MEMORANDUM REGARDING SUBJECT MATTER JURISDICTION

HINES, United States Magistrate Judge.

Meredith Trent Creekmore, plaintiff, was convicted of sex offenses under the Uniform Code of Military Justice (UCMJ), and served three years and ten months of a six-year federal sentence in custody of the United States Department of Justice, Bureau of Prisons (BOP). Upon his release in Texas, local authorities required Creekmore to register as a sex offender under Texas law. Creekmore now challenges the constitutionality of the Texas law, primarily on procedural due process grounds.

For reasons explained herein, the court sua sponte questioned its subject matte jurisdiction. This memorandum contains the court's analysis supporting the subsequent determination that subject matter jurisdiction exists.

I. NATURE OF SUIT

According to Creekmore's Complaint, he pleaded guilty to violating Article 134 of the UCMJ on January 11, 1996. Specifically, Creekmore pleaded guilty to one specification of "Indecent Assault" and four specifications of "Indecent Acts or Liberties with a Child." As a result of his plea of guilty, he was sentenced to six years imprisonment.

Creekmore served two years at the Federal Correctional Institute in Fort Leavenworth, Kansas, and completed serving his sentence at the Federal Correctional Complex in Beaumont, Texas. Creekmore alleges that prior to his release, BOP notified him that after release he would be subject to registration in Texas as a sex offender. Creekmore avers that BOP also notified the Sheriff of Jefferson County, the Attorney General of Texas, the Texas Department of Public Safety, and the Chief of Police of the City of Beaumont of Creekmore's release. The notice allegedly provided other information, including the assertion that Creekmore would be required to register as a sex offender.

On December 23, 1999, BOP released Creekmore from federal custody. On, January 24, 2000, an official within the Jefferson County sheriff's office wrote Creekmore informing him that he was required to register. The letter stated:

According to the United States Bureau of Federal Prisons you have been convicted of several sexual offenses which makes your registration a mandatory requirement every ninety-(90) days for the rest of your life.

(Letter from R. Boles to Creekmore of 01/24/00.) The letter also set a deadline for completing registration, and advised that failure to comply would be a third degree felony punishable with state jail time of up to ten years. See id.

Creekmore, proceeding pro se, filed an action in the 58th Judicial District Court of Jefferson County challenging the registration requirement and seeking a temporary restraining order. The state court denied Creekmore's application for temporary restraining order on February 2, 2000.

Creekmore thereafter registered under protest. He asserts that when he registered, local authorities advised him that his protest would be submitted to the Attorney General of Texas for a decision within two weeks. He further avers that no decision by the Attorney General was forthcoming.

Creekmore's Motion for Preliminary Injunction alleges that he then obtained counsel, non-suited the state court lawsuit, and instituted this federal action. For a cause of action, Creekmore's complaint challenges the constitutionality of the Texas Sex Offender Registration Program ("the Program"). See TEX. CODE CRIM. PROC. ANN. art. 62.01 et seq. (Vernon Supp. 2000).

The complaint avers that the Program violates several clauses of the United States and Texas constitutions. Creekmore's counsel, however, acknowledges that the primary attack is based on procedural due process grounds. Specifically, Creekmore urges that the Program is infirm because: (1) it does not indicate who determines whether an offense under UCMJ is substantially similar to a listed offense under the Texas Penal Code; (2) it does not provide any process by which an individual determined to have a reportable conviction may challenge that determination; and (3) it does not give clear notice as to when one is deemed convicted two or more times of an offense; and (4) it does not provide a process by which an individual determined to have been convicted two or more times of a sexually violent offense may challenge that determination.

For relief, Creekmore requests the court to:

(1) Declare that the Program violates his constitutional rights, and that he is not required to register;

(2) Enjoin defendants from enforcing the Program against him;

(3) Order defendants to remove his name from any database or list of sex offenders maintained;

(4) Costs of suit; and

(5) Other appropriate injunctive relief.

(Pl.'s Comp. at 8.) Creekmore does not seek money damages.

II. PROCEEDINGS

Shortly after instituting suit, Creekmore moved for a preliminary injunction. After reviewing of the motion and Complaint, the court convened a status conference to consider the advisability of consolidating hearing of the application for a preliminary injunction with an advanced trial of the action on the merits. At the status conference, the court invited Creekmore's counsel to describe the general parameters of Creekmore's claims. Moreover, the court inquired as whether Creekmore contends that his UCMJ offenses are not substantially similar to offenses under the Texas Penal Code.

Creekmore's counsel responded ambivalently with "I really do not know." (June 29, 2000 Hearing.) This indistinct response raised the court's concern as to whether this action is based on actual or threatened injury, or on purely abstract, conjectural, speculative, or hypothetical harm. The response also raised the specter of a suit based on mere ideological disagreement with the law. In either case, the controversy would not constitute a justiciable action.

Accordingly, the court sua sponte scheduled oral arguments on the question of subject matter jurisdiction, and invited briefing from counsel. Counsel for Creekmore and for defendant, Chief of Police of the City of Beaumont, each submitted briefs. Moreover, all counsel of record participated in oral argument at a hearing convened on August 10, 2000.

III. DISCUSSION AND ANALYSIS

The court has carefully considered the briefs and arguments of counsel on this issue. The analysis begins with a description of relevant statutes. It proceeds next to a discussion of general principles of the standing doctrine. Finally, it concludes with an application of those principles to Creekmore's allegations in this case.

A. Statutory Schemes

1. Wetterling Act

In 1947, the state of California became the first to enact a sex offender registration statute. In 1990, the state of Washington became the first to enact a sex offender community notification statute. The idea was politically popular, and by 1993, twenty-four states, including Texas, enacted various versions of such statutes. 139 CONG. REC. H10320 (daily ed. Nov. 20, 1993) (statement of Rep. Ramstad).

Congress concluded the national interest would be served if all states enacted such laws. See id. at H10321. Thus, on September 13, 1994, as part of the Violent Crime Control and Law Enforcement Act of 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Wetterling Act). The intention of Congress in passing the Wetterling Act was to prod all states to enact similar sex offender registration and community notification laws and to provide for a national registration system to handle offenders who move from one State to another. See 139 CONG. REC. H10320-21 (daily ed. Nov. 20, 1993) (statement of Rep. Ramstad).

The Wetterung Act contained minimum requirements for federally approved state statutes, and it directed the Attorney General of the United States to establish guidelines for state programs. First, the Act required that states regulate three categories of individuals. These categories were: (1) "a person convicted of a criminal offense against a victim who is a minor"; (2) a person "convicted of a sexually violent offense"; and (3) a person who is "a sexually violent predator."

Next, to be federally approved, a state statute would require prison authorities — before releasing the above offenders from confinement — to notify the person being released of a duty to register; obtain the offender's fingerprints, photographs, and other registration information; and transmit that information to local authorities. The Act then required state and local law enforcement agencies to register the offenders and maintain records. The Act also designated the registry information as private, but it could be released when necessary to protect the public, for other law enforcement purposes, or when conducting confidential background checks. The Act further required state authorities to transmit the offenders' "conviction data" to the Federal Bureau of Investigation.

The Act also specified minimum registration requirements for offenders. The Act further required that states criminalize offenders' conduct in failing to register when required.

Finally, the Act afforded states three years to implement statutes in compliance with the Act and Attorney General's guidelines. Failure to implement a federally approved program within that time would result in loss of ten percent of funds that would otherwise be allocated to the state under section 506 of the Omnibus Crime Control and Safe Streets Act of 1968.

2. Federal Amendments

Congress subsequently amended the Wetterling Act four times. First, on May 17, 1996, "Megan's Law" removed the original requirement that registry information be private. It further provided that registry information may be disclosed for any permissible state law purpose, and that such information shall be released when necessary to protect the public.

Second, the Pam Lychner Sexual Offender Tracking and Identification Act of 1996 (Lychner Act) added a new section directing the Attorney General of the United States to establish a national database at the Federal Bureau of Investigation, and to track the whereabouts and movements of persons subject to registration under the various federally-approved state statutes. Further, the Lychner Act required persons residing in states that had not enacted federally approved programs to register with the FBI. Finally, this amendment imposed on such persons continuing registration requirements generally consistent with those required under federally approved state statutes.

Third, on November 26, 1997, Congress enacted the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998 (Appropriations Act). The Appropriations Act broadened the scope of required coverage under approved state statutes and prevented some child sex offenders from "slipping through the cracks." 143 CONG. REC. H. 7628-29 (daily ed. Sept. 23, 1997) (statement of Rep. McCollum). Specifically, the Appropriations Act provided that:

Each State shall include in its registration program residents who were convicted in another State and shall ensure that procedures are in place to accept registration information from —

(A) residents who were convicted in another State, convicted of a Federal offense, or sentenced by a court martial; and

(B) nonresident offenders who have crossed into another State in order to work or attend school.

The Appropriations Act also required that each state include in its program the requirement that any person "register in the State in which such person resides" and also "in any State in which the person is employed, carries on a vocation, or is a student."

Finally, Congress amended the Wetterling Act on October 30, 1998, by enacting the Protection of Children from Sexual Predators Act of 1998. This amendment authorized a federal grant of funds to states to offset their costs associated with complying with federal mandates for sex offender registration purposes.

3. The Texas Program

The state of Texas enacted the Texas Sex Offender Registration Program in 1991. Texas subsequently amended the Program four times: in 1993, 1995, 1997, and 1999. The Program now contains both sex offender registration and community notification provisions.

Under the federally-approved Texas Program, a person with a reportable conviction or adjudication for certain sex-related offenses must register with the local law enforcement authority where (s)he resides or intends to reside for more than seven days. A reportable conviction includes "a conviction under the laws of another state, federal law, or the Uniform Code of Military Justice for an offense containing elements that are substantially similar to the elements of an offense listed under Paragraph (A), (B), (C), (D), (E), or (G)."

Registration requires an offender to provide, inter alia, his full name, date of birth, sex, race, physical description, social security number, driver's license number, home address, photograph, and fingerprints. Persons with reportable convictions must re-register annually for ten years. However, a person subject to registration who has been convicted two or more times for offenses designated as "sexually violent offenses" must report to the local law enforcement authority not less than once in each ninety day period following the date the person first registered and continue to do so until death.

After registration, the local law enforcement authority must send a copy of the registration form to the Texas Department of Public Safety. If the victim was younger than seventeen years of age and the basis on which the offender is subject to registration was not an adjudication of delinquent conduct, the authority must immediately publish notice in the most widely circulated newspaper in the area. Nevertheless, regardless of the basis on which the offender is subject to registration, if the victim is younger than seventeen years of age, the local law enforcement authority must immediately provide notice by mail to the superintendent of the public school district and to the administrator of any private primary or secondary school located in the district in which the offender intends to reside.

The Texas Program also requires the Department of Public Safety to maintain a computerized central database containing the information required for registration. The information contained in the database is public information, available upon written request.

B. Standing

Judicial power of the United States is limited. It extends only to certain "cases" and "controversies" enumerated in Article III, Section 2 of the constitution. See U.S. CONST. art. III, § 2. One manifestation of the case-or-controversy prerequisite for federal subject matter jurisdiction is the concept of "standing." The standing doctrine addresses the issue of who may bring suit:

The standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.

15 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 101.20 (3d ed. 2000).

The standing doctrine is complex and not defined with complete consistency. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). However, modern jurisprudence generally recognizes that in order to have standing, a putative plaintiff must satisfy three minimum requirements:

The irreducible constitutional minimum of standing contains three requirements. First, and foremost, there must be alleged (and ultimately proven) an injury in fact — a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical. Second, there must be causation — a fairly traceable connection between the plaintiff's injury and the complained-of conduct of the defendant. And third, there must be redressability — a likelihood that the requested relief will redress the alleged injury. This triad of injury in fact, causation and redressability comprises the core of Article III's case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence.

C. Application and Analysis

After considering written and oral arguments of counsel, the court concludes that Creekmore meets his initial burden of alleging injury in fact, causation, and redressability. Working backwards, it is clear that the relief sought will redress Creekmore's alleged injuries. Were this court ultimately to agree with Creekmore's contentions, it would have the power to grant relief that would prevent the state and local authorities from requiring Creekmore to register and from disclosing his registry information. Thus, Creekmore's alleged injury would be eliminated entirely.

Turning to the second element, Creekmore satisfies the court that his alleged injuries are traceable to defendants. Creekmore alleges that defendants ordered him to register, determined that he must re-register every ninety days for life as a repeat violent sex offender, and declined to provide meaningful review of his protests regarding: (1) lack of substantial similarity between his UCMJ offenses and listed state offenses, and (2) his status as a repeat sex offender. Thus, Creekmore has an arguable claim of injuries traceable to defendants.

Finally, Creekmore has alleged injury in fact. First, he argues without contradiction that his registry information is already released onto the Internet, and in any event may be released at any time law enforcement officials determine that release is necessary to protect the public. Second, he shows that he has been placed in the most onerous registration category, i.e., every ninety days for life. Third, he advances colorable claims that (1) his UCMJ offenses are not substantially similar to listed Texas offenses, and (2) his simultaneous UCMJ convictions do not constitute being convicted two or more times.

To satisfy the standing requirement, Creekmore need not have a valid claim, only an arguable one. "[T]he absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction." Id. at 89. Moreover, plaintiffs threatened with prosecution if they violate a statute need not expose themselves to arrest and prosecution in order to challenge that statute. See Steffel v. Thompson 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Peyote Way Church of God, Inc. v. Smith, 742 F.2d 193, 198 (5th Cir. 1984). These considerations, together with the foregoing analysis of the triad requirements of injury in fact, causation, and redressability, lead the court to conclude that Creekmore has standing to challenge the Texas Program.

An appropriate order consistent with this memorandum will be entered separately.

ORDER REGARDING SUBJECT MATTER JURISDICTION

For reasons expressed in the accompanying memorandum addressing the issue of jurisdiction, it is

ORDERED that the court has subject matter jurisdiction, and will proceed to adjudicate claims and defenses asserted by the parties. It is further