Case 1:18-cv Document 2 Filed 06/18/18 Page 1 of 22 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

Transcription

1 Case 1:18-cv Document 2 Filed 06/18/18 Page 1 of 22 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION JACK DARRELL HEARN; DONNIE LEE MILLER; and, JAMES WARWICK JONES Plaintiffs V. CAUSE NO. 1:18-cv VINCENT CASTILLEJA, in his Official Capacity as Manager of the Texas Department of Public Safety-Sex Offender Registration Bureau; and, STEVEN McCRAW, in his Official Capacity as Director of the Texas Department of Public Safety; and, Defendants PLAINTIFFS ORIGINAL COMPLAINT COME NOW Plaintiffs Jack Darrell Hearn ( Plaintiff Hearn ), Donnie Lee Miller ( Plaintiff Miller ) and James Warwick Jones ( Plaintiff Jones ), and, pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution; Title 28 U.S.C. Sections 1343 (a)(4); and Title 42 U.S.C. Section 1983 and 1988; files this Original Complaint, and in this connection would show unto the Court as follows: I. JURISDICTION The Plaintiffs Original Complaint raises questions arising under the United States Constitution and federal law, and this Court has federal question jurisdiction pursuant 1

2 Case 1:18-cv Document 2 Filed 06/18/18 Page 2 of 22 to Title 28, U.S.C. Section Further, the Plaintiffs Original Complaint includes claims that seek equitable declaratory and injunctive relief against the Defendants over which this Court has jurisdiction under Title 28, U.S.C. Sections 1343(a) and II. PARTIES (A) Plaintiff Hearn is a resident of the City of Boerne, Kendall County, Texas. Plaintiff Hearn is not subject to any form of institutional supervision by any State or Federal authority. (B) Plaintiff Miller is a resident of the City of Canyon Lake, Comal County, Texas. Plaintiff Miller is not subject to any form of institutional supervision by any State or Federal authority. (C) Plaintiff Jones is a resident of the City of Fort Worth, Tarrant County, Texas. Plaintiff Jones is not subject to any form of institutional supervision by any State or Federal authority. (D) Defendant Vincent Castilleja ( Castilleja ) is employed by the Texas Department of Public Safety in the capacity of Manager of the Sex Offender Registration Bureau of the Texas Department of Public Safety at Austin, Texas. In his official capacity Defendant Castilleja is personally responsible for supervising, training and, if necessary, disciplining registrars in the Sex Offender Registration Bureau. 2

3 Case 1:18-cv Document 2 Filed 06/18/18 Page 3 of 22 Defendant Castilleja may be personally served with citation and service of process in this suit at his place of employment, to wit: 5805 North Lamar Boulevard, Building G, Austin, Texas Defendant Castilleja is being sued solely in his Official Capacity as an Agent of the State of Texas, for acts or omissions that have been (or may be) taken by him against Plaintiffs under color of law. The relief sought by Plaintiffs against Defendant Castilleja is confined to equitable declaratory and prospective injunctive relief. (E) Defendant Steven McCraw ( McCraw ) is the Director of the Texas Department of Public Safety. In his official capacity, Defendant McCraw is personally responsible for supervising, training and, if necessary, disciplining both the manager and the registrars in Sex Offender Registration Bureau. Defendant McCraw may be personally served with citation and service of process in this suit at his place of employment, to wit: 5805 North Lamar Boulevard in Austin, Texas Defendant McCraw is being sued solely in his Official Capacity as an Agent of the State of Texas, for acts or omissions that have been (or may be) taken by him under color of law. The relief sought by Plaintiffs against Defendant McCraw is confined to prospective equitable relief. III. FACTS (A) PLAINTIFF HEARN 3

4 Case 1:18-cv Document 2 Filed 06/18/18 Page 4 of On December 10, 1992, Plaintiff Hearn was indicted by a Grand Jury in Tarrant County, Texas, for the second degree felony offense of sexual assault in violation of Section of the Texas Penal Code, allegedly committed on July 24, On August 12, 1993, Plaintiff Hearn entered into a negotiated plea agreement with the State of Texas, by and through an Assistant Tarrant County District Attorney, appearing on its behalf. The plea agreement between Plaintiff Hearn and the State of Texas ( the State ) provided that in exchange for Plaintiff Hearn s entry of a plea of guilty and waiver of his right to trial and other important federal constitutional rights, the State would recommend to the State District Court that Plaintiff Hearn be placed on deferred adjudication community supervision for a period of five (5) years. The 372 nd Judicial District Court of Tarrant County, Texas ( the State District Court ), approved the plea agreement as recommended by the State and, by order entered the same day, August 12, 1993, placed Plaintiff Hearn on deferred adjudication community supervision for a term of five (5) years. 2. On August 21, 1998, the State District Court entered an order which discharged Plaintiff Hearn from community supervision based upon its finding that Plaintiff Hearn had satisfactorily fulfilled all conditions of his community supervision. The District Court s order was entered in accordance with the terms of the negotiated plea between the State and Plaintiff Hearn of August 12, Furthermore, the effect of this order by the District Court, as required by then-applicable Texas statutory law, resulted in the case against Plaintiff Hearn being dismissed and, subject to exceptions not relevant to the 4

5 Case 1:18-cv Document 2 Filed 06/18/18 Page 5 of 22 present case, Plaintiff Hearn being discharged from all disqualifications and disabilities imposed by law for conviction of an offense. See, Act of May 29, 1989, 71 st Leg., R.S., ch. 785, 4.17, 1989 Tex. Gen. Laws 3471, 3501 (1989)(former Article 42.12, 5(c), Texas Code of Criminal Procedure). 3. At the time Plaintiff Hearn s plea was negotiated with the State (on August 12, 1993), Texas statutory law provided that Plaintiff Hearn s duty to register as a sex offender with State authorities would expire on the date the State District Court discharged Plaintiff Hearn s community supervision and dismissed the criminal offense against him. See, Act of May 25, 1991, 72 nd Leg., R.S., ch. 572, 1, 1991 Tex. Gen. Laws 2029, 2030 (1991). Since the State District Court s discharge of Plaintiff Hearn s from community supervision and its dismissal of the criminal charge against Plaintiff Hearn on August 21, 1998, Plaintiff Hearn has not been accused, convicted, or placed on community supervision for any sexual offense defined by the laws of Texas, the laws of any other State, or the laws of the United States. 4. Current Texas statutory law requires Defendants Castilleja and McGraw, in their official capacities, to maintain a computerized central database ( database ) which is readily accessible online to the public-at-large. The database identifies persons required to register as registered sex offenders and contains extensive personal information of such persons. See, Section , Texas Code of Criminal Procedure. Current Texas statutory law also requires that, upon expiration of a person s duty to register as a sex offender, Defendants Castilleja and McGraw shall automatically remove from the 5

6 Case 1:18-cv Document 2 Filed 06/18/18 Page 6 of 22 registry and the database the names and identifying information of persons whose duty to register has expired. See, Section , Texas Code of Criminal Procedure. 5. On August 12, 1993, when Plaintiff Hearn accepted the plea bargain offer made by the State, and agreed to enter his plea of guilty and waive his constitutional right to trial among other important federal constitutional rights, he reasonably relied upon the fact that under the terms of his negotiated plea, and then-existent Texas statutory law, his duty to register as a sex offender would expire on the date he was successfully discharged from community supervision. Had registration for life been a term of agreement of the plea bargain agreement, Plaintiff Hearn would not have waived his constitutional right to trial and other important federal constitutional rights by entering into the plea agreement with the State of Texas. 6. In 1997 the Texas Legislature amended prior Texas statutory law to alter the expiration of Plaintiff Hearn s duty to register as a sex offender. At that time the Texas Legislature amended existing law to provide that the duty to register for persons, including Plaintiff Hearn, who had been placed on deferred adjudicated community supervision for their alleged commission of a sexually violent offense (defined to include Plaintiff Hearn s alleged offense of sexual assault ) would expire when the person dies. See, Act of June 1, 1997, 75 th Leg., R.S., ch. 668, 1, 1997 Tex. Gen. Laws 2253, 2261 (1997). Current Texas statutory law continues to require Plaintiff Hearn to register for life. See, Section (a)(1), Texas Code of Criminal Procedure. 6

7 Case 1:18-cv Document 2 Filed 06/18/18 Page 7 of Since 1998, Plaintiff Hearn has exhaustively attempted to persuade Defendants Castilleja and McCraw, and their official predecessors, to comply with the terms of his negotiated plea agreement of August 12, 1993, specifically with regard to the length of Plaintiff Hearn s duty to register and with regard to Defendants public disclosure of Plaintiff Hearn s identifying information of the public database. These efforts have all proved unsuccessful. 8. The Plaintiff Hearn currently remains subject to conviction for a felony offense under Texas law should he fail to register as a sex offender, notwithstanding the fact that his duty to register expired on August 21, 1998, under the terms of his negotiated plea bargain entered on August 12, Furthermore, Defendants have repeatedly refused to remove, and persist in their refusal to remove, information relating to Plaintiff Hearn from the State s publicly accessible online database, notwithstanding the fact that Plaintiff Hearn s duty to register expired on August 21, 1998, under the terms of his negotiated plea bargain entered on August 12, (B) PLAINTIFF MILLER 1. On November 12, 1993, Plaintiff Miller was indicted by a Grand Jury in Travis County, Texas, for the second degree felony offense of sexual assault in violation of Section of the Texas Penal Code, allegedly committed on March 16, After a trial by jury which resulted in a mistrial based on the jury s inability to reach a 7

8 Case 1:18-cv Document 2 Filed 06/18/18 Page 8 of 22 unanimous verdict on guilt; on April 24, 1995, Plaintiff Miller entered into a negotiated plea agreement with the State of Texas, by and through an Assistant Travis County District Attorney, appearing on its behalf. The plea agreement between Plaintiff Miller and the State of Texas ( the State ) provided that in exchange for Plaintiff Miller s entry of a plea of guilty and waiver of his right to trial and other important federal constitutional rights, the State would recommend to the State District Court that Plaintiff Miller be placed on deferred adjudication community supervision for a period of ten (10) years. The 299 th Judicial District Court of Travis County, Texas ( the State District Court ), approved the plea agreement as recommended by the State and, by order entered the same day, on April 24, 1995, placed Plaintiff Miller on deferred adjudication community supervision for a term of ten (10) years. 2. Approximately nine (9) years after Plaintiff Miller was placed on deferred adjudication community supervision April 24, 1995, the State District Court on April 21, 2004, entered an order which discharged Plaintiff Miller from community supervision early based upon its finding that Plaintiff Miller had satisfactorily fulfilled all conditions of his community supervision. Other than the early termination of community supervision, the District Court s order was entered in accordance with the terms of the negotiated plea between the State and Plaintiff Miller of April 24, Furthermore, the effect of this order by the District Court, as required by then-applicable Texas statutory law, resulted in the case against Plaintiff Miller being dismissed and, subject to exceptions not relevant to the present case, Plaintiff Miller being discharged from all disqualifications and disabilities imposed by law for conviction of an offense. See, Act 8

9 Case 1:18-cv Document 2 Filed 06/18/18 Page 9 of 22 of May 29, 1989, 71 st Leg., R.S., ch. 785, 4.17, 1989 Tex. Gen. Laws 3471, 3501 (1989)(former Article 42.12, 5(c), Texas Code of Criminal Procedure). 3. At the time Plaintiff Miller s plea was negotiated with the State (on April 24, 1995), Texas statutory law provided that Plaintiff Miller s duty to register as a sex offender with State authorities would expire on the date the State District Court discharged Plaintiff Miller s community supervision and dismissed the criminal offense against him. See, Act of May 30, 1993, 73 rd Leg., R.S., ch. 866, 4, 1993 Tex. Gen. Laws 3420, 3421 (1993). Since the State District Court s discharge of Plaintiff Miller s from community supervision and its dismissal of the criminal charge against Plaintiff Miller on April 21, 2004, Plaintiff Miller has not been accused, convicted, or placed on community supervision for any sexual offense defined by the laws of Texas, the laws of any other State, or the laws of the United States. 4. Current Texas statutory law requires Defendants Castilleja and McGraw, in their official capacities, to maintain a computerized central database ( database ) which is readily accessible online to the public-at-large. The database identifies persons required to register as registered sex offenders and contains extensive personal information of such persons. See, Section , Texas Code of Criminal Procedure. Current Texas statutory law also requires that, upon expiration of a person s duty to register as a sex offender, Defendants Castilleja and McGraw shall automatically remove from the registry and the database the names and identifying information of persons whose duty to register has expired. See, Section , Texas Code of Criminal Procedure. 9

10 Case 1:18-cv Document 2 Filed 06/18/18 Page 10 of On April 24, 1995, when Plaintiff Miller accepted the plea bargain offer made by the State, and agreed to enter his plea of guilty and waive his constitutional right to trial among other important federal constitutional rights, he reasonably relied upon the fact that under the terms of his negotiated plea, and then-existent Texas statutory law, his duty to register as a sex offender would expire on the date he was successfully discharged from community supervision. Had registration for life been a term of agreement of the plea bargain agreement, Plaintiff Miller would not have waived his constitutional right to trial and other important federal constitutional rights by entering into the plea agreement with the State of Texas. 6. In 1997 the Texas Legislature amended prior Texas statutory law to alter the expiration of Plaintiff Miller s duty to register as a sex offender. At that time the Texas Legislature amended existing law to provide that the duty to register for persons, including Plaintiff Miller, who had been placed on deferred adjudicated community supervision for their alleged commission of a sexually violent offense (defined to include Plaintiff Miller s alleged offense of sexual assault ) would expire when the person dies. See, Act of June 1, 1997, 75 th Leg., R.S., ch. 668, 1, 1997 Tex. Gen. Laws 2253, 2261 (1997). Current Texas statutory law continues to require Plaintiff Jones to register for life. See, Section (a)(1), Texas Code of Criminal Procedure. 7. Since 2004, Plaintiff Miller has exhaustively attempted to persuade Defendants Castilleja and McCraw, and their official predecessors, to comply with the terms of his 10

11 Case 1:18-cv Document 2 Filed 06/18/18 Page 11 of 22 negotiated plea agreement of April 24, 1995, specifically with regard to the length of Plaintiff Miller s duty to register and with regard to Defendants public disclosure of Plaintiff Miller s identifying information of the public database. These efforts have all proved unsuccessful. 8. The Plaintiff Miller currently remains subject to conviction for a felony offense under Texas law should he fail to register as a sex offender, notwithstanding the fact that his duty to register expired on April 21, 2004, under the terms of his negotiated plea bargain entered on April 24, Furthermore, Defendants have repeatedly refused to remove, and persist in their refusal to remove, information relating to Plaintiff Miller from the State s publicly accessible online database, notwithstanding the fact that Plaintiff Miller s duty to register expired on April 21, 2004, under the terms of his negotiated plea bargain entered on April 24, (C) PLAINTIFF JONES 1. On January 24, 1994, Plaintiff Jones was indicted by a Grand Jury in Tarrant County, Texas, for the second degree felony offense of sexual assault in violation of Section of the Texas Penal Code, allegedly committed on August 27, On May 2, 1994, Plaintiff Jones entered into a negotiated plea agreement with the State of Texas, by and through an Assistant Tarrant County District Attorney, appearing on its behalf. The plea agreement between Plaintiff Jones and the State of Texas ( the State ) provided that in exchange for Plaintiff Jones s entry of a plea of no contest and waiver 11

12 Case 1:18-cv Document 2 Filed 06/18/18 Page 12 of 22 of his right to trial and other important federal constitutional rights, the State would recommend to the State District Court that Plaintiff Jones be placed on deferred adjudication community supervision for a period of ten (10) years. The 371 st Judicial District Court of Tarrant County, Texas ( the State District Court ), approved the plea agreement as recommended by the State and, by order entered the same day, May 2, 1994, placed Plaintiff Jones on deferred adjudication community supervision for a term of ten (10) years. 2. On May 3, 2004, the State District Court entered an order which discharged Plaintiff Jones from community supervision based upon its finding that Plaintiff Jones had satisfactorily fulfilled all conditions of his community supervision. The District Court s order was entered in accordance with the terms of the negotiated plea between the State and Plaintiff Jones of May 2, Furthermore, as required by thenapplicable Texas statutory law, the State District Court ordered the case against Plaintiff Jones be dismissed and ordered that, subject to exceptions not relevant to the present case, Plaintiff Jones be released from all disqualifications and disabilities imposed by law for conviction of an offense. See, Act of May 29, 1989, 71 st Leg., R.S., ch. 785, 4.17, 1989 Tex. Gen. Laws 3471, 3501 (1989)(former Article 42.12, 5(c), Texas Code of Criminal Procedure). Another paper in the case, a NOTICE OF SEX OFFENDER REGISTRATION REQUIREMENT signed by the State District Court contemporaneously with its order placing Plaintiff Jones on deferred adjudication community supervision, assured Plaintiff Jones that: 12

13 Case 1:18-cv Document 2 Filed 06/18/18 Page 13 of 22 Your duty to register ends on the day your probation is discharged or if you have received an order of Deferred Adjudication for the offense your duty to register ends on the date the court dismisses the criminal proceeding against you and discharges you. 3. At the time Plaintiff Jones s plea was negotiated with the State (on May 2, 1994), Texas statutory law provided that Plaintiff Jones s duty to register as a sex offender with State authorities would expire on the date the State District Court discharged Plaintiff Jones s community supervision and dismissed the criminal offense against him. See, Act of May 30, 1993, 73 rd Leg., R.S., ch. 866, 4, 1993 Tex. Gen. Laws 3420, 3421 (1993). Since the State District Court s discharge of Plaintiff Jones from community supervision and its dismissal of the criminal charge against Plaintiff Jones on May 3, 2004, Plaintiff Jones s has not been accused, convicted, or placed on community supervision for any sexual offense defined by the laws of Texas, the laws of any other State, or the laws of the United States. 4. Current Texas statutory law requires Defendants Castilleja and McGraw, in their official capacities, to maintain a computerized central database ( database ) which is readily accessible online to the public-at-large. The database identifies persons required to register as registered sex offenders and contains extensive personal information of such persons. See, Section , Texas Code of Criminal Procedure. Current Texas statutory law also requires that, upon expiration of a person s duty to register as a sex offender, Defendants Castilleja and McGraw shall automatically remove from the registry and the database the names and identifying information of persons whose duty to register has expired. See, Section , Texas Code of Criminal Procedure. The 13

14 Case 1:18-cv Document 2 Filed 06/18/18 Page 14 of 22 Defendants do not have legal authority to enter or maintain on the database the names and identifying information of persons who do not have a duty to register. 5. On May 2, 1994, when Plaintiff Jones accepted the plea bargain offer made by the State, and agreed to enter his plea of no contest and waive his constitutional right to trial among other important federal constitutional rights, he reasonably relied upon the fact that under the terms of his negotiated plea, and then-existent Texas statutory law, his duty to register as a sex offender would expire on the date he was successfully discharged from community supervision. Had registration for life been a term of agreement of the plea bargain agreement, Plaintiff Jones would not have waived his constitutional right to trial and other important federal constitutional rights by entering into the plea agreement with the State of Texas. 6. In 1997 the Texas Legislature amended prior Texas statutory law to alter the expiration of Plaintiff Jones s duty to register as a sex offender. At that time the Texas Legislature amended existing law to provide that the duty to register for persons, including Plaintiff Jones, who had been placed on deferred adjudicated community supervision for their alleged commission of a sexually violent offense (defined to include Plaintiff Jones s alleged offense of sexual assault ) would expire when the person dies. See, Act of June 1, 1997, 75 th Leg., R.S., ch. 668, 1, 1997 Tex. Gen. Laws 2253, 2261 (1997). Current Texas statutory law continues to require Plaintiff Jones to register for life. See, Section (a)(1), Texas Code of Criminal Procedure. 14

15 Case 1:18-cv Document 2 Filed 06/18/18 Page 15 of Since 2014, Plaintiff Jones has exhaustively attempted to persuade Defendants Castilleja and McCraw to comply with the terms of his negotiated plea agreement of May 2, 1994, specifically with regard to the length of Plaintiff Jones s duty to register and with regard to Defendants public disclosure of Plaintiff Jones s identifying information of the public database. These efforts have all proved unsuccessful. For example, on February 17, 2014, Plaintiff Jones corresponded directly with Defendant Castilleja by and demanded, for reasons set out in detail, that Defendant Castilleja immediately remove him from the registry and from the publicly accessible database maintained by the Texas Department of Public Safety. In his response dated February 18, 2014, Defendant Castilleja replied to Plaintiff Jones by and stated as follows: The Sex Offender Registration Bureau is in receipt of your regarding the request for removal from the Texas Sex Offender Registry. You have provided our office with a copy of the Order Discharging Defendant from Community Supervision. Your inquiry was forwarded to our Legal staff for review. We have determined that the attached order does not affect your reportable conviction and therefore have [sic] a continuing duty to register. Your registration record will remain in the registry until you duty [sic] to register has expired or other relief from registration is granted pursuant to statute. 8. Plaintiff Jones currently remains subject to conviction for a felony offense under Texas law should he fail to register as a sex offender, notwithstanding the fact that Plaintiff Jones s duty to register expired on May 3, 2004, under the terms of his negotiated plea bargain entered on May 2, Furthermore, Defendants have repeatedly refused to remove, and persist in their refusal to remove, information relating 15

16 Case 1:18-cv Document 2 Filed 06/18/18 Page 16 of 22 to Plaintiff Jones from the State s publicly accessible online database, notwithstanding the fact that Plaintiff Jones s duty to register expired on May 3, 2004, under the terms of his negotiated plea bargain entered on May 2, IV. LEGAL CLAIMS OF PLAINTIFFS HEARD, MILLER AND JONES (A) The Plaintiffs were all induced to enter their pleas of guilty or no contest, and were induced to waive their rights to trial and other important federal constitutional rights, by the plea bargain which the State prosecutors offered them and by then-existing Texas statutory law which limited their respective duties to register to the length of their community supervision. Under these circumstances the State s subsequent breach of its part of the negotiated plea bargain agreements with Plaintiffs, through the acts and omissions of Defendants Castilleja and McCraw, violated (and without the Court s intervention will continue to violate) Plaintiffs federally protected constitutional right to substantive due process under the Fourteenth Amendment. See, Santobello v. New York, 404 U.S. 257, 262 (1971)( [W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. ); accord, Commonwealth of Pennsylvania v. Martinez, 147 A.3d 517, 527 (Pa. 2016)(applying Santobello, supra, to invalidate registration requirement); see also, People v. Temelkoski, 905 N.W.2d 593, 593 (Mich. 2018)(applying Santobello, supra, to invalidate registration requirement where statute offered [criminal defendant] potential benefits for pleading guilty that he could not otherwise have obtained had he exercised his constitutional right to a trial. ). 16

17 Case 1:18-cv Document 2 Filed 06/18/18 Page 17 of 22 (B) At the time Plaintiffs entered into their respective plea agreements with the State of Texas, Texas statutory law did not permit them to receive deferred adjudication community supervision from a jury; rather, at that time deferred adjudication community supervisions was available to Plaintiffs only if granted by the Trial Judge in their respective cases. See, Act of May 29, 1989, 71 st Leg., R.S., ch. 785, 4.17, 1989 Tex. Gen. Laws 3471, 3500 (1989)(former Article 42.12, 5(a), Texas Code of Criminal Procedure)( The court may defer further proceedings without a finding of guilt )(italics added). Furthermore, at the time Plaintiffs entered into their respective plea agreements with the State of Texas, Texas statutory law permitted Trial Judges to grant deferred adjudication community supervision to Plaintiffs only if the State expressly consented to Plaintiffs waiver of their right to trial by jury. See, Act of May 27, 1991, 72 nd Leg., R.S. ch. 652, 1 (eff. Sept. 1, 1991); 1991 Tex. Gen. Laws 2394 (1991)(former Article 1.13(a), Texas Code of Criminal Procedure). Thus, by accepting the plea bargain agreements offered by the State that included deferred adjudication community supervision, each of the Plaintiffs, respectively, acquired potential benefits for pleading guilty or no contest that they could not otherwise have obtained without the State s consent or agreement. (C) Settled Texas decisional law applies contract principles to negotiated plea bargain agreements involving community supervision. Speth v. State, 6 S.W.3d 530, 534 (Tex.Crim.A. 1999)( An award of community supervision is not a right, but a contractual privilege, and conditions thereof are terms of the contract entered into between the trial 17

18 Case 1:18-cv Document 2 Filed 06/18/18 Page 18 of 22 court and the defendant. ). Furthermore, Texas decisional law provides that statutory laws which subsist at the time and place of the making of a contract form a part of it, as if they were expressly referred to or incorporated in the terms of the contract. City of Houston v. Williams, 353 S.W.3d 128, 141 (Tex. 2011), quoting Von Hoffman v. City of Quincy, 71 U.S. 535, 550 (1867). (D) The acts and omissions of Defendants, about which Plaintiffs complain herein, cannot be excused under any principle in contract law. Neither the registration requirement, nor disclosure of Plaintiffs identifying information on the publicly accessible centralized database, can be justified by Defendants on the ground that Plaintiffs (or others similarly situated) presently pose (since the plea agreement), or have ever posed (before the plea agreement), a threat to the community by reason of a lack of sexual control. The Plaintiffs relative propensity to engage in unlawful sexual activity is irrelevant to the statutory scheme that requires registration. Ex Parte Robinson, 116 S.W.3d 794, 796 (Tex.Crim.App. 2003)( The Texas statute, like the Connecticut one, requires registration of all sex offenders, dangerous or not. ). Rather, Defendants ostensible justification for the registration requirement, and their maintenance of the publicly accessible database which discloses Plaintiffs identifying information, arises solely on the fact of the prior guilty pleas entered Plaintiffs Hearn and Miller, and on the prior no contest plea entered by Plaintiff Jones, pursuant to their plea respective plea bargain agreements with the State. (E) The consequences of the State s breach of a contract, or in this case the terms of its plea agreements with Plaintiffs, need not be punitive in order to constitute a material 18

19 Case 1:18-cv Document 2 Filed 06/18/18 Page 19 of 22 breach that requires remediation under the Due Process Clause. Lest there be any confusion, Plaintiffs have not alleged, and do not assert in this complaint, that Defendants acts or omissions violate the Ex Post Facto Clause of the U.S. Constitution. (F) The Defendants deprivation of the benefits secured by Plaintiffs under their respective plea bargain agreements cannot be deemed reasonable under any reserved powers that might otherwise permit the State of Texas to breach its contractual obligations for an important public purpose. The effects of Texas statutory law which in 1991 exempted Plaintiffs from a registration requirement (beyond the duration of their terms of community supervision) were neither unforeseen nor unintended by the Texas Legislature when it expressly authorized precisely such plea agreements by statute in Moreover, there was no substantial or relevant change in circumstances between the time Plaintiffs entered their pleas under their negotiated agreements (between August 12, 1992 and April 24, 1995), and the time the Texas Legislature subsequently amended Texas statutory law in 1997 to once again require Plaintiffs to register (by the Act of June 1, 1997, 75 th Leg., R.S., ch. 668, 1, 1997 Tex. Gen. Laws 2253, 2261 (1997). (G) Nor was Defendants deprivation of the benefits secured to Plaintiffs under their respective plea bargain agreements necessary under any reserved powers that might otherwise permit the State of Texas to breach its contractual obligations for an important public purpose. Because Plaintiffs relative propensity to engage in unlawful sexual activity has always been irrelevant to Texas statutory scheme that requires 19

20 Case 1:18-cv Document 2 Filed 06/18/18 Page 20 of 22 registration, there is no discernible important public purpose assignable to any claim of legal necessity. Thus, in the present case the State of Texas cannot meet its binary constitutional burden to establish that its breach of Plaintiffs negotiated plea agreements was both reasonable and necessary. Cf., United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 29 (1977)( We can only sustain the repeal of the 1962 convenant if that impairment was both reasonable and necessary to serve the admittedly important public purposes claimed by the State. )(applying Contract Clause of Article I, 10 cl. 1, of the U.S. Constitution to State s claim of reserved powers). (H) In addition to the contractual nature of Plaintiffs plea bargains, Plaintiffs claims which allege they have been deprived of their constitutional rights under the Substantive Due Process Clause of the Fourteenth Amendment are reinforced by principles of equitable estoppel. When proffering the plea bargain agreements that were accepted by Plaintiffs, the State of Texas, through its prosecutors and then-existing statutory law, made a material representation (i.e., that Plaintiffs duty to register would end upon their successful discharge from community supervision) which was contrary to its laterasserted position. The Plaintiffs reasonably relied on that material representation; and the subsequent change in the State s position (i.e., its subsequent statutory mandate that Plaintiffs register for life) constitutes a harsh, oppressive, substantial and material change that is detrimental to the benefits acquired by Plaintiffs in their respective plea bargain agreements. 20

21 Case 1:18-cv Document 2 Filed 06/18/18 Page 21 of 22 V. RELIEF REQUESTED As relief, Plaintiffs respectfully pray the Court will: 1) Direct the Clerk to issue and provide to Plaintiffs counsel summonses which notify Defendant Castilleja and Defendant McCraw to appear and answer this complaint in accordance with Rule 4(b) of the Federal Rules of Civil Procedure; 2) After trial on the merits, if necessary, issue a Declaratory Judgment (under 28 U.S.C. 2201) which rules the State s breach of the negotiated plea bargain agreement it entered into with Plaintiffs, which resulted from the acts and omissions of Defendants Castilleja and McCraw, violated Plaintiffs federally protected constitutional right to substantive due process under the Fourteenth Amendment to the United States Constitution; 3) Grant Plaintiffs specific performance under the terms of their plea bargain agreements with the State of Texas, by issuing a permanent injunction (under 28 U.S.C. 1343) which prohibits the State of Texas, Defendants Castilleja and McCraw, their agents, successors, assigns, or anyone acting in concert with them under color of law, from requiring Plaintiffs to register under Chapter 62 of the Texas Code of Criminal Procedure; 4) Grant Plaintiffs a permanent, mandatory injunction (under 28 U.S.C. 1343) which compels the State of Texas, Defendants Castilleja and McCraw, their agents, successors, assigns, or anyone acting in concert with them under color of law, to remove Plaintiffs names and other identifying information from the publicly 21

22 Case 1:18-cv Document 2 Filed 06/18/18 Page 22 of 22 accessible database maintained by Defendants under authority conferred to them by Section , Texas Code of Criminal Procedure; 8) Award Plaintiffs reasonable costs and reasonable attorney s fees (under 42 U.S.C. 1988), against the State of Texas, Defendants Castilleja and McCraw, which are shown to have been reasonably and necessarily incurred by Plaintiffs in prosecuting this matter; and, 9) Award Plaintiffs any other relief to which they may be shown entitled. Respectfully submitted, /s/ Richard Gladden Texas Bar No West University Dr., Suite 100 Denton, Texas / (voice) 940/ (facsimile) richscot1@hotmail.com ( ) Attorney-in-Charge for Plaintiffs 22