Auspro Enterprises, LP v. Texas Department of Transportation

Citation: Not availableDocket: 03-14-00375-CV

Court: Court of Appeals of Texas; October 7, 2015; Texas; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The document is an appellate brief filed by AusPro Enterprises, LP (Appellant) against the Texas Department of Transportation (Appellee) before the Third Court of Appeals in Austin, Texas. It includes details about the parties involved, their legal representatives, and a request for oral argument. The brief outlines various arguments regarding the constitutionality of a specific act and its regulations, focusing on issues such as the implications of selective bans on speech, the relevance of case law (specifically the Barber case), and the classification of on-premises activities as content-based regulation. It asserts that the act does not meet strict scrutiny standards, suggesting that the court may consider the constitutionality of the entire act in this facial challenge. The structure of the brief includes sections on the identity of parties, a table of authorities, and a detailed argument section addressing multiple legal points, concluding with a prayer for relief.

The Supreme Court's ruling in Reed v. Town of Gilbert, 576 U.S. 135 S.Ct. 2218 (2015), discredited the Texas Department of Transportation's (TxDOT) defense of the Texas Highway Beautification Act, which regulates signs based on content. The Texas Supreme Court previously acknowledged that the Act distinguishes between subject matters but incorrectly applied intermediate scrutiny. Reed clarified that any regulation of speech based on content is subject to strict scrutiny, irrespective of the justification. Consequently, the Act and its regulations are deemed content-based and fail to meet strict scrutiny standards.

In its supplemental response, TxDOT has notably refrained from arguing several key points: it no longer claims the Act constitutes a valid time, place, and manner restriction, nor does it assert that the Act addresses secondary effects of billboards. Additionally, TxDOT does not contend that the Act is narrowly tailored to serve a compelling state interest, undermining its previous arguments presented in court.

TxDOT fails to establish that aesthetics and traffic safety are compelling governmental interests, merely referencing the Reed case where the court assumed this without a definitive ruling, instead criticizing the Gilbert sign code for being underinclusive. TxDOT does not maintain that election signs or other speech topics specified in the Act present a greater traffic risk than other allowed signs. The Reed decision undermines the Texas Highway Beautification Act, which was previously upheld in Barber. TxDOT argues that the Act is a benign, content-neutral regulation that temporarily exempts election-related speech, but the critical issue is whether the regulation is content-based, which, if so, would necessitate strict scrutiny regardless of the government's intentions. Historical precedents indicate that selectively lifting a ban for specific subjects renders the regulation content-based. Similar to the Gilbert sign code, which banned outdoor signs but exempted various categories including political signs, Texas's Highway Beautification Act prohibits outdoor advertising along state highways while exempting at least 26 categories based on subject matter, including public election signs and specific informational signs.

The excerpt addresses the legal framework surrounding sign regulations, particularly exemptions for signs related to life and property protection and specific categories like public elections, agricultural fairs, and tourism. It clarifies that the exemption does not violate the First Amendment as it pertains to government speech, differentiating it from private speech regulation. Citing various court cases, including Reed v. Town of Gilbert, the text emphasizes that the Act makes content-based distinctions, allowing signs based on their specific topics. For instance, signs related to public elections, wineries, and agriculture are permitted, demonstrating the Act’s content-based nature. 

It highlights an incident involving AusPro, whose election sign was deemed illegal by TxDOT due to its placement outside the designated 100-day exemption period. TxDOT's regulatory framework stipulates that outdoor advertising signs require permits, with specific exemptions for campaign signs only applicable within the 90 days before and 10 days after elections. The notice from TxDOT indicated that AusPro's sign violated these regulations, focusing on the election sign exemption and noting a lack of clarity about the relevant election date that would define the permissible timeframe for such signs. The summary underscores that the exemption criteria are pivotal in determining sign legality, specifically regarding timeframes for campaign-related signage.

AusPro challenges the constitutionality of the Texas election sign regulations, claiming that restrictions on election signs violate its free speech rights under 43 TEX. ADMIN. CODE §21.146(a)(10). The trial court ruled that AusPro’s sign did not qualify for the exemption for election signs as stated in §21.146(a)(9), leading to a civil penalty for noncompliance. AusPro contends that the exemption's duration discriminates against election-related speech by limiting it compared to other commercial and noncommercial speech, which can be displayed year-round. This argument references the Supreme Court's decision in Reed, which indicated that content-based exemptions create harm, as petitioners were penalized for exceeding time limits on sign display. 

Furthermore, AusPro critiques TxDOT’s reliance on the Barber case, arguing that its reasoning was rejected in Reed. The Barber decision claimed that the Act's distinctions were content-neutral, a stance that Reed contradicted by asserting that innocent motives do not mitigate the censorship risks posed by content-based statutes. Following Reed, AusPro asserts that any content-based distinctions in the Act must undergo strict scrutiny. 

Lastly, AusPro maintains that it has raised both facial and as-applied challenges to the entire Act and its exemptions throughout the litigation, countering TxDOT’s assertion that the challenge is limited to the election sign exemption. AusPro argues that the Act's other exemptions also favor certain topics of speech over others, justifying a broader constitutional examination.

AusPro challenges the on-premises exemption of the Act, asserting that speech content must be evaluated to determine its relevance to on-site activities and compliance with the Act. This challenge stems from the Texas Supreme Court's decision in Barber, which limits the Court's ability to reexamine its reasoning until now. AusPro argues that the Act's regulations are constitutionally flawed due to content-based distinctions, as clarified by the Reed decision. The distinction between facial and as-applied challenges is not rigidly defined, allowing courts to make broader invalidity pronouncements in as-applied cases. AusPro highlights that the Act’s exemptions favor certain commercial and noncommercial speech, granting them year-round posting privileges compared to election signs. This raises free-speech concerns since exemptions not covering the plaintiff could undermine the justification for the statute's restrictions. The Act’s content-based exemptions, similar to the invalidated sign code in Reed, subject the entire statutory framework to strict scrutiny. TxDOT's stance that the election sign exemption could be severed ignores the unconstitutionality of the other content-based exemptions. The Court is urged to declare the election sign exemption unconstitutional and to broadly apply Reed’s principles to invalidate the content-based regulations of the Act, as they do not serve a compelling governmental interest and are not narrowly tailored. TxDOT's implementing regulations are also implicated as impermissibly content-based.

AusPro has consistently challenged the constitutionality of certain provisions of an Act throughout litigation and on appeal. The trial court upheld these provisions, finding them constitutional. However, the Court should reassess the content-based restrictions in the Act and its regulations, especially in light of the reasoning from Reed, to provide clarity to the public and legislative bodies. The Act's exemption for on-premises signs is deemed content-based because it necessitates examination of the sign's content to determine its relation to on-site activities, which raises constitutional concerns. This contrasts with the claim that such regulations are content-neutral, as enforcement requires scrutiny of the sign's message. Previous judicial opinions mistakenly viewed these regulations as location-based rather than content-based, which is inconsistent with established precedents such as Reed and McCullen. The Texas Department of Transportation (TxDOT) has acknowledged its regulations regarding on-premises signs were "constitutionally suspect" for limiting them to commercial activities. Although TxDOT revised these regulations, they still restrict on-site advertising to commercial activities. Ultimately, if AusPro's sign had conveyed an approved message relating to on-site activities, it would have been permissible under the Act. Justice Alito's concurrence does not endorse a blanket exemption for regulations differentiating between on-premises and off-premises signs.

The majority opinion clarified that distinctions based on the subject matter of signs are considered content-based regulations. A regulation that allows property owners to display any sign on their own premises does not fall under this category and aligns with prior Supreme Court rulings affirming property owners' rights to display signs. The opinion cites *City of Ladue*, emphasizing the significance of a speaker's identity in conjunction with their speech and how property owners have strong incentives to maintain their property values, thereby limiting visual clutter. It suggests that the state could effectively manage visual clutter by permitting signs on private property while regulating those on leased property. 

The Act in question is deemed content-based, subjecting it to strict scrutiny, which the Texas Department of Transportation (TxDOT) fails to address adequately. Strict scrutiny necessitates that the government demonstrates a compelling interest and that the regulation is narrowly tailored to achieve that interest. The document asserts that TxDOT has not shown the Act to be necessary for serving any compelling government interest or that it is appropriately tailored, which typically leads to the statute's failure under strict scrutiny, as indicated by relevant case law.

The excerpt outlines the argument regarding the constitutionality of sign regulations imposed by the Texas Department of Transportation (TxDOT). It references the Supreme Court case Reed, where the Court assumed that aesthetic and traffic safety justifications could be compelling but ultimately found the Gilbert sign code to be "hopelessly underinclusive." TxDOT's claims of these interests being "substantial" do not meet the criteria for a content-based regulation of speech. The excerpt argues that selectively regulating signs based on their content while allowing others to proliferate is similarly underinclusive. It asserts that although certain signs may be necessary for traffic guidance, such interests do not rise to the level of a compelling governmental interest as they are not grounded in the Constitution. The Court highlighted that regulations must be narrowly tailored to promote legitimate interests, which the current regulations fail to achieve, especially concerning political and ideological signs. AusPro Enterprises requests that the Court reverse the trial court’s decision, asserting that the Act and its regulations violate the First Amendment and the Texas Constitution. The document includes a certification of compliance regarding its word count and service to the opposing counsel.