                                                                               ACCEPTED
                                                                           03-14-00375-CV
                                                                                 12936746
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                      9/27/2016 6:07:11 PM
                                                                         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 District
                                         9/27/2016 6:07:11 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


               APPELLEE’S MOTION FOR REHEARING


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

JEFFREY C. MATEER                  MATTHEW H. FREDERICK
First Assistant Attorney General   Deputy Solicitor General
                                   State Bar No. 24040931

                                   OFFICE OF THE ATTORNEY GENERAL
                                   P.O. Box 12548 (MC 059)
                                   Austin, Texas 78711-2548
                                   Tel.: (512) 936-6407
                                   Fax: (512) 474-2697
                                   matthew.frederick
                                     @texasattorneygeneral.gov

                                   COUNSEL FOR APPELLEE
                                       TABLE OF CONTENTS

Table Of Authorities ................................................................................ iii

        I.       This Case Does Not Implicate Commercial Speech, and
                 Neither Does Reed. .................................................................. 3

                 A.      Commercial Speech Does Not Raise the Same
                         Constitutional Concerns as AusPro’s Political
                         Speech............................................................................. 3

                 B.      Reed Does Not Subject Regulations of Commercial
                         Speech to Strict Scrutiny. .............................................. 5

                 C.      AusPro’s Challenge to the Act Does Not Extend to
                         Regulation of Commercial Speech. .............................. 11

        II.      Severability Principles Require the Court to Preserve
                 the Act as It Applies to Commercial Speech. ....................... 13

                 A.      The Texas Legislature Intended to Regulate
                         Commercial Speech. ..................................................... 14

                 B.      The Act Can Be Executed in a Manner that
                         Complies with Federal Law and Avoids the
                         Potential Loss of More than $300 Million in
                         Federal Highway Funds. ............................................. 16

Prayer ...................................................................................................... 19

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

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




                                                      ii
                                  TABLE OF AUTHORITIES

                                                                                            Page(s)

Cases

Agostini v. Felton,
  521 U.S. 203 (1997) ............................................................................. 19

Ayotte v. Planned Parenthood of N. New England,
  546 U.S. 320 (2006) ............................................................................. 17

Bates v. State Bar of Arizona,
  433 U.S. 350 (1977) ......................................................................... 4, 13

Boelter v. Hearst Commc’ns, Inc.,
  2016 WL 3369541 (S.D.N.Y. June 17, 2016) ...................................... 10

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n,
  447 U.S. 557 (1980) ............................................................... 4, 5, 11, 16

Citizens for Free Speech, LLC v. City of Alameda,
   114 F. Supp. 3d 952 (N.D. Cal. 2015) ................................................. 10

Citizens United v. Fed. Elec. Comm’n,
   558 U.S. 310 (2010) ............................................................................... 3

City of Cincinnati v. Discovery Network, Inc.,
   507 U.S. 410 (1993) ............................................................................... 5

City of Renton v. Playtime Theatres, Inc.,
   475 U.S. 41 (1986) ................................................................................. 8

Contest Promotions, LLC v. City & Cnty. of San Francisco,
  2015 WL 4571564 (N.D. Cal. July 28, 2015) ................................ 10–11

CTIA—The Wireless Assoc. v. City of Berkeley,
  139 F. Supp. 3d 1048 (N.D. Cal. 2015) ........................................... 9–10

Davidson Cnty. v. Elrod,
  232 S.W.2d 1 (Tenn. 1950) .................................................................. 17



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

Geft Outdoor LLC v. Consol. City of Indianapolis & Cnty. of
  Marion, 2016 WL 2941329 (S.D. Ind. May 20, 2016)......................... 10

Lamar Central Outdoor, LLC v. City of Los Angeles,
  245 Cal. App. 4th 610 (2016) .............................................................. 11

Lone Star Security & Video, Inc. v. City of Los Angeles,
  827 F.3d 1192 (9th Cir. 2016) ............................................................. 10

Lotze v. Washington,
  444 U.S. 921 (1979) ............................................................................... 7

Markham Advertising Co. v. Washington,
  393 U.S. 316 (1969) ............................................................................... 7

Marks v. United States,
  430 U.S. 188 (1977) ............................................................................... 9

Mass. Assoc. of Private Career Schs. v. Healey,
  159 F. Supp. 3d 173 (D. Mass. 2016) .................................................. 10

Members of the City Council v. Taxpayers for Vincent,
  466 U.S. 789 (1984) ........................................................................... 7–8

Metromedia, Inc. v. City of San Diego,
  453 U.S. 490 (1981) ............................................................. 3, 6, 7, 9, 18

Newman Signs, Inc. v. Hjelle,
  440 U.S. 901 (1979) ............................................................................... 7

Northland Family Planning Clinic, Inc. v. Cox,
  487 F.3d 323 (6th Cir. 2007) ............................................................... 17

Ohralik v. Ohio State Bar Ass’n,
  436 U.S. 447 (1978) ............................................................................... 4

Peterson v. Village of Downers Grove,
  2016 WL 427566 (N.D. Ill. Feb. 4, 2016) ............................................ 10



                                                  iv
Pruett v. Harris Cnty. Bail Bond Bd.,
  249 S.W.3d 447 (Tex. 2008) ................................................................ 16

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

Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
  490 U.S. 477 (1989) ............................................................................. 19

Rose v. Doctors Hospital,
  801 S.W.2d 841 (Tex. 1990) ................................................................ 15

Second Amendment Arms v. City of Chicago,
  135 F. Supp. 3d 743 (N.D. Ill. 2015) ................................................... 10

Suffolk Outdoor Advertising Co. v. Hulse,
  439 U.S. 808 (1978) ............................................................................... 7

Texas Dep’t of Transp. v. Barber,
  111 S.W.3d 86 (Tex. 2003) .................................................................... 8

Thomas v. Schroer,
  127 F. Supp. 3d 864 (W.D. Tenn. 2015).......................................... 9, 17

United States v. Salerno,
  481 U.S. 739 (1987) ............................................................................. 13

Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council,
  Inc., 425 U.S. 748 (1976)....................................................................... 4

Valentine v. Chrestensen,
  316 U.S. 52 (1942) ................................................................................. 4

Statutes and Rules

23 U.S.C. § 131(b) ...................................................................................... 1

Tex. Gov’t Code § 311.032(c) ................................................................... 15

Tex. Transp. Code
  §§ 391.001–430.001 ............................................................................... 2
  § 391.001(10) ....................................................................................... 14


                                                    v
    § 391.001(12) ....................................................................................... 14
    § 391.252 ............................................................................................. 16
    § 391.252(a)(1)..................................................................................... 17

Tex. R. App. P. 49.9 ................................................................................. 13

Other Authorities

Brief for the United States as Amicus Curiae Supporting
  Petitioners, Reed v. Town of Gilbert, 135 S. Ct. 2218
  (2015) (No. 13-502), 2014 WL 4726504 .............................................. 18

U.S. Department of Transportation, Federal Highway
  Administration, Notice 4510.788: Apportionment of
  Federal-Aid Highway Funds for Fiscal Year (FY) 2015
  Pursuant to the Highway and Transportation Funding
  Act of 2014, as Amended tbl.1 (Aug. 14, 2015) ................................ 1–2




                                                     vi
                              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 MOTION FOR REHEARING


TO THE HONORABLE THIRD COURT OF APPEALS:

      The panel’s opinion provides for a sweeping remedy that invalidates

two subchapters of the Texas Transportation Code, thereby prohibiting

state regulations on commercial speech and putting ten percent of the

State’s federal highway funding—more than $300 million—at risk. See

23 U.S.C. § 131(b).1 This case does not call for such a broad remedy



1The Federal Highway Administration apportioned more than $3.3 billion in federal-
aid highway funds to the State of Texas for fiscal year 2015. See U.S. Department of
Transportation, Federal Highway Administration, Notice 4510.788: Apportionment
of Federal-Aid Highway Funds for Fiscal Year (FY) 2015 Pursuant to the Highway
because AusPro’s claims and Reed v. Town of Gilbert, 135 S. Ct. 2218

(2015), do not implicate commercial speech.

     The panel’s opinion correctly recognizes that “because Auspro’s

speech here is unquestionably noncommercial, this case, like Reed, does

not implicate commercial speech considerations.” Opinion at 5 n.10. The

remedy, however, directly implicates commercial-speech considerations

because it invalidates Subchapters B and C of the Texas Highway

Beautification Act (the “Act”), Tex. Transp. Code §§ 391.001–430.001,

and related regulations entirely, even as applied to commercial speech. A

ban on regulation of commercial speech goes beyond the controversy in

this case, the injury alleged by AusPro, and the Supreme Court’s decision

in Reed.

     The Texas Department of Transportation seeks panel rehearing on

the panel’s remedy. The Department does not ask the Court to revisit its

holding that the Act violates the First Amendment as it applies to

political speech like AusPro’s. It requests only that the Court modify its

opinion and judgment to enjoin the application of Subchapters B and C



and Transportation Funding Act of 2014, as Amended tbl.1 (Aug. 14, 2015),
https://www.fhwa.dot.gov/legsregs/directives/notices/n4510788/n4510788_t1.cfm


                                     2
to noncommercial speech and allow those provisions of the Act to stand

as they apply to commercial speech. That result is congruent to AusPro’s

claim, faithful to Supreme Court precedent, and consistent with the

reasoning of the Court’s opinion.

I.   THIS CASE DOES NOT IMPLICATE COMMERCIAL SPEECH,                 AND
     NEITHER DOES REED.

     A.    Commercial Speech Does Not Raise the Same
           Constitutional Concerns as AusPro’s Political Speech.

     Because the Act applies to both commercial and noncommercial

speech, it implicates two distinct First Amendment doctrines.

Noncommercial speech—including political and ideological speech—

receives the highest level of constitutional protection. E.g., Citizens

United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010) (“The First

Amendment has its fullest and most urgent application to speech uttered

during a campaign for political office.” (quotation marks omitted)); cf.

CR.62 (“This case involves core political speech, which is at the heart of

the First Amendment . . . .”). Commercial speech, on the other hand,

traditionally received no First Amendment protection. See, e.g.,

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 505 (1981) (“Prior to

1975, purely commercial advertisements of services or goods for sale were



                                    3
considered to be outside the protection of the First Amendment.” (citing

Valentine v. Chrestensen, 316 U.S. 52, 62 (1942))). The Supreme Court

has since held that the First Amendment applies to commercial speech,

but with the caveat that “[t]he Constitution . . . accords a lesser protection

to commercial speech than to other constitutionally guaranteed

expression.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447

U.S. 557, 562–63 (1980). This reflects “the ‘commonsense’ distinction

between speech proposing a commercial transaction, which occurs in an

area traditionally subject to government regulation, and other varieties

of speech.” Id. (quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447,

455–56 (1978)).

     Content-based regulation of commercial speech does not raise the

same constitutional concerns as similar regulation of noncommercial

speech. Indeed, the very notion of “commercial speech” implies a content-

based determination. See, e.g., Bates v. State Bar of Arizona, 433 U.S.

350, 363 (1977) (“If commercial speech is to be distinguished, it ‘must be

distinguished by its content.’” (quoting Va. State Bd. of Pharmacy v. Va.

Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976))). Accordingly,

the Supreme Court has noted that particular “features of commercial



                                      4
speech permit regulation of its content,” whereas “[i]n most other

contexts, the First Amendment prohibits regulation based on the content

of the message.” Central Hudson, 447 U.S. at 564 n.6.

     B.    Reed Does Not Subject Regulations of Commercial
           Speech to Strict Scrutiny.

     In Reed, the Supreme Court rewrote the rules for claims involving

content-based regulation of noncommercial speech. There, the plaintiffs

challenged certain provisions of a municipal ordinance that set different

standards for different kinds of noncommercial speech. See Reed, 135 S.

Ct. at 2224; cf. CR.67 (arguing that the Act’s election-sign exemption is

content-based because it reflects “a governmental preference for speech

concerning traditional ‘elections’ over other political speech unrelated to

an election”). Under then-current doctrine, intermediate scrutiny applied

because the challenged provisions did not betray an effort to target

particular viewpoints or messages. See, e.g., City of Cincinnati v.

Discovery Network, Inc., 507 U.S. 410, 428 (1993) (discussing cases

approving time-place-and-manner restrictions “provided that they are

adequately justified without reference to the content of the regulated

speech” (quotation marks omitted)). But the Supreme Court changed

course, holding that the town’s content-based rules were subject to strict


                                    5
scrutiny regardless of the underlying motive. Reed, 135 S. Ct. at 2228 (“A

law that is content based on its face is subject to strict scrutiny regardless

of the government's benign motive, content-neutral justification, or lack

of animus toward the ideas contained in the regulated speech.” (quotation

marks omitted)). The Department recognizes that in the wake of Reed,

the Act is subject to strict scrutiny insofar as it creates content-based

regulations on noncommercial speech, including the political speech at

issue here.

     But Reed did not overrule Central Hudson or Metromedia, and it

did not change the rules that apply to regulations on commercial speech.

The majority opinion in Reed implicitly limited the scope of its holding

when it declined to mention, much less overrule, previous cases

upholding     content-based   regulations    of   commercial     speech.   In

Metromedia, for example, seven Justices concluded that the city’s

interest in preventing visual clutter justified a prohibition on billboards.

453 U.S. at 507–08, 510 (plurality opinion of White, J., joined by Stewart,

Marshall, and Powell, JJ.); id. at 552 (Stevens, J., dissenting in part); id.

at 559–61 (Burger, C.J., dissenting); id. at 570 (Rehnquist, J.,

dissenting). Metromedia declined to overrule the Supreme Court’s earlier



                                      6
decision in Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808 (1978),

summarily dismissing an appeal from a judgment sustaining “a

municipal ordinance that distinguished between offsite and onsite

billboard advertising, prohibiting the former and permitting the latter,”

Metromedia, 453 U.S. at 498. The ordinance in question defined

“billboard” to mean “[a] sign which directs attention to a business,

commodity, service, entertainment, or attraction sold, offered or existing

elsewhere than upon the same lot where such sign is displayed.” Id. at

499 (quotation marks omitted). By summarily disposing of the case, the

Supreme Court made a decision on the merits “rejecting the submission

. . . that prohibiting offsite commercial advertising violates the First

Amendment.” Id. at 498–99. Metromedia declined to overrule other

summary decisions upholding facial and as-applied challenges to similar

state laws. See id. at 499 (citing Lotze v. Washington, 444 U.S. 921 (1979);

Newman Signs, Inc. v. Hjelle, 440 U.S. 901 (1979); Markham Adver. Co.

v. Washington, 393 U.S. 316 (1969)). And in Members of the City Council

v. Taxpayers for Vincent, the Court reaffirmed Metromedia, holding that

“the visual assault . . . presented by an accumulation of signs posted on




                                     7
public property” constituted “a significant substantive evil within the

City’s power to prohibit,” 466 U.S. 789, 806–07 (1984).

      Confirming the limits on the majority’s holding, Justice Alito wrote

separately to provide examples of laws that would not be subject to strict

scrutiny under the Court’s decision. See Reed, 135 S. Ct. at 2233 (Alito,

J., concurring, joined by Kennedy and Sotomayor, JJ.). The concurrence’s

non-exhaustive list included two examples with special relevance to this

case: “Rules distinguishing between the placement of signs on

commercial and residential property”; and “Rules distinguishing between

on-premises and off-premises signs.” Id.; cf. Texas Dep’t of Transp. v.

Barber, 111 S.W.3d 86, 99–102 (Tex. 2003) (upholding the Act’s

distinction between on-premise and off-premise signs because it

regulates signs based on location and does not discriminate against any

viewpoint or subject matter); id. at 101 (“The state has simply recognized

that the right to advertise an activity conducted on-site is inherent in the

ownership or lease of the property.”).2 Because Justice Alito’s concurrence



2Reed abrogates the Texas Supreme Court’s alternative holding in Barber—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 & n.83 (quoting City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 48 (1986)).


                                           8
represents the views of three members of the six-Justice majority, it is

essential to the meaning of Reed. Cf. Marks v. United States, 430 U.S.

188, 193 (1977) (“When a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of the five justices, the

holding of the Court may be viewed as that position taken by those

Members who concurred in the judgments on the narrowest grounds.”)

(quotation marks omitted).

      Consistent with the Supreme Court’s commercial-speech cases and

Justice Alito’s concurrence, lower courts have recognized that Reed does

not undermine the commercial-speech doctrine.3 The Northern District

of California, for instance, cautioned that “[t]he Supreme Court has

clearly    made      a   distinction     between       commercial       speech     and

noncommercial speech, see, e.g., Central Hudson . . ., and nothing in its

recent opinions, including Reed, even comes close to suggesting that that



3 The Western District of Tennessee’s interpretation of Reed at the preliminary-
injunction stage, see Thomas v. Schroer, 127 F. Supp. 3d 864 (W.D. Tenn. 2015),
carries no persuasive weight to the contrary for at least two reasons. First, it did not
consider a regulation on commercial speech. See id. at 869 (referring to “billboards
and signs displaying noncommercial content”). Second, it ignored Supreme Court
decisions upholding distinctions between on- and off-premise signs. Cf., e.g.,
Metromedia, 453 U.S. at 498–99. Had the district court devoted more attention to the
issue, it could not have dismissed Justice Alito’s cautionary instructions as
“unsupported conclusions.” Thomas, 127 F. Supp. 3d at 873.


                                           9
well-established distinction is no longer valid.” CTIA—The Wireless Ass’n

v. City of Berkeley, 139 F. Supp. 3d 1048, 1061 (N.D. Cal. 2015); see also

Lone Star Sec. & Video, Inc. v. City of Los Angeles, 827 F.3d 1192, 1198

n.3 (9th Cir. 2016) (“[A]lthough laws that restrict only commercial speech

are content based, see Reed[], 135 S. Ct. at 2232, such restrictions need

only withstand intermediate scrutiny.”); Mass. Ass’n of Private Career

Sch. v. Healey, 159 F. Supp. 3d 173, 194 (D. Mass. 2016) (rejecting

argument that Reed overturned commercial-speech doctrine and holding

that “at most, the appropriate level of First Amendment scrutiny . . . is

intermediate scrutiny under Central Hudson”).4 Similarly, the California


4 See also, e.g., Boelter v. Hearst Commc’ns, Inc., Nos. 15 Civ. 3934, 15 Civ. 9279,
39342016 WL 3369541, at *9 n.10 (S.D.N.Y. June 17, 2016) (noting that the Supreme
Court “has not explicity overturned the decades of jurisprudence holding that
commercial speech, and speech like it—which, inherently, requires a content-based
distinction—warrants less First Amendment protection. . . . The Court will not take
that leap here.”); Geft Outdoor LLC v. Consol. City of Indianapolis & Cnty. of Marion,
No. 1:15-cv-01568, 2016 WL 2941329, at *10 (S.D. Ind. May 20, 2016) (“Few courts
have had occasion to address it post-Reed, but the majority of courts that have
considered the question have held that the holding in Reed is limited to
noncommercial sign regulations and does not alter or otherwise affect precedent
relating to municipal regulations of commercial signs.”); Peterson v. Vill. of Downers
Grove, No. 14 C 09851, 2016 WL 427566, at *4 (N.D. Ill. Feb. 4, 2016) (“Absent an
express overruling by the Supreme Court of Central Hudson, which clearly applies to
commercial speech like [plaintiff]’s signs, Central Hudson must be deemed to apply
here.”); Second Amendment Arms v. City of Chicago, 135 F. Supp. 3d 743, 755 (N.D.
Ill. 2015) (applying intermediate scrutiny to dismiss a First Amendment challenge to
city ordinance banning the display of “firearms or ammunition in [any] window”);
Citizens for Free Speech, LLC v. City of Alameda, 114 F. Supp. 3d 952, 968–69 (N.D.
Cal. 2015) (applying intermediate scrutiny after determining that the challenged ban
on billboards applied only to commercial speech); Contest Promotions, LLC v. City &

                                         10
Court of Appeals has held that commercial-speech doctrine remains in

force after Reed. See Lamar Central Outdoor, LLC v. City of Los Angeles,

245 Cal. App. 4th 610, 625 (2016) (“Reed did not cite Metromedia[] either,

so Reed certainly did not overrule or disapprove that precedent.”).

      Under the Supreme Court’s discrete commercial-speech doctrine,

regulation of commercial speech receives intermediate scrutiny even

though it is inherently content-based. See, e.g., Central Hudson, 447 U.S.

at 564 n.6. Reed did not mention the Court’s commercial-speech doctrine,

let alone overrule it. Commercial speech simply was not before the Court.

      C.    AusPro’s Challenge to the Act Does Not Extend to
            Regulation of Commercial Speech.

      AusPro has not challenged the Act as it applies to commercial

speech, nor could it. AusPro has no reason to challenge the Act’s

regulation of commercial advertisements because it does not complain

that its own commercial speech has been restricted. Without an injury to




Cnty. of San Francisco, No. 15-cv-00093, 2015 WL 4571564, at *4 (N.D. Cal. July 28,
2015) (“Because Reed does not abrogate prior case law holding that laws which
distinguish between on-site and off-site commercial speech survive intermediate
scrutiny, the Court holds that its prior analysis continues to control the fate of
plaintiff’s First Amendment claim.”).


                                        11
its own interest in commercial speech, AusPro could not establish

standing to challenge the Act as applied to commercial speech.

     AusPro has consistently disclaimed any challenge to the Act’s

regulation of commercial speech. It explained to the district court:

        The speech that we’re talking about in this particular case,
     Your Honor, is this sign. It’s maybe not the most beautiful
     sign, but it is a sign that I think we all can agree is core
     political speech. It does not relate to the sale of any product.
     It does not relate to anything that is being marketed on the
     premise. It is a core political statement.

2.RR.18. Although AusPro changed its approach significantly on appeal,

it has not expanded its claim to attack commercial-speech regulations. In

its opening brief, for instance, AusPro noted the “distinction between

commercial and noncommercial speech” but stated, “Whether this

distinction remains valid is not at issue in this case involving

noncommercial political speech.” Appellant’s Opening Brief 21 & n.6.

     Even if AusPro could argue that it attempted to challenge the Act

as it applies to commercial speech, the Court has no basis to resolve that

claim. First, the parties have not briefed Reed’s effect on commercial-

speech doctrine or the application of intermediate scrutiny to the Act.

Second, AusPro cannot rely on alleged injuries to third parties’

commercial-speech rights, even in the guise of a facial challenge. Because


                                    12
Reed does not address commercial-speech doctrine, it provides no basis

to hold that every application of the Act against commercial speech is

invalid. See, e.g., United States v. Salerno, 481 U.S. 739, 745 (1987)

(explaining that in a facial challenge, “the challenger must establish that

no set of circumstances exists under which the Act would be valid”).

AusPro cannot invoke overbreadth because that doctrine does not apply

to commercial speech. See Bates, 433 U.S. at 381 (“[W]e decline to apply

[the overbreadth doctrine] to professional advertising, a context where it

is not necessary to further its intended objective.”). As a result, even if

Reed implied that the Act is unconstitutional in every application to

noncommercial speech (which it does not5), it provides no support for a

facial challenge to the Act as applied to commercial speech.

II.   SEVERABILITY PRINCIPLES REQUIRE THE COURT                     TO   PRESERVE
      THE ACT AS IT APPLIES TO COMMERCIAL SPEECH.

      Given the limits of Reed and of AusPro’s claim, the Court was right

to conclude that this case does not implicate commercial speech. That

leaves two questions: Did the Legislature intend to regulate commercial



5By declining to revisit points the Court has already addressed, the Department does
not waive or forfeit any arguments, including but not limited to arguments about
Reed’s effect on the Act as applied to noncommercial speech. See Tex. R. App. P. 49.9.


                                         13
speech; and is it possible to apply the Act to commercial speech without

also regulating noncommercial speech? See, e.g., Geeslin v. State Farm

Lloyds, 255 S.W.3d 786, 797 (Tex. App.—Austin 2008, no pet.) (“The goal

of severability is to retain the valid portions and applications of a statute

whenever possible”). The answer to both questions is yes. Severability

allows the Court to protect AusPro’s First Amendment rights while

respecting the Legislature’s intent to the greatest extent possible.

     A.    The Texas Legislature              Intended      to    Regulate
           Commercial Speech.

     The plain text of the Act leaves no room to doubt that the

Legislature intended to regulate commercial speech. Subchapters B and

C apply to “outdoor advertising,” which the Legislature defined to mean

virtually any outdoor sign or display “designed, intended, or used to

advertise or inform.” Tex. Transp. Code § 391.001(10). That definition is

obviously broad enough to include commercial advertisements offering

goods or services. Cf. id. § 391.001(12) (defining “Specific information logo

sign” as a subset of signs containing brand names of “commercial

establishments” offering particular services).

     Under Texas law, severability doctrine does not require courts to

strike down a statutory provision when a particular application violates


                                     14
the Constitution. On the contrary, the Code Construction Act provides

expressly that unconstitutional applications of a statute must be severed

so that the statute remains in force as applied in all other circumstances.

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 . . . .”) (emphasis

added); cf. Rose v. Doctors Hospital, 801 S.W.2d 841, 845–46 (Tex. 1990)

(severing an application of the Medical Liability and Insurance

Improvement Act’s cap on “health care liability claims” to “common law

claims,” which was previously held to violate the Texas Constitution, and

applying the statutory cap to the plaintiffs’ wrongful death claim, which

was created “by statute, not by the common law”). Here, insofar as the

Act’s content-based regulations violate the First Amendment as applied

to noncommercial speech, those applications must be severed, and the

Act must continue to apply to commercial speech.




                                     15
      B.     The Act Can Be Executed in a Manner that Complies
             with Federal Law and Avoids the Potential Loss of
             More than $300 Million in Federal Highway Funds.

      The Court’s opinion shows that Subchapters B and C can be

executed, as the Legislature intended, with respect to commercial speech.

The Court declined to strike down Subchapter I, which prohibits off-

premise signs adjacent to and visible from specific highways. See Tex.

Transp. Code § 391.252. The Court explained that “the provisions in

Subchapter I are not affected by our decision here because they authorize

the State to regulate commercial speech along certain specified

highways, specifically off-premise signs displaying messages regarding

‘goods, services, or merchandise.’” Opinion 24–25; id. at 25 n.108 (citing

Central Hudson, 447 U.S. at 563; Pruett v. Harris Cnty. Bail Bond Bd.,

249 S.W.3d 447, 456 (Tex. 2008)). The severability doctrine required the

Court to preserve Subchapter I because it could be “executed as the

Legislature intended in the absence of the Act’s outdoor-advertising

regulations.” Id. at 25. The same logic applies to Subchapters B and C as

applied to commercial advertisements.6


6To the extent Thomas v. Schroer might be thought to bear on the question, it merely
shows that Tennessee law deviates from the general preference for severability.
There, the district court recognized that courts generally seek to “avoid ‘nullify[ing]
more of a legislature’s work than is necessary,’ because doing so ‘frustrates the intent

                                          16
      If Texas’s severability doctrine requires the Court to preserve

Subchapter I because it regulates commercial speech, it necessarily

requires the Court to preserve Subchapters B and C as they apply to

commercial speech, including off-premise commercial signs. But by

invalidating Subchapters B and C in all their applications, the Court’s

opinion forbids the State to regulate commercial speech on Highway 71

but permits the State to regulate the same kind of speech on Highway

290. Compare Opinion 2 (noting that AusPro’s sign was located on

Highway 71) with Tex. Transp. Code § 391.252(a)(1) (prohibiting off-

premise signs on specific roads, including Highway 290). That cannot be

right. State regulation of commercial speech either conflicts with Reed or

it doesn’t. (It doesn’t.) A regulation of commercial speech under

Subchapter B is no less constitutional than a regulation of commercial

speech under Subchapter I. If the Court’s constitutional holding can




of the elected representatives of the people.’ . . . For this reason where partial, rather
than facial, invalidation is possible, it is the ‘required course.’” Northland Family
Planning Clinic, Inc. v. Cox, 487 F.3d 323, 333 (6th Cir. 2007) (quoting Ayotte v.
Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006)), quoted in Thomas,
127 F. Supp. at 875–76. But that general rule gave way in Thomas to the contrary
presumption under Tennessee state law, which declared that “severance of
unconstitutional portions of a statute is generally disfavored.” Id. at 876 (citing
Davidson Cnty. v. Elrod, 232 S.W.2d 1, 2–3 (Tenn. 1950)).


                                           17
accommodate Subchapter I, it must also accommodate the application of

Subchapters B and C to commercial advertisements. Cf. Metromedia, 453

U.S. at 521 n.26 (“Since our judgment is based essentially on the

inclusion of noncommercial speech within the prohibitions of the

ordinance, the California courts may sustain the ordinance by limiting its

reach to commercial speech, assuming the ordinance is susceptible to this

treatment.”) (emphasis added).

     Preserving Subchapters B and C as applied to commercial speech

not only cures an internal conflict in the panel’s opinion, it avoids an

unnecessary risk to more than $300 million in federal highway funds. As

the panel noted, Subchapter I is not mandated by federal law, but

Subchapters B and C are. Opinion 25. The United States does not believe

that the federal Highway Beautification Act contains the same

constitutional flaws as the municipal code in Reed. See Brief for the

United States as Amicus Curiae Supporting Petitioners, Reed v. Town of

Gilbert, 135 S. Ct. 2218 (2015) (No. 13-502), 2014 WL 4726504, at *28–

34. If a specific provision or application of the Act is not clearly forbidden

by Reed—and regulation of commercial speech is not—the Department’s




                                     18
failure to enforce the Act puts the State’s highway funding in jeopardy.

That risk is unnecessary and avoidable here.

     Withholding judgment on Subchapters B and Cs’ application to

commercial speech also respects the Supreme Court’s control over its own

precedents. The Court has consistently cautioned lower courts that “[i]f

a precedent of this Court has direct application in a case, yet appears to

rest on reasons rejected in some other line of decisions, the Court of

Appeals should follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.” Agostini v. Felton,

521 U.S. 203, 237 (1997) (citing Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989)). Insofar as Subchapters B and C

apply to commercial speech, the Supreme Court’s commercial-speech

cases directly control. This Court should follow those cases and let the

Supreme Court decide whether or not to overrule them.

                                 PRAYER

     The Court should grant the petition for rehearing, vacate its

opinion, withdraw its judgment, and issue a revised opinion and

judgment holding that Subchapters B and C of the Texas Highway

Beautification Act do not violate the First Amendment as applied to



                                    19
commercial speech. That would preserve AusPro’s interest, under Reed,

in displaying noncommercial signs on its property. It would honor the

Texas Legislature’s intent—apparent on the face of the Act—to regulate

commercial advertisements as required by the federal Highway

Beautification Act and avoid the risk of losing more than $300 million in

federal highway funds. It would follow the logic of the panel’s opinion,

which correctly upheld regulation of commercial advertisements under

Subchapter I. And it would avoid unwarranted interference with the

Supreme Court’s commercial-speech doctrine, which was neither

considered nor curtailed in Reed.

                                     Respectfully submitted.

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

JEFFREY C. MATEER                    /s/ Matthew H. Frederick
First Assistant Attorney General     MATTHEW H. FREDERICK
                                     Deputy Solicitor General
                                     State Bar No. 24040931
                                     OFFICE OF THE ATTORNEY GENERAL
                                     P.O. Box 12548 (MC 059)
                                     Austin, Texas 78711-2548
                                     Tel.: (512) 936-6407
                                     Fax: (512) 474-2697
                                     matthew.frederick
                                       @texasattorneygeneral.gov

                                     COUNSEL FOR APPELLEE

                                    20
                       CERTIFICATE OF SERVICE

      On September 27, 2016, 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/ Matthew H. Frederick
                                  MATTHEW H. FREDERICK
                                  Counsel for Appellee

                     CERTIFICATE OF COMPLIANCE

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

brief contains 4,131 words as counted by the Microsoft Word 2010 word

count utility, excluding the portions of the brief exempted by Rule

9.4(i)(1).

                                  /s/ Matthew H. Frederick
                                  MATTHEW H. FREDERICK
                                  Counsel for Appellee




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