IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41456

AURELIO DUARTE; WYNJEAN DUARTE; S. D., A Minor, By and through 

Wynjean Duarte, acting as her Next Friend; BRANDI DUARTE, 

 Plaintiffs - Appellants

v.

CITY OF LEWISVILLE, TEXAS, 

 Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Aurelio Duarte together with his wife and two children challenge the 

constitutionality of a Lewisville, Texas, ordinance (“the Ordinance”) that 

restricts where certain individuals convicted of sex offenses may live within 

the city. Specifically, they allege that the Ordinance deprives both Duarte 

individually and the Duarte Family as a whole of procedural due process and 

violates Duarte’s constitutional right to equal protection. The district court 

granted summary judgment in favor of Lewisville. We affirm.

I.

In 2006, Duarte was found guilty after a jury trial of Online Solicitation 

of a Minor, in violation of Texas Penal Code § 15.031, and was sentenced to 

eight years in prison. The confinement term was suspended and he was placed 

United States Court of Appeals

Fifth Circuit

FILED

May 30, 2017

Lyle W. Cayce

Clerk

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on community supervision for a term of ten years. In 2007, Duarte’s community 

supervision was revoked, and he was sentenced to a three-year term of 

confinement. Duarte’s sentence was fully discharged in June 2010. Upon his 

release, Duarte returned to Lewisville, Texas, where he had resided with his 

wife and two daughters prior to his incarceration. As a result of his conviction, 

Duarte is required by Texas law to register annually with the Texas 

Department of Public Safety as a child sex offender. Because Duarte must so 

register, he must also comply with residency restrictions set forth in 

Lewisville’s “Regulation of Sex Offender Residency” Ordinance, which 

prohibits registered child sex offenders from residing anywhere in the city 

limits that is within 1,500 feet of “premises where children commonly gather.”1

The collective area covered by the Ordinance encompasses the majority 

of Lewisville. According to Appellants, of the 39,967 residential housing units 

in Lewisville in November 2012, only eight were legally available to them for 

purchase and two for rent, constituting .025 percent of the total housing stock. 

From approximately 2010 through 2013, the Duartes resided together in a onebedroom motel room in Lewisville and searched for a residence that complied 

with the Ordinance to no avail. Ultimately, the Duartes moved to a nearby 

town.

The Ordinance sets forth a number of affirmative defenses, which 

essentially establish exemptions for eligible individuals. Relevant to Duarte’s 

equal protection claim is an exemption available to certain individuals who are 

subject to community supervision under Texas law as a result of their sex 

offense convictions. Under Texas law, individuals sentenced to a term of 

 

1 The term “premises where children commonly gather” is defined as including “all 

improved and unimproved areas on the lot where a public park, public playground, private 

or public school, public or semi-public swimming pool, public or non-profit recreational 

facility, day care center or video arcade facility is located.”

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community supervision following a child sex offense conviction must adhere to 

a state-imposed condition that they not “go in, on, or within 1,000 feet of a

premises where children commonly gather” during the pendency of their 

community supervision term. Tex. Crim. Proc. Code art. 42.12 § 13B(a)(1)(B).

However, a court may waive or modify this restriction if: (1) the defendant is a 

student at a primary or secondary school; (2) the restrictive zone interferes 

with the ability of the defendant to attend school or hold a job and consequently 

constitutes an undue hardship for the defendant; or (3) the restrictive zone is 

broader than necessary to protect the public, given the nature and 

circumstances of the offense. § 13B(d), (e). Individuals who have successfully 

sought a judicial waiver of the state’s geographic restriction are afforded a

parallel exemption from Lewisville’s Ordinance. However, child sex 

offenders—like Duarte—who have been fully discharged or were never subject 

to state-imposed community supervision, cannot seek a judicial waiver of the

state’s geographic condition, because the condition does not actually apply to 

them. Those individuals are therefore unable to avail themselves of the parallel 

exemption provided by the Ordinance.

Appellants initially filed this suit on March 26, 2012, seeking 

compensatory damages, as well as equitable, declaratory, and injunctive relief 

under the Due Process and Equal Protection Clauses of the Fourteenth 

Amendment, the Double Jeopardy Clause of the Fifth Amendment, the Ex Post 

Facto guarantee, and 42 U.S.C. §§ 1983 and 1988. The district court initially

dismissed all of Appellants’ claims for lack of standing. This court reversed, 

holding that both Duarte and his family had shown actual injury sufficient for 

standing purposes and that their constitutional claims were not rendered moot 

by their decision to move from Lewisville to a nearby town. See Duarte ex rel. 

Duarte v. City of Lewisville, 759 F.3d 514, 517–21 (5th Cir. 2014). In June 2015, 

Lewisville moved for summary judgment on the merits of Appellants’ claims.

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The Magistrate Judge recommended that the district court grant the motion,

and the district court adopted the Magistrate Judge’s Report and 

Recommendation. See Duarte v. City of Lewisville, 136 F. Supp. 3d 752 (E.D. 

Tex. 2015). On appeal, Appellants challenge only the district court’s grant of 

summary judgment with respect to their procedural due process and equal 

protection claims.

II.

We review a grant of summary judgment de novo, applying the same 

standards as the district court. Am. Home Assurance Co. v. United Space All., 

LLC, 378 F.3d 482, 486 (5th Cir. 2004). Summary judgment is only appropriate 

“if the movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). However, we review for plain error any of the Magistrate Judge’s factual 

findings and legal conclusions that were accepted by the district court and to 

which Appellants failed to object. Douglass v. United Servs. Auto Ass’n, 79 F.3d 

1415, 1428–29 (5th Cir. 1996) (en banc), superseded by statute on other 

grounds, 28 U.S.C. § 636(b)(1).

III.

Duarte first asserts that the Ordinance violates his right to due process

of law under the Fourteenth Amendment, because it deprives him of a 

constitutionally-protected liberty interest—namely, the ability to reside in the 

location of his choice—without adequate procedural protection. Duarte seeks a 

hearing to prove that he is not currently dangerous and therefore should not 

be deprived of the liberty to live in the areas prohibited by the Ordinance. The 

district court rejected Duarte’s procedural due process claim on the ground that 

the Ordinance did not deprive him of a constitutionally-protected liberty 

interest. However, we need not reach that question.

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As the Supreme Court explained in a similar challenge to a Connecticut 

sex offender registration law, “even assuming” that the Ordinance deprives

Duarte of a liberty interest, “due process does not entitle him to a hearing to 

establish a fact that is not material under the . . . statute.” Conn. Dep’t of Pub. 

Safety v. Doe, 538 U.S. 1, 7 (2003); see also Meza v. Livingston, 607 F.3d 392,

401 (5th Cir. 2010) (“When an individual is convicted of a sex offense, no 

further process is due before imposing sex offender conditions.” (citing Conn.

Dep’t of Pub. Safety, 538 U.S. at 7–8)); Doe v. Miller, 405 F.3d 700, 709 (8th 

Cir. 2009) (concluding that an “Iowa residency restriction [did] not contravene 

principles of procedural due process under the Constitution” because “[t]he 

restriction applie[d] to all offenders who [had] been convicted of certain crimes 

against minors, regardless of what estimates of future dangerousness might 

be proved in individualized hearings.”). The fact that Duarte seeks to prove—

his current dangerousness—is “of no consequence” under the Ordinance. Conn. 

Dep’t of Pub. Safety, 538 U.S. at 7. The sole relevant question is whether 

Duarte “is required to register on the Texas Department of Public Safety’s Sex 

Offender Database . . . because of a conviction involving a minor.” That fact is 

not in dispute, and Duarte’s underlying conviction is a fact that he “has already 

had a procedurally safeguarded opportunity to contest.” Id. As noted, Duarte 

exercised his constitutional right to a trial by jury, was found guilty of the 

underlying sex offense, and was ultimately sentenced to three years of 

imprisonment following revocation of his community supervision term. Thus,

the absence of an additional hearing allowing Duarte to contest current 

dangerousness does not offend the principles of procedural due process.2

 

2 Duarte contends that the Lewisville ordinance is so restrictive that it effectively 

banishes him from the city, thus infringing on his constitutionally protected liberty interest 

to reside in the location of his choice. As we have set forth above, in light of the Supreme 

Court’s holding in Connecticut Department of Public Safety, we need not decide whether the 

Ordinance deprives Duarte of a constitutionally protected liberty interest, nor do we need to 

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This conclusion applies with equal force to Appellants’ similar claim that 

the Ordinance deprives the Duarte Family collectively of a constitutionallyprotected liberty interest in “family consortium” without procedural due

process. The only procedural defect Appellants identify is the Ordinance’s 

“complete failure to provide [the Duarte Family] with a pre-deprivation 

opportunity to be heard on the issue of whether . . . Duarte currently poses (or 

has ever posed) any threat to anyone by reason of a lack of sexual control.” As 

is the case with Duarte’s individual claim, procedural due process does not 

entitle the Duarte Family to a hearing to “establish a fact that is not material” 

under the Ordinance. Id.

As the Supreme Court observed in Connecticut Department of Public 

Safety, “[i]t may be that [Appellants’] claim is actually a substantive challenge 

to [the] statute ‘recast in procedural due process terms.’” Id. at 8 (quoting Reno 

v. Flores, 507 U.S. 292, 308 (1993)). However, because Appellants insist that 

they intend only to bring a procedural due process claim, we do not reach the 

substantive due process question.3

IV.

Duarte next alleges that the Ordinance deprives him of his constitutional 

right to equal protection of law in violation of the Fourteenth Amendment. 

 

apply the test set forth in Matthews v. Eldridge, 424 U.S. 319 (1976), concerning the

constitutional adequacy of procedural protections. However, we note that whether an 

ordinance or statute like the one at issue here constitutes effective banishment remains an 

open question.

3 While the procedural element of the Due Process Clause protects individuals “from 

the mistaken or unjustified deprivation of life, liberty, or property[,]” Carey v. Piphus, 435 

U.S. 247, 259 (1978), the substantive element “forbids the government to infringe . . . 

‘fundamental’ liberty interests at all, no matter what process is provided, unless the 

infringement is narrowly tailored to serve a compelling state interest.” Washington v. 

Glucksberg, 521 U.S. 702, 720–21 (1997) (quoting Reno, 507 U.S. at 302). Because Duarte 

explicitly waived any arguments about whether effective banishment would infringe 

substantive due process, both in his briefing and at oral argument, we do not address whether 

the Ordinance infringes on a fundamental right or liberty interest.

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“The Equal Protection Clause of the Fourteenth Amendment commands that 

no State shall ‘deny to any person within its jurisdiction the equal protection 

of the laws,’ which is essentially a direction that all persons similarly situated 

should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). To establish an 

equal protection claim, Duarte must first show that “two or more classifications

of similarly situated persons were treated differently” under the statute. 

Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012); see also 

Stefanoff v. Hays Cty., 154 F.3d 523, 525–26 (5th Cir. 1998). Once that 

threshold element is established, the court then determines the appropriate 

level of scrutiny to apply. “Strict scrutiny is required if the legislative 

classification operates to the disadvantage of some suspect class or impinges 

upon a fundamental right explicitly or implicitly protected by the 

Constitution.” Richard v. Hinson, 70 F.3d 415, 417 (5th Cir. 1995) (citing San 

Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973)). If neither a 

suspect class nor a fundamental right is implicated, the classification need only 

bear a rational relation to a legitimate governmental purpose. Id. at 417.

Notably, Duarte does not challenge the Ordinance’s classification 

between child sex offenders and the general population. Instead, he brings a 

more narrow challenge to the differing treatment of child sex offenders subject 

to state-imposed community supervision versus those who are not. The 

Magistrate Judge determined that this classification was subject to rational 

basis review, because it neither disadvantaged a suspect class nor impinged on 

a fundamental right. Appellants failed to object to this conclusion below, and, 

although they now make a cursory argument that strict scrutiny should apply, 

they fail to explain why, much less show that the Magistrate Judge’s 

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conclusion constituted plain error. See Douglass, 79 F.3d at 1428–29.4

Therefore, we limit our analysis to whether the Ordinance’s differing 

treatment of the two groups identified by Duarte bears a rational relation to a 

legitimate governmental purpose.

As an initial matter, Lewisville argues that Duarte failed to identify a 

classification that would allow this court to perform an equal protection 

analysis at all, reasoning that the Ordinance “does not create multiple classes 

of child sex offenders,” because the “defense in the Ordinance is equally 

available to anyone who meets its terms.” We disagree. The Ordinance divides 

child sex offenders into two categories: (1) those subject to state-imposed 

community supervision and who are therefore permitted to avail themselves of 

the exemptions incorporated from state law, and (2) those who are not subject 

to community supervision and are therefore, by definition, unable to avail 

themselves of the same exemptions. As a result, the Ordinance provides a form 

of relief to one category of child sex offenders that is not available to another. 

This imposition of differing treatment based on delineated categories of sex 

offenders satisfies the threshold classification requirement. See Sonnier v. 

Quarterman, 476 F.3d 349, 368–69 (5th Cir. 2007).

We agree, however, that this classification “rationally further[s] a 

legitimate state interest.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). “Rational 

basis review begins with a strong presumption of constitutional validity.” 

Malagon de Fuentes v. Gonzales, 462 F.3d 498, 504 (5th Cir. 2006). A court will 

 

4 Because Appellants have failed to adequately brief the issue, we do not reach the 

question of whether the Ordinance “operates to the disadvantage of some suspect class or 

impinges upon a fundamental right explicitly or implicitly protected by the Constitution.”

Richard, 70 F.3d at 417. This court previously has held that sex offenders are not a suspect 

class for equal protection purposes. See Stauffer v. Gearhart, 741 F.3d 574, 587 (5th Cir. 

2014). As with Appellants’ Due Process Clause claim, we also do not reach the question of 

whether the Ordinance impinges on a fundamental right. See supra Note 3.

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uphold the classification “if there is a rational relationship between the 

disparity of treatment and some legitimate governmental purpose.” Heller v. 

Doe, 509 U.S. 312, 320 (1993). Because “[r]ational basis scrutiny requires only 

that the legislative classification rationally promote a legitimate governmental 

objective[,]” Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987) (emphasis 

added), we focus on the specific classification challenged by Duarte. In other 

words, the “appropriate standard of review is whether the difference in 

treatment between” child sex offenders on community supervision and child 

sex offenders not on community supervision “rationally furthers a legitimate 

state interest.” Nordlinger, 505 U.S. at 11 (examining whether the difference 

of treatment between newer and older homeowners for property tax purposes 

furthered a legitimate state interest).

Lewisville’s explanation for the challenged classification is that it “is 

little more than legislative deference to an existing court order and seeks to 

avoid potentially conflicting orders.” Duarte complains that this is the first 

time Lewisville has articulated such a justification. However, “the Equal 

Protection Clause does not demand for purposes of rational-basis review that 

a legislature or governing decisionmaker actually articulate at any time the 

purpose or rationale supporting its classification.” Id. at 15. Instead, the court’s 

review merely requires “that a purpose may conceivably or ‘may reasonably 

have been the purpose and policy’ of the relevant governmental 

decisionmaker.” Id. (quoting Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 

528–529 (1959)). “As long as there is a conceivable rational basis for the official 

action, it is immaterial that it was not the or a primary factor in reaching a 

decision or that it was not actually relied upon by the decisionmakers or that 

some other nonsuspect irrational factors may have been considered.” Reid v. 

Rolling Fork Pub. Util. Dist., 854 F.2d 751, 754 (5th Cir. 1988). The burden is 

on the challenging party to counter “any reasonably conceivable state of facts 

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that could provide a rational basis for the classification.” Heller, 509 U.S. at 

320 (quoting F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)).

“[C]lassifications serving to protect legitimate expectation and reliance 

interests do not deny equal protection of the laws.” Nordlinger, 505 U.S. at 13. 

Indeed, “[t]he protection of reasonable reliance interests is not only a 

legitimate governmental objective: it provides ‘an exceedingly persuasive 

justification[.]’” Heckler v. Mathews, 465 U.S. 728, 746 (1984) (quoting 

Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981)). Here, the affirmative defense

provided by the Ordinance—and the classification it creates—is rationally 

related to a legitimate government interest in deferring to an existing state 

court judgment and protecting the expectation and reliance interests of those 

who have already sought and received a judicial determination that they are 

entitled to relief from geographic restrictions.

Further, the fact that some individuals are eligible for an exemption 

while others are not is not necessarily fatal under rational basis review. 

“[L]egitimate public policies [may] justify the incidental disadvantages [laws]

impose on certain persons.” Romer v. Evans, 517 U.S. 620, 635 (1996). “Like all 

rational actors with limited resources, [a government actor] must reach its 

abstract goal . . . by a series of practical requirements and easily-administered 

rules judged to be reasonable surrogates for it.” Brennan v. Stewart, 834 F.2d 

1248, 1259 (5th Cir. 1988). As the Supreme Court has explained, “the fact that 

. . . exemptions exist . . . does not render [a law] violative of equal protection” 

if there are “valid reasons for [the] exemptions . . . and no evidence to dispel 

them.” McGowan v. Maryland, 366 U.S. 420, 427 (1961).

Because the Ordinance’s challenged classification “rationally further[s] 

a legitimate state interest[,]” Nordlinger, 505 U.S. at 10, we conclude that it

does not violate the Equal Protection Clause.

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V.

For the foregoing reasons, we AFFIRM the district court’s judgment.

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