AMENDED MEMORANDUM OPINION AND ORDER

PAUL STICKNEY, Magistrate Judge

This Amended Memorandum Opinion and Order replaces in its entirety the Memorandum Opinion and Order the Court signed in the above-captioned case on February 23, 2004. This is a consent case before the United States Magistrate Judge. "Defendants Johnson, Collier, Hallman, and White's Motion for Summary Judgment" and Brief in Support, filed September 26, 2003, is before this Court. The Court held a hearing on this motion on January 12, 2004. Having considered the evidence of the parties in connection with the pleadings, the Court hereby GRANTS in part and DENIES in part "Defendants' Motion for Summary Judgment." Specifically, the Court grants Defendants' motion for summary judgment on the issue of qualified immunity, and denies Defendants' motion for summary judgment on Plaintiff's due process claim. I. Background

Plaintiff Miller Branch brings this suit for civil rights violations, pursuant to 42 U.S.C. § 1983. Plaintiff seeks injunctive, declaratory and compensatory relief against Defendants for designating Plaintiff, ipse dixit, a sex offender, and thus requiring Plaintiff to attend and pay for counseling and polygraph examinations, to register as a sex offender, and to have his picture, name and address posted on a public website, despite Plaintiff never being convicted or adjudicated of a sex offense under Texas' Megan's Law, Chapter 62 of the Texas Code of Criminal Procedure ("Chapter 62").

The defendants are Bryan Collier, Parole Division Director; Sharon White, Plaintiff's current Parole Officer; Ed Waggoner, Plaintiff's current sex offender counselor; Vicki Hallman, Regional Director, Region II, Texas Department of Criminal Justice Parole Division; and Gary Johnson, Executive Director of the Texas Department of Criminal Justice.

The material facts in this case are undisputed. Plaintiff was charged with aggravated sexual assault in 1983. However, the jury could not reach a verdict. Three jurors were in favor of convicting Plaintiff, while nine were in favor of acquitting Plaintiff. Plaintiff then pleaded guilty to a lesser offense of aggravated assault. Plaintiff was later released from the Texas Department of Criminal Justice ("TDCJ") on mandatory supervision in February 1997. Plaintiff has never been convicted of any sex crime. Five months later, in July 1997, TDCJ then decided to impose sex offender parole conditions on Plaintiff. Therefore, in addition to the parole conditions placed upon parolees who commit aggravated assault, Plaintiff was forced to attend and pay for sex offender counseling and polygraph examinations, and to register in person with the Texas Department of Public Safety ("DPS") as a sex offender. The counseling has cost, and continues to cost, Plaintiff approximately $20.00 per week, while the polygraph examinations have cost, and continue to cost, Plaintiff approximately $200.00 per year. Furthermore, Plaintiff's name, address, and picture were posted, and continue to be posted, on the DPS website identifying Plaintiff as a sex offender. Moreover, Plaintiff was subsequently imprisoned for three months when he refused to pay for and submit to a polygraph examination twice per year, as required by his sex offender parole conditions. Plaintiff was required to register and therefore subject to public notification without ever being afforded notice or an opportunity to be heard. Defendants, however, claim that they are entitled to subject any parolee to the sex offender registration and public notification requirements without any form of due process. (January 12, 2004 Hearing).

Plaintiff alleges that he has been, and continues to be: 1) denied his liberty and property interests without due process of law; 2) subject to the defamatory classification of "sex offender" without justification or legal cause; and 3) subject to intentional infliction of emotional distress by Defendants. Defendants assert the affirmative defense of qualified immunity. The Court has fully considered the motion, Plaintiff's response thereto, and the entire record, and finds that Defendants' motion for summary judgment should be GRANTED on the issue of qualified immunity, and DENIED on Plaintiff's due process claim. Furthermore, the Court finds that Plaintiff is entitled to summary judgment on his due process claim. However, because there was no clearly established law in the Fifth Circuit holding that Plaintiff's constitutional rights were violated at the time Defendants required Plaintiff to register as a sex offender and published Plaintiff's picture and personal information on a public sex offender database, Plaintiff's remedy in this case is limited to declaratory and injunctive relief.

II. Summary Judgment Standard

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and the record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). An issue of material fact is genuine if the evidence could lead a reasonable jury to find for the non-moving party. Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996 (5th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In determining whether a genuine issue for trial exists, the court must view all of the evidence in the light most favorable to the non-movant. Anderson, 477 U.S. at 248.

The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavit, if any,' which it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting FED. R. CIV. P. 56(c)). If the non-movant bears the burden of proof at trial, the movant need not support the motion with evidence negating the opponent's case; rather, the movant may satisfy its burden by showing that there is an absence of evidence to support the non-movant's case. Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990); Little, 37 F.3d at 1075.

Once the movant makes this showing, the burden shifts to the non-movant to show that summary judgment is not appropriate. Little, 37 F.3d at 1075 (citing Celotex, 477 U.S. at 325). 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. Id. Rather, the non-moving party must come forward with competent summary judgment evidence showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e). However, "courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence." Celotex, 477 U.S. at 326.

III. Analysis

A. 42 U.S.C. § 1983

To obtain relief pursuant to 42 U.S.C. § 1983, a plaintiff must prove two elements: (1) a deprivation of a right secured by the Constitution and laws of the United States, and (2) a deprivation of that right by the defendant acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995). The Court must then determine the appropriate remedy, which hinges on whether or not the defendants are entitled to qualified immunity. See Siegert v. Gilley, 500 U.S. 226, 231 (1991). Here, Plaintiff claims that Defendants have: 1) violated and continue to violate his right to due process; 2) violated and continue to violate the ex post facto, double jeopardy and right to counsel clauses of the United States Constitution; and 3) violated and continue to violate additional state constitutional and tort laws. (P.'s Second Am. Compl.).

B. Texas Sex Offender Registration Program

The Texas Sex Offender Registration Program ("SORP"), originally enacted in 1991, requires "a person who has a reportable conviction or adjudication" of an enumerated sex-related offense, "or who is required to register as a condition of parole, release to mandatory supervision, or community supervision," to register with the local law enforcement authority of any county or municipality where the person resides or intends to reside for more than seven days. See TEX. CRIM. PROC. CODE ANN. § 62.02(a) (Vernon Supp. 2003). If the sex offender moves to a different city or county, that person must register with the local law enforcement authority in which the new residence is located. Id. at § 62.04. Failure to register under the SORP results in either a state jail felony, felony of the third degree, or felony of the second degree, depending on the frequency of registration required. Id. at § 62.10(b). Chapter 62 imposes several duties upon local law enforcement agencies, one of which requires the local law enforcement authorities to obtain certain information from an individual with a reportable conviction or adjudication and forward that information to the DPS for inclusion in its central database. Id. at §§ 62.02(b) and 62.08. The DPS then publishes this information on its Internet website, allowing citizens to access the information by entering a zip code or city. Id. at §§ 62.045(d) and 62.03(f). The information published on the DPS website includes the sex offender's full name, age, gender, race, height, weight, eye color, hair color, and shoe size; the sex offender's recent photograph; the sex offender's current address; a brief description of the sex offender's offense; and the victim's age and gender. Id. at 62.02(b).

Here, it is undisputed that Plaintiff does not have a reportable conviction or adjudication of one of the enumerated sex offenses. However, in July 1997, five months after Plaintiff was released on mandatory supervision, he was required to register as a sex offender and thus have his name, address, and picture posted on the DPS website identifying him as a sex offender. Defendants claim that they are entitled to subject any parolee to the sex offender registration and public notification requirements without any form of due process. Specifically, counsel for Defendants stated:

I think the parole authorities should have the discretion to say `hey . . . even though you're a robber, we're going to make you attend alcohol counseling anyway, even though there is no conviction of any alcohol-related offense,' and I think they should have the discretion to do so, and that should be their job.

January 12, 2004 Hearing.

The Texas Attorney General's response to this issue was similar to that of Defendants' counsel. On October 22, 1999, a Texas State Senator inquired "whether a law enforcement authority may register a parolee who otherwise is not required by statute to register as a sex offender under Chapter 62 and what the liabilities might be, if any, for doing so." Tex. Att'y Gen. Op. No. JC-0129 (1999). The Texas Attorney General responded:

Although a local law enforcement authority is not required to register an individual who does not have a reportable conviction or adjudication, regardless of the parole conditions to which the person has agreed, see Tex. Att'y Gen. Op. No. JC-0010 (1999) at 3, chapter 62 does not preclude it from doing so in the absence of such a requirement. . . . [W]e know of no statute that forbids a local law enforcement authority to register an individual who is not statutorily required to register. Conversely, nothing in the law requires the law enforcement authority to register the individual. See Tex. Att'y Gen. Op. No. JC-0010 (1999) at 3. . . . [A] local law enforcement authority that registers a parolee who need not register faces no liability under chapter 62. Depending upon the facts of a particular situation, we can imagine that other actions might lie against the local law enforcement agency for libel, defamation of character, invasion of privacy, equal protection violations, or similar actions. Given that the parolee registered in spite of the fact that he or she was not required by statute to do so, however, we think the parolee's chance of succeeding in such an action is small absent bad-faith conduct on the law enforcement agency's part.

Tex. Att'y Gen. Op. No. JC-0129 (1999) (emphasis added).

However, this position is without merit. The issue before the Court involves the deprivation of constitutional rights. This is the reason 42 U.S.C. § 1983 was enacted — it serves as the basic vehicle for federal court review of alleged state and local violations of rights created by the Constitution and laws of the United States.

C. Procedural Due Process

The Fourteenth Amendment provides: "No State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. "Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property." Carey v. Piphus, 435 U.S. 247, 259 (1978). "Plaintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme." Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 7 (2003) (holding that the Connecticut sex offender registration statute did not violate the procedural due process rights of individuals already convicted of sexual offenses because the conviction alone was a fact that an offender has already had a procedurally safeguarded opportunity to contest.). In other words, Plaintiffs who assert a right to a hearing must be able to establish that the " substantive rule of law is defective (by conflicting with a provision of the Constitution). . . ." Id. Here, the sole issue before the Court is whether Defendants can subject any parolee to Chapter 62's sex offender registration and public notification requirements without any form of due process. (January 12, 2004 Hearing).

Plaintiff's first claim is that he has been denied both liberty and property without due process of law. Specifically, Plaintiff claims that Defendants' unilateral posting of his picture and the listing of his address and physical characteristics, along with Defendants' requirement that Plaintiff attend sex offender counseling and periodic polygraph examinations, is a violation of his liberty without due process of law. Furthermore, Plaintiff claims that the imposition of sex offender conditions placed upon him has resulted in the constitutional deprivation of his property interests. Plaintiff has been required to submit to, and pay for, involuntary psychological counseling and periodic polygraph examinations. However, merely supervising one on a sex offender caseload does not violate a defendant's due process rights. Rollins v. Lewis, No. 3:99-CV-0098-BF, 2002 U.S. Dist. LEXIS 3246, at *29 (N.D. Tex. Feb. 26, 2002) (holding that an inmate's reputational interests and sex offender classification did not implicate a liberty interest sufficient to trigger due process protections). Therefore, the Court's analysis will consider only the registration and public notification conditions of Plaintiff's mandatory supervision. 1. Liberty or Property Interest

In order to establish a deprivation of a protected liberty or property interest under the Due Process Clause, the Fifth Circuit employs a two-part "stigma plus infringement" test. Connelly v. Comptroller of the Currency, 876 F.2d 1209, 1215 (5th Cir. 1989). It is well established that damage to reputation alone is not a protected liberty interest sufficient to invoke the procedural protections of the Due Process Clause. Paul v. Davis, 424 U.S. 693, 710-12 (1976); Connelly, 876 F.2d at 1215. However, "damage to an individual's reputation as a result of defamatory statements made by a state actor, accompanied by an infringement of some other interest, is actionable under § 1983." State of Texas v. Thompson, 70 F.3d 390, 392 (5th Cir. 1995).

a. Stigma

To meet the stigma prong, the plaintiff must prove that the stigma was caused by concrete, false factual assertions or representations by a state actor of wrongdoing on the part of the claimant. San Jacinto Sav. Loan v. Kacal, 928 F.2d 697, 701 (5th Cir. 1991). A statement of serious wrongdoing must be such that it results in "`a badge of infamy,' public scorn, or the like." Ball v. Bd. of Trustees of Kerrville Indep. Sch. Dist., 584 F.2d 684, 685 (5th Cir. 1978) (quoting Paul v. Davis, 424 U.S. at 705), cert. denied, 440 U.S. 972 (1979).

Here, the parties agree that there exists no genuine issue of material fact as to Defendants' labeling Plaintiff a sex offender on the DPS website despite not having a reportable conviction or adjudication of a sex-related offense. Defendants conclude that "it does not matter to Branch's due-process claim whether he was convicted or not. It is not irrational to treat [Branch] as a sex offender under the undisputed facts of his plea bargain." (D.s' MSJ at 6). This is both a false factual assertion and a representation by a state actor of wrongdoing; being publicly labeled a sex offender despite never being convicted of such according to the applicable statute would certainly result in public scorn. Therefore, the stigma prong is satisfied.

b. Infringement

To satisfy the infringement prong, the plaintiff must prove that "the state sought to remove or significantly alter a life, liberty, or property interest recognized and protected by state law or guaranteed by one of the provisions of the Bill of Rights that has been `incorporated.'" Kacal, 928 F.2d at 701-02. "[Liberty] interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). On the other hand, property interests are limited to legitimate claims of entitlement. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Entitlements stem from state statutes, local ordinances, existing rules, contractual provisions, or "mutually explicit understandings that support [a] claim of entitlement to the benefit and that [one] may invoke at a hearing." Perry v. Sindermann, 408 U.S. 593, 599-601 (1972).

Here, Plaintiff has shown that what he seeks to establish in the hearing — that he is not a sex offender — is relevant under Chapter 62's statutory scheme. Conn. Dep't of Pub. Safety, 538 U.S. at 8. However, unlike the plaintiff in Connecticut Department of Public Safety v. Doe, who was subject to public notification as a "dangerous sexual offender" on the DPS website because he was properly convicted pursuant to Connecticut's Megan's Law, Plaintiff has not been convicted of any type of sexual offense. See id. at 5-6. Furthermore, in addition to the conditions placed upon those who commit aggravated assault, Plaintiff has been and continues to be subjected to the publication of his name, address, picture and physical characteristics on the DPS website.

Although Defendants assert that the registration and public notification parole conditions cannot satisfy the infringement prong, claiming that they have the discretion to impose these sex offender conditions on any person (January 12, 2004 Hearing), this Court concludes otherwise. Requiring one to register as a sex offender and publishing his picture and personal information on a sex offender website in the absence of a "reportable conviction or adjudication" pursuant to Chapter 62 are the type of atypical and significant hardships which are exceedingly more burdensome than the standard conditions placed upon persons convicted of aggravated assault. See Sandin, 515 U.S. at 484. Plaintiff, never convicted or adjudicated of a sex offense as defined in Chapter 62, has a liberty interest in his name and picture not being posted on a public sex offender database.

Here, Plaintiff received no such notice or opportunity to challenge Defendants' unilateral decision that, despite the jury verdict, Plaintiff is a "sex offender," and is therefore subject to the registration and public notification conditions of Chapter 62. Granting Plaintiff a hearing and affording him an opportunity to be heard is not extremely burdensome in light of these particular circumstances. Therefore, because Plaintiff continues to be subjected to these extensive and onerous registration and public notification requirements, he has satisfied the infringement prong, and is thus entitled to due process. Accordingly, Defendants' motion for summary judgment on Plaintiff's due process claim is denied. 2. Defendants' Reliance on Factually Distinct Case Law

Contrary to Defendants' assertions, this case is factually distinguishable from both Rollins v. Lewis and Gunderson v. Hvass. a. Rollins v. Lewis

Plaintiff's case is distinguishable from Rollins for a number of reasons. First, in Rollins, the "defendants provided Plaintiff with adequate process when they allowed Plaintiff to submit written statements." Rollins, 2002 U.S. Dist. LEXIS 3246, at *29. Here, Plaintiff has not been afforded any type of due process. Second, and most importantly, is the fact that Rollins was not required to register as a sex offender. Id. at *16. Rather, he was merely placed on a sex offender treatment caseload. Id. at *17. Therefore, unlike the situation in Rollins, the conditions under which Plaintiff is being supervised are "exceedingly more burdensome than the ordinary conditions of parole." Id. at *29. Here, because Plaintiff was required to register as a sex offender, he was subject to the public notification provision of Article 62.08 of the Texas Code of Criminal Procedure, which required his picture and personal information to be posted on a public DPS website. TEX. CRIM. PROC. CODE ANN. § 62.08 (Vernon Supp. 2003). Moreover, the lack of community notification in Rollins is an issue which this Court specifically noted in its opinion:

[T]he Court notes that community notification is not an issue in this case. The facts do not show that Plaintiff has been labeled publicly as a sex offender or required to register under any sex offender registration law. Plaintiff does not allege that Defendants published or posted Plaintiff's name, address, and photograph with the label "predatory sex offender" attached.

The Texas Attorney General also noted the importance of being posted on a public website in Opinion No. JC-0129 (1999), in which he stated:

An individual's duty to register and a local law enforcement authority's corresponding duty to forward the registration or to publish notice hinge on whether the individual has a "reportable conviction or adjudication". . . . While a local law enforcement agency may register a parolee who is not otherwise required by chapter 62 to register, it is less clear that the registration can be effectuated with the Department of Public Safety. In this regard, we note that article 62.08(a) of the Code of Criminal Procedure permits the Department to "maintain a computerized central database containing only the information required for registration under this chapter." Tex. Code Crim. Proc. Ann. art. 62.08(a) (Vernon Supp. 1999) (emphasis added). Arguably, based upon article 62.08(a), the Department of Public Safety may not enter information into its central database on an individual who does not have a reportable conviction or adjudication.

Tex. Att'y Gen. Op. No. JC-0129 (1999) (emphasis added).

b. Gunderson v. Hvass

Plaintiff's case is also distinguishable from Gunderson for a number of reasons. First, Gunderson was not subject to the publication of his picture and personal information on a public website. Gunderson, 339 F.3d at 644. Rather, "Gunderson's registration [was] considered `private data' under Minnesota's Data Privacy Act, Minn. Stat. § 13.02, subd. 12, and `may be used only for law enforcement purposes.'" Id. Here, however, the information contained in the DPS database of registered sex offenders is expressly declared to be "public information." TEX. CRIM. PROC. CODE ANN. § 62.08(b) (Vernon Supp. 2003). Second, and equally important, is the fact that the applicable statute in Gunderson is completely different from Texas' Chapter 62. The Minnesota statute required registration for even those convicted of non-predatory offenses, such as the third degree assault to which Gunderson pleaded guilty, so long as it "aris[es] out of the same set of circumstances" as a predatory offense. Id. at 642 (citing Minn. Stat. § 243.166, subd. 1(a)(1)). This is a fact on which Defendants' counsel actually relied in support of Defendants' motion for summary judgment.

Here, Chapter 62 says nothing about requiring persons to register who have either a "reportable conviction or adjudication" or who were convicted of a non-predatory offense arising out of the same set of circumstances as a predatory offense. Rather, Chapter 62 expressly states that only those persons with a "reportable conviction or adjudication" of various sex offenses listed in Article 62.01(5)(A)-(M), or those "required to register as a condition of parole, release to mandatory supervision, or community supervision shall register" under the Texas SORP. TEX. CRIM. PROC. CODE ANN. § 62.02(a) (Vernon Supp. 2003). However, the "touchstone of due process is protection of the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558 (1974). Therefore, Defendants' statement that "it does not matter to Branch's due-process claim whether he was convicted or not" (D.s' MSJ at 6) is completely without merit. Although Defendants claim that they may, ipse dixit, subject Plaintiff to mandatory registration and public notification parole conditions, Chapter 62 as written does not empower the defendants with such authority without first affording Plaintiff notice and an opportunity to be heard.

D. State Claims

"Violation of a state statute is not actionable under § 1983." San Jacinto Sav. Loan v. Kacal, 928 F.2d at 701 n. 4. This Court declines to exercise pendent jurisdiction over Plaintiff's remaining state law claims. Therefore, each of Plaintiff's additional state law claims are dismissed without prejudice.

IV. Remedy

Given the Court's conclusion that Plaintiff is entitled to summary judgment on his due process claim, the Court must now determine the remedy to which he is entitled.

A. Qualified Immunity

"Government officials acting within their discretionary authority are immune from civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Evett v. Deep E. Tex. Reg'l Narcotics Trafficking Task Force, 330 F.3d 681, 687 (5th Cir. 2003). The Fifth Circuit's "examination of a claim of qualified immunity is a two-step process." Harper v. Harris County, Texas, 21 F.3d 597, 600 (5th Cir. 1994). The first step in assessing a claim of qualified immunity is to determine whether the plaintiff has alleged the violation of a clearly established constitutional right. Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998). If the plaintiff does so, the court must then assess whether the defendant's conduct was objectively reasonable in light of clearly established law. Id. at 326. However, the plaintiff's failure to show a violation of a clearly established constitutional right eliminates the need to address the second step of the analysis. Martinez v. Texas Dep't of Criminal Justice, 300 F.3d 567, 576-77 (5th Cir. 2002).

Plaintiff contends that the Texas Attorney General's Opinion No. JC-0129, the Rollins opinion, and the decisions in the Ninth, Tenth, and Eleventh Circuit Courts of Appeal should have placed Defendants on notice of potential due process violations such as Plaintiff's. Here, however, Defendants have shown that at the time Plaintiff was required to register and subjected to public notification in July 1997, there was no clearly established law forbidding this type of conduct in the Fifth Circuit. Boddie v. City of Columbus, Miss., 989 F.2d 745, 748 (5th Cir. 1993) ("Our inquiry [into what is clearly established law] ends, if we find from examining the decisions of the Supreme Court and our own decisions that the law was clearly established in this circuit.").

First, the facts in Neal, Chambers, and Kirby involved the labeling of inmates, and not parolees. See Wolff v. McDonnell, 418 U.S. 539, 560 (1974) ("It is immediately apparent that one cannot automatically apply procedural rules designed for free citizens in an open society, or for parolees or probationers under only limited restraints, to the very different situation presented by a disciplinary proceeding in a state prison."). Here, like in Rollins, Plaintiff is a parolee. However, even in Rollins, this Court was sure to note that "[t]he facts do not show that Plaintiff has been labeled publicly as a sex offender or required to register under any sex offender registration law." Rollins, 2002 U.S. Dist. LEXIS 3246, at *16. Furthermore, the Texas Attorney General's Opinion No. JC-0129 does not qualify as a decision of the Supreme Court or of the Fifth Circuit. Accordingly, Defendants are entitled to summary judgment on their defense of qualified immunity. Therefore, Plaintiff cannot recover damages against Defendants.

B. Injunctive and Declaratory Relief

The Eleventh Amendment does not preclude suits against state officers for injunctive relief, even when the remedy will enjoin the implementation of an official state policy. Ex Parte Young, 209 U.S. 123 (1908). "To meet the Ex Parte Young exception, a plaintiff's suit alleging a violation of federal law must be brought against individual persons in their official capacities as agents of the state, and the relief sought must be declaratory or injunctive in nature and prospective in effect." Aguilar v. Tex. Dep't of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). In order to obtain permanent injunctive relief, the movant must establish four factors: (1) actual success on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) that the threatened injury to the movant outweighs the threatened injury to the respondent; and (4) that the granting of injunctive relief does not harm the public interest. Harris County, Texas v. Carmax Auto Superstores, Inc., 177 F.3d 306, 312 (5th Cir. 1999) (citing Cherokee Pump Equip., Inc. v. Aurora Pump, 38 F.3d 246, 249 (5th Cir. 1994)).

Here, because Plaintiff has satisfied each of the four factors, he is entitled to injunctive relief. First, Plaintiff has established a violation of his right to due process. Second, Plaintiff has established a substantial threat of irreparable injury if the injunction is not granted. Specifically, Plaintiff has established that the DPS will continue to post Plaintiff's picture, name and address under the title of "sex offender" on its website. Third, this threatened injury to Plaintiff most certainly outweighs any injury to Defendants. Finally, granting Plaintiff injunctive relief does not harm the public interest. If anything, granting Plaintiff injunctive relief helps the public interest. Therefore, because Plaintiff has satisfied the stigma plus infringement test, he is entitled to challenge Defendants' sex offender registration and public notification requirements in a proper administrative proceeding where Plaintiff has ample opportunity to present evidence and confront the witnesses against him.

V. Conclusion

For the foregoing reasons, Defendants' motion for summary judgment is GRANTED in part and DENIED in part. Defendants' motion is granted as to the issue of qualified immunity, and denied as to Plaintiff's due process claim. The Court also ORDERS entry of summary judgment for Plaintiff on his due process claim for declaratory and injunctive relief. The Court hereby declares that Chapter 62 is unconstitutional as applied to Plaintiff. Defendants are therefore ORDERED to cease and desist their unlawful practice of enforcing the registration and public notification requirements of Chapter 62 on Plaintiff without first granting him notice and an opportunity to be heard, and shall immediately remove Plaintiff's name, address, and picture from the DPS website identifying Plaintiff as a sex offender. However, because there was no clearly established law at the time Defendants required Plaintiff to register, Plaintiff's claim for damages against each of the named defendants cannot be sustained.

SO ORDERED.