                                                                                             ACCEPTED
                                                                                         03-14-00375-CV
                                                                                                 8066837
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                   12/3/2015 10:03:52 AM
                                                                                       JEFFREY D. KYLE
                                                                                                  CLERK
                                  No. 03-14-00375-CV

                                                            FILED IN
                         In the Court of Appeals 3rd COURT      OF APPEALS
                                                          AUSTIN, TEXAS
                      for the Third Judicial District12/3/2015 10:03:52 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

                          OPPOSED MOTION FOR LEAVE
                   TO FILE APPELLEE’S POST-SUBMISSION BRIEF


TO THE HONORABLE THIRD COURT OF APPEALS:

       Pursuant to Texas Rule of Appellate Procedure 38.7, Appellee Texas

Department of Transportation (the “Department”) moves for leave to file a post-

submission brief to address new issues and arguments raised by Appellant AusPro

Enterprises, LP (“AusPro”) at oral argument and in its supplemental reply brief that

could materially affect the analysis and outcome of this case and to which the

Department had no opportunity to respond. The post-submission brief is being filed

concurrently with this motion and complies with Appellate Rule 9.4(i)(2)(B) regarding

the aggregate length of all briefs filed by a party in a court of appeals.
                                           I.

      This appeal was submitted on oral argument on November 18, 2015. At

argument, a number of substantial new issues and arguments were raised that were

either not briefed at all by either party or not raised until AusPro’s supplemental reply

brief, to which the Department had no opportunity to respond in writing. New issues

were raised regarding:

• Remedy: The Court asked (and AusPro’s counsel appeared to support) whether a

   possible remedy would be excising the time limit in Transportation Code section

   391.005, even though AusPro’s briefing never requested that relief and its

   supplemental brief expressly stated that “the Court could simply strike down the

   election sign exemption contained in the Act and its regulations and leave the rest

   of the Act and the regulations intact.” AusPro Supp. Br. 18.

• Severability: Counsel for AusPro suggested that Reed v. Town of Gilbert, 135 S. Ct.

   2218 (2015), precluded severability, even though its briefing expressly conceded that

   Texas’s severability statute applies: “Of course, severability principles would apply

   to preserve the Act’s non-content-based provisions.” AusPro Supp. Reply Br. 12; see

   id. at 14 n.10 (conceding that even if “content-based provisions are held

   unconstitutional, the Act’s general ban on signs would remain”).

• Whether certain provisions satisfied strict scrutiny: AusPro’s counsel suggested

   during rebuttal that if the election-speech exemption violates strict scrutiny, then so



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   must every other content-based exemption; by contrast, AusPro’s briefing admitted

   that the exemption for signs for “the protection of life and property,” TEX. TRANSP.

   CODE § 391.031(b)(5), is “supported by a compelling government interest.” AusPro

   Supp. Reply Br. 5 n.4; cf. id. at 5 n.1 (conceding that section 391.031(b)(1) does not

   violate First Amendment), 6 n.6 (conceding that section 391.031(b)(4) does not

   violate First Amendment).

• Which provisions of the Act are at issue: AusPro’s opening brief and initial

   supplemental brief challenged only section 391.005’s constitutionality, but its

   supplemental reply brief contended for the first time that numerous other provisions

   in Chapters 391 and 394 were unconstitutional, including provisions that AusPro

   had never even cited before. See AusPro Supp. Reply Br. 5-6. These new challenges

   would significantly expand the scope of this appeal and thus warrant granting this

   motion.

                                           II.

      By not raising these material issues (and others) until its reply brief or oral

argument, including rebuttal, AusPro deprived the Department of the ability to fully

respond (even if the issues are not waived as a result of their omission from AusPro’s

opening brief on appeal). In the interests of fairness and further assisting the Court with

the questions raised during oral argument, the Department respectfully requests an

opportunity to address them in a post-submission brief.



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                                        III.

      For the foregoing reasons, the Department respectfully requests that the Court

grant this motion for leave and file its post-submission brief submitted concurrently

with this motion.

                                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 CONFERENCE

      I certify that on December 1, 2015, I conferred with counsel for Appellant

regarding this motion, and counsel advised that Appellant opposes the motion.


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



                            CERTIFICATE OF SERVICE

      On December 3, 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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