                                                                                   ACCEPTED
                                                                               03-14-00375-CV
                                                                                       6564692
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                          8/19/2015 2:17:41 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                           No. 03-14-00375-CV
                   In the Court of Appeals            FILED IN
                                               3rd COURT OF APPEALS
                for the Third Judicial District AUSTIN, TEXAS
                                               8/19/2015 2:17:41 PM
                        Austin, Texas            JEFFREY D. KYLE
                                                       Clerk

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


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


  APPELLEE’S SUPPLEMENTAL BRIEF ADDRESSING THE EFFECT OF
        REED V. TOWN OF GILBERT, 135 S. CT. 2218 (2015)


KEN PAXTON                        SCOTT A. KELLER
Attorney General of Texas         Solicitor General

CHARLES E. ROY                    DOUGLAS D. GEYSER
First Assistant Attorney          Assistant Solicitor General
General                           State Bar No. 24059817

                                  MATTHEW BOHUSLAV
                                  Assistant Attorney General

                                  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

      ORAL ARGUMENT CONDITIONALLY REQUESTED
                                       TABLE OF CONTENTS

Index of Authorities................................................................................. iii

Supplemental Statement Regarding Oral Argument .............................. v

Argument ................................................................................................... 3

        I.       Reed Considered A Law That On Its Face Imposed
                 Harsher Restrictions On The Plaintiffs’ Signs Solely
                 Due To Their Content. ............................................................ 3

        II.      AusPro’s Sign Violated Content-Neutral Restrictions
                 Under The Act. ........................................................................ 7

                 A.      AusPro’s Challenge Misreads The Act And Reed’s
                         Effect. ............................................................................. 7

                 B.      Even If AusPro Could Successfully Challenge
                         Section 391.005’s Election-Sign Exemption, The
                         Proper Remedy Would Be To Invalidate Only That
                         Section. ......................................................................... 12

        III.     Reed Is Wholly Immaterial To AusPro’s Prior-Restraint
                 Challenge. .............................................................................. 16

        IV.      Reed Also Has No Bearing On Any Independent
                 Protection Afforded By The Texas Constitution. ................. 18

Prayer ...................................................................................................... 20

Certificate of Service ............................................................................... 21

Certificate of Compliance ........................................................................ 21




                                                      ii
                                  INDEX OF AUTHORITIES

Cases

Brockett v. Spokane Arcades, Inc.,
     472 U.S. 491 (1985) ....................................................................... 13

Covenant Media LLC v. City of N. Charleston,
     493 F.3d 421 (4th Cir. 2007) ......................................................... 13

Coral Springs St. Sys., Inc. v. City of Sunrise,
     371 F.3d 1320 (11th Cir. 2004) ................................................. 14-15

Geeslin v. State Farm Lloyds,
     255 S.W.3d 786 (Tex. App.—Austin 2008, no pet.) ....... 12-13, 13-14

Hill v. Colorado,
      530 U.S. 703 (2000) .......................................................................... 8

Houston Chronicle Publ’g Co. v. City of League City,
     488 F.3d 613 (5th Cir. 2007) .......................................................... 12

Jornaleros de Las Palmas v. City of League City,
     945 F. Supp. 2d 779 (S.D. Tex. 2013)............................................. 12

Kinney v. Barnes,
     443 S.W.3d 87 (Tex. 2014).............................................................. 19

McCormack v. Twp. of Clinton,
    872 F. Supp. 1320 (D.N.J. 1994) .................................................... 12

Operation Rescue-Nat’l v. Planned Parenthood of Houston &
     Se. Tex., Inc.,
     975 S.W.2d 546 (Tex. 1998)............................................................ 19

Reed v. Town of Gilbert,
     135 S. Ct. 2218 (2015) ............................................................ passim

Rose v. Doctors Hosp.,
     801 S.W.2d 841 (Tex. 1990)............................................................ 14


                                                 iii
Serv. Emps. Int’l Union, Local 5 v. City of Houston,
      595 F.3d 588 (5th Cir. 2010) ............................................................ 8

Tex. Dep’t of Transp. v. Barber,
     111 S.W.3d 86 (Tex. 2003)........................... v, 2, 6, 7-8, 9, 10, 11, 15

Voting for Am., Inc. v. Steen,
     732 F.3d 382 (5th Cir. 2013) .......................................................... 13

Constitutional Provisions, Statutes, and Rules

43 TEX. ADMIN. CODE § 21.146(a)(9) ........................................................ 16

Act of Apr. 25, 1997, 75th Leg., R.S., ch. 60, § 1, 1997 Tex.
      Gen. Laws 129 ................................................................................ 15

TEX. GOV’T CODE § 311.032(c) ............................................................ 13, 16

TEX. TRANSP. CODE § 391.002(b).............................................................. 15

TEX. TRANSP. CODE § 391.005 ........................................ v, 7, 10, 14, 15, 16

TEX. TRANSP. CODE § 391.031(a)(1) .................................................. 8, 9-10

TEX. TRANSP. CODE § 391.031(b).............................................................. 11

TEX. TRANSP. CODE § 391.061 .................................................................. 16

TEX. TRANSP. CODE § 391.067 .................................................................. 16

TEX. R. APP. P. 33.1(a) ............................................................................ 17

TEX. R. APP. P. 38.1(i) .............................................................................. 11




                                                   iv
      SUPPLEMENTAL STATEMENT REGARDING ORAL ARGUMENT

     Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), does not change the

proper outcome of this case or create a need for oral argument. AusPro’s

assertion   that   Reed   “undoubtedly”     requires   reversal,   AusPro

Supplemental Brief (“Supp. Br.”) ii, rests on the same misreading of the

Texas Highway Beautification Act that infected its opening brief. AusPro

continues to argue that the election-speech exemption (TEX. TRANSP.

CODE § 391.005) disfavors election speech, but that is incorrect. If

anything, the exemption treats election speech better than other speech.

That is the whole point of the exemption, namely, to save some election-

related signs from the Act’s general ban. Although it is true that the Act

favors onsite election speech over offsite election speech (like AusPro’s

sign), “[r]ules distinguishing between on-premises and off-premises

signs” remain content-neutral. Reed, 135 S. Ct. at 2233 (Alito, J.,

concurring); see Tex. Dep’t of Transp. v. Barber, 111 S.W.3d 86, 99 (Tex.

2003) (upholding constitutionality of the Act because it “allows all onsite

commercial speech and all onsite noncommercial speech”). Barber

therefore remains controlling. Should the Court nonetheless decide to

hear oral argument, the Department respectfully requests to participate.



                                    v
                         No. 03-14-00375-CV


                    In the Court of Appeals
                 for the Third Judicial District
                         Austin, Texas
                     AUSPRO ENTERPRISES, LP,
                                   Appellant,
                               v.
               TEXAS DEPARTMENT OF TRANSPORTATION,
                                   Appellee.


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


   APPELLEE’S SUPPLEMENTAL BRIEF ADDRESSING THE EFFECT OF
         REED V. TOWN OF GILBERT, 135 S. CT. 2218 (2015)


TO THE HONORABLE THIRD COURT OF APPEALS:

     AusPro’s contention that Reed v. Town of Gilbert, 135 S. Ct. 2218

(2015), affects this appeal rests on a misreading of that case and, more

fundamentally, a misunderstanding of how the Texas Highway

Beautification Act (the “Act”) operates. As it did in its opening brief,

AusPro erroneously argues that the election-speech exemption prohibits

its sign in violation of the First Amendment. To the contrary, that

exemption allows certain election speech that would otherwise be barred

by the Act’s general, content-neutral prohibition of signs visible from
highways. Even if the exemption draws a content-based line, that line

would, if anything, favor the very type of election speech that AusPro

advocates. The exemption thus in no way harms AusPro, and Reed’s

implications for this Court’s consideration of that exemption are

consequently immaterial.

     The Texas Supreme Court’s decision in Texas Department of

Transportation v. Barber, 111 S.W.3d 86 (Tex. 2003), which upheld the

Act against a free-speech challenge, remains binding after Reed. Not only

did Reed not consider the kind of offsite-sign ban that the Act imposes,

three of the six justices who joined the majority opinion explicitly

concluded that such a ban remains a content-neutral restriction.

Accordingly, because AusPro has not challenged the Act’s general ban on

signs near Texas highways and such a challenge would fail in any event,

the trial court’s judgment should be affirmed.




                                   2
                               ARGUMENT

I.   REED CONSIDERED A LAW THAT ON ITS FACE IMPOSED HARSHER
     RESTRICTIONS ON THE PLAINTIFFS’ SIGNS SOLELY DUE TO THEIR
     CONTENT.

     The town’s sign code in Reed bears little resemblance to the Act.

The town prohibited outdoor signs everywhere within its borders but

exempted 23 categories to various degrees. 135 S. Ct. at 2224. Most

notably, the town allowed “ideological signs” in all zoning districts at all

times of the year; “political signs” in only certain zoning districts during

limited times around elections; and “temporary directional signs” in even

fewer areas and during even more limited times than “political signs.” Id.

at 2224-25. These three categories of signs were also subject to different

size restrictions, with temporary directional signs receiving the least

favorable treatment on this aspect as well. Id.

     The plaintiffs were a church and its pastor who wanted to post

temporary signs announcing meeting times and locations for church

services. Id. at 2225. The church owned no building, so the meetings

occurred at varying locations, and signs were thus posted throughout

town. Id. The church was twice cited for posting signs outside the narrow

time limits afforded to temporary directional signs (which limits did not



                                     3
apply to, for instance, ideological signs). Id. The sign code thus treated

the plaintiffs’ signs more restrictively than other signs based entirely on

the signs’ content.

     Accordingly, focusing on those three categories, the Court held that

the sign code was content-based “on its face.” Id. at 2227. The six-justice

majority explained that strict scrutiny applies to content-based laws, i.e.,

“those that target speech based on its communicative content.” Id. at

2226; see id. at 2227 (explaining that government regulation is content-

based “if [the] law applies to particular speech because of the topic

discussed or the idea or message expressed” or if it “defin[es] regulated

speech by its function or purpose”).

     The town’s code was facially content-based because its restrictions

“depend[ed] entirely on the communicative content of the sign” at issue.

Id. at 2227. Specifically, the church’s “signs inviting people to attend its

worship services are treated differently from signs conveying other types

of ideas.” Id.; see id. at 2230 (explaining that church’s signs were treated

less favorably than ideological or political signs). The Court found it

irrelevant that “the Town did not adopt its regulation of speech [based

on] disagree[ment] with the message conveyed, and its justifications for



                                       4
regulating temporary directional signs were unrelated to the content of

the sign.” Id. at 2227 (citation and internal quotation marks omitted)

(alterations in original). That is because “an innocuous justification

cannot transform a facially content-based law into one that is content

neutral.” Id. at 2228.

      Because the sign code was content-based, it had to satisfy strict

scrutiny. Id. at 2231. The Court assumed that the proffered justifications

of “aesthetic appeal and traffic safety” were “compelling governmental

interests,” but concluded that the code’s 23 categories rendered it

“hopelessly underinclusive.” Id.1 For instance, temporary directional

signs were just as aesthetically unpleasing as ideological or political ones,

and temporary directional signs did not “pose a greater threat to safety

than do” those other signs. Id. at 2231-32; see id. at 2232 (“If anything, a

sharply worded ideological sign seems more likely to distract a driver

than a sign directing the public to a nearby church meeting.”); id. at 2239

(Kagan, J., concurring in the judgment) (writing that the sign code’s


1 AusPro misstates the opinion on this point, writing that the Court found the
“interests” underinclusive. AusPro Supp. Br. 6, 11. Not so. Rather, the Court decided
that the town had not narrowly tailored its code to further those interests. The Court
did not, however, say anything to indicate that aesthetic appeal and traffic safety did
not (or could not) rise to the level of “compelling” government interests.


                                          5
distinctions do not satisfy “even the laugh test,” because, for example,

“[w]hy exactly a smaller sign better helps travelers get to where they are

going is left a mystery”).

      Writing for himself and two other justices who joined the majority

opinion, Justice Alito explained that the Court left undisturbed a number

of common sign regulations that would remain content-neutral. Id. at

2233 (Alito, J., concurring). Most importantly, these three justices

concluded that “[r]ules distinguishing between on-premises and off-

premises signs” would have to satisfy only the time, place, and manner

test. Id.; see also id. (writing that governments may put up “directional

signs and signs pointing out historic sites and scenic spots”).2 As

explained below and as Justice Alito’s opinion makes clear, Reed leaves

intact the Texas Supreme Court’s conclusion in Barber that the Act and

its ban on offsite signs survive First Amendment scrutiny.




2 The three remaining justices concurred only in the judgment and would have
assumed that intermediate scrutiny applied, but nevertheless invalidated the town’s
sign code due to “[t]he absence of any sensible basis for” the distinctions among the
23 categories of signs. Id. at 2239 (Kagan, J., concurring in the judgment).


                                         6
II.   AUSPRO’S SIGN VIOLATED CONTENT-NEUTRAL RESTRICTIONS
      UNDER THE ACT.

      A.   AusPro’s Challenge Misreads The Act And Reed’s
           Effect.

      AusPro’s claim fails because the Act does not impose a content-

based restriction on election signs. AusPro’s argument to the contrary

doubles down on its opening brief’s misstatement on how the Act

operates. AusPro writes that the election-sign exemption “singl[es] out

[election] speech . . . for disparate treatment.” AusPro Supp. Br. 8. That

is simply not so. As the Department explained, the exemption does not

prohibit anything at all. Rather, it does what exemptions do: it saves

certain election signs from the general ban on signs visible from Texas

highways. See Department Br. 17-18; TEX. TRANSP. CODE § 391.005

(providing that the Act “does not apply” to certain election speech).

Crucially, if the Legislature repealed the election-sign exemption,

AusPro’s sign would still be illegal. The “election sign exemption

challenged by AusPro,” AusPro Supp. Br. 7, therefore did not cause its

injury. As a result, even if Reed confirms Barber’s assessment that “the




                                    7
election sign exemption is arguably content based,” 111 S.W.3d at 100,

AusPro’s challenge still fails.3

      What does injure AusPro is the Act’s prohibition of signs “within

660 feet of the nearest edge of a right-of-way if the advertising is visible

from the main-traveled way of the interstate or primary system.” TEX.

TRANSP. CODE § 391.031(a)(1). AusPro does not challenge that restriction,

which is plainly not content-based. Accordingly, the election-sign

exemption from that ban in no way “restricts” AusPro’s speech.

      Trying to place itself in the same box as the Reed plaintiffs—whose

temporary directional signs were posted outside a time limit that would

not have applied had their signs’ content been “ideological”—AusPro

argues that, “[i]f the sign relates to an election, the Act strictly limits the

speech to a limited window,” but “prohibits speech relating to elections


3 AusPro’s invocation of a facial challenge does not change this result because it still
cannot assert an injury derived from the election-sign exemption. See Department
Br. 19-20; cf. Serv. Emps. Int’l Union, Local 5 v. City of Houston, 595 F.3d 588, 598
(5th Cir. 2010) (holding that, in a First Amendment facial challenge, the “plaintiff
must establish injury under a particular provision of a regulation that is validly
applied to its conduct, then assert ‘a facial challenge, under the overbreadth doctrine,
to vindicate the rights of others not before the court under that provision’ ” (citation
omitted)). Moreover, even if AusPro could assert an overbreadth facial challenge, it
has not made the necessary showing that the Act’s overbreadth is “not only [] real,
but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”
Hill v. Colorado, 530 U.S. 703, 732 (2000) (citation and internal quotation marks
omitted).


                                           8
along interstate and primary highways at all other times of the year.”

AusPro Supp. Br. 9. It likewise asserts that “other signs . . . are permitted

to remain on display all year.” Id. at 13. That assessment of the Act is

patently wrong. As the Department again explained, and the Texas

Supreme Court made clear, “the Act allows all onsite commercial speech

and all onsite noncommercial speech” throughout the year. Barber, 111

S.W.3d at 99. Had AusPro’s election speech pertained to activities on its

premises, its sign would have complied with the Act. See Department Br.

24-27. AusPro’s refusal to acknowledge this facet of the Act or Barber’s

holding dooms its arguments.

     The difference between AusPro’s position and the challengers’ in

Reed is stark. In Reed, the sign code contained impermissible content-

based exemptions that treated other signs more favorably than the

challengers’, based solely on the content of the challengers’ signs. Here,

as explained, the election-sign exemption does not treat any type of

content more favorably than AusPro’s content. Accordingly, unlike in

Reed, a content-based restriction does not harm AusPro. Its sign is illegal

not because it is election speech but because of its location, i.e., “within

660 feet of the nearest edge of a right-of-way if the advertising is visible



                                     9
from the main-traveled way of the interstate or primary system.” TEX.

TRANSP. CODE § 391.031(a)(1). Again, even without the challenged

exemption in section 391.005, AusPro’s sign would remain illegal. By

contrast, if the plaintiffs’ signs in Reed had been, for instance, “ideological

signs,” their signs would have been permitted in all zoning districts at all

times of the year. 135 S. Ct. at 2224. A content-based distinction therefore

harmed the Reed plaintiffs in a way that the election-speech exemption

does not harm AusPro.

      Notably, AusPro does not appear to challenge the Act’s

onsite/offsite distinction as content-based. See, e.g., AusPro Supp. Br. 7

(arguing only that election-sign exemption is content-based regulation

and referring to “election sign exemption challenged by AusPro”). That

choice is prudent, for such a challenge would fail. Barber held that the

onsite-sign exemption “regulates signs based on their location,” not their

content. 111 S.W.3d at 102; see also id. at 101 (discussing cases). And, as

discussed above, Reed does not undermine that holding. See Reed, 135 S.




                                      10
Ct. at 2233 (Alito, J., concurring) (concluding that rules distinguishing

between offsite and onsite signs are content-neutral).4

      Likewise, AusPro’s targeted complaint about the election-sign

exemption also does not appear to contest the Act’s other limited

exemptions, which pertain either to onsite activities, directions, or safety.

See TEX. TRANSP. CODE 391.031(b); cf. AusPro Supp. Br. 14 (arguing that

“[t]he election sign exemption is not narrowly tailored” but not making

similar argument about other exemptions).5 In dicta, the Reed majority

all but announced that signs “to guide traffic or to identify hazards and

ensure safety” would survive. 135 S. Ct. at 2232 (majority op.). And




4 Admittedly, Reed may invalidate one of Barber’s alternative rationales for finding
that the Act was content neutral. The Texas Supreme Court wrote that “the Act is
also content neutral because it is ‘justified without reference to the content of the
regulated speech.’ ” Barber, 111 S.W.3d at 100 (first emphasis added) (citation
omitted)). After Reed, an innocuous purpose cannot save a facially content-based
statute from strict scrutiny. But to the extent that Barber was merely indicating that
the Act did not discriminate in its purpose, as well as not discriminating on its face,
that analysis remains appropriate under Reed. In all events, AusPro has not
suggested the Legislature’s purpose was improper, and the Act is facially content
neutral under Barber because it regulates signs based on their location.
5 AusPro vaguely states, without discussion or analysis, that “the Act ‘does make
certain distinctions based on subject matter,’ such as the exemptions for directional
signs, signs relating to natural wonders or historic attractions, and election signs.”
AusPro Supp. Br. 9 (quoting Barber, 111 S.W.3d at 98). This conclusory assertion
does not raise a challenge based on those other exemptions, cf. TEX. R. APP. P. 38.1(i),
and is inconsistent with AusPro’s assertion of a challenge to the election-sign
exemption, full stop.


                                          11
Justice Alito’s concurrence similarly determined that the majority

opinion does not cast doubt on the constitutionality of “all manner of

signs to promote safety, as well as directional signs and signs pointing

out historic sites and scenic spots.” Id. at 2233 (Alito, J., concurring). This

result is eminently reasonable. The First Amendment does not force state

and local governments to choose between allowing all types of signs or

prohibiting all types of signs, including, for instance, those for the

protection of life and property.6 The Constitution is not so inflexible.

      B.     Even If AusPro Could Successfully Challenge Section
             391.005’s Election-Sign Exemption, The Proper
             Remedy Would Be To Invalidate Only That Section.

      AusPro suggests that “[b]ecause [it] raised both facial and as-

applied challenges,” the Court has the “option[]” to “broadly” strike down

the Act and its regulations as a whole. AusPro Supp. Br. 18. That is not

accurate, for Texas law presumes severability. Geeslin v. State Farm


6 Admittedly, the majority’s and concurrence’s conclusions may be in some tension
with older decisions suggesting that traffic safety is not a compelling interest. See,
e.g., AusPro Appellant’s Br. 44 (citing McCormack v. Twp. of Clinton, 872 F. Supp.
1320, 1325 (D.N.J. 1994)). But see, e.g., Jornaleros de Las Palmas v. City of League
City, 945 F. Supp. 2d 779, 797-98 (S.D. Tex. 2013) (“According to the City, the primary
government interests in enforcing this statute against day laborers are to promote
traffic safety and control. Public safety is a compelling interest at the heart of
government’s function.” (citing Houston Chronicle Publ’g Co. v. City of League City,
488 F.3d 613, 622 (5th Cir. 2007)). Those decisions, however, would have to be
reconsidered in light of Reed.


                                          12
Lloyds, 255 S.W.3d 786, 797 & n.4 (Tex. App.—Austin 2008, no pet.); see

TEX. GOV’T CODE 311.032(c) (“[I]f any provision of the statute or its

application to any person or circumstance is held invalid, the invalidity

does not affect other provisions or applications of the statute that can be

given effect without the invalid provision or application, and to this end

the provisions of the statute are severable.”); cf. Voting for Am., Inc. v.

Steen, 732 F.3d 382, 398 (5th Cir. 2013) (noting Texas’s “strong

severability statute”).7 “When a part of a statutory scheme is

unconstitutional, a court should—where possible—sever out the

unconstitutional aspects and save the balance of the scheme.” Geeslin,

255 S.W.3d at 797. This Court described the severability inquiry as one

into legislative intent:

      When, therefore, a part of a statute is unconstitutional, that
      fact does not authorize the courts to declare the remainder
      void also, unless all the provisions are connected in subject-
      matter, dependent on each other, operating together for the
      same purpose, or otherwise so connected in meaning that it
      cannot be presumed the legislature would have passed the one
      without the other. . . . If, when the unconstitutional portion is
      stricken out, that which remains is complete in itself, and

7 Severing is appropriate even in the First Amendment context. See, e.g., Brockett v.
Spokane Arcades, Inc., 472 U.S. 491, 501, 506 & n.14 (1985); cf. Covenant Media LLC
v. City of N. Charleston, 493 F.3d 421, 438 (4th Cir. 2007) (noting “principle that
invalidating a whole statute may nullify more of the work of the people’s elected
representatives than is constitutionally necessary”).


                                         13
     capable of being executed in accordance with the apparent
     legislative intent, wholly independent of that which was
     rejected, it must stand.

Id. at 797 (quoting Rose v. Doctors Hosp., 801 S.W.2d 841, 844 (Tex.

1990)).

     AusPro has not argued that severability is impermissible here. Far

from it, AusPro concedes 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. The

Department agrees that, should the Court find that section 391.005

violates strict scrutiny, it should invalidate only that section and leave

the remainder intact.

     Indeed, there is no basis for striking down the entire Act. The Act

easily operates as a coherent whole without section 391.005. It fully

specifies how signs are regulated without depending on the election-sign

exemption. The only difference would be that some signs that were

permissible during the 100 days around an election would now be

banned. But the Legislature would obviously prefer that scenario to one

in which all signs can be posted in all areas at all times. See, e.g., Coral

Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1348 (11th Cir.



                                    14
2004) (rejecting facial challenge because “it [is] wholly implausible that

the City would have preferred no sign ordinance at all to one that

contains all the current parts of the Amended Sign Code other than the

suspect content regulations”); TEX. TRANSP. CODE § 391.002(b)

(legislative declaration that the Act “is necessary . . . to: (1) promote the

health, safety, welfare, morals, convenience, and enjoyment of the

traveling public; and (2) protect the public investment in the interstate

and primary systems”); Barber, 111 S.W.3d at 103 (“[A]esthetics and

public safety on the highway are recognized as substantial governmental

goals.”).

      That conclusion is confirmed by the fact that section 391.005 was

not added until two years after the Legislature passed the Act. See Act of

Apr. 25, 1997, 75th Leg., R.S., ch. 60, § 1, 1997 Tex. Gen. Laws 129, 129.

This shows that the Act (unsurprisingly) functions without the

exemption. The limited remedy of invalidating section 391.005 is thus the

only permissible one.

      By contrast, AusPro’s request for facial invalidation asks the Court

to nullify the entire Act based on the arguably content-based nature of a

single, narrow exemption that does not matter one whit to AusPro’s



                                     15
conduct. If the Court does not reject AusPro’s free-speech challenge, it

should therefore craft an appropriately narrow judicial remedy by

invalidating only section 391.005 (and the corresponding administrative

regulation 43 TEX. ADMIN. CODE § 21.146(a)(9)).8

III. REED IS WHOLLY IMMATERIAL TO AUSPRO’S PRIOR-RESTRAINT
     CHALLENGE.

      AusPro also could have complied with the Act by obtaining a license

and permit for its sign. See TEX. TRANSP. CODE §§ 391.061, .067;

Department Br. 34-35. On appeal, AusPro argued that these licensing

and permitting regulations comprised unconstitutional prior restraints.

The Department contended that AusPro forfeited this challenge by

omitting it in the trial court and that the challenge was meritless. In its

Supplemental Brief, AusPro addresses only the forfeiture argument. But

Reed could not possibly touch on Texas’s rules for preserving claims in

the trial court. Although this Court’s order permitted supplemental

briefing solely to “address[] the effect of the Reed opinion on this appeal,”




8 Reed did not consider severability. But the sign code there, with its 23 separate
categories imposing myriad, varied restrictions, likely would have been more difficult
to parse than the mere excision of the later-enacted section 391.005. Moreover, there
is no indication that the town’s sign code had a severability presumption similar to
Texas Government Code section 311.032(c).


                                         16
Mem. Op. 2, Apr. 29, 2015 (order abating appeal and granting

supplemental briefing), the Department will respond so that the Court

has full briefing on the waiver issue.

      The Department explained that a prior-restraint challenge

fundamentally differs from an absolute ban on speech and that, in the

trial court, AusPro never raised a prior-restraint challenge nor cited a

single licensing or permitting regulation. Department Br. 35-37; cf. id. at

44-45 (explaining how AusPro’s failure prejudices the Department on

appeal). AusPro responds that it “has every right to challenge TxDOT’s

licensing and permitting regime because it was prosecuted civilly for

failure to comply with it.” AusPro Supp. Br. 16. The Department agrees.

But to challenge the licensing and permitting scheme, AusPro had to

actually challenge the licensing and permitting scheme. The point is that

AusPro failed to do so until its opening brief on appeal. Yet raising these

arguments for the first time on appeal plainly does not satisfy Appellate

Rule 33.1(a) or this Court’s precedents on waiver. See Department Br. 35-

37.

      Attempting to cure that deficiency, AusPro proclaims that

“[w]ithout question” it did indeed raise a prior-restraint claim by



                                    17
asserting “that ‘the statutes and regulations on which [the Department]

relies violate AusPro’s right to free speech’ on their face and as applied

under the First Amendment and the Texas Constitution.” AusPro Supp.

Br. 17 (citation omitted). That is far too vague and broad a statement to

put the Department and trial court on notice of a prior-restraint

challenge, which involves a different legal test and different facts.

      Regardless, AusPro’s prior-restraint challenge is meritless. See

Department Br. 37-45. The Department’s arguments to that effect rested

largely on AusPro’s misinterpretation of the licensing and permitting

regulations. Reed, needless to say, had no occasion to address Texas’s

regulations under the Act. That decision therefore has no effect on this

part of AusPro’s appeal.

IV.   REED ALSO HAS NO BEARING ON ANY INDEPENDENT PROTECTION
      AFFORDED BY THE TEXAS CONSTITUTION.

      AusPro’s Supplemental Brief discusses its complaint under the

Texas Constitution, even though (as AusPro implicitly concedes) the U.S.

Supreme Court could not possibly have anything to say about Texas’s

Constitution.

      On the merits of this complaint, AusPro offers nothing to

rehabilitate the deficiencies identified by the Department’s principal


                                    18
brief. Instead, it resorts to baseless allegations, falsely asserting that the

Department is “tr[ying] to dodge the Texas Constitution.” AusPro Supp.

Br. 19. To the contrary, the Department merely wants AusPro to comply

with Texas Supreme Court precedent requiring a litigant to explain why

the Texas Constitution offers greater protection than its federal

counterpart, rather than resting on the litigant’s mere say-so. See, e.g.,

Kinney v. Barnes, 443 S.W.3d 87, 92 (Tex. 2014) (“‘Article I, Section 8

may be more protective of speech in some instances than the First

Amendment, but if it is, it must be because of the text, history, and

purpose of the provision, not just simply because.’” (quoting Operation

Rescue-Nat’l v. Planned Parenthood of Houston & Se. Tex., Inc., 975

S.W.2d 546, 559 (Tex. 1998)); Department Br. 46-47. AusPro evidently is

unable to do so. Its challenge must fail.




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                          PRAYER

The judgment of the district court should be affirmed.

                          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

                          MATTHEW BOHUSLAV
                          Assistant Attorney General

                          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




                             20
                       CERTIFICATE OF SERVICE

      On August 19, 2015, the foregoing brief 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

      Counsel for Appellant AusPro Enterprises, LP



                                  /s/ Douglas D. Geyser
                                  Douglas D. Geyser


                     CERTIFICATE OF COMPLIANCE

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this

brief contains 3,895 words, excluding the portions of the brief exempted

by Rule 9.4(i)(1).



                                  /s/ Douglas D. Geyser
                                  Douglas D. Geyser




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