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HOA ban on sex offenders leads to lawsuit

9-27-2013 Texas:

A Texas homeowners association is facing a lawsuit that claims it improperly tried to oust a registered sex offender living there.

Theodore Whipple and his wife say in their lawsuit that he is a low-risk sex offender, convicted more than 20 years ago, KVUE reports. They claim a violation of the 14th Amendment’s right to due process, the Texas Deceptive Trade Practices Act and the right to alienate property, according to a Courthouse News Service article published last November. Texas Lawyer’s Tex Parte Blog also published a story last year.

Whipple says the Valley View Village Condominium Homeowners Association in Austin informed him of a new rule last September that bars registered sex offenders from any condo property that is within 2,000 feet of any place where children congregate. The rule effectively bars him from the property, Whipple says.

Whipple got the notice on the day he was released from prison for failing to properly register his residence. He is represented on a pro bono basis by Akin Gump partner Fred Williams, and he remains in the condo while the lawsuit is pending.

According to the suit, state law no longer bars Whipple from coming within 500 feet of children because his parole has ended.“This is an effort by the homeowners association to take the law upon themselves and create their own little law for the neighborhood," Williams told KVUE. ..Source.. by Debra Cassens Weiss

HOA facing lawsuit after sex offender told to stay out

AUSTIN -- A homeowner's association is trying to keep sex offenders out. Now it's facing a lawsuit.

The Valley View Village Condominiums located behind Highway 71 in Southwest Austin is a quiet, small community of about 68 families.

"We watch out for one another," said community board member Eleanor Rotthoff.

Walking through the neighborhood with her granddaughter one day, Rotthoff met a new neighbor.

"He had an absolutely adorable border collie puppy, and we had to stop and play with the puppy and admire it," Rotthoff said.

She soon learned that man, Theodore Whipple, is a convicted sex offender.

"My blood ran cold quite frankly," she explained.

In 1991, a Williamson County court convicted Whipple of indecency with a child and sentenced him to eight years.

"When I did find out it involved a sexual assault on a 12-year-old, I realized my granddaughter at that point was 12. It was not a comfortable feeling," Rotthoff said.

He's also been charged with failure to register as a sex offender after he listed the wrong address. He served three more years for that. After his release last September, he moved back home to Valley View with his wife.

"Our position is, it's a violation of my client's constitutional rights and state law rights," said Fred Williams, a partner with the Akin Gump law firm who is representing Whipple and his wife. Williams says since Whipple's parole ended in November, his only requirement is to register with the state.

But the HOA says under its rules, no convicted sex offender can be within 2,000 feet of a place where children congregate -- like the pool or a nearby bus stop.

"This is an effort by the homeowners association to take the law upon themselves and create their own little law for the neighborhood," Williams said.

Akin Gump is taking on the case pro bono.

"I find it incomprehensible that they have decided to make a crusade on behalf of pedophiles," said Rotthoff. "We're just some ordinary, South Austin, middle class people trying to protect our children."

Originally, the HOA asked Whipple to leave or pay a $1,000-a-day fine. They have now agreed to let him stay for the duration of the lawsuit. ..Source.. by SHANNON MURRAY

See also: Can Associations Bar Sex Offenders From Residing in The Neighborhood?

See Also: Association Help Now

Whipple et al v. Valley View Village Condominium Homeowners Association
Texas Western Dist court 1:12-cv-01073
Judge Lee Yeakel

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