                                                                                              ACCEPTED
                                                                                          03-14-00375-CV
                                                                                                  8216336
                                                                               THIRD COURT OF APPEALS
                                                                                          AUSTIN, TEXAS
                                                                                   12/14/2015 10:21:04 AM
                                                                                        JEFFREY D. KYLE
                                                                                                   CLERK
                                No. 03-14-00375-CV

                                                           FILED IN
                       In the Court of Appeals 3rd AUSTIN,
                                                        COURT OF APPEALS
                                                                TEXAS
                    for the Third Judicial District12/14/2015 10:21:04 AM
                                                      JEFFREY D. KYLE
                            Austin, Texas                   Clerk




                            AUSPRO ENTERPRISES, LP,
                                                Appellant,
                                     v.
                     TEXAS DEPARTMENT OF TRANSPORTATION,
                                                Appellee.

                                On Appeal from the
                345th Judicial District Court of Travis County, Texas

                   REPLY IN SUPPORT OF MOTION FOR LEAVE
                  TO FILE APPELLEE’S POST-SUBMISSION BRIEF


TO THE HONORABLE THIRD COURT OF APPEALS:

      Nothing in AusPro’s response to the Department’s motion for leave detracts

from the propriety of granting leave to file a post-submission brief. The Department

wishes to make a few quick points in reply.

                                          I.

      Of all the new issues raised at argument or in AusPro’s reply brief, AusPro

addresses only three in its response to the Department’s motion for leave. Each is the

proper subject of post-submission briefing.
      First, as to the remedy of excising the time limit in the election-speech exemption,

TEX. TRANSP. CODE § 391.005, AusPro states that it is “incorrect[] that AusPro agreed

with th[at] proposed remedy raised by the Court.” Resp. 3. The Court therefore should

not consider that remedy, let alone impose it. In any event, AusPro concedes that this

issue was raised for the first time at argument (albeit by the Court, as the Department

acknowledged). Therefore, regardless of AusPro’s written disclaimer of that remedy in

its response, it is entirely appropriate for the Department to submit a post-submission

brief arguing at least that the remedy is waived by that disclaimer, if not also by its

omission from AusPro’s briefing, (and perhaps also to give the Court comfort that, by

treating this issue as waived, the Court is not disregarding an argument with any merit).

      Second, as to severability, AusPro incorrectly asserts that oral argument was the

first time the Department contended “that severability was not at issue in Reed [v. Town

of Gilbert, 135 S. Ct. 2218 (2015)].” Resp. 3. In fact, the Department’s supplemental brief

clearly stated that “Reed did not consider severability.” Dep’t Supp. Br. 16 n.8.

Moreover, AusPro does not deny that its supplemental briefing conceded that

severability applies yet that its counsel stated just the opposite at oral argument. Again,

post-submission briefing is warranted to address that about-face.

      Third, as to other exemptions in the Act, here AusPro does claim (erroneously)

that its opening and initial supplemental brief challenged those exemptions (citing one

conclusory assertion). See Resp. 3. Yet AusPro does not dispute that it conceded the

constitutionality of multiple exemptions in its briefing but nonetheless stated at oral

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argument that all other content-based exemptions violate strict scrutiny. Id. This

reversal, too, warrants post-submission briefing.

                                          II.

      AusPro presents a misleading picture of the Department’s post-submission brief

by quoting out of context only a few words from various sentences in that brief that

mention AusPro’s own briefing. Resp. 2. The motion for leave’s justification—

elaborated on in the post-submission brief—is that numerous points at oral argument

had either not been briefed at all or were explicitly contradicted by AusPro’s briefing.

Accordingly, it’s no surprise that the post-submission brief discussed what AusPro’s

briefing both did and did not say. There would be no other way to argue, for instance,

that AusPro failed to preserve issues or that AusPro’s briefing concessions support the

Department’s position regarding these newly raised issues.

                                         III.

      Finally, AusPro’s complaint that the Department could have sought leave to file

a sur-reply misses the mark. For one thing, that is no answer to the new points raised

at oral argument. Regardless, the Department would have had to file this same type of

motion in order to file a sur-reply, and AusPro’s suggestion regarding that option does

not undermine the Department’s position that AusPro raised new issues in its reply

brief, to which the Department had no right to respond under the appellate rules.

Moreover, the fact that AusPro’s response did not show or even attempt (with the one

exception noted above) to point out where its opening brief raised these issues belies

                                           3
its assertion that “this case has been fully briefed.” Resp. 1. The motion for leave should

be granted.

                                  Respectfully submitted.

                                  KEN PAXTON
                                  Attorney General of Texas

                                  CHARLES E. ROY
                                  First Assistant Attorney General

                                  SCOTT A. KELLER
                                  Solicitor General

                                  /s/ Douglas D. Geyser
                                  DOUGLAS D. GEYSER
                                  Assistant Solicitor General
                                  State Bar No. 24059817

                                  OFFICE OF THE ATTORNEY GENERAL
                                  P.O. Box 12548 (MC 059)
                                  Austin, Texas 78711-2548
                                  Tel.: (512) 936-2540
                                  Fax: (512) 474-2697
                                  douglas.geyser@texasattorneygeneral.gov

                                  COUNSEL FOR APPELLEE TEXAS DEPARTMENT
                                     OF TRANSPORTATION




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                           CERTIFICATE OF SERVICE

      On December 14, 2015, this motion was served via File & ServeXpress and e-

mail on:

Meredith B. Parenti
PARENTI LAW PLLC
P.O. Box 19152
Houston, Texas 77224
[Tel] (281) 224-5848
[Fax] (281) 605-5677
meredith@parentilaw.com

                              /s/ Douglas D. Geyser
                              Douglas D. Geyser
                              Counsel for Appellee




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