Littlepage v. Trejo et al

MOTION for Summary Judgment

W.D. Tex.May 18, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION § ANGEL DAWN LITTLEPAGE, § Plaintiff, § § v. § CAUSE NO. 1:17-CV-000190-RP § RAYMOND TREJO, ET AL., § Defendants. § § DEFENDANTS MCCRAW, CASTILLEJA, AND TREJO’S MOTION FOR SUMMARY JUDGMENT KEN PAXTON LACEY E. MASE Attorney General of Texas Division Chief Law Enforcement Defense Division JEFFREY C. MATEER First Assistant Attorney General CAROL M.GARCIA Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General BRUCE R. GARCIA Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Office of the Attorney General Civil Litigation P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2080/Fax (512) 936-2109 ATTORNEYS FOR DEFENDANTS MCCRAW, CASTILLEJA, AND TREJO ______________________________________________ Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 1 of 26 i TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................................ i TABLE OF AUTHORITIES ......................................................................................................................... ii INTRODUCTION ........................................................................................................................................... 1 STATEMENT OF MATERIAL FACTS ...................................................................................................... 2 SUMMARY JUDGMENT EVIDENCE ...................................................................................................... 8 MOTION FOR SUMMARY JUDGMENT ................................................................................................ 8 A. ARGUMENT ............................................................................................................................................ 8 1. Standard for Summary Judgment ............................................................................................... 8 2. Overview of the Texas Sex Offender Registration Act.............................................................9 3. Littlepage’s constitutional right to procedural due process was not violated by Defendants...........................................................................................................................................10 a. Because Littlepage has a “reportable conviction or adjudication” under SORA, she is not entitled to receive additional process.................................................................10 b. Defendants have no statutory authority to designate individuals as “Sex Offenders” under SORA......................................................................................13 4. Littlepage is not entitled to Equitable Relief.............................................................................17 a. Injunctive Relief should be denied................................................................................................17 b. Declaratory Relief should be denied..............................................................................................19 PRAYER ........................................................................................................................................................... 20 NOTICE OF ELECTRONIC FILING ..................................................................................................... 21 CERTIFICATE OF SERVICE .................................................................................................................... 21 Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 2 of 26 ii TABLE OF AUTHORITIES Cases Board of Regents v. Roth, 408 U.S. 504, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) .............................................................................. 10 Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986) ............................................................................. 9 Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) ........................................................................................................... 6, 14, 19 Connecticut Dep’t of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003) ................................................................................. 13 Creekmore v. Attorney General of Texas, 341 F.Supp.2d 648 (E.D. Tex. 2004) ........................................................................................................ 13 Ex parte Young, 209 U.S., 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) .................................................................................... 17 Garner v. City of Houston, No. H-12-1612, 2013 WL 4042022 (S.D. Tex. Aug. 06, 2013) ............................................................... 9 Jennings v. Owens, 602 F.3d 652 (5th Cir. 2010) ...................................................................................................................... 10 Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099 ...................................................................................................................... 17 Little v. Liquid Air Corp., 37 F. 3d 1069 (5th Cir. 1994) ....................................................................................................................... 9 Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010)..............................................................................................6 McCarthy ex rel. Travis v. Hawkings, 381 F.3d 407 (5th Cir. 204) ........................................................................................................................ 17 Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) ...................................................................................................................... 17 Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) ....................................................................... 10, 11 Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 3 of 26 iii Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) .............................................................................. 18 Williams v. Ballard, No. 3-02-cv-0270-M, 2004 WL 1499457 (N.D. Tex. June 18, 2004) .................................................. 20 Statutes 28 U.S.C. § 2201................................................................................................................................................19 42 U.S.C. § 1983 .......................................................................................................................................... 1, 17 TEX. CODE CRIM. PROC. ANN., Art. 62.001 (West 2016) ............................................................................ 9 TEX. CODE CRIM. PROC. ANN., Art. 62.001(2) (West 2016) ..................................................................... 15 TEX. CODE CRIM. PROC. ANN., Art. 62.001(5)(E) (West 2016) ................................................. 1, 6, 13, 14 TEX. CODE CRIM. PROC. ANN., Art. 62.001(5)(E)(ii) (West 2016) .............................................. 10, 11, 12 TEX. CODE CRIM. PROC. ANN., Art. 62.051(a),(b) (West 2016) .............................................................. 15 TEX. CODE CRIM. PROC. ANN., Art. 62.060 (West 2016) ....................................................................... 5, 7 TEX. CODE CRIM. PROC. ANN., Art. 62.251 (West 2016) .......................................................................... 19 TEX. GOV’T CODE ANN., § 508.186, § 508.1861, § 508.1862, § 508.187, § 508.044(2), § 508.045, § 508.141 (West 2016) .............................................................................................................. 14 TEX. PEN. CODE ANN., § 20.02(c)(2)(A) (West 2016) ..................................................................... 2, 11, 12 TEX. PEN. CODE ANN., § 22.011 (West 2016)........................................................................................ 2, 11 Rules FED. R. CIV. P. 56................................................................................................................................................1 FED. R. CIV. P. 56 (c)..........................................................................................................................................................8 FED. R. CIV. P. 56(e) .......................................................................................................................................... 9 Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 4 of 26 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION ANGEL DAWN LITTLEPAGE, § Plaintiff, § § v. § CAUSE NO. 1:17-CV-00190-RP § RAYMOND TREJO, ET AL., § Defendants. § DEFENDANTS MCCRAW, CASTILLEJA AND TREJO’S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF THIS COURT: NOW COME Defendants Steven McCraw, Vincent Castilleja, and Raymond Trejo, by and through the Office of the Attorney General of Texas, to submit this their Motion for Summary Judgment pursuant to Federal Rules of Civil Procedure 56.1 In support thereof, Defendants respectfully offer the following: I INTRODUCTION Plaintiff is Angel Dawn Littlepage, a resident of the City of Gainesville, Cooke County, Texas, and presently subject to community supervision under the Denton County Adult Community Supervision Department.2 Defendants are Steven McCraw, Director, Texas Department of Public Safety (DPS), Vincent Castilleja, Manager, DPS Sex Offender Registration Bureau and Raymond Trejo, Field Representative, DPS Sex Offender Registration Bureau.3 Plaintiff sued Defendants pursuant to 42 U.S.C. § 1983, alleging (1) Texas Code of Criminal Procedure Article 62.001(5)(E) is 1 Defendants incorporate all exhibits previously filed in Docket Entry No.25. 2 Docket Entry No.1, pg. 2. 3 Docket Entry No.18, pgs. 1-2. Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 5 of 26 2 unconstitutional, on its face, and as applied to Littlepage, in violation of her Fourteenth Amendment right to procedural due process4; and (2) because Defendants have allegedly designated Littlepage a sex offender, requiring her to register as sex offender pursuant to the Sex Offender Registration Act (SORA), without notice and a hearing, she has been denied procedural due process.5 Littlepage seeks injunctive relief, nominal monetary damages and reasonable costs and attorney’s fees.6 II. STATEMENT OF MATERIAL FACTS 1. On February 27, 2012, a True Bill of Indictment was filed in State of Texas v. Angel Littlepage, Case No. F-2012-0338-D, in Denton County, Texas. The Indictment listed two counts of sexual assault, pursuant to Texas Penal Code § 22.011.7 In both counts, the grand jury specifically presented to the Court that the victim, was “a child younger than 17 years of age.”8 2. Subsequently, an Order of Deferred Adjudication was entered in this same cause before the 362nd Judicial District Court, Denton County, Texas on May 10, 2012. According to the Order of Deferred Adjudication, Littlepage entered into a plea bargain to plead guilty to the following listed offenses: two counts of “Lesser Included Unlawful Restraint and Recklessly Expose to a substantial risk of SBI,” a third degree felony, pursuant to Texas Penal Code 20.02(c)(2)(A).9 In return, she would receive five years deferred adjudication. The Indictment is listed as the charging instrument upon which the Order of Deferred Adjudication was based.10 Additionally, the Order of Deferred 4 Id., pg. 21. 5 Docket Entry No.18, pgs. 21-24. 6 Id., pgs. 23-24. 7 Docket Entry No.6, pg. 20. 8 Id. 9 Id., pg. 22. TEX. PEN. CODE ANN. § 20.02(c)(2)(A) (West 2016). 10 Id. Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 6 of 26 3 Adjudication states the following: “Sex Offender Registration Requirements do not apply to the Defendant. TEX. CODE CRIM. PROC. Chapter 62. The age of the victim at the time of the offense was N/A.”11 3. On July 06, 2016, Littlepage submitted an Application for Texas Driver License or Identification Card at the local Denton, Texas DPS office.12 As part of her application for a Texas Identification Card, she submitted the following documents: Texas Residency Affidavit13; utility bills; 14Marriage License;15Social Security card;16 and Oklahoma Identification Card with Sex Offender Designation.17 4. DPS Trooper Gerrand Lockhart met with Littlepage, that same day, at the Denton, DPS office. On 07/06/2016, DL Technician Jessica Williams asked me to assist her with an upset customer, Angel Littlepage. Williams advised me that Littlepage wanted to get a TX Identification Card but did not want to register as a sex offender. I asked Williams to bring Littlepage to my office to speak about the matter in private. Littlepage came into my office and told me she wanted to get a TX Identification Card but was told she had to have sex offender indicated on her TX ID. I told Littlepage that was in fact true, if she had been convicted as a sex offender. She then told me, her probation officer told her she did not have to register in Texas. She did not want sex offender registered on her TX ID card and was very upset that she would have to. She did not understand why it had to be on her TX ID if her probation officer told her she did not have to register in Texas. To my memory, I believe I ran a check on Littlepage and her status did show she had a conviction as a sex offender. I also remember calling Austin Crime Records to see if there had been any changes that I was not aware of. There had not been any changes. I believe I also attempted to call Littlepage’s Probation Officer to clear up any information he was giving her but did not get an answer. Therefore, I told Littlepage in order to get a TX ID card, it would be setup as a sex offender ID or she could wait until she spoke with her Probation Officer to see if he can get the charge removed and then come back to apply for a TX ID card that 11 Id. 12 Exhibit A, Bates 125-126. 13 Id., Bates 127-128 14 Id., Bates 129-132 15 Id., Bates 133 16 Id., Bates 135-136 17 Id, Bates 137-138 Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 7 of 26 4 would not be flagged in the system as a sex offender ID. Littlepage was never told she could not get a TX ID card. 18 5. According to Rebecca Macalik, Driver License Office Supervisor, if a customer, such as Littlepage, is applying for a Texas ID or Driver’s License, and presents an official sex offender Identification Card which is independently verified, DPS is required to issue a Texas ID or Driver License with the notation “Sex Offender” in DPS records. I can attest that if a customer is applying for a Texas ID or Driver License and presents an official document indicating sex offender status (such as her Oklahoma ID), and an official report verified a status of Sex Offender we are required to issue a ID or DL for Texas indicating on our records the status of Sex Offender.19 6. On January 25, 2017, Brian Jones, with the Denton County Community Supervision and Corrections Department (CSCD) sent Trejo an email transmittal regarding Littlepage.20 Jones attached a copy of the afore-mentioned True Bill of Indictment and Order of Deferred Adjudication. He writes: This is a case that was plead out in 2012. She has never registered. Upon moving to Oklahoma she was told that she was required by interstate compact guidelines that she would be required to register. She did not want to do that so she moved back to Texas. Upon renewing her divers [sic] license in Texas she was told that she would be required to register.21 Jones then asked Trejo the following question: “Will Ms. Littlepage be required to register? And I assume since she has two counts it would be a lifetime.”22 18 Exhibit C, Affidavit, Gerrand Lockhart, Bates 153-154. 19 Exhibit D, Affidavit, Rebecca Macalik, Bates 155-156. 20 Exhibit B, Bates 027. 21 This is incorrect. Littlepage did register as a sex offender in Oklahoma and did receive an Oklahoma Driver’s License with the designation “sex offender” on the license. 22 Exhibit B, Bates 027. Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 8 of 26 5 7. Trejo responds, on January 26, 2017: “I will look into this and have another set of eyes or legal take a look at this to make determination. I will be out of pocket today but, will get back with you soon.”23 8. On January 27, 2017, Trejo responded to Jones’ inquiry stating: Per the Order of Deferred Adjudication and True Bill of Indictment with Cause Numbers and TRN provide sufficient black and white information to determine Registration. If the defendant resides in Texas, she will have to register as Lifetime and verify on an Annual basis. I have attached documents with highlighted notes to include copy of Texas Reportable Offense codes.24 At no time did Trejo instruct, demand or require Jones or Denton County CSCD to compel Littlepage to complete her Texas sex offender registration materials. 9. On February 17, 2017, Littlepage submitted her signed Sex Offender Registration and Pre- Release Notification Form Texas Sex Offender Registration Program to Thomas Daniels, Denton County Community Supervision & Corrections Department.25 The documents indicate that Littlepage was to register for life and that she was required to report annually.26 10. These documents were received by the DPS Crime Records Service on February 24, 2017, along with the email communication to Jones by Trejo.27 11. One of the requirements of Littlepage’s registration is the responsibility to obtain a Texas driver license or personal identification certificate, which was to be renewed annually. Failure to do would result in the revocation of any existing license or certificate issued by DPS.28 23 Id. 24 Id., Bates 037-039 25 Id., Bates 051-055. 26 Id., Bates 052. 27 Id., Bates 052-055 and 037. 28 Id., Bates 053 and 055. TEX. CODE CRIM. PROC., Art. 62.060 (West 2016). Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 9 of 26 6 12. On March 01, 2017, following a telephone conversation, Trejo received an email communication from Littlepage’s attorney, requesting a written statement that DPS “has rescinded its actions and advice which caused this constitutional violation, by 9:00 a.m. tomorrow morning, March 2, 2017.”29 13. The following day, March 02, 2017, Jeanine Hudson, DPS Legal Operations Manager – Crime Records, responded to Plaintiff’s counsel’s demand. She stated, in part: I have reviewed the cases you sent30, and they both appear to reference probation or parole conditions being placed on the offender that require registration without proper due process. If my understanding is correct, Ms. Littlepage received deferred adjudication for Unlawful Restraint, and the papers in the case confirm that the victim was under 17. Chapter 62 requires registration for that offense (CCP 62.001(5)(E). Therefore, registration is not required as a condition of her parole/probation in which case a Coleman hearing would be necessary since the opportunity to protest registration was unavailable during the hearing. Rather, registration is required by statute because of conviction for that particular offense and her original criminal hearing afforded the proper due process for registration.31 14. On March 03, 2017, Littlepage filed her Original Complaint; Opposed Motion for Temporary Restraining Order; and Amended Application for Temporary Restraining Order (TRO) and Preliminary Injunction.32 The District Court issued an Order, on that day, granting Littlepage’s TRO and setting a hearing on her Preliminary Injunction for March 07, 2017.33 15. That same day, in light of the Order granting her TRO, Littlepage’s sex offender registration records were made non-public.34 16. On March 05, 2017, DPS Driver’s License Division automatically generated and issued a Notice 29 Id., Bates 040-042. 30 Id., Bates 041, referencing Coleman v. Dretke and Meza v. Livingston. 31 Id., Bates 056. 32 Docket Entries No.1, 2 and 6. 33 Docket Entry No.7. 34 Exhibit A, Bates 093-095. Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 10 of 26 7 of Revocation letter to Littlepage.35 This letter reminds Littlepage that she must renew her Texas Driver’s License or identification card annually. However, Littlepage does not possess either a Texas Driver’s License or Identification Card. 17. On March 07, 2017, following a hearing, the District Court issued an Order stating that the relief granted in the TRO shall remain in effect until further order of this Court.36 18. The following day, March 08, 2017, Marlynn Melara, Public Safety Records Technician II, DPS Sex Offender Registration Bureau, Crime Records Service, Law Enforcement Support Division, inquired into Littlepage’s sex offender registration in Oklahoma.37 Bonnie Yarbrough, Administrative Assistant II, Sex & Violent Offender Registration Unit, responded that Littlepage had initially registered as a sex offender in Oklahoma on July 13, 2012, but had only sporadically registered, since that date; the last time being January 12, 2015. Littlepage’s last known address was located in Tahlequah, Oklahoma.38 19. Later that same day, Yarbrough wrote again to Melara, attaching Littlepage’s publically accessible Oklahoma Sex & Violent Offender Registry information.39 Yarbrough noted: In the middle of the page under Registry Status you will see she has a lifetime registry requirement in Oklahoma. On the second page is what we determined was a comparable statute to Texas for this type of offense. We review both the statute and the Indictment/Information regarding the offense to help determine level.40 20. On March 08, 2017, Castilleja sent a request to DPS Enforcement & Compliance Service, Driver’s License Division, to remove the CSO (classified sex offender) flag on Littlepage’s record. 35 Id., Bates 150-151. TEX CODE CRIM. PROC., Art. 62.060 (West 2016). 36 Docket Entry No.13 37 Exhibit A, Bates 120-121. 38 Id., Bates 120. 39 Id., Bates 122-124. 40 Id. Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 11 of 26 8 This flag appeared on Littlepage’s record once she submitted her sex offender registration materials in February 2017 and what triggered the automatic Notice of Revocation letter. The request would allow Littlepage to apply for her driver’s license and identification card without having the sex offender status in the DL system, in light of the pending Court Order.41 III SUMMARY JUDGMENT EVIDENCE 1. Exhibit A: Extract, Texas Department of Public Safety, Crime Records Service, Sex Offender Registration Bureau, records concerning Angel Dawn Littlepage, TX SID No. 08965629, with business records affidavit. 2. Exhibit B, Extract, Texas Department of Public Safety, Crime Records Service, Sex Offender Registration Bureau, records concerning Angel Dawn Littlepage, TX SID No. 08965629, with business records affidavit. 3. Exhibit C: Affidavit, Trooper Gerrand Lockhart. 4. Exhibit D: Affidavit, Rebecca Macalik. IV MOTION FOR SUMMARY JUDGMENT42 A. ARGUMENT. 1. Standard for Summary Judgment Under Federal Rule of Civil Procedure 56[c], the moving party in a summary judgment action “bears the initial responsibility of informing the District Court of the basis for its motion, and identifying those portions of the pleadings, interrogatories and admissions on file, together with the affidavit(s), if any, which are believed to demonstrate the absence of a genuine issue of material fact.”43 Once the movant makes this showing, the burden shifts to the non-movant to show that summary 41 Exhibit A, Bates 149. 42 Defendants incorporate all exhibits previously filed in Docket Entry No.25. 43 Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 12 of 26 9 judgment is not appropriate.44 This burden is not satisfied by some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.45 Rather, the non-moving party must come forward with competent summary judgment evidence showing that there is a genuine issue for trial.46 2. Overview of the Texas Sex Offender Registration Act A review of Chapter 62, Code of Criminal Procedure, Sex Offender Registration Program (SORA),47 would be helpful in order to analyze this cause of action. In 2005, the 79th Texas Legislature made significant changes to SORA, which became effective on September 01, 2005.48 The purpose of this legislation (CSHB 867) “would reorganize the state’s sex offender registration law so that it more easily could be used and understood by those required to register, courts, law enforcement authorities, probation and parole officers, defense and prosecuting attorneys, and others.”49 Under SORA a “reportable conviction or adjudication” is a conviction or adjudication for specifically identified Texas sex offenses or offenses containing a sexual component.50 The definition of “reportable conviction or adjudication” was expanded to include a violation of Texas Penal Code § 20.02 (Unlawful restraint), § 20.03 (Kidnapping), or § 20.04 (Aggravated kidnapping), if, as applicable, the order in the hearing or 44 Id., 477 U.S. at 325 (1986). 45 Little v. Liquid Air Corp., 37 F. 3d 1069, 1075 (5th Cir. 1994). 46 FED. R. CIV. P. 56(e). 47 TEX. CODE CRIM. PROC. ANN., Art. 62.001 et seq. (West 2016). 48 Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01 et seq., 2005 Tex. Gen. Laws 3385-3418 (current version at TEX. CODE CRIM. PRO. ANN., Art. 62.001 et seq. (West 2016)). 49 CRIM. JURISPRUDENCE, BILL ANALYSIS, TEX. CSHB 867, 79th Leg., R.S. (2005) 50 Garner v. City of Houston, No. H-12-1612, 2013 WL 4042022, at 4 (S.D. Tex. Aug. 06, 2013). Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 13 of 26 10 the papers in the case contain an affirmative finding that the victim or intended victim was younger than 17 years of age.51 3. Littlepage’s constitutional right to procedural due process was not violated by Defendants. a. Because Littlepage has a “reportable conviction or adjudication” under SORA, she is not entitled to receive additional process. Procedural due process under the Fourteenth Amendment is implicated where an individual is deprived of life, liberty or property, without due process of law. In determining whether there has been a violation of procedural due process, a two-step process must ensue. First, the court determines whether the challenged conduct affects a protected life, liberty or property interest. Second, if there is a protected interest, the court must then ascertain whether sufficient process was afforded.52 In the present instance, Littlepage has not been deprived of life or property; therefore her claim is whether she has been deprived of a liberty interest without adequate procedural protections.53 Littlepage argues that she has a protected liberty interest in being free from “‘stigma’ and ‘other adverse consequences’ caused by her being falsely labeled a ‘sex offender.’”54 To establish a liberty interest in her reputation that would afford the protections of the Due Process Clause against state action, Littlepage must show what is commonly known as the “stigma-plus-infringement” test.55 Littlepage must prove both that (1) being required to register under SORA is stigmatizing; and that as a result 51 TEX. CODE CRIM. PROC. ANN. § 62.001(5)(E)(ii) (West 2016). 52 Board of Regents v. Roth, 408 U.S. 504, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). 53 Docket Entry No. 18, pgs. 5-6, ¶¶ H-J and Docket Entry No. 20, pgs. 10-11. 54 Docket Entry No. 18, pg. 20, ¶ 27. 55 Jennings v. Owens, 602 F.3d 652, 657-659 (5th Cir. 2010); and Paul v. Davis, 424 U.S. 693, 701-707, 96 S.Ct. 1155, 1163, 47 L.Ed.2d 405 (1976). Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 14 of 26 11 of, a “right or status previously recognized by state law was distinctly altered or extinguished.”56 Littlepage’s argument fails the “stigma-plus-infringement” test. On February 27, 2012, a True Bill of Indictment was filed in State of Texas v. Angel Littlepage, Case No. F-2012-0338-D, in Denton County, Texas. The indictment listed two counts of sexual assault, pursuant to Texas Penal Code § 22.011.57 In both counts, the grand jury specifically presented to the Court that the victim, was “a child younger than 17 years of age”.58 Subsequently, an Order of Deferred Adjudication was entered in this same cause before the 362nd Judicial District Court, Denton County, Texas on May 10, 2012. According to the Order of Deferred Adjudication, Littlepage entered into a plea bargain to plead guilty to the following listed offenses: two counts of Lesser Included Unlawful Restraint and Recklessly Expose to a substantial risk of SBI, a third degree felony, pursuant to Texas Penal Code 20.02(c)(2)(A).59 In return, she would receive five years deferred adjudication. The Indictment is listed as the charging instrument upon which the Order of Deferred Adjudication was based.60 Additionally, the Order of Deferred Adjudication states the following: “Sex Offender Registration Requirements do not apply to the Defendant. TEX. CODE CRIM. PROC., Chapter 62. The age of the victim at the time of the offense was N/A.”61 The fundamental issue is the fact that the Order of Deferred Adjudication for Littlepage lists two reportable offenses under SORA, while purporting to exempt Plaintiff from SORA’s registration requirements. Under SORA, Unlawful Restraint is a reportable conviction: 56 Paul, 424 U.S. at 711-12. 57 Docket Entry No.6, pg. 20. 58 Id. 59 Id., pg. 22. TEX. PEN. CODE ANN. § 20.02(c)(2)(A) (West 2016). 60 Id. 61 Id. Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 15 of 26 12 (E) a violation of Section 20.02 (Unlawful Restraint), Penal Code, if as applicable: (ii) the order in the hearing or the papers in the case contain an affirmative finding that the victim or the intended victim was younger than 17 years of age.62 In this instance, what do the phrases “the papers in the case” and “affirmative finding” imply? The Code of Criminal Procedure, itself, offers guidance in interpreting these two phrases. “All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined.”63 Since neither phrase is defined, the plain meaning of the language is controlling. Using the plain meaning of “papers in the case” and “affirmative finding”, Littlepage pled guilty to two reportable offenses under SORA: two counts of “Lesser Included Unlawful Restraint and Recklessly Expose to substantial risk of SBI,” a third degree felony, pursuant to Texas Penal Code 20.02(c)(2)(A).64 Littlepage, consequently, has a “reportable conviction or adjudication” as defined by SORA.65 Littlepage cannot establish the first element of the “stigma-plus-infringement” test. It is true that Littlepage must register as a sex offender because she has a “reportable conviction or adjudication” as defined by SORA. In fact, she did so in Oklahoma and had an Oklahoma Identification Card which was clearly marked “sex offender.”66 Individuals with a “reportable conviction or adjudication” under SORA had their procedural due process requirements met through their original conviction or deferred adjudication.67 In this instance, the fact that the judgment states 62 TEX. CODE CRIM. PROC. Art. 62.001(5)(E)(ii) (West 2016) (emphasis added). 63 Id., art. 3.01 (West 2016). 64 Id., pg. 22. TEX. PEN. CODE ANN. § 20.02(c)(2)(A) (West 2016). 65 TEX. CODE CRIM. PROC. ANN. § 62.001(5)(E)(ii) (West 2016). 66 Exhibit A, Bates 120-121 and Bates 137-138. 67 Creekmore v. Attorney General of Texas, 341 F.Supp.2d 648,665 (E.D. Tex. 2004) quoting Connecticut Dep’t of Public Safety v. Doe, 538 U.S. 1, 7, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 16 of 26 13 that sex offender registration requirements do not apply to Littlepage does not relieve her of the mandates of SORA because she has a “reportable conviction or adjudication” as defined by SORA. b. Defendants have no statutory authority to designate individuals as “Sex Offenders” under SORA. Littlepage attempts to counter this argument by setting forth three claims that Defendants have deprived her of procedural due process. 1. Article 62.001(5)(E) of the Texas Code of Criminal Procedure (“Section 62.005(E)”) is unconstitutional “on its face,” as it authorizes State officials to designate persons to be “sex offenders,” and it subject them to sex offender registration and other adverse consequences affecting their liberty interests, predicated merely upon an “affirmative finding” of an alleged victim’s “age,” when they have never been convicted or placed on community supervision for a criminal offense which contains an element of sexual misconduct. 2. Article 62.005(E)(ii), as applied to her by Defendants, deprived her of procedural due process under the Fourteenth Amendment when Defendants designated or permitted her to be designated as a “sex offender,” and subjected her to sex offender registration and other adverse consequences affecting her liberty interests, without notice, an opportunity to be heard, and without an affirmative finding by a neutral and detached arbiter of fact that she currently poses a threat to the community by reason of a lack of sexual control, when she had never been convicted or placed on community supervision for a criminal offense which contains an element of sexual misconduct. 3. Article 62.005(E)(ii), as applied to her by Defendants, deprived her of procedural due process under the Fourteenth Amendment when Defendants designated or permitted her to be designated as a “sex offender,” and subjected her to sex offender registration and other adverse consequences affecting her liberty interest, without an “affirmative finding” of an alleged victim’s “age” by a judicial officer, when she had never been convicted or placed on community supervision for a criminal offense which contains an element of sexual misconduct. Citing Coleman v. Drekte, Littlepage contends the acts and omissions of Defendants violated, or caused a violation of, her constitutional right to procedural due process.68 In Coleman, the parole panel imposed two sex offender parole conditions, registration and treatment, even though Coleman, who had originally been charged with sexual assault of a child and indecency with a child by contact, was 68 Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004). Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 17 of 26 14 only convicted of assault.69 The Court held that when a parolee has not been convicted of a sex offense, state officials cannot classify him as a sex offender and impose sex-offender conditions on him without providing an “appropriate hearing” in which the parolee can contest that status.70 Coleman was premised on the Court’s two conclusions that (1) Coleman had a liberty interest at stake because he was suffering the “stigmatizing” consequences of having to register as a sex offender and attend treatment and (2) the State was required to provide some procedural protection allowing Coleman to contest whether he was properly classified as a sex offender and subjected to these parole conditions.71 Littlepage is incorrect when she argues that Article 62.001(5)(E) of the Texas Code of Criminal Procedure authorizes DPS officials to designate persons to be sex offenders. Unlike the Texas Board of Pardons and Parole, which has the statutory authority to impose parole conditions, including sex offender conditions such as registration and treatment, upon parolees or offenders on mandatory supervision72, DPS has no such statutory authority to impose sex offender status upon an individual. SORA does not grant DPS the statutory authority to designate an individual as a sex offender; neither does DPS have the authority to designate that an individual has a reportable conviction or adjudication. Whether or not an individual has a reportable conviction or adjudication, under SORA, emanates solely from the underlying Judgment or Order of Deferred Adjudication. It is important to examine SORA and DPS’ statutory responsibility under SORA. Under SORA a person who has a reportable conviction or adjudication shall register with the local law enforcement 69 Id., 395 F.3d at 219. 70 Id., 395 F.3d at 225. 71 Id., 395 F.3d at 222-223 and 225. 72 TEX. GOV’T CODE ANN., § 508.186, § 508.1861, § 508.1862, § 508.187, § 508.044(2), § 508.045, § 508.141 (West 2016) Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 18 of 26 15 authority in any municipality where the person resides or intends to reside for more than seven days.73 A “local law enforcement authority” is defined as “the office of the chief of police of a municipality, the office of the sheriff of a county in this state, or a centralized registration authority.”74 DPS is required to provide each local law enforcement authority with a form for registering persons required by SORA to register.75 In turn, DPS is statutorily mandated to “maintain a computerized central database containing the information required for registration under this chapter.”76 This central database is based upon the information received from the local law enforcement authority with whom the person registered. In the present case, on January 25, 2017, Brian Jones, with the Denton County Community Supervision and Corrections Department (CSCD) sent Trejo an email transmittal regarding Littlepage.77 Jones attached a copy of the afore-mentioned True Bill of Indictment and Order of Deferred Adjudication. He writes: This is a case that was plead out in 2012. She has never registered. Upon moving to Oklahoma she was told that she was required by interstate compact guidelines that she would be required to register. She did not want to do that so she moved back to Texas. Upon renewing her divers [sic] license in Texas she was told that she would be required to register.78 73 TEX. CODE CRIM. PROC. ANN., Art. 62.051(a) (West 2016). 74 Id., art. 62.001(2) (West 2016). 75 Id., art. 62.051(b) (West 2016). 76 Id., art. 62.005(a) (West 2016). 77 Exhibit B, Bates 027. 78 This is incorrect. Littlepage did register as a sex offender in Oklahoma and did receive an Oklahoma Identification Card with the designation “sex offender” on the card. Additionally, as has been previously stated, there is no evidence that Littlepage was refused a Texas Identification Card in July 2016 because she had failed to register, pursuant to SORA, in Texas; neither is there any evidence that she visited the Denton DPS office in January 2017 and was again refused a Texas Identification Card on the same grounds. Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 19 of 26 16 Jones then asked Trejo the following question: “Will Ms. Littlepage be required to register? And I assume since she has two counts it would be a lifetime.”79 Trejo responds, on January 26, 2017, that: “I will look into this and have another set of eyes or legal take a look at this to make determination. I will be out of pocket today but, will get back with you soon.”80 On January 27, 2017, Trejo responded to Jones’ inquiry stating: Per the Order of Deferred Adjudication and True Bill of Indictment with Cause Numbers and TRN provide sufficient black and white information to determine Registration. If the defendant resides in Texas, she will have to register as Lifetime and verify on an Annual basis. I have attached documents with highlighted notes to include copy of Texas Reportable Offense codes.81 At no time did Trejo instruct, demand, direct or require Jones or Denton County CSCD to compel Littlepage to complete her Texas sex offender registration materials. What Trejo did was to simply utilize SORA in the way the Texas Legislature intended when it amended SORA in 2005. The Texas Legislature reorganized SORA so that it more easily could be used and understood by those required to register, courts, law enforcement authorities, probation and parole officers, defense and prosecuting attorneys, and others. Trejo took the information presented to him by Jones, reviewed SORA, and offered his opinion as he was requested to do so by Jones. As stated previously, at no time did Trejo instruct, demand, direct or require Jones or Denton County CSCD to compel Littlepage to complete her Texas sex offender registration materials. In this instance because Littlepage has a “reportable conviction or adjudication” under SORA, she has already been provided the protections required by due process for sex offender classification. There is no need for additional due process, in the form of a hearing, in which Defendants must find 79 Exhibit B, Bates 027. 80 Id. 81 Id., Bates 037-039 Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 20 of 26 17 that Littlepage constitutes a threat to society by reason of her lack of sexual control.82 Defendants have no statutory authority to designate Littlepage a sex offender. Neither have Defendants offered an “implicit threat that they will seek to provide” Littlepage with a ‘“Coleman hearing’ and thereafter impose sex offender registration upon Plaintiff.”83 In light of the foregoing, summary judgment must be granted in favor of Defendants as a matter of law. 4. Littlepage is not entitled to Equitable Relief a. Injunctive Relief should be denied A state actor is generally immune from actions brought against him in his official capacity under 42 U.S.C. § 1983 by virtue of the Eleventh Amendment because the real party in interest is the state entity.84 However, under the Ex parte Young exception, a state actor operating in his official capacity is not immune from suit under the Eleventh Amendment when the plaintiff seeks injunctive relief to prevent an on-going violation of federal law.85 A state official in his or her official capacity, when sued for injunctive relief, is a “person” under 42 U.S.C. § 1983 because official capacity actions for prospective relief are not treated as actions against the state.86 In order for the Ex parte Young exception to Eleventh Amendment immunity to apply, a State official must be acting, threatening to act, or at least have the ability to act to enforce an 82 Docket Entry No.20, pg. 33-34. 83 Id., pg. 40. 84 Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.114 (1985). 85 Ex parte Young, 209 U.S., 123, 158-160, 28 S.Ct. 441, 52 L.Ed. 714 (1908); McCarthy ex rel. Travis v. Hawkings, 381 F.3d 407, 412 (5th Cir. 204) (stating under Ex parte Young, a federal court may enjoin state officials to conform their future conduct to the requirements of federal law). 86 Will v. Michigan Department of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 21 of 26 18 unconstitutional state act.87 To determine whether state actor has a sufficient relation to the alleged constitutional violation and may be liable under the Ex parte Young immunity exception, courts consider: (1) the ability of the official to enforce the statute at issue under his statutory or constitutional powers; and (2) the demonstrated willingness of the official to enforce the statute.88 Littlepage claims that Trejo “directly subjected” her to a violation of her constitutional right to procedural due process; while Castilleja, as an “official policymaker” for DPS, Sex Offender Registration Bureau; and McCraw, as an “official policymaker” for DPS, Crime Records Division and Sex Offender Registration Bureau caused Littlepage “to be subjected” to the deprivation of her constitutional right to procedural due process.89 Applying the factors of Ex parte Young Eleventh Amendment immunity exception, it cannot be said that either Trejo, as a Field Representative, DPS Sex Offender Registration Bureau; Castilleja as Manager, DPS Sex Offender Registration Bureau; and McCraw, as Director, DPS, were acting, threatening to act, or at least have the ability to act to enforce an unconstitutional state act by “subjecting” Littlepage to the violation of her constitutional right to procedural due process. Neither can it be determined that Littlepage has demonstrated the willingness of Defendants to enforce the statute by designating Littlepage a sex offender. As stated previously, DPS is statutorily mandated to “maintain a computerized central database containing the information required for registration under this chapter.”90 This central database is based upon the information received from the local law enforcement authority with whom the person registered. Under SORA, DPS maintains no statutory authority to “designate” an individual as a sex 87 Okpalobi v. Foster, 244 F.3d 405, 421 (5th Cir. 2001). 88 Id. at 416-17. 89 Docket Entry No.20, pgs. 36-37. 90 Id., Art. 62.005(a) (West 2016). Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 22 of 26 19 offender, neither does DPS have the statutory authority to designate that an individual has a reportable conviction or adjudication. Whether or not an individual has a reportable conviction or adjudication, under SORA, emanates solely from the underlying Judgment or Order of Deferred Adjudication. Furthermore, DPS has limited authority, under SORA, to remove an individual from the sex offender registry when their duty to register as a sex offender under SORA expires.91 Under SORA there are three instances when such information may be removed: 1. The department has received notice from a local law enforcement authority under Subsection (c) or (d) that the person is no longer required to register or will no longer be required to renew registration and the department verifies the correctness of that information; 2. The court having jurisdiction over the case for which registration is required requests removal and the department determines that the duty to register has expired; or 3. The person or the person’s representative requests removal and the department determines that the duty to register has expired.92 None of these instances are applicable in the present cause of action. In light of the foregoing, Littlepage is not entitled to injunctive relief from Defendants.93 b. Declaratory Relief should be denied. Littlepage has requested declaratory relief, pursuant to the Declaratory Judgment Act of Title 28 U.S.C. § 2201.94 To support her claim, Littlepage cites Williams v. Ballard. In Williams, it was undisputed that Williams did not have reportable conviction or adjudication of an enumerated sex- related offense under SORA, but was required to register as a sex offender by the Texas Board of 91 TEX. CODE CRIM. PRO. ANN, Art. 62.251 (West 2016). 92 Id. 93 Because Littlepage is not entitled to injunctive relief, she is also not entitled to an “additional procedural due process protection” requiring a “clear and convincing evidence” standard of proof in a Coleman hearing. See Docket Entry No.20, pgs. 39-40. 94 Docket Entry No.20, pgs. 37-38. Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 23 of 26 20 Pardons and Paroles as a condition of his mandatory supervision without notice and opportunity to respond. In light of this, the Court held that he was entitled to declaratory judgment that the registration and public notification requirements of SORA were unconstitutional as applied to him.95 Unlike Williams, Littlepage, however, does possess a reportable conviction or adjudication under SORA. Consequently, she is not entitled to declaratory relief. V PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants Steven McCraw, Vincent Castilleja and Raymond Trejo ask the Court to grant their Motion for Summary Judgment and to grant such other and further relief as the Court deems just and proper. Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Civil Litigation LACEY E. MASE Chief, Law Enforcement Defense Division /s/ Carol M. Garcia CAROL M. GARCIA Assistant Attorney General State Bar No. 07631680 carol.garcia@oag.texas.gov BRUCE R.GARCIA Assistant Attorney General State Bar No. 0761060 95 Williams v. Ballard, No. 3-02-cv-0270-M, 2004 WL 1499457 at *6 & *10 (N.D. Tex. June 18, 2004). Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 24 of 26 21 OFFICE OF THE ATTORNEY GENERAL P. O. Box 12548, Capitol Station Austin, Texas 78711-2548 Phone: (512) 463-2080/Fax: (512) 936-2109 ATTORNEYS FOR DEFENDANTS MCCRAW, CASTILLEJA AND TREJO NOTICE OF ELECTRONIC FILING I, CAROL M. GARCIA, Assistant Attorney General of Texas, do hereby certify that I have electronically submitted for filing, a true and correct copy of the above and foregoing Defendants McCraw, Castilleja and Trejo’s Motion for Summary Judgment in accordance with the Electronic Case Files System of the Western District of Texas – Austin Division, on this the 18th day of May 2017. /s/Carol M. Garcia CAROL M. GARCIA Assistant Attorney General Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 25 of 26 22 CERTIFICATE OF SERVICE I, CAROL M. GARCIA, Assistant Attorney General of Texas, do hereby certify that a true and correct copy of the above and foregoing Defendants McCraw, Castilleja and Trejo’s Motion for Summary Judgment has been served by placing same in the United States Mail, postage prepaid on this the 18th day of May 2017, addressed to: RICHARD GLADDEN 1200 West University Dr., Suite 100 Denton, Texas 76201 Attorney-in-charge for Plaintiff WILLIAM T. HABERN The Habern Law Firm 1221 Studewood, Suite 500 Houston, Texas 77008 Co-Counsel for Plaintiff BELVIN R. HARRIS 109 W. California Street Gainesville, Texas 76240 Attorney for Defendant Phillips /s/ Carol M. Garcia CAROL M. GARCIA Assistant Attorney General Case 1:17-cv-00190-RP Document 26 Filed 05/18/17 Page 26 of 26 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION § ANGEL DAWN LITTLEPAGE, § Plaintiff, § § v. § CAUSE NO. 1:17-CV-000190-RP § RAYMOND TREJO, ET AL., § Defendants. § § ORDER Came on this day to be heard Defendants Steven McCraw, Vincent Castilleja, and Raymond Trejo Motion for Summary Judgment and the Court after considering the pleadings of the parties filed herein, is of the opinion that the following order should issue: It is therefore ORDERED, ADJUDGED, and DECREED, that Defendants Steven McCraw, Vincent Castilleja, and Raymond Trejo Motion for Summary Judgment be and is hereby GRANTED. SIGNED THIS _________DAY OF ____________, 2017. ____________________________ JUDGE PRESIDING Case 1:17-cv-00190-RP Document 26-1 Filed 05/18/17 Page 1 of 1