The city of Marion was given an ultimatum recently, as Texas Voices For Reason and Justice (TVRJ) and the Law Office of Richard Gladden sent a letter asking the city to repeal a local sex offender ordinance.
“There’s not a single council member, and/or person in the audience, or staff that wanted that rescission of that ordinance,” Marion Mayor Bill Seiler said.
The letter addressing the ordinance reads:
“This letter is to provide your city and its representative officials with notice, in accordance with the Sections 101.101 and 311.034 of the Texas Civil Practice & Remedies Code of a legal claim that I intend to file for TVRJ on behalf of its members ... against the city of Marion.”
During a phone interview on Tuesday, Gladden explained that in 2007, current Governor of Texas Greg Abbott, who was then the Attorney General wrote a legal opinion that said general-law cities — cities with less than 5,000 population — do not have legal authority under Article 11, Section 4 of the Texas Constitution to implement permanent residency restrictions for sex offenders.
Abbott’s legal opinion says “A general-law municipality is a political subdivision ‘created by the State and, such as, possess(es) those powers and privilege that the State expressly confers upon [it].’ Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637 , 645(Tex.2004). We have found no law authorizing a general-law municipality to adopt this type of residence restriction. Thus, unless the Legislature expressly authorizes it, a general-law municipality may not adopt an ordinance restricting where a registered sex offender may live.”
“It (the legal opinion) wasn’t a secret,” Gladden said. “Texas Municipal League (TML) put out a memorandum and sent it to all cities, but approximately 80 went ahead and did it anyway. When I spoke with the organization (TVRJ) it was more cities than we really needed to sue ... we narrowed it down to 46 cities, which initially did not include Marion.”
The Texas Municipal League provides services to Texas cities and advocate the interests of cities and city officials.
City of Marion attorney Peter Gruning said in Marion’s defense, the legal opinion does not specify what general-law cities can and can’t do.
“The general-law cities say under our general police powers, and under our ability to protect the public at large, we do have the authority to do that,” he said. “There has been one attorney general opinion that barely addresses the issue of general-law cities, but does seem to say that general-law cities don’t seem to have the authority — that’s an advisory opinion. The attorney general doesn’t make law, but gives opinions.”
A former resident of Marion, who declined to comment, is required to register as a sex offender and is about to end his probation, Gladden said. That resident and his family own property in Marion and would like to return home, but the ordinance does not allow it.
TVRJ Executive Director Mary Sue Molnar said those who are required to register regularly face these obstacles, which ultimately, are counterproductive.
“The (Marion) residency restrictions put the entire town off limits,” she said. “Residency restrictions don’t work, it creates homelessness and splits families. With 80,000 people required to register in the state, and 12 new people added to that list everyday, Texas could be facing a crisis.”
“We’re not for any law that sounds good, or feels good. Residency restrictions don’t work, they’re counterproductive for tons of reasons,” she added.
The original Marion ordinance, Sect. 1 states:
“The City Council of the city of Marion finds that sex offenders who are required to register as a sexual predator under V.T.C.A., Texas Code of Criminal Procedure, Chapter 62, present an extreme threat to the health, safety and welfare of children ... locations where children regularly congregate in concentrated numbers wherein certain registered sex offenders and sexual predators are prohibited from loitering or prohibited from establishing temporary or permanent residency.”
The ordinance, which was adopted in March 2011, required those who register as sex offenders to keep 1,000 feet away from real property where children regularly gather.
Seiler said the only reason why the city council wanted to implement the ordinance was to protect children.
“One of the things that was not covered in the zones for the state was bus stops,” he said. “So, our intention was to include every possibility where children gathered and obviously, bus stops are where they gather. By doing that, and because of the many stops around the city, it blanketed the city. I don’t know if, at the time, we thought it was stricter than the states’. We thought that it would comply with the intent of the law.”
Gruning explained that if the city went to court on the issue, it would start at the district court, then go up to the court of appeals. Because there are cities already in litigation, and the issue has been brought to the attention of the state legislature, he said waiting would be best for the city.
“There are two different ways this can go: court of appeals can make a determination, but the state legislature has been asked to consider the authority of a general-law city,” he said. “If they take that up, as long as the law that they pass on it meets constitutional muster, that law will proceed what the courts do on the court of appeals. The issue is being considered both in appellate courts and hopefully, by the legislature. If that’s the case, the advise I gave this city is let’s wait and see.”
Additionally, Seiler said going through the city budget, there wouldn’t be enough resources to proceed with the litigation.
“There’s no way with the revenues we receive that we could ever withstand the deep pockets of the opponents,’” he said. “In fact, we would’ve spent the entire city budget within about six months and not be able to run the city. Just on the lawsuit itself, that type of litigation is very expensive.”
Texas law states that no registered sex offender can live within 500 feet of community safety zones or 1,000 feet of the victim, schools, or childcare facilities.
“It (the state law) removed a few areas, but not the main areas,” Seiler said. “The protections for the kids and individuals are still there, it just puts more work on my police force. And they’re certainly up to it.”
Seiler said city council will try to implement the original ordinance soon and until then will attend legislative sessions and advocate for the rights of general-law cities.
“They must think the constitutionality of these individual’s rights is worth more than ensuring our children are safe,” he said.
However, Molnar said she disagrees that having resident restrictions will be an effective way to handle this sensitive issue.
“What’s shocking to me, is that the majority of these public officials have not done the research on the effectiveness of these policies,” she said. “All they have is a feel good factor, where it sounds good to the constituents.”
Currently, TVRJ has sued 11 cities and 12 are on the list to be sued, Gladden said. ..Source.. by Jennifer Luna
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