RIGHT to flee and do whatever it takes to avoid the list.


I left the registry.  It causes harm.  It was applied ex-post facto and has no mechanism for challenge.  


There is nothing ANYONE can do to get me back on it...  You people are foolish and tread where only despots tread WHY?  Because you refuse to allow ANY judicial oversight for laws that do nothing but feed the communities sense of revenge.  

DerpDudeTX
DerpDudeTX

I robbed a convenience store. Once I serve my time, can I not live near any more convenience stores? I assaulted a woman. Once I serve my time, can I not live around any more women? I drank too much and pissed on a cop. Once I serve my time, should I be barred from bars, liquor stores, drug stores, etc? 

See how stupid this really sounds. He could just as easily drive anywhere he pleased and molest someone again if he wanted to. Vicinity does not necessarily help or hinder access.  Plus this guy did it online. Did they revoke his internet rights for life? Probably not.

TheRuddSki
TheRuddSki topcommenter

Sex offender grandfathered in motel room, escapes injury.

ScottsMerkin
ScottsMerkin topcommenter

Great, go find a client who is on the offenders list for pissing on a tree and defend him.  Dont defend that asshat who chose to solicit a minor online while working for the fucking school district.  

tdkisok
tdkisok

Fuck this guy and his wife. He his a sexual predator. He can live somewhere else. 

Montemalone
Montemalone topcommenter

I'm pretty sure somebody's peeing on something in Lewisville.

That place reeks.

Rudy101
Rudy101

It should be noted that no law protects a dangerous person. Laws must restrict rationally according to the danger posed and in order to confer the status of dangerous there must be due process. A conviction standing alone is not enough.

do_youthink
do_youthink

So what you are trying to say is that you're a sex offender who hasn't registered like you are legally required to do?

JustSaying
JustSaying

@TheRuddSki  I thought getting grandfathered meant getting a check for 15 bucks on your birthday. Or maybe being told to slow down the lawn mower.

Rudy101
Rudy101

@do_youthink What I am saying is, the laws can't require me to do actions that are HARMFUL to me.   Especially under a civil guise of which has been PROVEN to cause harm

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