Opinion

Auspro Enterprises, LP v. Texas Department of Transportation

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Feb 19, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

in holding that regulation was content neutral, stating, “[w]e have never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct”

How later courts described this case

in holding that regulation was content neutral, stating, “[w]e have never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct”
addressing ordinance imposing ban on campaign and public-interest signs at private residences, without any indication of an onsite/offsite distinction for all speech
explaining that sign code allowed “permanent year around ground sign expressing support for a particular sports team,” while imposing time limits on “identical sign . . . advocating a particular candidate for political office”
invalidating zoning code provision that placed time limits on residential, political sign but not “upon any other category of signs”

Written by the judges who cited it.

The opinion

ACCEPTED

03-14-00375-CV

4213371

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/19/2015 1:56:30 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 District2/19/2015 1:56:30 PM

JEFFREY D. KYLE

Austin, Texas Clerk

AUSPRO ENTERPRISES, LP,

Appellant,

TEXAS DEPARTMENT OF TRANSPORTATION,

Appellee.

On Appeal from the

345th Judicial District Court of Travis County, Texas

APPELLEE’S BRIEF

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.................................................................................. iv

Statement of the Case ............................................................................... x

Statement Regarding Oral Argument ..................................................... xi

Issues Presented...................................................................................... xii

Statement of Facts .................................................................................... 2

I. The Texas Highway Beautification Act .................................. 2

II. AusPro’s Illegal Sign ............................................................... 8

Summary of Argument .............................................................................. 9

Argument ................................................................................................. 11

I. The Restrictions Imposed By The Act And Its

Implementing Regulations Are Valid Time, Place, And

Manner Restraints. ............................................................... 11

A. Time, Place, And Manner Restrictions Are Subject

To Intermediate Scrutiny. ........................................... 11

B. Barber Controls The Outcome Here. ........................... 13

1. Barber held that the Act is a valid time,

place, and manner restriction. ............................ 13

2. AusPro’s purported distinctions of Barber

are meritless........................................................ 17

C. Intermediate Scrutiny Governs AusPro’s

Challenge...................................................................... 21

D. The Act And Its Regulations Pass Intermediate

Scrutiny. ....................................................................... 32

II. The Permitting And Licensing Regulations Are Also

Content Neutral And Thus Not Unconstitutional Prior

Restraints. ............................................................................. 34

A. AusPro Forfeited Its Challenge To The Licensing

And Permitting Regulations. ....................................... 35

B. Regardless, AusPro’s Prior-Restraint Challenge Is

Meritless. ...................................................................... 37

1. The licensing and permitting regulations are

content neutral. ................................................... 38

2. The regulations contain adequate standards

to control official discretion. ............................... 42

III. The Act And Its Regulations Do Not Violate The Texas

Constitution........................................................................... 46

Prayer ...................................................................................................... 49

Certificate of Service ............................................................................... 50

Certificate of Compliance ........................................................................ 50

Appendix

iii

INDEX OF AUTHORITIES

Cases

Bentley v. Bunton,

94 S.W.3d 561 (Tex. 2002)......................................................... 46-47

Bloedorn v. Grube,

631 F.3d 1218 (11th Cir. 2011) ................................................. 44-45

Broadrick v. Oklahoma,

413 U.S. 601 (1973) ........................................................................ 20

Brockett v. Spokane Arcades, Inc.,

472 U.S. 491 (1985) ........................................................................ 27

Citizens United v. FEC,

558 U.S. 310 (2010) ............................................................ 15, 30, 33

City of Antioch v. Candidates’ Outdoor Graphic Serv.,

557 F. Supp. 52 (N.D. Cal. 1982) ................................................... 23

City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) ........................................................................ 14

City of Ladue v. Gilleo,

512 U.S. 43 (1994) .............................................................. 14, 19, 29

City of Lakewood v. Plain Dealer Publ’g Co.,

486 U.S. 750 (1988) .................................................................. 36, 44

City of Painesville Bldg. Dep’t v. Dworken & Bernstein Co.,

L.P.A., 733 N.E.2d 1152 (Ohio 2000) ............................................. 24

City of Renton v. Playtime Theatres,

475 U.S. 41 (1986) .......................................................................... 28

Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288 (1984) .................................................................. 12, 31

Collier v. City of Tacoma,

854 P.2d 1046 (Wash. 1993) (en banc) ........................................... 24

Covenant Media of S.C. v. City of N. Charleston,

493 F.3d 421 (4th Cir. 2007) ........................................ 15, 26, 27, 41

Curry v. Prince George’s Cnty., Md.,

33 F. Supp. 2d 447 (D. Md. 1999) .................................................. 23

Davenport v. Garcia,

834 S.W.2d 4 (Tex. 1992).......................................................... 47, 48

Freedman v. Maryland,

380 U.S. 51 (1965) .......................................................................... 37

Frisby v. Schultz,

487 U.S. 474 (1988) ........................................................................ 11

Granite State Outdoor Adver., Inc. v. City of St. Petersburg,

Fla., 348 F.3d 1278 (11th Cir. 2003) ........................................ 38, 44

Hill v. Colorado,

530 U.S. 703, 719 (2000) ........................................ 12, 19, 20, 25, 26

John Donnelly & Sons v. Campbell,

639 F.2d 6 (1st Cir. 1980) ............................................................... 22

Kinney v. Barnes,

443 S.W.3d 87 (Tex. 2014).............................................................. 46

Knoeffler v. Town of Mamakating,

87 F. Supp. 2d 322 (S.D.N.Y. 2000) ............................................... 23

Lauder, Inc. v. City of Houston, Tex.,

670 F.3d 664 (5th Cir. 2012) .................................................... 37, 45

Maryland v. Universal Elections, Inc.,

729 F.3d 370 (4th Cir. 2013) .......................................................... 31

McCormack v. Twp. of Clinton,

872 F. Supp. 1320 (D.N.J. 1994) (mem. op.) .................................. 23

Members of the City Council of Los Angeles v. Taxpayers for

Vincent,

466 U.S. 789 (1984) ........................................................................ 20

Messer v. City of Douglasville,

975 F.2d 1505 (11th Cir. 1992) ...................................................... 15

Metromedia, Inc. v. City of San Diego,

453 U.S. 490 (1981) .................................................................. 11, 14

Nat’l Adver. Co. v. Town of Babylon,

900 F.2d 551 (2d Cir. 1990) ............................................................ 23

Operation Rescue-Nat’l v. Planned Parenthood of Houston &

Se. Tex., Inc., 975 S.W.2d 546 (Tex. 1998) ..................................... 46

Orazio v. Town of N. Hempstead,

426 F. Supp. 1144 (E.D.N.Y. 1977) ................................................ 23

Rappa v. New Castle Cnty.,

18 F.3d 1043 (3d Cir. 1994) ............................................................ 22

S. Or. Barter Fair v. Jackson Cnty., Or.,

372 F.3d 1128 (9th Cir. 2004) .................................................. 44, 45

Serv. Emps. Int’l Union, Local 5 v. City of Houston,

595 F.3d 588 (5th Cir. 2010) ............................................... 26-27, 41

Snyder v. Phelps,

131 S. Ct. 1207 (2011) .................................................................... 31

Tex. Dep’t of Pub. Safety v. Garcia,

327 S.W.3d 898 (Tex. App.—Austin 2010, pet. denied)................. 36

Tex. Dep’t of Transp. v. Barber,

111 S.W.3d 86 (Tex. 2003)...................................................... passim

Tex. Entm’t Ass’n v. Combs,

431 S.W.3d 790 (Tex. App.—Austin 2014, pet. denied)........... 46, 47

Thomas v. Chi. Park Dist.,

534 U.S. 316 (2002) .................................................................. 37, 42

Union City Bd. of Zoning v. Justice Outdoor Displays, Inc.,

467 S.E.2d 875 (Ga. 1996) .............................................................. 22

United States v. Stevens,

559 U.S. 460 (2010) .................................................................. 22, 23

Ward v. Rock Against Racism,

491 U.S. 781 (1989) ................................................ 12, 13, 14, 32, 44

Wheeler v. Comm’r of Highways,

822 F.2d 586 (6th Cir. 1987) (cited in Barber)......................... 15, 29

Whitton v. City of Gladstone, Mo.,

54 F.3d 1400 (8th Cir. 1995) .......................................................... 23

Constitutional Provisions, Statutes and Rules

TEX. CONST. art. I, § 8 ........................................................ x, xii, 46, 47, 48

23 U.S.C. § 131(b) ...................................................................................... 2

23 U.S.C. § 131(c) ...................................................................................... 2

43 TEX. ADMIN. CODE § 21.142(14) .......................................................... 40

43 TEX. ADMIN. CODE § 21.144 .................................................................. 7

43 TEX. ADMIN. CODE § 21.146(a) .................................................... 4, 7, 38

43 TEX. ADMIN. CODE § 21.146(a)(9) .......................................................... 7

43 TEX. ADMIN. CODE § 21.147(a) ............................................................ 26

43 TEX. ADMIN. CODE § 21.147(a)(1) ........................................................ 26

vii

43 TEX. ADMIN. CODE § 21.148 ................................................................ 40

43 TEX. ADMIN. CODE § 21.149 .................................................... 39, 40, 41

43 TEX. ADMIN. CODE § 21.149(b) ............................................................ 40

43 TEX. ADMIN. CODE § 21.152 ................................................ 7, 38, 42, 43

43 TEX. ADMIN. CODE § 21.153 ............................................................... 38

43 TEX. ADMIN. CODE § 21.152(a) ............................................................ 40

43 TEX. ADMIN. CODE § 21.153(b) ................................................ 39, 40, 41

43 TEX. ADMIN. CODE § 21.159 ............................................................ 8, 42

43 TEX. ADMIN. CODE § 21.163(d) ............................................................ 43

43 TEX. ADMIN. CODE § 21.164(a) ............................................................ 43

43 TEX. ADMIN. CODE § 21.166(a) ........................................................ 7, 38

43 TEX. ADMIN. CODE § 21.182 ...................................................... 8, 38, 43

43 TEX. ADMIN. CODE § 21.189 ...................................................... 8, 39, 43

43 TEX. ADMIN. CODE § 21.190............................................................. 8, 39

TEX. GOV’T CODE § 311.032(c) ............................................................ 27, 41

TEX. TRANSP. CODE § 391.001(10)........................................................ 3, 15

TEX. TRANSP. CODE § 391.002(b)................................................................ 2

TEX. TRANSP. CODE § 391.005 .................................................... 5, 7, 18, 34

TEX. TRANSP. CODE § 391.031(a)................................................................ 3

TEX. TRANSP. CODE § 391.031(b) ............................................................... 3

TEX. TRANSP. CODE § 391.031(b)(1) ........................................................... 4

viii

TEX. TRANSP. CODE § 391.031(b)(3) ......................................................... 24

TEX. TRANSP. CODE § 391.031(b)(4) ......................................................... 34

TEX. TRANSP. CODE § 391.031(d) ............................................................... 8

TEX. TRANSP. CODE § 391.032(a).............................................................. 38

TEX. TRANSP. CODE § 391.061 .................................................................. 34

TEX. TRANSP. CODE § 391.061(a)................................................................ 7

TEX. TRANSP. CODE § 391.067 .............................................................. 7, 34

TEX. R. APP. P. 33.1(a) ............................................................................. 36

Other Authorities

39 TEX. REG. 7954 (2014) ........................................................................... 7

STATEMENT OF THE CASE

Nature of the Case: The Texas Department of Transportation

(the “Department”) sued AusPro Enterprises,

LP (“AusPro”) for civil penalties and

injunctive relief for maintaining a sign in

violation of the Texas Highway Beautification

Act and its implementing regulations. CR.3-

8.1 AusPro asserts, as affirmative defenses,

that the statute and regulations violate the

Fourteenth Amendment’s incorporation of the

First Amendment right to free speech and

Article I, § 8 of the Texas Constitution. CR.14.

Trial Court: The Honorable Timothy J. Sulak

345th District Court, Travis County, Texas

Course of Proceedings: The parties agreed to stipulated facts, see

CR.52-55, and the trial court conducted a

bench trial.

Trial Court Disposition: The trial court entered final judgment for the

Department. It (a) enjoined AusPro from

maintaining the illegal sign, (b) awarded a

civil penalty of $3,500, and (c) concluded that

the statute and regulations were

constitutional. CR.107-09. The court later

entered findings of fact and conclusions of

law. CR.116-17.

1Citations of the Clerk’s Record are formatted “CR.[page]”. Citations of the Reporter’s

Record are formatted “RR.[page]”.

STATEMENT REGARDING ORAL ARGUMENT

AusPro asserts that oral argument is warranted because “this case

raises issues of first impression.” AusPro Br. xi. To the contrary, as

explained below, AusPro’s position is materially indistinguishable from

the plaintiff’s in Texas Department of Transportation v. Barber, 111

S.W.3d 86 (Tex. 2003), which upheld the Texas Highway Beautification

Act’s constitutionality against a free-speech challenge premised on

political speech. If the Court decides to hear oral argument, however, the

Department wishes to participate.

ISSUES PRESENTED

This appeal involves two aspects of the Texas Highway

Beautification Act (the “Act”) and its implementing regulations.2 First,

the Act generally prohibits signs adjacent to, and visible from, certain

highways. That ban is subject to various exemptions, however, including

one for onsite signs (i.e., signs pertaining to on-premises activities) and

another limited one for election-related signs. Second, even if the sign

doesn’t pertain to onsite activities or election speech, it may be erected in

a commercial zone (like AusPro’s property) if the owner has obtained a

license and permit.

The issues presented are:

1. Whether the Act’s prohibition of offsite signs communicating

political speech along highways imposes a valid time, place,

and manner restriction.

2. (a) Whether AusPro forfeited its prior-restraint challenge to

the Act’s licensing and permitting regulations by failing to

raise this complaint in the district court.

(b) If not, whether those regulations constitute an invalid

prior restraint.

3. Whether the Act and its implementing regulations violate

Article I, Section 8 of the Texas Constitution.

2This brief cites the regulations in effect during the period that is the subject of the

Department’s enforcement action against AusPro (July through October 2011). See

CR.54. The 2011 regulations are attached as the appendix to this brief.

xii

No. 03-14-00375

In the Court of Appeals

for the Third Judicial District

Austin, Texas

AUSPRO ENTERPRISES, LP,

Appellant,

TEXAS DEPARTMENT OF TRANSPORTATION,

Appellee.

On Appeal from the

345th Judicial District Court of Travis County, Texas

APPELLEE’S BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

In Texas Department of Transportation v. Barber, 111 S.W.3d 86

(Tex. 2003), the Texas Supreme Court upheld the Act’s constitutionality

against a free-speech challenge premised on political speech. Barber

thoroughly examined relevant U.S. Supreme Court precedent, all the

various exemptions in the Act, and the test for time, place, and manner

restrictions. Although AusPro futilely attempts to distinguish Barber—

and then all but ignores that precedent throughout the opening brief’s

discussion of the very issues Barber resolved—Barber squarely requires

rejection of AusPro’s arguments about election-related speech.

As to the licensing and permitting regulations, AusPro forfeited its

challenge by failing to raise it in the trial court. But even if AusPro had

preserved this complaint, its arguments fail on the merits. AusPro

misreads the regulations and misstates the appropriate constitutional

test. Accordingly, the trial court’s judgment should be affirmed.

STATEMENT OF FACTS

I. THE TEXAS HIGHWAY BEAUTIFICATION ACT

The Act was passed in response to the federal Highway

Beautification Act of 1965, which docks a state ten percent of its share of

Federal highway-aid funds if the state does not maintain “effective

control” of “outdoor advertising” adjacent to its highways. 23 U.S.C.

§ 131(b), (c). The Legislature expressly declared the Act’s intention to

comply with that federal incentive and to advance safety and aesthetics

goals. TEX. TRANSP. CODE § 391.002(b) (declaring that purpose of Act is to

“promote the health, safety, welfare, morals, convenience, and enjoyment

of the traveling public” and to “protect the public investment in the

interstate and primary systems”). “Outdoor advertising” includes

anything “designed, intended, or used to advertise or inform if any part

of the advertising or information content is visible from the main-

traveled way of the interstate or primary system.” Id. § 391.001(10). That

definition covers both commercial and noncommercial speech. Barber,

111 S.W.3d at 99.

The Act generally prohibits such advertising in two types of areas:

(1) “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,” and (2) “outside an urban area if the advertising is located more

than 660 feet from the nearest edge of a right-of-way, is visible from the

main-traveled way of the interstate or primary system, and is erected for

the purpose of having its message seen from the main-traveled way of the

interstate or primary system.” TEX. TRANSP. CODE § 391.031(a).

That ban is qualified, however, by several exemptions that

“accommodate as much speech as possible and still accomplish the goals

of preserving the landscape and promoting travel safety.” Barber, 111

S.W.3d at 103; see TEX. TRANSP. CODE § 391.031(b) (listing six

exemptions);3 43 TEX. ADMIN. CODE § 21.146(a) (“Exempt Signs”). The

basic division between acceptable and forbidden outdoor advertising

rests on the location of the property and whether the sign pertains to

activities on the property. In noncommercial and non-industrial areas,

the Act generally bans offsite speech but “allows all onsite commercial

speech and all onsite noncommercial speech.” Barber, 111 S.W.3d at 99.

A few exemptions permit even offsite signs in those areas (e.g., directions

to natural wonders, see TEX. TRANSP. CODE § 391.031(b)(1), and certain

3 Along with the election-sign exemption discussed below, the statute exempts:

“(1) directional or other official outdoor advertising authorized by law, including

advertising pertaining to a natural wonder or a scenic or historic attraction;

(2) outdoor advertising for the sale or lease of the property on which it is located;

(3) outdoor advertising solely for activities conducted on the property on which it is

located;

(4) outdoor advertising located within 660 feet of the nearest edge of a right-of-way

in an area in which the land use:

(A) is designated industrial or commercial under authority of law; or

(B) is not designated industrial or commercial under authority of law but the

land use is consistent with an area designated industrial or commercial;

(5) outdoor advertising that has as its purpose the protection of life and property; or

(6) outdoor advertising erected on or before October 22, 1965, that the commission,

with the approval of the secretary of the United States Department of Transportation,

determines to be a landmark of such historic or artistic significance that preservation

is consistent with the purposes of this subchapter.” Id.

election-related signs, see id. § 391.005), but these “bear a direct

relationship to the State’s interest in promoting travel safety while

minimizing the number of signs” and “accommodate[ing] as much speech

as possible.” Barber, 111 S.W.3d at 103. In commercial and industrial

areas, signs bearing both commercial and noncommercial speech are

acceptable, “regardless of whether that speech relates to activities on the

property,” id. at 99, provided that the owner obtains a license and permit,

as discussed below. The exemptions in the regulations largely track the

statutory exemptions, subject to the administrative agency’s power to

reasonably construe and implement the statute.4

4 Effective July 1, 2011, and during the period at issue here, 43 TEX. ADMIN. CODE

§ 21.146(a) exempted:

“(1) an on-premise sign that meets the criteria provided by §21.147 of this division

(relating to On-premise Sign) except as provided by subsection (c) of this section;

(2) a sign that has the purpose of protecting life or property;

(3) a sign that provides information about underground utility lines;

(4) an official sign that is erected by a public officer, public agency, or political

subdivision under the officer’s, agency’s, or political subdivision’s constitutional or

statutory authority;

(5) a sign required by the Railroad Commission of Texas at the principal entrance to

or on each oil or gas producing property, well, tank, or measuring facility to identify

or to locate the property if the sign is no larger than necessary to comply with the

Railroad Commission's regulations;

(6) a sign of a nonprofit service club, charitable association, religious organization,

chamber of commerce, nonprofit museum, or governmental entity that gives

information about the meetings, services, events, or locations of the entity and that

does not exceed an area of 32 square feet;

(7) a public service sign that:

(A) is located on a school bus stop seating bench or shelter;

(B) identifies the donor, sponsor, or contributor of the shelter;

area of the sign;

(D) has no content other than that described by subparagraphs (B) and (C) of

this paragraph;

(E) is authorized or approved by the law of the entity that controls the highway

involved, including being located at a place approved by the entity;

(F) has a sign face that does not exceed an area of 32 square feet; and

(G) is not facing the same direction as any other sign on that seating bench or

shelter;

(8) a sign that shows only the name of a ranch on which livestock are raised or a farm

on which crops are grown and the directions to, telephone number, or internet

address of the ranch or farm and that has a sign face that does not exceed an area of

32 square feet;

(9) a sign that:

(A) relates only to a public election;

(B) is located on private property;

before the 11th day after the election date;

(D) has a sign face that does not exceed an area of 50 square feet; and

(E) contains no commercial endorsement; and

(10) a sign identifying the name of a recorded subdivision located at an entrance to

the subdivision or on property owned by or assigned to the subdivision, home owners

association, or other entity associated with the subdivision.”

AusPro’s challenge focuses on the election-sign exemption, which

exempts from the Act “a sign erected solely for and relating to a public

election,” provided that the sign is maintained only between ninety days

before the election and ten days after the election. TEX. TRANSP. CODE

§ 391.005; see 43 TEX. ADMIN. CODE § 21.146(a)(9).5

If a sign does not fall within section 391.005 or most of the statutory

carve-outs in section 391.031(b), the owner must obtain both a license

and a permit from the Department. See 43 TEX. ADMIN. CODE §§ 21.144

(“Except as provided by this division, a person may not obtain a permit

for a sign under this division unless the person holds a currently valid

license . . . .”), 21.146(a) (listing signs “exempt from this division,”

including election signs). Most relevant to this appeal, a sign in an

industrial or commercial zone needs a license and permit. See, e.g., TEX.

TRANSP. CODE §§ 391.061(a), 391.067; 43 TEX. ADMIN. CODE § 21.166(a).

The license application requires the applicant’s contact

information, the location of the sign, a fee, and a surety bond. See 43 TEX.

ADMIN. CODE § 21.152. The permit application also requires more

5 In 2014, the election-sign exemption in the regulations was moved to paragraph

(a)(10), where it currently resides. 39 Tex. Reg. 7954, 7956 (2014).

detailed information about the sign’s location and design. See id.

§ 21.159. In reviewing the permit application, Department staff

evaluates physical characteristics of the proposed sign but not its

content. See, e.g., id. §§ 21.182 (“Sign Face Size and Positioning”), 21.189

(“Sign Height Restrictions”), 21.190 (“Lighting of and Movement on

Signs”).

The penalty for violating the Act is $500-$1000 per offense, where

“[e]ach day of the proscribed conduct is a separate offense.” E.g., TEX.

TRANSP. CODE § 391.031(d).

II. AUSPRO’S ILLEGAL SIGN

AusPro owns property along State Highway 71 in Bee Cave, Texas.

CR.52. The property is zoned commercial and is occupied by a “funky gift

store[]” called Planet K. Id. On July 7, 2011, AusPro’s owner placed a sign

near the building’s front porch that contained the text “Ron Paul

Revolution,” “President,” and “RonPaul2012.com.” CR.53; see CR.58

(photograph of sign). The sign was visible from the highway for at least

seven days between July 7 and October 1. CR.53. AusPro conceded that

its sign did not fall within the time period specified in the Act’s election-

sign exemption. CR.54. It also conceded that it did not obtain a license or

permit. CR.53.

The Department notified AusPro in July 2011 that its sign violated

the Act for failing to satisfy the election-sign exemption or the permitting

requirements. CR.59-60. After AusPro failed to remove its sign, the

Department brought this enforcement action. CR.3-8. AusPro answered

and asserted as affirmative defenses that the Act and its regulations

“violate Aus[P]ro’s right to free speech” under the United States and

Texas Constitutions. CR.14. The trial court held a bench trial based on

stipulated facts and rendered final judgment for the Department.

CR.107-109; see CR.52-55 (stipulated facts).

SUMMARY OF ARGUMENT

The validity of the Act’s general prohibition on signs visible from

federally-funded highways turns on whether the Act is content neutral.

Barber has resolved that inquiry in favor of content neutrality. The Texas

Supreme Court considered all the Act’s exemptions, including the one for

election speech, and concluded that the Act does not favor commercial

speech over noncommercial speech and that the exemptions are justified

without reference to the content of speech.

AusPro attempts to distinguish Barber primarily by arguing that

Barber did not address the election-sign exemption. But AusPro’s

position is indistinguishable from that of the plaintiff in Barber. Both

AusPro and Barber erected political signs that didn’t pertain to onsite

activities, and both argued that the restrictions on such signs were

content based and thus unconstitutional. The fact that Barber controls

this appeal is evident because Barber effectively rejected every specific

argument AusPro makes here.

Because the Act and its regulations are content neutral, they need

satisfy only intermediate scrutiny. Barber decided that question as well,

finding that the Act and its exemptions were narrowly tailored to

advance substantial government interests and left adequate alternatives

for property owners along the highways subject to the Act.

As to the licensing and permitting regulations, AusPro forfeited

that challenge by not raising it in the trial court. Regardless, the

argument fails on the merits. Content-neutral licensing schemes must

provide sufficient constraints on the administrator’s discretion. The

regulations here fulfill that requirement by conditioning the standards

on signs’ definitive physical characteristics.

Because the Act and its regulations satisfy the First Amendment,

they also satisfy the Texas Constitution’s free-expression guarantee.

AusPro hasn’t offered any explanation of Article I, Section 8’s text,

history, or purpose that would justify a different result for a content-

neutral time, place, and manner restriction that targets merely the

noncommunicative characteristics of signs.

ARGUMENT

I. THE RESTRICTIONS IMPOSED BY THE ACT AND ITS IMPLEMENTING

REGULATIONS ARE VALID TIME, PLACE, AND MANNER

RESTRAINTS.

A. Time, Place, And Manner Restrictions Are Subject To

Intermediate Scrutiny.

The right to free speech is not absolute. See, e.g., Frisby v. Schultz,

487 U.S. 474, 479 (1988) (“[E]ven protected speech is not equally

permissible in all places and at all times.” (citation and internal

quotation marks omitted)). That is particularly true where the method of

communication, like a sign or billboard, “combines communicative and

noncommunicative aspects,” for “the government has legitimate interests

in controlling the noncommunicative aspects of the medium.”

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 502 (1981) (plurality

op.); see id. at 501 (“Each method of communicating ideas is a law unto

itself and that law must reflect the differing natures, values, abuses and

dangers of each method.” (internal quotation marks omitted)). The State

thus may regulate “the time, place, or manner of protected speech,

provided [that] the restrictions ‘are justified without reference to the

content of the regulated speech, that they are narrowly tailored to serve

a significant governmental interest, and that they leave open ample

alternative channels for communication of the information.’” Ward v.

Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty.

for Creative Non-Violence, 468 U.S. 288, 293 (1984)).

As AusPro acknowledges, the crucial question is whether the

challenged regulation is content neutral. See AusPro Br. 13; see also, e.g.,

Barber, 111 S.W.3d at 98. The law is content neutral if (1) “it is not a

regulation of speech,” but instead “is a regulation of the places where

some speech may occur”; (2) “it was not adopted because of disagreement

with the message it conveys”; or (3) “the State’s interests . . . are

unrelated to the content of the [regulated parties’] speech.” Hill v.

Colorado, 530 U.S. 703, 719-20 (2000) (citation and internal quotation

marks omitted).

Content-neutral laws are subject only to intermediate scrutiny, not

strict scrutiny. Barber, 111 S.W.3d at 93. Intermediate scrutiny requires

narrow tailoring to significant government interests and adequate

alternative methods of communication. E.g., Ward, 491 U.S. at 791.

Barber shows that the Act and its regulations satisfy these time, place,

and manner strictures.

B. Barber Controls The Outcome Here.

1. Barber held that the Act is a valid time, place, and

manner restriction.

Barber held that the Act satisfies the time, place, and manner test.

111 S.W.3d at 89. Because the Texas Supreme Court effectively rejected

every one of the arguments AusPro makes and thereby dictates the result

here, we review that opinion in detail.

Barber addressed a free-speech challenge from an individual who

had erected a sign communicating political speech (“Just say NO to

Searches”) on his own nonresidential property. Id. at 91; see id. at 98

(accepting characterization of sign as “political ideological speech”). After

reviewing and synthesizing U.S. Supreme Court precedents on time,

place, and manner restrictions, see id. at 93-98,6 the Court explained that

the threshold question was “whether the Act is content based or content

neutral.” Id. at 98.

As to that crucial threshold issue, the Supreme Court first rejected

Barber’s argument that regulations burdening “political and ideological

speech” are “automatically” reviewed under strict scrutiny; rather, the

regulation merely must fit the time, place, and manner framework. Id.

The Court then turned to Barber’s arguments that the exemptions in the

Act rendered it content based by “mak[ing] certain distinctions based on

subject matter.” Id. Specifically, Barber asserted that the Act treated

commercial speech more favorably than noncommercial speech (the

identical attack AusPro advances here) and treated election speech more

favorably than other political speech. Id.

The Court roundly disagreed, finding instead that the Act “allows

all onsite commercial speech and all onsite noncommercial speech”:

The Act defines “outdoor advertising” broadly. It includes both

commercial and noncommercial speech, encompassing

“advertising or information.” Further, the Act permits both

6 The Court discussed at length many of the cases AusPro relies on, among others:

Ward; Metromedia; City of Ladue v. Gilleo, 512 U.S. 43 (1994); and City of Cincinnati

v. Discovery Network, Inc., 507 U.S. 410 (1993). Throughout AusPro’s brief, it fails to

acknowledge that Barber settled how these cases apply to the Act.

types of speech in noncommercial and non-industrial areas as

long as that speech relates to activities on the property. It also

permits both types of speech in commercial and industrial

areas, regardless of whether that speech relates to activities

on the property.

Id. at 99 (citing TEX. TRANSP. CODE § 391.001(10)). The Act thus was

content neutral because it “permit[ted] commercial and noncommercial

speech everywhere that relates to an activity on the property.” Id. Other

courts have agreed that such an onsite/offsite distinction constitutes

content neutrality. See, e.g., Covenant Media of S.C. v. City of N.

Charleston, 493 F.3d 421, 432-35 (4th Cir. 2007); Messer v. City of

Douglasville, 975 F.2d 1505, 1509 (11th Cir. 1992) (cited in Barber);

Wheeler v. Comm’r of Highways, 822 F.2d 586, 590-91 (6th Cir. 1987)

(cited in Barber).

Addressing the election-speech exemption, the Court conceded that

it was “arguably content based” by favoring such speech over Barber’s

non-election-related political speech. Barber, 111 S.W.3d at 100.

Nonetheless, that exemption “serves purposes unrelated to the content of

expression” and consistent with the overall goals of the Act. Id.; cf.

Citizens United v. FEC, 558 U.S. 310, 334 (2010) (“It is well known that

the public begins to concentrate on elections only in the weeks

immediately before they are held. There are short timeframes in which

speech can have influence.”). So that exemption, too, did not disturb the

Act’s content neutrality.

In sum, the Act and its exemptions “bear a direct relationship to the

State’s interest in promoting travel safety while minimizing the number

of signs along a narrow federal corridor.” Barber, 111 S.W.3d at 103. The

exemptions also “accommodate as much speech as possible and still

accomplish the goals of preserving the landscape and promoting travel

safety.” Id. The Act as a whole is content neutral.

Applying intermediate scrutiny, the Supreme Court upheld the Act.

First, “aesthetics and public safety on the highway are recognized as

substantial governmental goals.” Id. at 103. Second, the Act was

narrowly tailored to those goals because it restricted speech only “in non-

industrial and noncommercial areas to that which relates to an on-

premise activity or to an upcoming public election.” Id. Third, for that

same reason, the Act left open “adequate alternative avenues for

communication.” Id. at 104-05. To that end, the Court expressly rejected

the argument that Barber’s alternatives were inadequate because they

would not allow his sign on his own property. Id. at 104.

2. AusPro’s purported distinctions of Barber are

meritless.

AusPro cannot escape Barber, for AusPro’s sign is illegal for

precisely the same reason Barber’s sign was illegal: Each sign falls within

section 391.031(a)’s broad prohibition of signs adjacent to and visible

from state highways, and each sign contains noncommercial, political

speech that does not fit within any of the Act’s exemptions. AusPro offers

a potpourri of distinctions, but each is wrong, irrelevant, or both. See

AusPro Br. 11-13.

First, AusPro mainly tries to distinguish Barber on the grounds

that AusPro is challenging the election-sign exemption itself, whereas

Barber’s sign “was governed by the Act’s general prohibition on signs

rather than by [the election-sign] exemption.” AusPro Br. 11-12. AusPro

misunderstands how the statute operates. The election-sign exemption,

section 391.005, does not bar AusPro’s sign. The exemption is just that:

an exemption. Section 391.005 does not ban anything at all; rather, it

saves potential offenders from the general ban. In other words, AusPro’s

sign is illegal not because of section 391.005 but because of section

391.031(a). Neither AusPro nor Barber met the election-sign

exemption—AusPro because of the durational limits and Barber because

it was not “erected solely for and relating to a public election.” TEX.

TRANSP. CODE § 391.005. Both signs communicated political speech

unrelated to onsite activities within the geographic area covered by the

Act.

The key point is that if section 391.005 were stricken from the

books, AusPro’s sign would still violate the Act. And Barber makes clear

that the Legislature acted within constitutional limits banning offsite,

political signs. The fact that the Legislature decided to allow some offsite

speech in the form of election speech during a few months of the year

doesn’t mean that the Legislature had to allow that speech during the

entire year. Indeed, if political speech had that kind of special status, the

plaintiff in Barber would have won. Cf. Barber, 111 S.W.3d at 98.

Second, AusPro asserts that Barber’s comments that the election-

sign exemption does not render the Act content-based were dicta. AusPro

Br. 12. That is both wrong and irrelevant. The Barber plaintiff contended

that the Act was not content neutral because the election-sign exemption

favored election-related speech over other speech. 111 S.W.3d at 100.

Exemptions that do not cover the plaintiff are without doubt pertinent to

free-speech challenges because they might undermine the argument that

the statute’s restrictions are not justified without reference to the content

of the restricted speech. See, e.g., Hill, 530 U.S. at 723 (“[A] statute that

restricts certain categories of speech only lends itself to invidious use if

there is a significant number of communications, raising the same

problem that the statute was enacted to solve, that fall outside the

statute’s scope, while others fall inside.”); City of Ladue v. Gilleo, 512 U.S.

43, 50-51 (1994) (stating that constitutional challenge might succeed if

“the measure in effect restricts too little speech because its exemptions

discriminate on the basis of the signs’ messages”). To hold that the Act

was content neutral and subject to intermediate scrutiny, the Supreme

Court necessarily had to address and reject Barber’s argument about the

election-sign exemption. And AusPro’s point is irrelevant because, as just

discussed, AusPro is injured not by section 391.005 but by section

391.031(a).

Third, AusPro notes that its affirmative defenses include a facial

challenge, while Barber brought only an as-applied challenge. AusPro Br.

13. That is true but meaningless. AusPro’s argument misconceives the

function of a facial challenge. In the First Amendment context, a facial

challenge in the form of “the overbreadth doctrine enables litigants ‘to

challenge a statute not because their own rights of free expression are

violated, but because of a judicial prediction or assumption that the

statute’s very existence may cause others not before the court to refrain

from constitutionally protected speech or expression.’” Hill, 530 U.S. at

731-32 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)).7 But

AusPro does not and cannot identify how the Act “applies to any conduct

more likely to be protected by the First Amendment than [its] own

[election] sign[].” Members of the City Council of Los Angeles v. Taxpayers

for Vincent, 466 U.S. 789, 802 (1984). Indeed, the entire thrust of

AusPro’s brief is that its speech deserves the very highest protection of

all.

What highlights the hollowness of the facial versus as-applied

distinction in this case is that AusPro can’t explain how the analysis in

Barber differs from the analysis of its purported facial attack. AusPro’s

inability to do so is unsurprising in light of the discussion infra Part I.C,

which shows that Barber addressed and rejected every one of AusPro’s

7 A facial challenge therefore also implicates a court’s remedy in the same way: if a

narrowing construction is impossible and severing is unavailable, the court

invalidates even the part of the statute that could be validly applied to the plaintiff’s

conduct.

own arguments. Accordingly, even if AusPro could somehow distinguish

Barber’s precise holding, the Supreme Court’s discussion of the relevant

issues would still require affirmance.

C. Intermediate Scrutiny Governs AusPro’s Challenge.

Barber forecloses AusPro’s efforts to paint the Act’s and its

regulations’ exemptions as content based. AusPro presses a number of

arguments in an effort to have this Court apply strict scrutiny, but each

one is squarely refuted by Barber.

First, AusPro asserts that the “election sign exemption is content

based because the content of a sign determines how long it may be

displayed.” AusPro Br. 19. To the extent that the election-sign exemption

is “arguably content based,” Barber, 111 S.W.3d at 100, it is because the

exemption favors election speech over non-election political speech.

AusPro can’t complain about that. And even so, Barber held that section

391.005 does not make the Act content based because this exemption

“serves purposes unrelated to the content of expression [and] is [thus]

deemed neutral.” Id. (citation and internal quotation marks omitted).

More importantly, as already discussed, it’s not the election-sign

exemption that bars AusPro’s sign. See supra 17-18. The prohibition

derives instead from Transportation Code section 391.031(a). The

various lines drawn by the Act’s exemptions—including the one for

certain election signs—were considered and approved by Barber as being

content neutral.

AusPro’s discussion of the case law on this point completely omits

Barber. See AusPro Br. 19-26. AusPro instead mistakenly relies on cases

from other jurisdictions or U.S. Supreme Court cases that predate

Barber. And many of those U.S. Supreme Court opinions—City of Ladue,

Metromedia, and Discovery Network—were discussed in detail in Barber,

which explained why those decisions supported the Texas Supreme

Court’s holding that the Act is constitutional.8 AusPro simply cannot

evade the Texas Supreme Court’s binding precedent.

The one post-Barber opinion that AusPro cites, United States v.

Stevens, 559 U.S. 460 (2010), is easily distinguishable. See AusPro Br. 25.

Stevens invalidated a federal law that criminalized the depiction of

8 Barber even distinguished some of the non-U.S. Supreme Court cases that AusPro

discusses. Compare, e.g., AusPro Br. 18 n.5 (citing Rappa v. New Castle Cnty., 18 F.3d

1043 (3d Cir. 1994); John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir. 1980);

Union City Bd. of Zoning v. Justice Outdoor Displays, Inc., 467 S.E.2d 875 (Ga. 1996)),

with Barber, 111 S.W.3d at 102 & nn.93-95 (stating that “cases from other

jurisdictions suggesting otherwise [i.e., that the Act is content based] are

distinguishable” and citing, among others, Rappa, John Donnelly, and Union City).

animal cruelty. 559 U.S. at 464. Unlike the Act, that law “explicitly

regulate[d] expression based on content.” Id. at 468 (emphasis added).

Barber forecloses any similar characterization of the Act and its

exemptions.

And the cases that AusPro emphasizes from other jurisdictions (all

of which predate Barber) that Barber itself did not address are

distinguishable because the laws there didn’t prohibit the challenger’s

political speech as a result of an onsite/offsite distinction like the Act

does.9 And even if they were not distinguishable, this Court must of

course follow the Texas Supreme Court.

9 See Whitton v. City of Gladstone, Mo., 54 F.3d 1400, 1404 (8th Cir. 1995) (explaining

that sign code allowed “permanent year around ground sign expressing support for a

particular sports team,” while imposing time limits on “identical sign . . . advocating

a particular candidate for political office”); Nat’l Adver. Co. v. Town of Babylon, 900

F.2d 551, 554 n.1, 556-57 (2d Cir. 1990) (invalidating ordinance that limited sign

content to commercial messages); Knoeffler v. Town of Mamakating, 87 F. Supp. 2d

322, 327 (S.D.N.Y. 2000) (finding that ordinance favored “commercial signs over non-

commercial signs” by allowing on-site advertising while imposing time limits on and

requiring permit for noncommercial signs); Curry v. Prince George’s Cnty., Md., 33 F.

Supp. 2d 447, 448-49 (D. Md. 1999) (addressing ordinance imposing ban on campaign

and public-interest signs at private residences, without any indication of an

onsite/offsite distinction for all speech); McCormack v. Twp. of Clinton, 872 F. Supp.

1320, 1324 (D.N.J. 1994) (mem. op.) (invalidating ordinance that “obviously favors

commercial speech” by applying limits only to political speech); City of Antioch v.

Candidates’ Outdoor Graphic Serv., 557 F. Supp. 52, 58 (N.D. Cal. 1982) (mem. op.)

(“Commercial speech, although subject to other limitations in the city’s municipal

sign ordinance, is merely regulated in Antioch; political speech is outlawed except

during the sixty day period before an election.”); Orazio v. Town of N. Hempstead, 426

F. Supp. 1144, 1148 (E.D.N.Y. 1977) (invalidating time limits on “political wall signs

affixed to a candidate’s campaign headquarters” that did not likewise apply to “non-

Second, AusPro argues that the election-sign exemption

impermissibly “favors certain forms of commercial and other speech over

election speech” by “singl[ing] out election speech for durational

limitations not applicable to other topics of speech.” AusPro Br. 26. That

argument misreads the statute and (once again) wholly ignores Barber.

The Act treats election speech no worse than it treats commercial

and other noncommercial speech. As Barber explained, “the Act allows

all onsite commercial speech and all onsite noncommercial speech.” 111

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

property, the sign would not have violated the Act—because it would

have constituted “outdoor advertising solely for activities conducted on

the property on which it is located.” TEX. TRANSP. CODE § 391.031(b)(3);

see Barber, 111 S.W.3d at 99 (holding that the Act allows all types of

speech “as long as that speech relates to activities on the property”).

political wall signs which ‘advertise the nature of the business being conducted on

those premises’ ”); City of Painesville Bldg. Dep’t v. Dworken & Bernstein Co., L.P.A.,

733 N.E.2d 1152, 1158 (Ohio 2000) (invalidating zoning code provision that placed

time limits on residential, political sign but not “upon any other category of signs”);

Collier v. City of Tacoma, 854 P.2d 1046 (Wash. 1993) (en banc) (addressing citywide

time limits on political signs (including residential signs), where “on-site commercial

signs” were treated more favorably).

In support of its argument, AusPro gives an example where a sign

saying “Buy Your Ron Paul Bumper Stickers Here” would satisfy the Act

even though its “Ron Paul Revolution” sign would not. AusPro Br. 26-27.

But that bumper-sticker sign would comply not because the Act favors

commercial speech, but because it favors onsite speech. Again, as Barber

explained, the Act “regulates signs based on their location” and “does not

favor commercial speech over noncommercial speech.” 111 S.W.3d at 102.

Notably, the Supreme Court dismissed another example nearly identical

to AusPro’s: “[R]ural property owners that do not live on their property

would be permitted to display a sign saying, ‘Watermelons for sale’ if they

erected a fruit stand on the property, but they would not be permitted to

display a sign expressing their political views.” Id. at 104. AusPro’s

example is equally unpersuasive for the same reason.

Moreover, the limited content examination necessary to determine

whether a sign relates to on-premises activities does not make the statute

content based. See, e.g., Hill, 530 U.S. at 721 (in holding that regulation

was content neutral, stating, “[w]e have never held, or suggested, that it

is improper to look at the content of an oral or written statement in order

to determine whether a rule of law applies to a course of conduct”);

Covenant Media, 493 F.3d at 434 (approving of onsite/offsite distinction

and holding, “[t]o the extent that the Sign Regulation required looking

generally at what type of message a sign carries to determine where it

can be located, this ‘kind of cursory examination’ did not make the

regulation content based” (quoting Hill, 530 U.S. at 721)).

The Department acknowledges that Barber described the

regulations’ definition of an onsite sign as “constitutionally suspect”

because it limited the onsite exemption to commercial signs. 111 S.W.3d

at 100; see 43 TEX. ADMIN. CODE § 21.147(a) (defining “on-premise

sign”).10 The potential infirmity of section 21.147 does not help AusPro

for three reasons. First, as discussed, the Act itself prohibits AusPro’s

sign and thus provides a valid basis for the Department’s enforcement

action. Second, the allowance for onsite signs expressing noncommercial

speech wouldn’t have saved AusPro’s sign because its sign didn’t pertain

to onsite activities. Accordingly, section 21.147’s limits are irrelevant. Cf.

Serv. Emps. Int’l Union, Local 5 v. City of Houston, 595 F.3d 588, 598

10At the time Barber was decided, section 21.147 limited onsite signs to those that

refer to “commercial” activity. The 2011 version deleted “commercial,” but still limited

such signs to identifying “a business” or its “products or services.” 43 TEX. ADMIN.

CODE § 21.147(a)(1).

(5th Cir. 2010) (holding that, in First Amendment facial challenge,

“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));

Covenant Media, 493 F.3d at 429-30 (holding that invoking the term

“facial challenge” “does not provide [a litigant] a passport to explore the

constitutionality of every provision of the Sign Regulation”). Third, in all

events, even if the Court were to find section 21.147(a) unconstitutional

(despite its uselessness for AusPro), the proper remedy would be to sever

the offending provision, which would avoid any chilling effect of that

section’s commercial limitation. See TEX. GOV’T CODE § 311.032(c).11 Even

with the regulations’ problematic definition of on-premise sign excised,

AusPro’s sign remains illegal.

Although it’s true that a few exemptions allow certain other signs

pertaining to offsite activities (such as directional signs), Barber

11Severing is appropriate 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, 493

F.3d at 438 (noting “principle that invalidating a whole statute may nullify more of

the work of the people’s elected representatives than is constitutionally necessary”).

considered that issue as well. The Supreme Court held that those

exemptions “bear a direct relationship to the State’s interest in

promoting travel safety while minimizing the number of signs along a

narrow federal corridor,” and thus did not render the Act non-content-

neutral. Barber, 111 S.W.3d at 103. AusPro’s complaint that some

exemptions allow non-election speech year-round thus fails. AusPro Br.

27-28. The exemptions either fit within the onsite/offsite distinction that

Barber expressly approved or otherwise are “‘justified without reference

to the content of the regulated speech.’” Barber, 111 S.W.3d at 100

(quoting City of Renton v. Playtime Theatres, 475 U.S. 41, 48 (1986)).

AusPro’s sign highlights the permissible manner in which the Act

and its regulations operate. The Act does not prohibit erecting election

signs per se. It merely prohibits offsite signs in certain locations, i.e.,

adjacent to, and visible from, certain highways. The fact that AusPro’s

AusPro’s property doesn’t reveal a legislative judgment about the value

of its content, but only the physical, noncommunicative characteristics of

the sign, as well as the location of the property. As Barber holds, that

kind of judgment does not trigger strict scrutiny.

AusPro responds that this “secondary effects” analysis does not

apply to political speech, AusPro Br. 38-42, but as discussed above,

Barber held otherwise. The Court expressly stated that the Act generally

“control[s] the secondary effects of billboards and signs along the

interstate and primary highway system.” Barber, 111 S.W.3d at 100. And

as to the Act’s various exemptions, it agreed with the Sixth Circuit’s

conclusion regarding a similar statute that the Act is “‘not directed at the

content of the messages, but at their secondary effects.’” Id. at 101

(quoting Wheeler, 882 F.2d at 590). And, again, Barber, like AusPro, also

premised his claim on political speech. Id. at 100. Barber thus once more

forecloses AusPro’s position.

Third, citing the U.S. Supreme Court’s opinion in City of Ladue,

AusPro argues that strict scrutiny applies to any restriction of speech on

one’s own property. AusPro Br. 34. AusPro again runs headlong into

Barber: “[T]he special concerns the Supreme Court noted in City of Ladue

about prohibiting an individual from displaying signs in the yards or

windows of their homes do not apply here.” 111 S.W.3d at 104; cf., e.g.,

City of Ladue, 512 U.S. at 55, 58 (expressing concern about “residential

signs [being] an important and distinct medium of expression” and noting

“special respect for individual liberty in the home” (emphases added)).

AusPro for once acknowledges that Barber addressed this issue, but

remarkably cites only the dissent, completely ignoring the majority’s

holding on this same point. See AusPro Br. 34.

Fourth, AusPro contends that strict scrutiny applies because

highways “have long been recognized as quintessential public fora for

assembly and debate.” AusPro Br. 35. Were that so, Barber would have

come out the other way. Once more, AusPro wholly disregards Barber’s

existence.

Finally, relying mainly on Citizens United v. FEC, AusPro obliquely

suggests that restrictions on political speech always merit strict scrutiny.

AusPro Br. 30-33. Citizens United did apply strict scrutiny, but that case

addressed what was unquestionably a content-based regulation: an

outright ban on electioneering communications. 558 U.S. at 318-19.

Neither Citizens United nor any other case changed the rule that

“regulations involving noncommercial speech—which includes political

and ideological speech—can be subject to intermediate scrutiny if they

are content neutral.” Barber, 111 S.W.3d at 98. That much is clear from

subsequent U.S. Supreme Court cases, which have reaffirmed the

principle that “‘[e]ven protected speech is not equally permissible in all

places and at all times’” but instead “is ‘subject to reasonable time, place,

or manner restrictions.’” Snyder v. Phelps, 131 S. Ct. 1207, 1217-18

(2011) (addressing speech that “highlight[ed]” “political” issues of “public

import”) (quoting Clark, 468 U.S. at 293); see also, e.g., Maryland v.

Universal Elections, Inc., 729 F.3d 370, 376 (4th Cir. 2013) (applying

intermediate scrutiny to law that burdened political speech).

AusPro evidently recognizes this facet of Citizens United by arguing

only that a “[c]ontent-[b]ased” restriction of political speech triggers strict

scrutiny. AusPro Br. 29. As discussed above, and as Barber holds, the Act

is content neutral. Further, the general rule noted in Barber is a sensible

one. If every law that somehow burdened political speech—even as part

of a content-neutral, time, place, and manner restriction of

noncommunicative aspects of conduct—were subject to strict scrutiny,

then, in light of the extraordinary hurdle that strict scrutiny imposes,

nearly every speech restriction in the country would fall (at least to an

as-applied challenge). That is not the law.

D. The Act And Its Regulations Pass Intermediate

Scrutiny.

Content-neutral time, place, and manner restrictions must be

(1) narrowly tailored to serve (2) substantial government interests, and

(3) must leave open adequate alternative means of communication. See,

e.g., Ward, 491 U.S. at 791. Barber easily resolves those inquiries for this

appeal.

First, “aesthetics and public safety on the highway are recognized

as substantial governmental goals.” Barber, 111 S.W.3d at 103. AusPro

does not argue otherwise. Cf. CR.53-54 (stipulating that the purpose of

the “Act is to control the secondary effects of billboards and signs along

the interstate and primary highway system such as stemming visual

clutter on the landscape and promoting travel safety”).

Second, the Act is “sufficiently narrowly tailored” because it

“accommodate[s] as much speech as possible and still accomplish[es] the

goals of preserving the landscape and promoting travel safety.” Barber,

111 S.W.3d at 103-04. As Barber explained, noncommercial speech is

permitted (1) in industrial and commercial areas, regardless of whether

it pertains to onsite activities, (2) in all areas as long as it does relate to

onsite activities, and (3) everywhere not adjacent to and visible from

highways. Id. at 103. Once again, AusPro ignores Barber’s holding on this

point.

Moreover, as applied to election speech, the Act is even more lax,

for it allowed AusPro’s sign during the critical “weeks immediately before

[elections] are held,” the time period during which “[i]t is well known that

the public begins to concentrate on elections.” Citizens United, 558 U.S.

at 334. Because the Act is narrowly tailored as applied to non-election,

noncommercial speech, then a fortiori it is narrowly tailored as applied

to election speech.

Third, for largely the same reasons, the Act supplies sufficient

alternative methods of communication. Barber, 111 S.W.3d at 104-05.

AusPro argues that the sign couldn’t be placed anywhere else on the

property, that AusPro doesn’t own any other property along Highway 71,

and that AusPro wanted to inform people travelling along that highway

specifically. AusPro Br. 38. Those same arguments were made by the

plaintiff in Barber, and the Supreme Court rejected each one. See 111

S.W.3d at 104-05. Once again, Barber is fatal to AusPro’s position,

despite AusPro’s failure even to acknowledge the opinion’s discussion of

the adequacy of alternatives. And here AusPro stipulated that it places

political signs on its other properties, CR.53, showing that it has

successfully availed itself of the types of opportunities Barber explained

remain open.

It is no response that Barber didn’t specifically address narrow

tailoring or adequate alternatives regarding election speech, but only

non-election political speech. Because section 391.005 allows election

signs during part of the year, AusPro has more opportunities to engage

in its election speech than the plaintiff in Barber had for his non-election

speech. Barber requires affirmance.

II. THE PERMITTING AND LICENSING REGULATIONS ARE ALSO

CONTENT NEUTRAL AND THUS NOT UNCONSTITUTIONAL PRIOR

RESTRAINTS.

AusPro’s sign also violated the Act because AusPro had not secured

a license and permit. See TEX. TRANSP. CODE §§ 391.061, 391.067.

Although AusPro wouldn’t have needed a permit had it complied with the

election-sign exemption, see id. § 391.005 (providing that “[t]his chapter

does not apply to” signs meeting the election-sign exemption), it also

could have availed itself of the Act’s separate allowance for signs erected

in industrial or commercial areas, provided that their owners have a

license and permit, see TEX. TRANSP. CODE § 391.031(b)(4); cf. CR.52

(stipulation that AusPro’s property “is zoned for commercial use”).12 The

licensing and permitting regulations, like the rest of the Act, are content

neutral, and consequently satisfy the relevant constitutional test.

A. AusPro Forfeited Its Challenge To The Licensing And

Permitting Regulations.

In the trial court, AusPro never complained that the licensing and

permitting regulations constitute an invalid prior restraint. It instead

argued its challenge as a complete ban on political speech. See, e.g., CR.68

(stating that the Act “is an outright ban on political speech”); RR.26

(counsel arguing that the Act “is a strict prohibition on political

speech”).13 What’s more, AusPro’s trial brief focused exclusively on the

Act’s election-sign exemption and never even mentioned or cited any of

the Department’s regulations, let alone the permitting and licensing

12 AusPro questions whether, had it applied for a permit, one could have been issued

“for a sign that does not fall within the election sign exemption or any other

exemption under the Act, and, in AusPro’s case, that [the Department] has already

deemed ‘illegal.’ ” AusPro Br. 49. AusPro misreads the statute and the Department’s

enforcement letter. As noted above, a separate allowance exists for signs in industrial

and commercial areas. And the Department characterized the sign as “illegal”

because AusPro did not have a permit. CR.10. That characterization in no way

suggests that the Department would have denied AusPro a permit for the same sign

at the same location.

13Even when the permitting process came up during the hearing, AusPro’s counsel

didn’t pursue the issue. See, e.g., RR.22-23.

regulations in particular. AusPro has therefore forfeited its prior-

restraint challenge to those regulations. See, e.g., TEX. R. APP. P. 33.1(a);

Tex. Dep’t of Pub. Safety v. Garcia, 327 S.W.3d 898, 903 (Tex. App.—

Austin 2010, pet. denied) (“The Department has waived the argument

that section 163.435 of the Revised Oregon Statutes is substantially

similar to section 43.25 of the penal code by not raising it in the district

court.”).

That AusPro generally asserted a First Amendment challenge is

insufficient to preserve its prior-restraint complaint. Cf. AusPro Br. 49

n.9. A licensing or permitting prior restraint poses a “different

constitutional harm[]” than an outright ban on expressive conduct. City

of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 762-64 (1988)

(discussing “the different concerns animating our test to determine

whether an expressive activity may be banned entirely, and our test to

determine whether it may be licensed in an official’s unbridled

discretion”). As City of Lakewood indicates, and as AusPro’s briefing and

the discussion below demonstrate, the prior-restraint objection comprises

an independent complaint within the meaning of Appellate Rule 33.1(a).

The trial court cannot be reversed based on a theory that was never

presented to it.

B. Regardless, AusPro’s Prior-Restraint Challenge Is

Meritless.

As with outright bans on speech, the appropriate test of a licensing

or permitting scheme turns on whether it is content neutral. See Thomas

v. Chi. Park Dist., 534 U.S. 316, 321-23 (2002). Content-based prior

restraints must satisfy the three requirements enunciated in Freedman

v. Maryland, 380 U.S. 51 (1965): “(1) any restraint prior to judicial review

can be imposed only for a specified brief period during which the status

quo must be maintained; (2) expeditious judicial review of that decision

must be available; and (3) the censor must bear the burden of going to

court to suppress the speech and must bear the burden of proof once in

court.” Thomas, 534 U.S. at 321 (citation and internal quotation marks

omitted)). AusPro erroneously suggests that all prior restraints must

meet those standards. AusPro Br. 54-55. To the contrary, content-neutral

time, place, and manner regimes need only “contain adequate standards

to guide the official’s decision and render it subject to effective judicial

review.” Thomas, 534 U.S. at 323; see, e.g., Lauder, Inc. v. City of

Houston, Tex., 670 F.3d 664, 665 (5th Cir. 2012) (per curiam) (holding

that judicial review is not required); Granite State Outdoor Adver., Inc.

v. City of St. Petersburg, Fla., 348 F.3d 1278, 1281-83 (11th Cir. 2003)

(same). The Department’s regulations are content neutral and

sufficiently constrain official discretion.

1. The licensing and permitting regulations are

content neutral.

The Department generally requires licenses and permits for signs

only in industrial and commercial zones. See TEX. TRANSP. CODE

§ 391.032(a) (providing that the Department “by rule may regulate the

orderly and effective display of outdoor advertising consistent with the

customary use of outdoor advertising in this state in” commercial and

industrial areas); 43 TEX. ADMIN. CODE § 21.146(a) (exempting from

regulations signs matching Transportation Code section 391.031(b)’s

categories, but not signs in industrial or commercial areas); id.

§ 21.166(a) (providing that the Department will issue a permit only to

signs in commercial and industrial areas). That distinction is plainly

based on location, not on content, and AusPro has not argued otherwise.

Moreover, the regulations condition the award of a license or permit on

physical characteristics of the proposed sign, not its content. See, e.g., id.

§§ 21.152-21.153 (license application and issuance), 21.182 (“Sign Face

Size and Positioning”), 21.189 (“Sign Height Restrictions”), 21.190

(“Lighting of and Movement on Signs”).

Of the various regulatory provisions governing the licensing and

permitting process, AusPro objects to only two of them as drawing

content-based lines. AusPro Br. 56-58 (discussing 43 TEX. ADMIN. CODE

§§ 21.149, 21.153(b)). Its arguments about each provision fail for two

reasons: (1) AusPro misreads both provisions, and (2) even if it correctly

interpreted the regulations, the flaws wouldn’t shield AusPro from the

Department’s enforcement action.

AusPro first complains about section 21.153(b), which provides:

“The department will not issue a license to an entity that is not

authorized to conduct business in this state.” 43 TEX. ADMIN. CODE

§ 21.153(b); see AusPro Br. 56. Without explanation, AusPro asserts that

this provision “favor[s] commercial speech.” Id. at 58. Evidently AusPro

thinks that only entities that “conduct business” may obtain licenses. But

that is not what section 21.153(b) says. Rather, section 21.153(b) excludes

certain entities—foreign corporations, essentially—from obtaining

licenses. That section does not say, “The Department will issue licenses

only to entities authorized to conduct business in this State.” To the

contrary, any “person” may apply for a license. 43 TEX. ADMIN. CODE

§ 21.152(a). And the regulations define “person” as “[a]n individual,

association, partnership, limited partnership, trust, corporation, or other

legal entity.” Id. § 21.142(14). The regulation accordingly does not “favor

commercial speech” and is content neutral.

Next, AusPro targets section 21.149, which requires that certain

nonprofit signs advertise only the nonprofit itself or onsite activities. Id.

§ 21.149(b). AusPro concludes that, as a result, “noncommercial speech is

not permitted unless otherwise exempted.” AusPro Br. 57. But those

limits apply only if the nonprofit wants to take advantage of section

21.148’s exemption from the license requirement. See 43 TEX. ADMIN.

CODE § 21.148 (“A nonprofit organization may erect or maintain a

nonprofit sign without obtaining an outdoor advertising license, but the

organization must obtain a permit under § 21.149 . . . .” (emphases

added)). If the nonprofit wants to post content other than that listed in

section 21.148, it can do so simply by going through the licensing process.

Section 21.149 therefore does not render the regulations content based.

In all events, even if AusPro correctly interpreted sections 21.153(b)

and 21.149, they are irrelevant to its defense. As to section 21.153(b),

AusPro is not an “entity that is not authorized to conduct business in this

state.” Id. § 21.153(b). Accordingly, it is not injured by that provision.

Likewise, AusPro is not a nonprofit, so any content limit imposed by

section 21.149(b) would not have harmed it. Addressing the

constitutionality of those provisions would thus result in what amounts

to an advisory opinion. Cf. Serv. Emps. Int’l Union, 595 F.3d at 598

(holding that, in First Amendment facial challenge, “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)); Covenant Media, 493 F.3d at

429.

Furthermore, AusPro can’t argue that the permitting regulations

must be invalidated in toto because the Court would be obligated to sever

only the offending provisions (i.e., sections 21.149 and 21.153(b)). See

TEX. GOV’T CODE § 311.032(c). The remaining provisions would easily

comprise a functioning licensing and permitting scheme that regulates

only signs’ physical characteristics. Cf. Covenant Media, 493 F.3d at 438

(noting “principle that invalidating a whole statute may nullify more of

the work of the people’s elected representatives than is constitutionally

necessary”).

2. The regulations contain adequate standards to

control official discretion.

Because the regulations are content neutral, they need only

“contain adequate standards to guide the official’s decision and render it

subject to effective judicial review.” Thomas, 534 U.S. at 323. AusPro

doesn’t expressly argue that the regulations fail to provide those

standards. Instead, it contends that the regulations are “bewildering,”

“byzantine,” and “arcane.” AusPro Br. 52-54. That is pure hyperbole.

The regulations broadly require the applicant’s contact

information, the location of the property, the location of the sign, the

design of the sign, a fee, and a surety bond. E.g., 43 TEX. ADMIN. CODE

§§ 21.152 (“License Application”), 21.159 (“Permit Application”). The

Department respectfully disagrees that those requirements are

perplexing or that gathering that information is unduly burdensome.

Regardless, those requirements don’t leave any discretion in the

hands of the administrator. Section 21.153(a) plainly states that a license

“will issue . . . if the requirements of § 21.152 . . . are satisfied.” Id.

§ 21.153(a) (emphasis added). In turn, section 21.152 requires the

applicant’s contact information, the county where the sign will be

maintained, a surety bond, a power of attorney from the surety company,

and a license fee. Id. § 21.152. There is not an ounce of “unbridled

discretion” in those terms.

The permit standards are similarly constrained. Section 21.163

states that the Department “will review the permit application for

completeness and compliance with all the requirements of this division.”

Id. § 21.163(d). AusPro obliquely implies that this leaves some room for

administrator interpretation, but it can’t point to any provision of the

regulations that might allow the administrator to engage in any content

or viewpoint censorship. See AusPro Br. 53. The regulations require

evaluation only of physical characteristics of the signs, like size, height,

and positioning. See, e.g., 43 TEX. ADMIN. CODE §§ 21.182, 21.189.

AusPro further complains that the regulations don’t provide an

“ultimate deadline” for a permitting decision. AusPro Br. 53. The 2011

regulations promise a decision within 45 days, but if the decision cannot

be made within that timeframe, “the department will notify the applicant

of the delay and provide the reason for the delay and provide an estimate

for when the decision will be made.” 43 TEX. ADMIN. CODE § 21.164(a). A

strict deadline is unnecessary in a content-neutral permitting scheme.

See, e.g., Granite State, 348 F.3d at 1281-82 (rejecting argument that

“lack of specific time limits confers excessive discretion” and holding that

any “‘abuse must be dealt with if and when a pattern of unlawful

favoritism appears’”); S. Or. Barter Fair v. Jackson Cnty., Or., 372 F.3d

1128, 1138 (9th Cir. 2004) (holding that content-neutral regulation “need

not include either a deadline for consideration by the governing body or

a provision for prompt judicial review”).

These latter two points highlight the unfairness of AusPro’s failure

to raise its prior-restraint challenge in the trial court. Even if the

standards and time limits weren’t constitutionally sufficient on their

face, the U.S. Supreme Court has explained that where “a well-

understood and uniformly applied practice has developed that has

virtually the force of a judicial construction, the state law is read in light

of those limits. That rule applies even if the face of the statute might not

otherwise suggest the limits imposed.” City of Lakewood, 486 U.S. at 770

n.11; see also, e.g., Ward, 491 U.S. at 795 (holding that city policy sufficed

to impose standards “[e]ven if the language of the guideline were not

sufficient on its face”); Bloedorn v. Grube, 631 F.3d 1218, 1237 (11th Cir.

2011) (“We consider the actual policies and practices employed by the

University, not just the [permitting] policy’s text.”). The Department

wasn’t on notice that it needed an affidavit or other evidence from its staff

regarding its implementation of the permitting scheme, and the trial

court had no reason to think it needed to consider this issue.

AusPro also complains about the fee requirements, AusPro Br. 53,

but “there is nothing unconstitutional in a [government’s] charging a fee.”

S. Or. Barter Fair, 372 F.3d at 1139.

AusPro’s final argument is that the regulations are

unconstitutional for failing to provide for judicial review. AusPro Br. 54-

55. But as explained above, content-neutral permitting schemes need not

do so. See supra at 37-38; see also, e.g., Lauder, 670 F.3d at 665 (“As a

content-neutral time, place, and manner restriction that does not leave

enforcing officials with unbridled discretion, the newsrack ordinance

need not contain an explicit provision for judicial review.”). That principle

is unsurprising given the consequences of the alternative: if every

licensing regime that even indirectly burdened speech required a judicial

outlet, the courts could be overwhelmed. The Department’s regulations

pass constitutional muster.

III. THE ACT AND ITS REGULATIONS DO NOT VIOLATE THE TEXAS

CONSTITUTION.

Because the Act and its regulations satisfy the First Amendment to

the U.S. Constitution, they also satisfy the Texas Constitution’s free-

expression guarantee. See TEX. CONST. art. I, § 8. AusPro offers no reason

why the Texas Constitution would invalidate a content-neutral, time,

place, and manner restriction of expressive conduct that also includes

noncommunicative characteristics.

“‘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.’”

Kinney v. Barnes, 443 S.W.3d 87, 92 (Tex. 2014) (quoting Operation

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

S.W.2d 546, 559 (Tex. 1998)). Accordingly, “a party claiming that the

Texas Constitution offers greater free-speech protection must explain

how the text, history, or purpose of the state constitution supports that

argument.” Tex. Entm’t Ass’n v. Combs, 431 S.W.3d 790, 801 (Tex. App.—

Austin 2014, pet. denied). “‘The mere assertion that the state provision

is broader than the federal means nothing . . . .’” Id. (quoting Bentley v.

Bunton, 94 S.W.3d 561, 578 (Tex. 2002)). AusPro offers nothing but “bare

assertions” to support its claim under the Texas Constitution. Id.

As to the Act’s ban of offsite noncommercial speech (including

political speech), Barber already decided that this prohibition does not

violate the Texas Constitution. See 111 S.W.3d at 106. As AusPro does

throughout its brief, it again pretends that Barber doesn’t exist. Instead,

AusPro merely discusses how earlier Texas Supreme Court cases

indicated that the language of Article I, Section 8 differs from the First

Amendment and that the Texas provision might provide greater

protection. AusPro Br. 58-63. Its analysis fails to distinguish Barber or

articulate any specific reasons why the outcome here should be different

under the Texas Constitution.

As to the permitting and licensing regulations (even if AusPro

hadn’t forfeited this challenge, see supra Part II.A), AusPro likewise

“fail[s] to show how the text, history, or purpose of the Texas Constitution

offers greater protection for this type of speech.” Tex. Entm’t Ass’n, 431

S.W.3d at 801. AusPro submits only the bare assertion that prior

restraints are presumed unconstitutional, citing Davenport v. Garcia,

834 S.W.2d 4 (Tex. 1992). See AusPro Br. 64. But Davenport addressed a

judicial gag order constituting a “sweeping injunction” of all public and

private discussion of a certain case outside the courtroom. Davenport, 834

S.W.2d at 6. That judicial injunction bears scant resemblance to the Act’s

targeted regulations.

AusPro doesn’t even begin to explain why a standard harsher than

the First Amendment rule would govern a content-neutral permitting

regime that aims at noncommunicative aspects of AusPro’s conduct and

adequately restrains the administrator’s discretion in reviewing

applications. Invalidating all licensing regimes that touch on political

speech would effect a sea change in free-speech law and would unduly

impede government entities from enacting regulations designed to

protect the public. AusPro’s conclusory assertions about Article I, Section

8 do not justify that result.

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

CERTIFICATE OF SERVICE

On February 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 9,739 words, excluding the portions of the brief exempted

by Rule 9.4(i)(1).

/s/ Douglas D. Geyser

Douglas D. Geyser

APPENDIX

nesses by adding off-premise signs to areas that are deﬁcient of This agency hereby certiﬁes that the adoption has been reviewed

off-premise signs. They also request that the department help by legal counsel and found to be a valid exercise of the agency’s

the outdoor industry maintain existing signs which keep a busi legal authority.

ness healthy.

Filed with the Ofﬁce of the Secretary of State on April 1, 2011.

RESPONSE: The department agrees in part with this comment.

The department is charged with regulating the outdoor adver TRD-201101263

tising industry. The department’s goal is not to increase or limit Bob Jackson

the number of billboards but rather to effectively and consistently General Counsel

regulate the billboard program. The department believes that Texas Department of Transportation

these new rules will enable the department to carry out its statu Effective date: July 1, 2011

tory responsibilities in a fair and equitable manner. Proposal publication date: December 3, 2010

COMMENT: Property Rights Association commented and re For further information, please call: (512) 463-8683

quested that the department look at anything that removes the

opportunity to have a sign, makes it tougher for sign owners ♦ ♦ ♦

to be in business, or removes a source of income for property

owners.

DIVISION 1. SIGNS

RESPONSE: The department has considered these issues and 43 TAC §§21.141 - 21.203

believes these rules balance the business opportunities for sign STATUTORY AUTHORITY

companies and property owners against the department respon

sibility to regulate outdoor advertising issues. The rules do in The new sections are adopted under Transportation Code,

some situations limit new billboard construction. The depart §201.101, which provides the commission with the authority to

ment feels that the changes made in this area are necessary establish rules for the conduct of the work of the department,

to address enforcement and compliance issues. The rules now and more speciﬁcally, Transportation Code, §391.032, which

require the business activity to be open for 180 days prior to the provides authority to establish rules to regulate the orderly

permit application and that the business is open 25 hours per and effective display of outdoor advertising on primary roads;

week. The department feels that these changes are necessary Transportation Code, §391.063, which provides authority for the

to improve enforcement and to prohibit billboard construction in commission to set fees for the issuance of an outdoor adver

areas that do not qualify under the statute. Transportation Code, tising license; Transportation Code, §391.065, which provides

§391.031 allows billboards in locations that, although not zoned authority to establish rules to standardize forms and regulate the

commercial, the land use is consistent with an area zoned for issuance of outdoor advertising licenses; Transportation Code,

those purposes. By requiring the business to be in operation §394.004, which provides the commission with the authority

180 days and open 25 hours per week the department is trying to establish rules to regulate the erection and maintenance

to ensure that billboards are only placed in areas that comply of signs on rural roads; and Transportation Code, §394.025,

with the statutory requirement. In addition, the department has which provides authority for the commission to set fees for the

added several features that beneﬁt the property owner in these issuance of an outdoor advertising license.

rules such as the land owner notices. CROSS REFERENCE TO STATUTE

SUBCHAPTER I. REGULATION OF SIGNS Transportation Code, Chapters 391 and 394.

ALONG INTERSTATE AND PRIMARY §21.141. Purpose.

HIGHWAYS This division is established to regulate the orderly and effective display

43 TAC §§21.141 - 21.163 of outdoor advertising along a regulated highway within the State of

Texas.

STATUTORY AUTHORITY

§21.142. Deﬁnitions.

The repeals are adopted under Transportation Code, §201.101,

which provides the commission with the authority to establish The following words and terms, when used in this subchapter, shall

rules for the conduct of the work of the department, and more have the following meanings, unless the context clearly indicates oth

speciﬁcally, Transportation Code, §391.032, which provides au erwise.

thority to establish rules to regulate the orderly and effective (1) Commission--The Texas Transportation Commission.

display of outdoor advertising on primary roads; Transportation

Code, §391.063, which provides authority for the commission (2) Department--The Texas Department of Transportation.

to set fees for the issuance of an outdoor advertising license; (3) Erect--To construct, build, raise, assemble, place, afﬁx,

Transportation Code, §391.065, which provides authority to es attach, embed, create, paint, draw, or in any other way bring into being

tablish rules to standardize forms and regulate the issuance of or establish.

outdoor advertising licenses; Transportation Code, §394.004,

which provides the commission with the authority to establish (4) Freeway--A divided, controlled access highway for

rules to regulate the erection and maintenance of signs on ru through trafﬁc. The term includes a toll road.

ral roads; and Transportation Code, §394.025, which provides (5) Highway--The width between the boundary lines of a

authority for the commission to set fees for the issuance of an publicly maintained way any part of which is open to the public for

outdoor advertising license. vehicular travel.

CROSS REFERENCE TO STATUTE (6) Interchange--A system of interconnecting roadways in

Transportation Code, Chapters 391 and 394. conjunction with one or more grade separations that provides for the

36 TexReg 2442 April 15, 2011 Texas Register

movement of trafﬁc between two or more roadways or highways on Except as provided by this chapter, unless a person holds a permit is

different levels. sued under §21.164 of this division (relating to Decision on Applica

tion) or §21.200 of this division (relating to Local Control), the person

(7) Intersection--The common area at the junction of two

may not erect or maintain an outdoor sign that is:

highways that are on the primary system. The common area includes

the area within the lateral boundary lines of the roadways. (1) within 660 feet of the nearest edge of the right of way

of a regulated highway if any part of the sign’s advertising or informa

(8) Interstate highway system--Highways designated ofﬁ

tion content is visible from any place on the main-traveled way of the

cially by the commission and approved pursuant to 23 United States

highway; or

Code §103 as part of the national system of interstate and defense high

ways. (2) outside of the jurisdiction of an incorporated city and

more than 660 feet from the nearest edge of the right of way of a regu

(9) License--An outdoor advertising license issued by the

lated highway if any part of the sign’s advertising or information con

department.

tent is visible from the main-traveled way of the highway and the sign

(10) Main-traveled way--The traveled way of a highway was erected for the purpose of having its advertising or information

that carries through trafﬁc. In the case of a divided highway, the trav content seen from the main-traveled way of the highway.

eled way of each of the separate roadways for trafﬁc in opposite di

§21.144. License Required.

rections is a main-traveled way. It does not include such facilities as

frontage roads, turning roadways, or parking areas. (a) Except as provided by this division, a person may not ob

tain a permit for a sign under this division unless the person holds a

(11) National Highway System--Highways designated of

currently valid license issued under §21.153 of this division (relating

ﬁcially by the commission and approved pursuant to 23 United States

to License Issuance) applicable to the county in which the sign is to be

Code §103 as part of the national highway system.

erected or maintained.

(12) Nonconforming sign--A sign that was lawfully

(b) A license is valid for one year from the date of issuance or

erected but that no longer complies with a law or rule because of

most recent renewal.

changed conditions or because the law or rule was amended after the

sign was erected or that fails to comply with a law enacted or rule §21.146. Exempt Signs.

adopted after the sign was erected.

(a) The following signs are exempt from this division:

(13) Nonproﬁt sign--A sign that is erected and maintained

(1) an on-premise sign that meets the criteria provided by

by a nonproﬁt organization under a permit issued under §21.149 of this

§21.147 of this division (relating to On-premise Sign) except as pro

division (relating to Nonproﬁt Sign Permit).

vided by subsection (c) of this section;

(14) Person--An individual, association, partnership, lim

(2) a sign that has the purpose of protecting life or property;

ited partnership, trust, corporation, or other legal entity.

(3) a sign that provides information about underground

(15) Primary system--Highways designated by the com

utility lines;

mission as the federal-aid primary system and any highway on the

National Highway System. The term includes all roads designated as (4) an ofﬁcial sign that is erected by a public ofﬁcer, public

part of the National Highway System as of 1991. agency, or political subdivision under the ofﬁcer’s, agency’s, or politi

cal subdivision’s constitutional or statutory authority;

(16) Public park--A public park, forest, playground, nature

preserve, or scenic area designated and maintained by a political sub (5) a sign required by the Railroad Commission of Texas at

division or governmental agency. the principal entrance to or on each oil or gas producing property, well,

tank, or measuring facility to identify or to locate the property if the sign

(17) Regulated highway--A highway on the interstate high

is no larger than necessary to comply with the Railroad Commission’s

way system or primary system.

regulations;

(18) Rest area--An area of public land designated by the

(6) a sign of a nonproﬁt service club, charitable associa

department as a rest area, comfort station, picnic area, or roadside park.

tion, religious organization, chamber of commerce, nonproﬁt museum,

(19) Sign--An object that is designed, intended, or used or governmental entity that gives information about the meetings, ser

to advertise or inform, including a sign, display, light, device, ﬁgure, vices, events, or locations of the entity and that does not exceed an area

painting, drawing, message, plaque, placard, poster, billboard, logo, or of 32 square feet;

symbol.

(7) a public service sign that:

(20) Sign face--The part of the sign that contains advertis

(A) is located on a school bus stop seating bench or

ing or information and is distinguished from other parts of the sign,

shelter;

including another sign face, by borders or decorative trim. The term

does not include a lighting ﬁxture, apron, or catwalk unless it displays (B) identiﬁes the donor, sponsor, or contributor of the

a part of the advertising or information contents of the sign. shelter;

(21) Sign structure--All of the interrelated parts and mate (C) contains a public service message that occupies at

rials, such as beams, poles, braces, apron, frame, catwalk, and stringers least 50 percent of the area of the sign;

that are used, designed to be used, or intended to be used to support or

(D) has no content other than that described by subpara

display a sign face.

graphs (B) and (C) of this paragraph;

(22) Visible--Capable of being read or identiﬁed by a per

(E) is authorized or approved by the law of the entity

son with normal visual acuity.

that controls the highway involved, including being located at a place

§21.143. Permit Required. approved by the entity;

ADOPTED RULES April 15, 2011 36 TexReg 2443

(F) has a sign face that does not exceed an area of 32 (1) separated from the real property on which the business

square feet; and activity is located by a road or highway or by another business;

(G) is not facing the same direction as any other sign on (2) devoted to a separate purpose unrelated to the adver

that seating bench or shelter; tised business activity;

(8) a sign that shows only the name of a ranch on which (3) held under an easement or other lesser property interest

livestock are raised or a farm on which crops are grown and the direc than the property interest in the land on which the business activity is

tions to, telephone number, or internet address of the ranch or farm and located; or

that has a sign face that does not exceed an area of 32 square feet;

(4) a narrow strip or other conﬁguration of land that cannot

(9) a sign that: be put to any reasonable use related to the advertised business activity

other than for signing purposes.

(A) relates only to a public election;

(d) A sign is not an on-premise sign if:

(B) is located on private property;

(1) the sign consists principally of brand name or trade

name advertising and the product or service advertised is only inci

election and is removed before the 11th day after the election date;

dental to the principal activity;

(D) has a sign face that does not exceed an area of 50

(2) the sign advertises activities that are not conducted on

square feet; and

the premises; or

(E) contains no commercial endorsement; and

(3) the sign provides rental income to the owner of the real

(10) a sign identifying the name of a recorded subdivision property on which it is located, unless the owner of the real property

located at an entrance to the subdivision or on property owned by or receives the income from an on-premise business for the use of the sign.

assigned to the subdivision, home owners association, or other entity

(e) For the purposes of this subsection:

associated with the subdivision.

(1) the date of the closing of a sales transaction is the date

(b) This division does not apply to a sign that was erected be

that legal title to a property is conveyed to a purchaser for property

fore October 23, 1965 and that the commission, with the approval of

under a contract to buy; and

the Secretary of the United States Department of Transportation, has

determined to be a landmark sign of such historic or artistic signiﬁ (2) the date of the closing of a lease transaction is the date

cance that preservation would be consistent with the purposes of the that the landlord and tenant enter into a binding lease of a property.

Highway Beautiﬁcation Act of 1965, 23 United States Code §131.

§21.148. Exception to License Requirement for Nonproﬁt Signs.

(c) An on-premise sign cannot be erected earlier than one year A nonproﬁt organization may erect or maintain a nonproﬁt sign with

before the date that the business for which the sign is erected will open out obtaining an outdoor advertising license, but the organization must

and conduct business. obtain a permit under §21.149 of this division (relating to Nonproﬁt

§21.147. On-premise Sign. Sign Permit) to erect or maintain such a sign.

(a) An on-premise sign is a sign that: §21.149. Nonproﬁt Sign Permit.

(a) A nonproﬁt service club, charitable association, religious

(1) is located on the real property of a business and consists

organization, chamber of commerce, nonproﬁt museum, or govern

only of:

mental entity may obtain a permit under this section to erect or maintain

(A) the name, logo, trademark, telephone number, and a nonproﬁt sign.

internet address of that business; or

(b) To qualify as a nonproﬁt sign, the sign must:

(B) an identiﬁcation of that business’s principal or ac

(1) be in a municipality or the extraterritorial jurisdiction

cessory products or services offered on the property;

of a municipality;

(2) only advertises the sale of the real property on which

(2) advertise or promote only:

the sign is located and is removed within 90 days after the date of the

closing of the real property transaction; or (A) the municipality;

(3) only advertises the lease, including a pre-lease, of the (B) a political subdivision whose jurisdiction is wholly

real property on which the sign is located and is removed within 90 or partially located in the municipality; or

days after the date of the closing of the lease transaction.

(b) For the purposes of this section, a sign is located on the real give information about the meetings, services, events, or location of

property of a business if: the entity; and

(1) the real property on which the sign is located and the (3) comply with each sign requirement under this division

real property on which the activity of the business is conducted are one from which it is not speciﬁcally exempted.

contiguous tract that is under common ownership; or

(2) the sign is located on the real property of a commer a form prescribed by the department and must include, in detail, the

cial development and the businesses of the development share the sign content of the message to be displayed on the sign.

structure of that sign.

(d) After a permit is issued, the permit holder must obtain ap

(c) For the purpose of subsection (b)(1) of this section, real proval from the department to change the message of the sign. The de

property is not considered to be a part of one contiguous tract if the partment may issue an order of removal of the sign if the permit holder

real property on which the sign is located is: fails to obtain that approval.

36 TexReg 2444 April 15, 2011 Texas Register

(e) If a sign ceases to qualify as a nonproﬁt sign, the permit (A) in the amount of $2,500 for each county designated

for the sign is subject to cancellation under §21.176 of this division under subsection (a)(2) of this section up to a maximum of $10,000;

(relating to Cancellation of Permit).

(B) payable to the commission to reimburse the depart

(f) If the holder of a permit issued under this section loses its ment for removal costs of a sign that the license holder unlawfully

nonproﬁt status or wishes to change the sign so that it no longer quali erects or maintains; and

ﬁes as a nonproﬁt sign the permit holder must:

(1) obtain a license under §21.153 of this division (relating a surety company authorized to transact business in this state;

to License Issuance); and

(2) a duly certiﬁed power of attorney from the surety com

(2) convert the sign permit to a permit for a sign other than pany authorizing the surety company’s representative to execute the

a nonproﬁt sign and pay the original permit and renewal fees provided bond on the effective date of the bond; and

by §21.175 of this division (relating to Permit Fees).

(3) the license fee prescribed by §21.156 of this division

§21.150. Continuance of Nonconforming Signs. (relating to License Fees).

(a) Notwithstanding other provisions of this division, the de §21.153. License Issuance.

partment will renew a permit for a nonconforming sign only if the sign

(a) The department will issue a license if the requirements of

structure:

§21.152 of this division (relating to License Application) are satisﬁed.

(1) was lawful on the later of the date it was erected or

(b) The department will not issue a license to an entity that is

became subject to the control of the department; and

not authorized to conduct business in this state.

(2) remains substantially the same as it was on the later of

§21.154. License Not Transferable.

the date it was erected, became subject to the department’s control, or

became a nonconforming sign. A license issued under this division is not transferable.

(b) A sign that was legally erected before March 3, 1986 in a §21.155. License Renewals.

railroad, utility, or road right of way that is not owned by the state or a

political subdivision may be maintained as a nonconforming sign if all (a) To continue a license in effect, the license must be renewed.

other requirements of this division are met. (b) To renew a license, the license holder must ﬁle a written ap

applicable license fee prescribed by §21.156 of this division (relating

(1) removed and re-erected for any reason, other than a re to License Fees). The application must be received by the department

quest by a condemning authority; or before the 46th day after the date of the license’s expiration and must

(2) substantially changed, as described by §21.191 of this include at a minimum:

division (relating to Repair and Maintenance). (1) the complete legal name, mailing address, and tele

(d) A nonproﬁt organization that holds a permit for a noncon phone number of the license holder;

forming sign that otherwise qualiﬁes for a permit under §21.149 of this (2) number of the license being renewed;

division (relating to Nonproﬁt Sign Permit) may convert the permit to

one issued under that section. (3) proof of current surety bond coverage; and

§21.151. Time Proposed Roadway Becomes Subject to Division. (4) the signature of the license holder or person signing on

behalf of the business entity.

For the purposes of this division, a proposed roadway becomes a road

way or a proposed interchange becomes an interchange:

not authorized to conduct business in this state.

(1) when environmental clearance and the approved align

§21.156. License Fees.

ment have been obtained from the Federal Highway Administration; or

(2) if environmental clearance and approved alignment (a) The amount of the fee for the issuance of a license issued

from the Federal Highway Administration are not required for a under this subchapter is $125.

proposed roadway, when the alignment is approved by the department (b) The amount of the annual renewal fee is $75.

or other political subdivision responsible for constructing the roadway.

§21.152. License Application. fee of $100 is required for a renewal license application that is received

before the 45th day after the expiration date of the license.

(a) To apply for a license under this division, a person must ﬁle

an application in a form prescribed by the department. The application (d) A license fee is payable by check, cashier’s check, or

must include at a minimum: money order made payable to the Texas Highway Beautiﬁcation Fund,

and must be submitted with the application. If the check or money

(1) the complete legal name, mailing address, and tele

order is dishonored upon presentment, the license is voidable.

phone number of the applicant; and

(e) The department will provide a renewal notiﬁcation to the

(2) designation of each county in which the applicant’s

license holder at least 45 days before the date of the license expira

signs are to be erected or maintained.

tion and if the license is not renewed before it expires, the department

(b) The application must be signed, notarized, and ﬁled with within 20 days after the date of expiration will provide notiﬁcation to

the department and be accompanied by: the license holder of the opportunity to ﬁle a late renewal application.

(1) a fully executed outdoor advertiser’s surety bond: §21.157. Temporary Suspension of License.

ADOPTED RULES April 15, 2011 36 TexReg 2445

If the department is notiﬁed by a surety company that a bond is being (4) the complete legal name and address of the owner of

canceled, the department will notify the license holder by certiﬁed mail the designated site;

that a new bond must be obtained and ﬁled with the department before

(5) a statement of whether the requested sign is located

the bond cancellation date or the 30th day after the day of the receipt

within an incorporated city or within the city’s extraterritorial juris

of the notice, whichever is later.

diction;

§21.158. License Revocation.

(6) the site owner’s or the owner’s authorized representa

(a) The department will revoke a license and will not issue or tive’s original signature on the application demonstrating:

renew permits or transfer existing permits under the license if:

(A) consent to the erection and maintenance of the sign;

(1) the surety bond is not provided within the time speciﬁed and

by the department under §21.152 of this division (relating to License

Application) or §21.155 of this division (relating to License Renewals); (B) right of entry onto the property of the sign location

by the department or its agents;

(2) surety bond coverage is terminated under §21.157 of

this division (relating to Temporary Suspension of License); (7) a document from the city that provides the city’s current

zoning map or the portion of that map applicable to the sign’s location;

(3) the number of ﬁnal enforcement actions of this sub and

chapter, or Transportation Code, Chapter 391, committed by the license

holder in the aggregate equal or exceed: (8) information that details how and the location from

which the sign will be erected and maintained.

(A) 10 percent of the number of valid permits held by

the license holder if the license holder holds more than 1,000 sign per (b) If the sign is a nonproﬁt sign, the application must include

mits; veriﬁcation of the applicant’s nonproﬁt status.

(B) 20 percent of the number of valid permits held by (c) If the sign is to be located within the jurisdiction of a mu

the license holder if the license holder holds at least 500 but fewer than nicipality, including the extraterritorial jurisdiction of the municipality,

1,000 sign permits; that is exercising its authority to regulate outdoor advertising, a certi

ﬁed copy of the permit issued by the municipality must be submitted

(C) 25 percent of the number of valid permits held by with the application unless documentation is provided to show that the

the license holder if the license holder holds at least 100 but fewer than municipality requires:

500 sign permits; or

(1) the issuance of a department permit before the munici

(D) 30 percent of the number of valid permits held by pality’s; or

the license holder if the license holder holds fewer than 100 sign per

mits; or (2) the erection of the sign within a period of less than

twelve months after the date of the issuance of the municipal permit.

(4) the license holder has not complied with previous ﬁnal

administrative enforcement actions regarding the license or any permit (d) The application must be:

held under the license. (1) notarized;

(b) The department will send notice by certiﬁed mail of an ac (2) ﬁled with the department’s division responsible for the

tion under this section to the address of record provided by the license outdoor advertising program in Austin; and

holder.

(3) accompanied by the fee prescribed by §21.175 of this

(1) the reasons for the action; (e) The application must include a sketch that shows:

(2) the effective date of the action; (1) the location of the poles of the sign structure;

(3) the right of the license holder to request an administra (2) the exact location of the sign faces in relation to the sign

tive hearing; and structure;

(4) the procedure for requesting a hearing including the pe (3) the means of access to the sign; and

riod in which the request must be made.

(4) the distance from the buildings, landmarks, right of way

(d) A request for an administrative hearing under this section line, other signs, and other distinguishable features of the landscape.

must be made in writing to the department within 45 days after the date

that the notice is mailed. §21.161. Site Owner’s Consent; Withdrawal.

(e) If timely requested, an administrative hearing will be con (a) A site owner’s consent to the erection and maintenance of

ducted in accordance with Chapter 1, Subchapter E of this title (relating the sign and access to the site by the department or its agent is pro

to Procedures in Contested Case). vided with a permit application under §21.159 of this division (relating

to Permit Application). The consent operates for the life of the lease

§21.159. Permit Application. or until the owner delivers to the department and to the sign owner a

(a) To obtain a permit for a sign, a person must ﬁle an appli written statement that permission for the maintenance or inspection by

cation in a form prescribed by the department. The application must the department or its agents of the sign has been withdrawn and docu

include, at a minimum: mentation showing that the lease allowing the sign has been terminated

in accordance with the terms of the lease agreement or through a court

(1) the complete name and address of the applicant;

order.

(2) the original signature of the applicant;

(b) If the sign owner provides documentation that the sign

(3) the proposed location and description of the sign; owner is disputing the lease termination, the department will not

36 TexReg 2446 April 15, 2011 Texas Register

cancel the permit until a settlement signed by both parties or a court ment plate on a form prescribed by the department accompanied by the

order settling the dispute is delivered to the department. replacement plate fee prescribed by §21.175 of this division (relating

to Permit Fees).

§21.163. Permit Application Review.

(a) The department will consider permit applications in the or (e) Failure to apply for a replacement permit plate or attach the

der of the receipt of the applications. plate to the sign structure as required in subsection (a) of this section

within 60 days after the date of receipt of written notiﬁcation from the

(b) If an application is returned to an applicant because it is not department that the permit plate is not attached or not visible may result

complete or has incorrect information, the application loses its priority in the cancellation of the permit under §21.176 of this division (relating

position. to Cancellation of Permit).

site as or a conﬂicting site with that of an application that the depart

(a) The department will not issue a permit under this division

ment previously received until the department makes a ﬁnal decision

unless the sign for which application is made is located along a roadway

on the previously received application or returns it to the applicant. The

to which Transportation Code, Chapter 391, applies and is in:

department will notify the applicant that the applicant’s application is

being held because an application for the same or a conﬂicting site was (1) an unzoned commercial or industrial area; or

previously received. For the purposes of this subsection, the date of a

(2) a zoned commercial or industrial area.

ﬁnal decision on an application is:

(b) Subsection (a) of this section does not apply to a sign that

(1) the date of the ﬁnal decision on an appeal under §21.170

was lawfully in existence when it became subject to Transportation

of this division (relating to Appeal Process for Permit Denials); or

Code, Chapter 391.

(2) if an appeal is not ﬁled within the period provided by

§21.168. Conversion of Certain Authorization to Permit.

§21.170 of this division, on the 46th day after the date the denial notice

was received under §21.164 of this division (relating to Decision on (a) The department will convert a registration issued under

Application). §21.409 of this chapter (relating to Permit Application) or a permit is

sued under §21.407 of this chapter (relating to Existing Off-Premise

(d) The department will review the permit application for com Signs) to a permit under this division if a highway previously regulated

pleteness and compliance with all requirements of this division. Mea under Transportation Code, Chapter 394 becomes subject to Trans

surements will be taken at the site to determine if the sign placement portation Code, Chapter 391.

meets the spacing and location requirements.

(b) A holder of a permit or registration converted under this

§21.164. Decision on Application. section is not required to pay an original permit fee under §21.175 of

(a) The department will make a decision on an application this division (relating to Permit Fees). The permit must be renewed

within 45 days after the date of receipt of the application. If the de under §21.172 of this division (relating to Permit Renewals), on the

cision cannot be made within the 45 day period the department will date the renewal of the permit or registration issued under §21.407 or

notify the applicant of the delay and provide the reason for the delay §21.409 of this chapter, as appropriate, would have been due.

and provide an estimate for when the decision will be made. (c) If a sign owner has prepaid registration fees under §21.407

(b) If the permit application is approved, the department will of this chapter, the outstanding balance will be credited to the sign

issue a permit for the sign by sending a copy of the approved application owner’s annual renewal fee.

and a sign permit plate to the applicant. (d) The department will issue a sign permit plate to a holder

(c) If the permit application is not approved, the department of a permit or a registration converted under this section at no charge.

will send a copy of the denied application and a notice that states the If a replacement plate is needed after the initial issuance, a fee will be

reason for the denial. charged in accordance with §21.175 of this division.

(d) If an application is denied, the department will notify the §21.169. Notice of Sign Becoming Subject to Regulation.

landowner identiﬁed on the permit application of the denial. The notice (a) The department will send notice by certiﬁed mail to the

is for informational purposes only, and does not convey any rights to owner of a sign that becomes subject to Transportation Code, Chapter

the landowner. The landowner may not appeal the denial unless the 391 because of the construction of a new highway, the change in des

landowner is also the applicant. ignation of an existing highway, or decertiﬁcation of a certiﬁed city. If

§21.165. Sign Permit Plate. the owner of the sign cannot be identiﬁed from the information on ﬁle

with the department, the department will give notice by prominently

(a) The sign owner shall securely attach the sign permit plate posting the notice on the sign for a period of 45 consecutive days.

to the part of the sign structure that is nearest to and visible from the

closest right of way not later than the 30th day after the date that: (b) If the owner of a sign described by subsection (a) of this

section does not hold a license issued under §21.153 of this division

(1) the sign is erected; or (relating to License Issuance), the owner must obtain the license within

(2) the permit is issued if the sign is lawfully in existence 60 days after the day that:

when the highway along which it is located becomes subject to this (1) the department sends notice under subsection (a) of this

division. section; or

(b) The sign permit plate may not be removed from the sign. (2) the 45-day posting period under subsection (a) of this

right of way at all times. §21.170. Appeal Process for Permit Denials.

(d) If a sign permit plate is lost or stolen or becomes illegible, (a) If a sign permit is denied, the applicant may ﬁle a request

the sign owner must submit to the department a request for a replace with the executive director for an appeal.

ADOPTED RULES April 15, 2011 36 TexReg 2447

(b) The request for appeal must: (c) To transfer one or more sign permits, the permit holder

must send to the department a written request in a form prescribed by

(1) be in writing;

the department accompanied by the prescribed transfer fee.

(2) contain:

(d) If the request is approved, the department will send to the

(A) a copy of the denied permit application; transferor and to the transferee a copy of the approved permit transfer

form.

(B) a statement of why the denial is believed to be in

error; and (e) A permit issued to a nonproﬁt organization under §21.149

of this division (relating to Nonproﬁt Sign Permit) may be transferred to

another nonproﬁt organization that does not hold a license issued under

tion, such as drawings, surveys, or photographs; and

§21.153 of this division if the sign will be maintained as a nonproﬁt

(3) be received within 45 days after the date the denial no sign.

tice was received.

(f) A permit issued to a nonproﬁt organization under §21.149

(c) The executive director or the executive director’s designee of this division may be converted to a regular permit and transferred

who is not below the level of assistant executive director, will make to a person that is not a nonproﬁt organization if the transferee holds

a ﬁnal determination on the appeal within 60 days after the date that a license for the county in which the sign is located at the time of the

the executive director receives the request for appeal. If the ﬁnal de transfer and the sign meets all requirements of this division.

termination is that the permit is denied, the executive director or the

(g) The department may approve the transfer of one or more

executive director’s designee will send the ﬁnal determination to the

sign permits from a transferor whose license has expired to a person

applicant stating the reason for denial. If the determination is that the

who holds a license, with or without the signature of the transferor, if

application be approved, the department will issue the permit in accor

the person provides to the department:

dance with §21.164 of this division (relating to Decision on Applica

tion). (1) legal documents showing the sign has been sold; and

(d) If the executive director or designee is unable to make a (2) documents that indicate that the transferor is dead or

ﬁnal determination on the appeal within the 60-day period under sub cannot be located.

section (c) of this section, the department will notify the applicant by

(h) The department will not approve the transfer of a permit if

mail of the delay and provide an estimated time in which a ﬁnal deter

cancellation of the permit is pending or has been abated awaiting the

mination will be made.

outcome of an administrative hearing.

§21.171. Permit Expiration.

§21.174. Amended Permit.

(a) A permit is valid for one year.

(a) To perform customary maintenance or to make substantial

(b) A permit automatically expires on the date that the license changes to the sign or sign structure under §21.191 of this division

under which the permit was issued expires or is revoked by the depart (relating to Repair and Maintenance) a permit holder must submit an

ment under §21.158 of this division (relating to License Revocation). amended permit application. To change the sign face of an existing

§21.172. Permit Renewals. permitted sign to an electronic sign under Division 2 of this subchapter

(a) To be continued in effect, a sign permit must be renewed. (relating to Electronic Signs) a permit holder must submit an amended

permit application.

(b) A permit is eligible for renewal if the sign for which it was

issued continues to meet all applicable requirements of this division (b) The amended permit application must be submitted on a

and Transportation Code, Chapter 391. form prescribed by the department and must provide the information

required under §21.159 of this division (relating to Permit Application)

(c) To renew the permit, the permit holder must ﬁle with the applicable to an amended permit and indicates the change from the in

department a written application in a form prescribed by the depart formation in the original application for the sign permit. The amended

ment accompanied by the applicable fees prescribed by §21.175 of this application is not required to contain the signatures of the land owner

division (relating to Permit Fees). The application must be received by or city representative.

the department before the 46th day after the date of the permit’s expi

ration. (c) The new sign face size, conﬁguration, or location must

meet all applicable requirements of this division and if the amended

(d) A permit may not be renewed if the sign for which it was permit is to erect an electronic sign, the requirements of Division 2 of

issued is not erected to the extent that it includes a sign face before the this subchapter.

ﬁrst anniversary of the date that the permit was issued.

(d) The holder of a permit for a nonconforming sign may apply

(e) The department will provide a renewal notiﬁcation to the for an amended permit to perform eligible customary maintenance un

license holder at least 30 days before the date of the permit expiration der §21.191(b) of this division. An amended permit will not be issued

and if the permit is not renewed before it expires the department within for a substantial change as described by §21.191(c) of this division to

20 days after the date of expiration will provide notiﬁcation to the li a nonconforming sign.

cense holder of the opportunity to ﬁle a late renewal.

(e) Making a change to a sign that requires an amended permit

§21.173. Transfer of Permit. without ﬁrst obtaining an amended permit is a violation of this division,

(a) A sign permit may be transferred only with the written ap except as provided by subsection (g) of this section and will result in

proval of the department. an administrative enforcement action.

(b) At the time of the transfer, both the transferor and the trans (f) The department will make a decision on an amended permit

feree must hold a valid license issued under §21.153 of this division application within 45 days of the date of the receipt of the amended

(relating to License Issuance), except as provided in subsections (e) permit application. If the decision cannot be made within the 45 day

(g) of this section. period the department will notify the applicant of the delay, provide the

36 TexReg 2448 April 15, 2011 Texas Register

reason for the delay and provide an estimate of when the decision will permit application but at a location that does not meet all spacing re

be made. quirements of this chapter or in accordance with the sketch or other

assertions contained in the permit application;

(g) If maintenance or changes authorized under this section are

being made on a conforming sign because of a natural disaster, the de (6) is repaired or altered without obtaining a required

partment may waive the requirement that the required amended permit amended permit under §21.174 of this division (relating to Amended

be issued before the work begins. If the department grants a waiver un Permit);

der this subsection, the permit holder shall submit the amended permit

(7) is built by an applicant who uses false information on a

application within 60 days after the date that the work is completed.

material issue of the permit application;

If the maintenance or changes violate this section or the permit holder

fails to submit the amended permit application as required by this sub (8) is erected, repaired, or maintained in violation of

section, the sign is subject to enforcement and removal actions. §21.199 of this division (relating to Destruction of Vegetation and

Access from Right of Way Prohibited);

§21.175. Permit Fees.

(9) has been made more visible by the permit holder clear

(a) The amounts of the fees related to permits under this sub ing vegetation from the highway right of way in violation of §21.199

chapter are: of this division;

(1) $100 for an original or amended permit for a sign; (10) is located in an unzoned commercial or industrial area

(2) $100 for an original or amended permit issued under and the department has evidence that an activity supporting the un

Division 2 of this subchapter for an electronic sign; zoned commercial or industrial area was created primarily or exclu

sively to qualify the area as an unzoned commercial or industrial area,

(3) $100 for an original permit for a sign that was lawfully and that no business has been conducted at the activity site within one

in existence when the sign became subject to Transportation Code, year; or

Chapter 391;

(11) does not have the permit plate properly attached under

(4) $75 for the renewal of a permit; §21.165 of this division (relating to Sign Permit Plate).

(5) $75 for the renewal of a permit issued under Division 2 (b) Before initiating an enforcement action under this section,

of this subchapter for an electronic sign; the department will notify the sign owner in writing of the violation of

(6) $25 for the transfer of a permit up to a maximum of subsection (a)(5) or (11) of this section and will give the sign owner

$2,500 for a single transaction regardless of the location of the sign; 60 days to correct the violation and provide proof of the correction the

and department.

(7) $25 for a replacement sign permit plate. (c) Upon determination that a permit should be canceled, the

department will mail a notice of cancellation to the address of the record

(b) The original and renewal permit fee for a nonproﬁt sign license holder. The notice must state:

permit is $10.

(1) the reason for the cancellation;

fee of $100 is required for a renewal of a permit that is received before (2) the effective date of the cancellation;

the 46th day after the permit expiration date. (3) the right of the permit holder to request an administra

(d) No fee is charged for the transfer of a permit issued to a tive hearing on the cancellation; and

nonproﬁt organization to another nonproﬁt under §21.173 of this divi (4) the procedure for requesting a hearing and the period

sion (relating to Transfer of Permit). The fee provided under subsection for ﬁling the request.

(a)(6) of this section applies to the conversion and transfer of a permit

issued to a nonproﬁt organization to a person other than a nonproﬁt or (d) A request for an administrative hearing under this section

ganization under §21.173 of this division. must be in writing and delivered to the department within 45 days after

the date that the notice of cancellation is received.

(e) A fee prescribed by this section is payable by check,

cashier’s check, or money order. If a check or money order is dishon (e) If timely requested, an administrative hearing will be con

ored upon presentment, the permit, renewal, or transfer is void. ducted in accordance with Chapter 1, Subchapter E of this title (relating

to Procedures in Contested Case) and the cancellation is abated until the

§21.176. Cancellation of Permit. cancellation is afﬁrmed by order of the commission.

(a) The department will cancel a permit for a sign if the sign: (f) A permit holder may voluntarily cancel a permit by submit

(1) is removed, unless the sign is removed and re-erected ting a request in writing after the sign has been removed. Subsections

at the request of a condemning authority; (c) - (e) of this section do not apply to a permit voluntarily canceled

under this subsection.

(2) is not maintained in accordance with this division or

Transportation Code, Chapter 391; (g) The department will notify the landowner identiﬁed on the

permit application of a cancellation enforcement action. The notice is

(3) is damaged beyond repair, as determined under §21.197 for informational purposes only, and does not convey any rights to the

of this division (relating to Discontinuance of Sign Due to Destruction); landowner. The landowner may not appeal the cancellation unless the

(4) is abandoned, as determined under §21.181 of this di landowner is also the holder of the permit.

vision (relating to Abandonment of Sign); §21.177. Commercial or Industrial Area.

(5) is erected after the effective date of this section and is For the purposes of this division, a commercial or industrial area is:

not built within twenty feet of the location described in the permit ap

plication or is built within twenty feet of the location described in the

ADOPTED RULES April 15, 2011 36 TexReg 2449

(1) a zoned commercial or industrial area described by measured from the outer edge of the regularly used building, parking

§21.178 of this division (relating to Zoned Commercial or Industrial lot, storage, or processing area to a point perpendicular to the centerline

Area); or of the main-traveled way.

(2) an unzoned commercial or industrial area described by (h) A sign is not required to meet the requirements of subsec

§21.179 of this division (relating to Unzoned Commercial or Industrial tion (d)(1)(A), (2), or (3) of this section or §21.180 of this division

Area). (relating to Commercial or Industrial Activity) to maintain conforming

status if the permit for the sign was issued before the effective date of

§21.179. Unzoned Commercial or Industrial Area.

this section.

(a) An unzoned commercial or industrial area is an

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