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Thu July 2, 2009
John Doe 7 vs. City of Commerce, Part 4:<BR><i>Original ordinance and revised ordinance</i>
By Scott Harvey
Commerce – In part four of our series on John Doe 7 vs. City of Commerce, KETR will explore the original sex offender ordinance passed by the city and the proposed revision.
In late 2007, the city was approached by Police Chief Kerry Crews, who recommended such an ordinance be put in place. According to Mayor Pro Tem Billie Biggerstaff, several Texas cities were putting restrictions in place to help control their sex offender population.
Councilman Richard Hill says sex offenders will seek out areas that have the fewest restrictions.
"These sex offenders will always go to where it's the easiest for them," says Hill.
Mayor Quay Throgmorton agrees.
"You need to have a sex offender ordinance for your community," says Throgmorton. "If you don't, these other communities that enacted them [sex offender ordinance], these sex offenders are going to flock to your community."
It is understood that City Attorney Jim McLeroy collected data from other city ordinances to help create the one for Commerce. KETR has still been unable to reach McLeroy for comment.
The City of Commerce currently lists 10 registered sex offenders on its website, www.commerce-tx.com.
Since no action was taken on a settlement agreement at a June 2 meeting, the council did not address the revised ordinance.
When comparing the two documents, three main restrictions/items are removed from the revision, while some definitions have been either dropped or described in greater detail.
(1)Removed: The term college. The revised ordinance reads: "It shall be unlawful for a sex offender to intentionally, knowingly, recklessly or with criminal negligence, establish a residence within 1,000 feet of the real property comprising a school, daycare facility, park or playground." Note: College not listed.
(2)Removed: "It shall be unlawful for a child sex offender to knowingly loiter on a public way within 300 feet of a college, school, daycare facility, city park or playground."
The definition of public way is kept out of the revised ordinance as well. In the original, it reads: "Public way means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, common areas of schools, shopping centers, parking lots, parks, playgrounds, transportation facilities, theatres, restaurants, shops, bowling alleys, taverns, cafes, arcades, and similar areas that are open to the use of the public."
(3)Removed: Four of the five total definitions of a sex offender.
"Sex offender means:
(i) A person who pursuant Vernon's Ann. C.C.P. art. 42.12, 9A(a)(2), has been convicted or has entered a plea of guilty or nolo contendere for an offense under any one of the following provisions of the Texas Penal Code:
(A) V.T.C.A., Penal Code 21.11 (indecency with a child);
(B) V.T.C.A., Penal Code 43.25 (sexual performance by a child);
(C) V.T.C.A., Penal Code 43.26 (possession or promotion of child pornography); and/or
(D) V.T.C.A., Penal Code 22.021 (aggravated sexual assault);
(E) V.T.C.A., Penal Code 22.04 (injury to a child, elderly individual, or disabled individual);
(F) V.T.C.A., Penal Code 22.011 (sexual assault) and/or
(ii) A person who has been convicted or has entered a plea of guilty or nolo contendere for an offense described as a "Reportable conviction or adjudication" pursuant to Vernon's Ann. C.C. P art. 62.01(5); and/or
(iii) A person who has been convicted or has entered a plea of guilty or nolo contendere for an offense under V.T.C. A., Penda Code 43.251 (Employment harmful to children) and/or 43.05(2) (Compelling prostitution); and/or
(iv) A person who has been convicted or has entered a plea of guilty or nolo contendere for an offense under any substantially similar federal law or law of another state, or law of a foreign country, or the Uniform Code of Military Justice, or the attempt to commit a sex offense; and/or
(4)Revised: Language in fifth definition of a sex offender. The word "was" dropped.
(v) A person who has registered as a child sex offender or "was"/is required to register as a child sex offender by any state law, federal law, law of a foreign country, the Uniform Code of Military Justice, or pursuant Vernon's Ann. C.C.P., chapter 62, is required to register as a child sex offender.
According to Councilman Bob Monday, the revised ordinance is significantly different from the original.
"The first one is very repulsive, and in my poor humble opinion wouldn't hold water," says Monday. The second one began to look a little better. In fact as far as I'm concerned would be a legal document."
Mayor Pro Tem Billie Biggerstaff did not speak on the revised ordinance, while Councilman Hill declined comment on the revision, and Councilman Tony Henry declined to speak on any of the lawsuit. Hill referred KETR to City Attorney McLeroy for such a statement regarding the revised ordinance.
Attorney for John Doe 7, David Davis says while he and his client are not completely satisfied, the revised ordinance does accomplish a lot.
"It's not that we do not have an issue with it, but again you have to look at what's the purpose and the purpose was to highlight the overreaching aspect of the original ordinance," says Davis. "There's a point and time where you look at it and you say we've accomplished our primary objectives and this is a far better ordinance that the original."
Again, the revision was not approved, as the council did not agree on a settlement. There is also no ordinance currently being enforced pending outcome of the lawsuit.
There is still a chance to settle the case before the November trial, but so far there has been no indication of another attempt to do so.
The presiding judge in the case is Barbara M.G. Lynn. The case will be tried in the Northern District of Texas in Dallas. The side that loses does have the opportunity to appeal to the 5th District U.S. Court of Appeals in New Orleans.