                                                                             ACCEPTED
                                                                         03-14-00375-CV
                                                                                 8207769
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                   12/11/2015 4:29:42 PM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                      No. 03-14-00375-CV


                In the             FILED IN
                            3rd COURT OF APPEALS
                                 AUSTIN, TEXAS
        Third Court of Appeals
                            12/11/2015 4:29:42 PM
                                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
                      _______________

APPELLANT AUSPRO ENTERPRISES, LP’S RESPONSE IN OPPOSITION TO
  TXDOT’S MOTION FOR LEAVE TO FILE POST-SUBMISSION BRIEF
                    _______________

                                Meredith B. Parenti
                                State Bar No. 00797202
                                PARENTI LAW PLLC
                                7500 San Felipe, Suite 600
                                Houston, Texas 77063
                                [Tel] (281) 224-5848
                                [Fax] (281) 605-5677
                                meredith@parentilaw.com
                                Counsel for Appellant
                                AusPro Enterprises, LP
                      IDENTITIES OF PARTIES AND COUNSEL

      The following is a complete list of the parties, attorneys, and any other

person who has any interest in the outcome of this appeal.

Defandant/Appellant:

AusPro Enterprises, LP

Counsel for Defendant/Appellant:

Meredith B. Parenti
State Bar No. 00797202
PARENTI LAW PLLC
7500 San Felipe, Suite 600
Houston, Texas 77063
[Tel] (281) 224-5848
[Fax] (281) 605-5677
meredith@parentilaw.com

Plaintiff/Appellee:

Texas Department of Transportation

Counsel for Plaintiff/Appellee:

Douglas Geyser
Assistant Solicitor General
Matthew Bohuslav
Assistant Attorney General, Transportation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
[Tel] (512) 936-2540
[Fax] (512) 472-3855
douglas.geyser@texasattorneygeneral.gov
matthew.bohuslav@texasattorneygeneral.gov




                                         i
TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellant AusPro Enterprises, LP opposes Appellee Texas Department of

Transportation’s Motion for Leave to File Appellee’s Post-Submission Brief.

Additional briefing is not warranted because this case already has been fully

briefed and presented to the Court after extensive supplemental briefing on the

impact of the Supreme Court’s decision in Reed v. Town of Gilbert, 576 U.S. __,

135 S.Ct. 2218 (2015). Allowing additional briefing would needlessly waste

additional time and resources of the Court and the parties, and postpone the

ultimate resolution of this case for no good reason.

      TxDOT argues that the interest of fairness requires that this Court permit it

to file a 26-page post-submission brief to address arguments AusPro made in its

supplemental reply brief and at oral argument “to which the Department had no

opportunity to respond in writing.” Mot. at 2. However, the bulk of TxDOT’s 26-

page proposed submission responds to arguments raised by AusPro in its briefing,

not any new arguments that TxDOT claims were made for the first time at oral

argument by AusPro. TxDOT discusses issues that it claims were raised at oral

argument on only five of the 26 pages of its attempted brief. See TxDOT Post-

Submission Br. at 3, 4, 7, 20, 25.

      The subject of TxDOT’s attempted post-submission brief on almost every

page is AusPro’s briefing, including the following examples:


                                          1
   • “AusPro’s opening brief and supplemental brief argued . . . .” TxDOT Post-
     Submission Br. at 1.

   • “AusPro’s opening brief disclaimed . . . .” Id. at 2.

   • “AusPro’s supplemental reply brief disputed . . . .” Id. at 3.

   • “None of AusPro’s briefs ever asked . . . .” Id. at 6.

   • “AusPro’s briefing expressly agreed . . . .” Id. at 7.

   • “in response to AusPro’s reply brief . . . .” Id. at 12.

   • “AusPro’s briefing expressly agreed . . . .” Id. at 15.

   • “AusPro’s opening brief challenged . . . .” Id. at 22.

   • “AusPro’s reply brief implies . . . .” Id. at 23 n.16.

   • “AusPro’s reply brief expressly conceded . . . .” Id. at 24.

      TxDOT does not indicate how it was prevented from responding to these

arguments in writing before oral argument. The Office of the Attorney General was

served with AusPro’s supplemental reply brief on October 7, 2015, over 40 days

before this case was submitted to the Court at the close of oral argument on

November 18, 2015. TxDOT could have, but did not, seek leave of Court to file a

sur-reply. See TEX. R. APP. P. 38.7 (allowing the filing of supplemental briefs).

      In April, the Court granted AusPro’s motion to allow supplemental briefing

to permit the parties to address the Supreme Court’s decision in Reed. See Mem.

Op. (Apr. 29, 2015) (setting forth supplemental briefing schedule). The Court’s

Order stated that the parties could request an expansion of their briefing limits

through established procedures. Id. at 2. TxDOT did not request additional

                                          2
supplemental briefing in order to address issues raised in AusPro’s supplemental

reply, but waited until 14 days after the case was fully submitted to the Court to

file its proposed post-submission brief. TxDOT’s failure to respond in writing to

AusPro’s earlier briefing may have been a strategic decision, but fairness dictates

that it must live with the consequences of its inaction.

      AusPro did not “deprive[ ] the Department of the ability to fully respond,”

Mot. at 3, and there is no basis for its assertion that “the Department had no

opportunity to respond in writing” to arguments raised in AusPro’s briefing. Mot.

at 2. TxDOT merely seeks to respond at a time and place of its choosing.

      The three arguments TxDOT claims AusPro first made in rebuttal at oral

argument were either:

      1. made in AusPro’s briefs, compare TxDOT Post-Submission Br. at 4
         (AusPro’s contention at argument that “all other content-based
         exemptions necessarily also violate strict scrutiny”) with AusPro Supp.
         Br. at 18 (“As demonstrated above and in AusPro’s opening brief and
         supplemental brief on Reed, because the Act is content based it is subject
         to strict scrutiny. See AusPro Supp. Br. at 11-15; AusPro Opening Br. at
         29-44.”);

      2. made in response to a new argument raised first by TxDOT during oral
         argument, compare TxDOT’s oral argument contention that severability
         was not at issue in Reed with TxDOT Post-Submission Br. at 3 (stating
         that AusPro’s counsel suggested Reed forecloses severability); or

      3. made as a suggestion by the Court during questioning at oral argument,
         see TxDOT Post-Submission Br. at 4 (stating incorrectly that AusPro
         agreed with the proposed remedy raised by the Court of excising the time
         limit in the election sign exemption).



                                          3
      These arguments are the fig leaf behind which TxDOT is attempting to hide

its proposed 26-page post-submission sur-reply. TxDOT’s attempt at rewriting and

expanding its briefing after the case was submitted should be rejected.

      Indeed, it was TxDOT, not AusPro, that made the biggest revelation at oral

argument. For the first time, TxDOT conceded that the election sign exemption

was content based, subject to strict scrutiny, and unable to survive strict scrutiny.

Yet, somehow TxDOT has the audacity to argue that “AusPro moved the goalposts

again at oral argument—including during rebuttal after which TxDOT had no way

to respond—by both making new arguments and directly contracting prior

concessions.” TxDOT Post-Submission Br. at 3. AusPro did not move the

goalposts; TxDOT carried AusPro into the end zone.




                                           4
                                   CONCLUSION

      AusPro does not believe that additional briefing is warranted, and

respectfully asks the Court to deny TxDOT’s motion. However, if the motion is

granted, AusPro requests an additional 30 days and 8,000 words to respond to the

proposed post-submission brief.

                                       Respectfully submitted,

                                       /s/ Meredith B. Parenti
                                       Meredith B. Parenti
                                       PARENTI LAW PLLC
                                       7500 San Felipe, Suite 600
                                       Houston, TX 77063
                                       [Tel] (281) 224-5848
                                       [Fax] (281) 605-5677
                                       meredith@parentilaw.com
                                       Counsel for Appellant
                                       AusPro Enterprises, LP

                            CERTIFICATE OF SERVICE

      I certify that on December 11, 2015, I served a copy of this filing on the
following party via email and through the Court’s electronic filing system:

Douglas Geyser
Assistant Solicitor General
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Counsel for Appellee Texas Department of Transportation

                                       /s/ Meredith B. Parenti
                                       Meredith B. Parenti




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