No. 03-14-00375-CV 

In the Court of Appeals 

for the Third Judicial District 

Austin, Texas

AUSPRO ENTERPRISES, LP, 

 Appellant, 

v. 

TEXAS DEPARTMENT OF TRANSPORTATION, 

 Appellee.

On Appeal from the 

345th Judicial District Court of Travis County, Texas 

APPELLEE’S MOTION FOR REHEARING

KEN PAXTON

Attorney General of Texas 

JEFFREY C. MATEER

First Assistant Attorney General 

SCOTT A. KELLER

Solicitor General 

MATTHEW H. FREDERICK

Deputy Solicitor General 

State Bar No. 24040931 

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548 (MC 059) 

Austin, Texas 78711-2548 

Tel.: (512) 936-6407 

Fax: (512) 474-2697 

matthew.frederick 

 @texasattorneygeneral.gov 

COUNSEL FOR APPELLEE 

ACCEPTED

03-14-00375-CV

12936746

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/27/2016 6:07:11 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/27/2016 6:07:11 PM JEFFREY D. KYLE Clerk
ii 

TABLE OF CONTENTS

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

I. This Case Does Not Implicate Commercial Speech, and

Neither Does Reed. .................................................................. 3

A. Commercial Speech Does Not Raise the Same 

Constitutional Concerns as AusPro’s Political 

Speech. ............................................................................ 3

B. Reed Does Not Subject Regulations of Commercial 

Speech to Strict Scrutiny. .............................................. 5

C. AusPro’s Challenge to the Act Does Not Extend to 

Regulation of Commercial Speech. .............................. 11

II. Severability Principles Require the Court to Preserve 

the Act as It Applies to Commercial Speech. ....................... 13

A. The Texas Legislature Intended to Regulate 

Commercial Speech. ..................................................... 14

B. The Act Can Be Executed in a Manner that 

Complies with Federal Law and Avoids the 

Potential Loss of More than $300 Million in 

Federal Highway Funds. ............................................. 16

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

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

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

 
iii 

TABLE OF AUTHORITIES

 Page(s) 

Cases 

Agostini v. Felton, 

521 U.S. 203 (1997) ............................................................................. 19 

Ayotte v. Planned Parenthood of N. New England, 

546 U.S. 320 (2006) ............................................................................. 17 

Bates v. State Bar of Arizona, 

433 U.S. 350 (1977) ......................................................................... 4, 13 

Boelter v. Hearst Commc’ns, Inc., 

2016 WL 3369541 (S.D.N.Y. June 17, 2016) ...................................... 10 

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

447 U.S. 557 (1980) ............................................................... 4, 5, 11, 16 

Citizens for Free Speech, LLC v. City of Alameda, 

114 F. Supp. 3d 952 (N.D. Cal. 2015) ................................................. 10 

Citizens United v. Fed. Elec. Comm’n, 

558 U.S. 310 (2010) ............................................................................... 3 

City of Cincinnati v. Discovery Network, Inc., 

507 U.S. 410 (1993) ............................................................................... 5 

City of Renton v. Playtime Theatres, Inc., 

475 U.S. 41 (1986) ................................................................................. 8

Contest Promotions, LLC v. City & Cnty. of San Francisco, 

2015 WL 4571564 (N.D. Cal. July 28, 2015) ................................ 10–11 

CTIA—The Wireless Assoc. v. City of Berkeley, 

139 F. Supp. 3d 1048 (N.D. Cal. 2015) ........................................... 9–10 

Davidson Cnty. v. Elrod, 

232 S.W.2d 1 (Tenn. 1950) .................................................................. 17 
iv 

Geeslin v. State Farm Lloyds, 

255 S.W.3d 786 (Tex. App..—Austin 2008, no pet.) ........................... 14 

Geft Outdoor LLC v. Consol. City of Indianapolis & Cnty. of 

Marion, 2016 WL 2941329 (S.D. Ind. May 20, 2016) ......................... 10 

Lamar Central Outdoor, LLC v. City of Los Angeles, 

245 Cal. App. 4th 610 (2016) .............................................................. 11 

Lone Star Security & Video, Inc. v. City of Los Angeles, 

827 F.3d 1192 (9th Cir. 2016) ............................................................. 10 

Lotze v. Washington, 

444 U.S. 921 (1979) ............................................................................... 7 

Markham Advertising Co. v. Washington, 

393 U.S. 316 (1969) ............................................................................... 7 

Marks v. United States, 

430 U.S. 188 (1977) ............................................................................... 9 

Mass. Assoc. of Private Career Schs. v. Healey, 

159 F. Supp. 3d 173 (D. Mass. 2016) .................................................. 10 

Members of the City Council v. Taxpayers for Vincent, 

466 U.S. 789 (1984) ........................................................................... 7–8 

Metromedia, Inc. v. City of San Diego, 

453 U.S. 490 (1981) ............................................................. 3, 6, 7, 9, 18 

Newman Signs, Inc. v. Hjelle, 

440 U.S. 901 (1979) ............................................................................... 7 

Northland Family Planning Clinic, Inc. v. Cox, 

487 F.3d 323 (6th Cir. 2007) ............................................................... 17 

Ohralik v. Ohio State Bar Ass’n, 

436 U.S. 447 (1978) ............................................................................... 4 

Peterson v. Village of Downers Grove, 

2016 WL 427566 (N.D. Ill. Feb. 4, 2016) ............................................ 10 
v 

Pruett v. Harris Cnty. Bail Bond Bd., 

249 S.W.3d 447 (Tex. 2008) ................................................................ 16 

Reed v. Town of Gilbert, 

135 S. Ct. 2218 (2015) ................................................................. passim

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 

490 U.S. 477 (1989) ............................................................................. 19 

Rose v. Doctors Hospital, 

801 S.W.2d 841 (Tex. 1990) ................................................................ 15 

Second Amendment Arms v. City of Chicago, 

135 F. Supp. 3d 743 (N.D. Ill. 2015) ................................................... 10 

Suffolk Outdoor Advertising Co. v. Hulse, 

439 U.S. 808 (1978) ............................................................................... 7 

Texas Dep’t of Transp. v. Barber, 

111 S.W.3d 86 (Tex. 2003) .................................................................... 8 

Thomas v. Schroer, 

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

United States v. Salerno, 

481 U.S. 739 (1987) ............................................................................. 13 

Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 

Inc., 425 U.S. 748 (1976) ....................................................................... 4 

Valentine v. Chrestensen, 

316 U.S. 52 (1942) ................................................................................. 4

Statutes and Rules 

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

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

Tex. Transp. Code 

 §§ 391.001–430.001 ............................................................................... 2 

 § 391.001(10) ....................................................................................... 14 
vi 

 § 391.001(12) ....................................................................................... 14 

§ 391.252 ............................................................................................. 16 

§ 391.252(a)(1) ..................................................................................... 17 

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

Other Authorities 

Brief for the United States as Amicus Curiae Supporting 

Petitioners, Reed v. Town of Gilbert, 135 S. Ct. 2218 

(2015) (No. 13-502), 2014 WL 4726504 .............................................. 18 

U.S. Department of Transportation, Federal Highway 

Administration, Notice 4510.788: Apportionment of 

Federal-Aid Highway Funds for Fiscal Year (FY) 2015

Pursuant to the Highway and Transportation Funding 

Act of 2014, as Amended tbl.1 (Aug. 14, 2015) ................................ 1–2 
No. 03-14-00375-CV 

In the Court of Appeals 

for the Third Judicial District 

Austin, Texas

AUSPRO ENTERPRISES, LP, 

 Appellant, 

v. 

TEXAS DEPARTMENT OF TRANSPORTATION, 

 Appellee.

On Appeal from the 

345th Judicial District Court of Travis County, Texas 

APPELLEE’S MOTION FOR REHEARING

TO THE HONORABLE THIRD COURT OF APPEALS: 

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

two subchapters of the Texas Transportation Code, thereby prohibiting 

state regulations on commercial speech and putting ten percent of the 

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

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

 

1 The Federal Highway Administration apportioned more than $3.3 billion in federalaid highway funds to the State of Texas for fiscal year 2015. See U.S. Department of 

Transportation, Federal Highway Administration, Notice 4510.788: Apportionment 

of Federal-Aid Highway Funds for Fiscal Year (FY) 2015 Pursuant to the Highway 
2 

because AusPro’s claims and Reed v. Town of Gilbert, 135 S. Ct. 2218 

(2015), do not implicate commercial speech. 

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

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

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

remedy, however, directly implicates commercial-speech considerations 

because it invalidates Subchapters B and C of the Texas Highway 

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

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

ban on regulation of commercial speech goes beyond the controversy in 

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

in Reed. 

The Texas Department of Transportation seeks panel rehearing on 

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

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

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

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

 

and Transportation Funding Act of 2014, as Amended tbl.1 (Aug. 14, 2015), 

https://www.fhwa.dot.gov/legsregs/directives/notices/n4510788/n4510788_t1.cfm 
3 

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

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

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

reasoning of the Court’s opinion. 

I. THIS CASE DOES NOT IMPLICATE COMMERCIAL SPEECH, AND 

NEITHER DOES REED. 

A. Commercial Speech Does Not Raise the Same 

Constitutional Concerns as AusPro’s Political Speech.

Because the Act applies to both commercial and noncommercial 

speech, it implicates two distinct First Amendment doctrines. 

Noncommercial speech—including political and ideological speech—

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

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

Amendment has its fullest and most urgent application to speech uttered 

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

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

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

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

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

1975, purely commercial advertisements of services or goods for sale were 
4 

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

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

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

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

to commercial speech than to other constitutionally guaranteed 

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

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

between speech proposing a commercial transaction, which occurs in an 

area traditionally subject to government regulation, and other varieties 

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

455–56 (1978)). 

Content-based regulation of commercial speech does not raise the 

same constitutional concerns as similar regulation of noncommercial 

speech. Indeed, the very notion of “commercial speech” implies a contentbased determination. See, e.g., Bates v. State Bar of Arizona, 433 U.S. 

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

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

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

the Supreme Court has noted that particular “features of commercial 
5 

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

contexts, the First Amendment prohibits regulation based on the content 

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

B. Reed Does Not Subject Regulations of Commercial 

Speech to Strict Scrutiny. 

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

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

challenged certain provisions of a municipal ordinance that set different 

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

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

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

concerning traditional ‘elections’ over other political speech unrelated to 

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

because the challenged provisions did not betray an effort to target 

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

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

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

adequately justified without reference to the content of the regulated 

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

course, holding that the town’s content-based rules were subject to strict 
6 

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

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

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

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

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

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

regulations on noncommercial speech, including the political speech at 

issue here. 

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

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

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

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

upholding content-based regulations of commercial speech. In 

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

interest in preventing visual clutter justified a prohibition on billboards. 

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

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

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

dissenting). Metromedia declined to overrule the Supreme Court’s earlier 
7 

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

summarily dismissing an appeal from a judgment sustaining “a 

municipal ordinance that distinguished between offsite and onsite 

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

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

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

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

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

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

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

. . . that prohibiting offsite commercial advertising violates the First 

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

summary decisions upholding facial and as-applied challenges to similar 

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

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

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

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

“the visual assault . . . presented by an accumulation of signs posted on 
8 

public property” constituted “a significant substantive evil within the 

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

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

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

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

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

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

case: “Rules distinguishing between the placement of signs on 

commercial and residential property”; and “Rules distinguishing between 

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

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

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

regulates signs based on location and does not discriminate against any 

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

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

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

 

2 Reed abrogates the Texas Supreme Court’s alternative holding in Barber—that “the 

Act is also content neutral because it is ‘justified without reference to the content of 

the regulated speech.’” Barber, 111 S.W.3d at 100 & n.83 (quoting City of Renton v. 

Playtime Theatres, Inc., 475 U.S. 41, 48 (1986)). 
9 

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

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

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

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

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

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

(quotation marks omitted). 

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

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

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

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

clearly made a distinction between commercial speech and 

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

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

 

3 The Western District of Tennessee’s interpretation of Reed at the preliminaryinjunction stage, see Thomas v. Schroer, 127 F. Supp. 3d 864 (W.D. Tenn. 2015), 

carries no persuasive weight to the contrary for at least two reasons. First, it did not 

consider a regulation on commercial speech. See id. at 869 (referring to “billboards 

and signs displaying noncommercial content”). Second, it ignored Supreme Court 

decisions upholding distinctions between on- and off-premise signs. Cf., e.g., 

Metromedia, 453 U.S. at 498–99. Had the district court devoted more attention to the 

issue, it could not have dismissed Justice Alito’s cautionary instructions as 

“unsupported conclusions.” Thomas, 127 F. Supp. 3d at 873. 
10 

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

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

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

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

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

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

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

argument that Reed overturned commercial-speech doctrine and holding 

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

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

 

4 See also, e.g., Boelter v. Hearst Commc’ns, Inc., Nos. 15 Civ. 3934, 15 Civ. 9279, 

39342016 WL 3369541, at *9 n.10 (S.D.N.Y. June 17, 2016) (noting that the Supreme 

Court “has not explicity overturned the decades of jurisprudence holding that 

commercial speech, and speech like it—which, inherently, requires a content-based 

distinction—warrants less First Amendment protection. . . . The Court will not take 

that leap here.”); Geft Outdoor LLC v. Consol. City of Indianapolis & Cnty. of Marion, 

No. 1:15-cv-01568, 2016 WL 2941329, at *10 (S.D. Ind. May 20, 2016) (“Few courts 

have had occasion to address it post-Reed, but the majority of courts that have 

considered the question have held that the holding in Reed is limited to 

noncommercial sign regulations and does not alter or otherwise affect precedent 

relating to municipal regulations of commercial signs.”); Peterson v. Vill. of Downers 

Grove, No. 14 C 09851, 2016 WL 427566, at *4 (N.D. Ill. Feb. 4, 2016) (“Absent an 

express overruling by the Supreme Court of Central Hudson, which clearly applies to 

commercial speech like [plaintiff]’s signs, Central Hudson must be deemed to apply 

here.”); Second Amendment Arms v. City of Chicago, 135 F. Supp. 3d 743, 755 (N.D. 

Ill. 2015) (applying intermediate scrutiny to dismiss a First Amendment challenge to 

city ordinance banning the display of “firearms or ammunition in [any] window”); 

Citizens for Free Speech, LLC v. City of Alameda, 114 F. Supp. 3d 952, 968–69 (N.D. 

Cal. 2015) (applying intermediate scrutiny after determining that the challenged ban 

on billboards applied only to commercial speech); Contest Promotions, LLC v. City & 
11 

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

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

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

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

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

regulation of commercial speech receives intermediate scrutiny even 

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

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

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

C. AusPro’s Challenge to the Act Does Not Extend to 

Regulation of Commercial Speech. 

AusPro has not challenged the Act as it applies to commercial 

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

regulation of commercial advertisements because it does not complain 

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

 

Cnty. of San Francisco, No. 15-cv-00093, 2015 WL 4571564, at *4 (N.D. Cal. July 28, 

2015) (“Because Reed does not abrogate prior case law holding that laws which 

distinguish between on-site and off-site commercial speech survive intermediate 

scrutiny, the Court holds that its prior analysis continues to control the fate of 

plaintiff’s First Amendment claim.”). 
12 

its own interest in commercial speech, AusPro could not establish 

standing to challenge the Act as applied to commercial speech. 

AusPro has consistently disclaimed any challenge to the Act’s 

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

The speech that we’re talking about in this particular case, 

Your Honor, is this sign. It’s maybe not the most beautiful 

sign, but it is a sign that I think we all can agree is core 

political speech. It does not relate to the sale of any product. 

It does not relate to anything that is being marketed on the 

premise. It is a core political statement. 

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

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

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

commercial and noncommercial speech” but stated, “Whether this 

distinction remains valid is not at issue in this case involving 

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

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

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

claim. First, the parties have not briefed Reed’s effect on commercialspeech doctrine or the application of intermediate scrutiny to the Act.

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

commercial-speech rights, even in the guise of a facial challenge. Because 
13 

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

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

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

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

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

AusPro cannot invoke overbreadth because that doctrine does not apply 

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

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

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

Reed implied that the Act is unconstitutional in every application to 

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

facial challenge to the Act as applied to commercial speech. 

II. SEVERABILITY PRINCIPLES REQUIRE THE COURT TO PRESERVE 

THE ACT AS IT APPLIES TO COMMERCIAL SPEECH. 

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

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

leaves two questions: Did the Legislature intend to regulate commercial 

 

5 By declining to revisit points the Court has already addressed, the Department does 

not waive or forfeit any arguments, including but not limited to arguments about 

Reed’s effect on the Act as applied to noncommercial speech. See Tex. R. App. P. 49.9. 
14 

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

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

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

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

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

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

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

A. The Texas Legislature Intended to Regulate 

Commercial Speech. 

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

Legislature intended to regulate commercial speech. Subchapters B and 

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

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

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

obviously broad enough to include commercial advertisements offering 

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

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

establishments” offering particular services). 

Under Texas law, severability doctrine does not require courts to 

strike down a statutory provision when a particular application violates 
15 

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

expressly that unconstitutional applications of a statute must be severed 

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

Tex. Gov’t Code § 311.032(c) (“[I]f any provision of the statute or its 

application to any person or circumstance is held invalid, the invalidity 

does not affect other provisions or applications of the statute that can be 

given effect without the invalid provision or application . . . .”) (emphasis 

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

(severing an application of the Medical Liability and Insurance 

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

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

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

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

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

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

Act must continue to apply to commercial speech. 
16 

B. The Act Can Be Executed in a Manner that Complies 

with Federal Law and Avoids the Potential Loss of 

More than $300 Million in Federal Highway Funds. 

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

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

The Court declined to strike down Subchapter I, which prohibits offpremise signs adjacent to and visible from specific highways. See Tex. 

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

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

the State to regulate commercial speech along certain specified 

highways, specifically off-premise signs displaying messages regarding 

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

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

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

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

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

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

applied to commercial advertisements.6

 

6 To the extent Thomas v. Schroer might be thought to bear on the question, it merely

shows that Tennessee law deviates from the general preference for severability. 

There, the district court recognized that courts generally seek to “avoid ‘nullify[ing] 

more of a legislature’s work than is necessary,’ because doing so ‘frustrates the intent 
17 

If Texas’s severability doctrine requires the Court to preserve 

Subchapter I because it regulates commercial speech, it necessarily 

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

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

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

opinion forbids the State to regulate commercial speech on Highway 71 

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

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

Highway 71) with Tex. Transp. Code § 391.252(a)(1) (prohibiting offpremise signs on specific roads, including Highway 290). That cannot be 

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

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

Subchapter B is no less constitutional than a regulation of commercial 

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

 

of the elected representatives of the people.’ . . . For this reason where partial, rather 

than facial, invalidation is possible, it is the ‘required course.’” Northland Family 

Planning Clinic, Inc. v. Cox, 487 F.3d 323, 333 (6th Cir. 2007) (quoting Ayotte v. 

Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006)), quoted in Thomas, 

127 F. Supp. at 875–76. But that general rule gave way in Thomas to the contrary 

presumption under Tennessee state law, which declared that “severance of 

unconstitutional portions of a statute is generally disfavored.” Id. at 876 (citing 

Davidson Cnty. v. Elrod, 232 S.W.2d 1, 2–3 (Tenn. 1950)). 
18 

accommodate Subchapter I, it must also accommodate the application of 

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

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

inclusion of noncommercial speech within the prohibitions of the 

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

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

treatment.”) (emphasis added). 

Preserving Subchapters B and C as applied to commercial speech 

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

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

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

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

that the federal Highway Beautification Act contains the same 

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

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

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

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

by Reed—and regulation of commercial speech is not—the Department’s 
19 

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

That risk is unnecessary and avoidable here. 

Withholding judgment on Subchapters B and Cs’ application to 

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

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

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

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

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

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

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

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

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

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

Supreme Court decide whether or not to overrule them. 

PRAYER

The Court should grant the petition for rehearing, vacate its 

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

judgment holding that Subchapters B and C of the Texas Highway 

Beautification Act do not violate the First Amendment as applied to 
20 

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

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

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

commercial advertisements as required by the federal Highway 

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

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

which correctly upheld regulation of commercial advertisements under 

Subchapter I. And it would avoid unwarranted interference with the 

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

considered nor curtailed in Reed.

Respectfully submitted. 

KEN PAXTON

Attorney General of Texas 

JEFFREY C. MATEER

First Assistant Attorney General 

SCOTT A. KELLER

Solicitor General 

/s/ Matthew H. Frederick 

MATTHEW H. FREDERICK

Deputy Solicitor General 

State Bar No. 24040931 

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548 (MC 059) 

Austin, Texas 78711-2548 

Tel.: (512) 936-6407 

Fax: (512) 474-2697 

matthew.frederick 

 @texasattorneygeneral.gov 

COUNSEL FOR APPELLEE
21 

CERTIFICATE OF SERVICE

 On September 27, 2016, this motion was served via File & 

ServeXpress and e-mail on: 

Meredith B. Parenti 

PARENTI LAW PLLC 

P.O. Box 19152 

Houston, Texas 77224 

[Tel] (281) 224-5848 

[Fax] (281) 605-5677 

meredith@parentilaw.com 

/s/ Matthew H. Frederick 

MATTHEW H. FREDERICK

Counsel for Appellee

CERTIFICATE OF COMPLIANCE

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

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

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

9.4(i)(1). 

/s/ Matthew H. Frederick 

MATTHEW H. FREDERICK

Counsel for Appellee