# Auspro Enterprises, LP v. Texas Department of Transportation > Texas Court of Appeals, 3rd District (Austin) · February 19, 2015 URL: https://www.frixlaw.com/law-library/cases/4048709 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** February 19, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4048709 ## How later opinions describe it (automated extraction) - 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” ## Opinion text 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, v. 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 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 iv 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 v 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 vi 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 ix 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]”. x 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. xi 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, v. 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 2 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 3 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. 4 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 5 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; (C) contains a public service message that occupies at least 50 percent of the 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; (C) is erected after the 91st day before the date of the election and is removed 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.” 6 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). 7 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- 8 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. 9 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. 10 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 11 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). 12 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, 13 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. 14 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 15 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. 16 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 17 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 18 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 19 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. 20 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 21 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). 22 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- 23 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). 24 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”); 25 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). 26 (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”). 27 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 sign in its current form might not legally be placed anywhere else on 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. 28 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 29 “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 30 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. 31 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 32 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 33 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 34 (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. 35 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). 36 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 37 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 38 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 39 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), 40 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 41 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 42 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 43 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. 44 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. 45 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. 46 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 47 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. 48 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 49 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 50 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 (C) is erected after the 91st day before the date of the 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. (C) the entity that will hold the permit, but may only (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 (c) An application for a permit under this section must be in (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: (C) in a form prescribed by the department, executed by (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 (c) A nonconforming sign may not be: plication in a form prescribed by the department accompanied by each 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 (c) A license is not eligible for renewal if the license holder is 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. (c) In addition to the $75 annual renewal fee, an additional late §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 (c) The notice will clearly state: division (relating to Permit Fees). (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). (c) The department will hold an application that is for the same §21.166. Sign Location Requirements. 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 (c) The sign permit plate must remain visible from the closest section ends. 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 (C) evidence that supports the issuance of the applica­ 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 perso [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4048709. Public record. Not legal advice.