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 SUPPLEMENTAL BRIEF ADDRESSING THE EFFECT OF 

REED V. TOWN OF GILBERT, 135 S. CT. 2218 (2015) 

KEN PAXTON

Attorney General of Texas 

CHARLES E. ROY

First Assistant Attorney 

General 

SCOTT A. KELLER

Solicitor General 

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

ORAL ARGUMENT CONDITIONALLY REQUESTED

ACCEPTED

03-14-00375-CV

6564692

THIRD COURT OF APPEALS

AUSTIN, TEXAS

8/19/2015 2:17:41 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/19/2015 2:17:41 PM JEFFREY D. KYLE Clerk
ii 

TABLE OF CONTENTS

Index of Authorities ................................................................................. iii

Supplemental Statement Regarding Oral Argument .............................. v

Argument ................................................................................................... 3

I. Reed Considered A Law That On Its Face Imposed 

Harsher Restrictions On The Plaintiffs’ Signs Solely 

Due To Their Content. ............................................................ 3

II. AusPro’s Sign Violated Content-Neutral Restrictions

Under The Act. ........................................................................ 7

A. AusPro’s Challenge Misreads The Act And Reed’s 

Effect. ............................................................................. 7

B. Even If AusPro Could Successfully Challenge 

Section 391.005’s Election-Sign Exemption, The 

Proper Remedy Would Be To Invalidate Only That 

Section. ......................................................................... 12

III. Reed Is Wholly Immaterial To AusPro’s Prior-Restraint 

Challenge. .............................................................................. 16

IV. Reed Also Has No Bearing On Any Independent 

Protection Afforded By The Texas Constitution. ................. 18

Prayer ...................................................................................................... 20

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

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

INDEX OF AUTHORITIES

Cases

Brockett v. Spokane Arcades, Inc., 

472 U.S. 491 (1985) ....................................................................... 13 

Covenant Media LLC v. City of N. Charleston, 

493 F.3d 421 (4th Cir. 2007) ......................................................... 13 

Coral Springs St. Sys., Inc. v. City of Sunrise, 

371 F.3d 1320 (11th Cir. 2004) ................................................. 14-15 

Geeslin v. State Farm Lloyds, 

255 S.W.3d 786 (Tex. App.—Austin 2008, no pet.) ....... 12-13, 13-14 

Hill v. Colorado, 

530 U.S. 703 (2000) .......................................................................... 8 

Houston Chronicle Publ’g Co. v. City of League City, 

488 F.3d 613 (5th Cir. 2007) .......................................................... 12 

Jornaleros de Las Palmas v. City of League City, 

945 F. Supp. 2d 779 (S.D. Tex. 2013) ............................................. 12 

Kinney v. Barnes, 

443 S.W.3d 87 (Tex. 2014) .............................................................. 19 

McCormack v. Twp. of Clinton, 

872 F. Supp. 1320 (D.N.J. 1994) .................................................... 12 

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

Se. Tex., Inc., 

975 S.W.2d 546 (Tex. 1998) ............................................................ 19 

Reed v. Town of Gilbert, 

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

Rose v. Doctors Hosp., 

801 S.W.2d 841 (Tex. 1990) ............................................................ 14 
iv 

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

595 F.3d 588 (5th Cir. 2010) ............................................................ 8 

Tex. Dep’t of Transp. v. Barber, 

111 S.W.3d 86 (Tex. 2003) ........................... v, 2, 6, 7-8, 9, 10, 11, 15 

Voting for Am., Inc. v. Steen, 

732 F.3d 382 (5th Cir. 2013) .......................................................... 13 

Constitutional Provisions, Statutes, and Rules

43 TEX. ADMIN. CODE § 21.146(a)(9) ........................................................ 16 

Act of Apr. 25, 1997, 75th Leg., R.S., ch. 60, § 1, 1997 Tex. 

Gen. Laws 129 ................................................................................ 15 

TEX. GOV’T CODE § 311.032(c) ............................................................ 13, 16 

TEX. TRANSP. CODE § 391.002(b) .............................................................. 15 

TEX. TRANSP. CODE § 391.005 ........................................ v, 7, 10, 14, 15, 16 

TEX. TRANSP. CODE § 391.031(a)(1) .................................................. 8, 9-10 

TEX. TRANSP. CODE § 391.031(b) .............................................................. 11 

TEX. TRANSP. CODE § 391.061 .................................................................. 16 

TEX. TRANSP. CODE § 391.067 .................................................................. 16 

TEX. R. APP. P. 33.1(a) ............................................................................ 17 

TEX. R. APP. P. 38.1(i) .............................................................................. 11 
v 

SUPPLEMENTAL STATEMENT REGARDING ORAL ARGUMENT

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), does not change the 

proper outcome of this case or create a need for oral argument. AusPro’s 

assertion that Reed “undoubtedly” requires reversal, AusPro 

Supplemental Brief (“Supp. Br.”) ii, rests on the same misreading of the 

Texas Highway Beautification Act that infected its opening brief. AusPro 

continues to argue that the election-speech exemption (TEX. TRANSP.

CODE § 391.005) disfavors election speech, but that is incorrect. If 

anything, the exemption treats election speech better than other speech. 

That is the whole point of the exemption, namely, to save some electionrelated signs from the Act’s general ban. Although it is true that the Act 

favors onsite election speech over offsite election speech (like AusPro’s 

sign), “[r]ules distinguishing between on-premises and off-premises 

signs” remain content-neutral. Reed, 135 S. Ct. at 2233 (Alito, J., 

concurring); see Tex. Dep’t of Transp. v. Barber, 111 S.W.3d 86, 99 (Tex. 

2003) (upholding constitutionality of the Act because it “allows all onsite 

commercial speech and all onsite noncommercial speech”). Barber

therefore remains controlling. Should the Court nonetheless decide to 

hear oral argument, the Department respectfully requests to participate. 
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 SUPPLEMENTAL BRIEF ADDRESSING THE EFFECT OF 

REED V. TOWN OF GILBERT, 135 S. CT. 2218 (2015) 

TO THE HONORABLE THIRD COURT OF APPEALS: 

AusPro’s contention that Reed v. Town of Gilbert, 135 S. Ct. 2218 

(2015), affects this appeal rests on a misreading of that case and, more 

fundamentally, a misunderstanding of how the Texas Highway 

Beautification Act (the “Act”) operates. As it did in its opening brief, 

AusPro erroneously argues that the election-speech exemption prohibits 

its sign in violation of the First Amendment. To the contrary, that 

exemption allows certain election speech that would otherwise be barred 

by the Act’s general, content-neutral prohibition of signs visible from 
2 

highways. Even if the exemption draws a content-based line, that line 

would, if anything, favor the very type of election speech that AusPro 

advocates. The exemption thus in no way harms AusPro, and Reed’s 

implications for this Court’s consideration of that exemption are 

consequently immaterial. 

The Texas Supreme Court’s decision in Texas Department of 

Transportation v. Barber, 111 S.W.3d 86 (Tex. 2003), which upheld the 

Act against a free-speech challenge, remains binding after Reed. Not only 

did Reed not consider the kind of offsite-sign ban that the Act imposes, 

three of the six justices who joined the majority opinion explicitly 

concluded that such a ban remains a content-neutral restriction. 

Accordingly, because AusPro has not challenged the Act’s general ban on 

signs near Texas highways and such a challenge would fail in any event, 

the trial court’s judgment should be affirmed. 
3 

ARGUMENT

I. REED CONSIDERED A LAW THAT ON ITS FACE IMPOSED HARSHER 

RESTRICTIONS ON THE PLAINTIFFS’ SIGNS SOLELY DUE TO THEIR 

CONTENT.

The town’s sign code in Reed bears little resemblance to the Act. 

The town prohibited outdoor signs everywhere within its borders but 

exempted 23 categories to various degrees. 135 S. Ct. at 2224. Most 

notably, the town allowed “ideological signs” in all zoning districts at all 

times of the year; “political signs” in only certain zoning districts during 

limited times around elections; and “temporary directional signs” in even 

fewer areas and during even more limited times than “political signs.” Id.

at 2224-25. These three categories of signs were also subject to different 

size restrictions, with temporary directional signs receiving the least 

favorable treatment on this aspect as well. Id.

The plaintiffs were a church and its pastor who wanted to post 

temporary signs announcing meeting times and locations for church 

services. Id. at 2225. The church owned no building, so the meetings 

occurred at varying locations, and signs were thus posted throughout 

town. Id. The church was twice cited for posting signs outside the narrow 

time limits afforded to temporary directional signs (which limits did not 
4 

apply to, for instance, ideological signs). Id. The sign code thus treated 

the plaintiffs’ signs more restrictively than other signs based entirely on 

the signs’ content. 

Accordingly, focusing on those three categories, the Court held that 

the sign code was content-based “on its face.” Id. at 2227. The six-justice 

majority explained that strict scrutiny applies to content-based laws, i.e., 

“those that target speech based on its communicative content.” Id. at 

2226; see id. at 2227 (explaining that government regulation is contentbased “if [the] law applies to particular speech because of the topic 

discussed or the idea or message expressed” or if it “defin[es] regulated 

speech by its function or purpose”). 

The town’s code was facially content-based because its restrictions 

“depend[ed] entirely on the communicative content of the sign” at issue. 

Id. at 2227. Specifically, the church’s “signs inviting people to attend its 

worship services are treated differently from signs conveying other types 

of ideas.” Id.; see id. at 2230 (explaining that church’s signs were treated 

less favorably than ideological or political signs). The Court found it 

irrelevant that “the Town did not adopt its regulation of speech [based 

on] disagree[ment] with the message conveyed, and its justifications for 
5 

regulating temporary directional signs were unrelated to the content of 

the sign.” Id. at 2227 (citation and internal quotation marks omitted) 

(alterations in original). That is because “an innocuous justification 

cannot transform a facially content-based law into one that is content 

neutral.” Id. at 2228. 

Because the sign code was content-based, it had to satisfy strict 

scrutiny. Id. at 2231. The Court assumed that the proffered justifications 

of “aesthetic appeal and traffic safety” were “compelling governmental 

interests,” but concluded that the code’s 23 categories rendered it 

“hopelessly underinclusive.” Id.1 For instance, temporary directional 

signs were just as aesthetically unpleasing as ideological or political ones, 

and temporary directional signs did not “pose a greater threat to safety 

than do” those other signs. Id. at 2231-32; see id. at 2232 (“If anything, a 

sharply worded ideological sign seems more likely to distract a driver 

than a sign directing the public to a nearby church meeting.”); id. at 2239 

(Kagan, J., concurring in the judgment) (writing that the sign code’s 

 

1 AusPro misstates the opinion on this point, writing that the Court found the 

“interests” underinclusive. AusPro Supp. Br. 6, 11. Not so. Rather, the Court decided 

that the town had not narrowly tailored its code to further those interests. The Court 

did not, however, say anything to indicate that aesthetic appeal and traffic safety did 

not (or could not) rise to the level of “compelling” government interests. 
6 

distinctions do not satisfy “even the laugh test,” because, for example, 

“[w]hy exactly a smaller sign better helps travelers get to where they are 

going is left a mystery”). 

Writing for himself and two other justices who joined the majority 

opinion, Justice Alito explained that the Court left undisturbed a number 

of common sign regulations that would remain content-neutral. Id. at 

2233 (Alito, J., concurring). Most importantly, these three justices 

concluded that “[r]ules distinguishing between on-premises and offpremises signs” would have to satisfy only the time, place, and manner 

test. Id.; see also id. (writing that governments may put up “directional 

signs and signs pointing out historic sites and scenic spots”).2 As 

explained below and as Justice Alito’s opinion makes clear, Reed leaves 

intact the Texas Supreme Court’s conclusion in Barber that the Act and 

its ban on offsite signs survive First Amendment scrutiny. 

 

2 The three remaining justices concurred only in the judgment and would have 

assumed that intermediate scrutiny applied, but nevertheless invalidated the town’s 

sign code due to “[t]he absence of any sensible basis for” the distinctions among the 

23 categories of signs. Id. at 2239 (Kagan, J., concurring in the judgment). 
7 

II. AUSPRO’S SIGN VIOLATED CONTENT-NEUTRAL RESTRICTIONS 

UNDER THE ACT. 

A. AusPro’s Challenge Misreads The Act And Reed’s 

Effect. 

AusPro’s claim fails because the Act does not impose a contentbased restriction on election signs. AusPro’s argument to the contrary 

doubles down on its opening brief’s misstatement on how the Act 

operates. AusPro writes that the election-sign exemption “singl[es] out 

[election] speech . . . for disparate treatment.” AusPro Supp. Br. 8. That 

is simply not so. As the Department explained, the exemption does not 

prohibit anything at all. Rather, it does what exemptions do: it saves 

certain election signs from the general ban on signs visible from Texas 

highways. See Department Br. 17-18; TEX. TRANSP. CODE § 391.005 

(providing that the Act “does not apply” to certain election speech). 

Crucially, if the Legislature repealed the election-sign exemption, 

AusPro’s sign would still be illegal. The “election sign exemption 

challenged by AusPro,” AusPro Supp. Br. 7, therefore did not cause its 

injury. As a result, even if Reed confirms Barber’s assessment that “the 
8 

election sign exemption is arguably content based,” 111 S.W.3d at 100, 

AusPro’s challenge still fails.3 

What does injure AusPro is the Act’s prohibition of signs “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.” TEX.

TRANSP. CODE § 391.031(a)(1). AusPro does not challenge that restriction, 

which is plainly not content-based. Accordingly, the election-sign 

exemption from that ban in no way “restricts” AusPro’s speech. 

Trying to place itself in the same box as the Reed plaintiffs—whose 

temporary directional signs were posted outside a time limit that would 

not have applied had their signs’ content been “ideological”—AusPro 

argues that, “[i]f the sign relates to an election, the Act strictly limits the 

speech to a limited window,” but “prohibits speech relating to elections 

 

3 AusPro’s invocation of a facial challenge does not change this result because it still 

cannot assert an injury derived from the election-sign exemption. See Department 

Br. 19-20; cf. Serv. Emps. Int’l Union, Local 5 v. City of Houston, 595 F.3d 588, 598 

(5th Cir. 2010) (holding that, in a First Amendment facial challenge, the “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)). Moreover, even if AusPro could assert an overbreadth facial challenge, it 

has not made the necessary showing that the Act’s overbreadth is “not only [] real, 

but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” 

Hill v. Colorado, 530 U.S. 703, 732 (2000) (citation and internal quotation marks 

omitted). 
9 

along interstate and primary highways at all other times of the year.” 

AusPro Supp. Br. 9. It likewise asserts that “other signs . . . are permitted 

to remain on display all year.” Id. at 13. That assessment of the Act is 

patently wrong. As the Department again explained, and the Texas 

Supreme Court made clear, “the Act allows all onsite commercial speech 

and all onsite noncommercial speech” throughout the year. Barber, 111 

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

premises, its sign would have complied with the Act. See Department Br. 

24-27. AusPro’s refusal to acknowledge this facet of the Act or Barber’s 

holding dooms its arguments. 

The difference between AusPro’s position and the challengers’ in 

Reed is stark. In Reed, the sign code contained impermissible contentbased exemptions that treated other signs more favorably than the 

challengers’, based solely on the content of the challengers’ signs. Here, 

as explained, the election-sign exemption does not treat any type of 

content more favorably than AusPro’s content. Accordingly, unlike in 

Reed, a content-based restriction does not harm AusPro. Its sign is illegal 

not because it is election speech but because of its location, i.e., “within 

660 feet of the nearest edge of a right-of-way if the advertising is visible 
10 

from the main-traveled way of the interstate or primary system.” TEX.

TRANSP. CODE § 391.031(a)(1). Again, even without the challenged 

exemption in section 391.005, AusPro’s sign would remain illegal. By 

contrast, if the plaintiffs’ signs in Reed had been, for instance, “ideological 

signs,” their signs would have been permitted in all zoning districts at all 

times of the year. 135 S. Ct. at 2224. A content-based distinction therefore 

harmed the Reed plaintiffs in a way that the election-speech exemption 

does not harm AusPro. 

Notably, AusPro does not appear to challenge the Act’s 

onsite/offsite distinction as content-based. See, e.g., AusPro Supp. Br. 7 

(arguing only that election-sign exemption is content-based regulation 

and referring to “election sign exemption challenged by AusPro”). That 

choice is prudent, for such a challenge would fail. Barber held that the 

onsite-sign exemption “regulates signs based on their location,” not their 

content. 111 S.W.3d at 102; see also id. at 101 (discussing cases). And, as 

discussed above, Reed does not undermine that holding. See Reed, 135 S. 
11 

Ct. at 2233 (Alito, J., concurring) (concluding that rules distinguishing 

between offsite and onsite signs are content-neutral).4

Likewise, AusPro’s targeted complaint about the election-sign 

exemption also does not appear to contest the Act’s other limited 

exemptions, which pertain either to onsite activities, directions, or safety. 

See TEX. TRANSP. CODE 391.031(b); cf. AusPro Supp. Br. 14 (arguing that 

“[t]he election sign exemption is not narrowly tailored” but not making 

similar argument about other exemptions).5 In dicta, the Reed majority 

all but announced that signs “to guide traffic or to identify hazards and 

ensure safety” would survive. 135 S. Ct. at 2232 (majority op.). And 

 

4 Admittedly, Reed may invalidate one of Barber’s alternative rationales for finding 

that the Act was content neutral. The Texas Supreme Court wrote 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 (first emphasis added) (citation 

omitted)). After Reed, an innocuous purpose cannot save a facially content-based 

statute from strict scrutiny. But to the extent that Barber was merely indicating that 

the Act did not discriminate in its purpose, as well as not discriminating on its face, 

that analysis remains appropriate under Reed. In all events, AusPro has not 

suggested the Legislature’s purpose was improper, and the Act is facially content 

neutral under Barber because it regulates signs based on their location. 

5 AusPro vaguely states, without discussion or analysis, that “the Act ‘does make 

certain distinctions based on subject matter,’ such as the exemptions for directional 

signs, signs relating to natural wonders or historic attractions, and election signs.” 

AusPro Supp. Br. 9 (quoting Barber, 111 S.W.3d at 98). This conclusory assertion 

does not raise a challenge based on those other exemptions, cf. TEX. R. APP. P. 38.1(i), 

and is inconsistent with AusPro’s assertion of a challenge to the election-sign 

exemption, full stop. 
12 

Justice Alito’s concurrence similarly determined that the majority 

opinion does not cast doubt on the constitutionality of “all manner of 

signs to promote safety, as well as directional signs and signs pointing 

out historic sites and scenic spots.” Id. at 2233 (Alito, J., concurring). This 

result is eminently reasonable. The First Amendment does not force state 

and local governments to choose between allowing all types of signs or 

prohibiting all types of signs, including, for instance, those for the 

protection of life and property.6 The Constitution is not so inflexible. 

B. Even If AusPro Could Successfully Challenge Section 

391.005’s Election-Sign Exemption, The Proper 

Remedy Would Be To Invalidate Only That Section. 

AusPro suggests that “[b]ecause [it] raised both facial and asapplied challenges,” the Court has the “option[]” to “broadly” strike down 

the Act and its regulations as a whole. AusPro Supp. Br. 18. That is not 

accurate, for Texas law presumes severability. Geeslin v. State Farm 

 

6 Admittedly, the majority’s and concurrence’s conclusions may be in some tension 

with older decisions suggesting that traffic safety is not a compelling interest. See, 

e.g., AusPro Appellant’s Br. 44 (citing McCormack v. Twp. of Clinton, 872 F. Supp. 

1320, 1325 (D.N.J. 1994)). But see, e.g., Jornaleros de Las Palmas v. City of League 

City, 945 F. Supp. 2d 779, 797-98 (S.D. Tex. 2013) (“According to the City, the primary 

government interests in enforcing this statute against day laborers are to promote 

traffic safety and control. Public safety is a compelling interest at the heart of 

government’s function.” (citing Houston Chronicle Publ’g Co. v. City of League City, 

488 F.3d 613, 622 (5th Cir. 2007)). Those decisions, however, would have to be 

reconsidered in light of Reed. 
13 

Lloyds, 255 S.W.3d 786, 797 & n.4 (Tex. App.—Austin 2008, no pet.); see

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, and to this end 

the provisions of the statute are severable.”); cf. Voting for Am., Inc. v. 

Steen, 732 F.3d 382, 398 (5th Cir. 2013) (noting Texas’s “strong 

severability statute”).7 “When a part of a statutory scheme is 

unconstitutional, a court should—where possible—sever out the 

unconstitutional aspects and save the balance of the scheme.” Geeslin, 

255 S.W.3d at 797. This Court described the severability inquiry as one 

into legislative intent: 

When, therefore, a part of a statute is unconstitutional, that 

fact does not authorize the courts to declare the remainder 

void also, unless all the provisions are connected in subjectmatter, dependent on each other, operating together for the 

same purpose, or otherwise so connected in meaning that it 

cannot be presumed the legislature would have passed the one 

without the other. . . . If, when the unconstitutional portion is 

stricken out, that which remains is complete in itself, and 

 

7 Severing is appropriate even 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 LLC 

v. City of N. Charleston, 493 F.3d 421, 438 (4th Cir. 2007) (noting “principle that 

invalidating a whole statute may nullify more of the work of the people’s elected 

representatives than is constitutionally necessary”). 
14 

capable of being executed in accordance with the apparent 

legislative intent, wholly independent of that which was 

rejected, it must stand. 

Id. at 797 (quoting Rose v. Doctors Hosp., 801 S.W.2d 841, 844 (Tex. 

1990)). 

AusPro has not argued that severability is impermissible here. Far 

from it, AusPro concedes that “the Court could simply strike down the 

election sign exemption contained in the Act and its regulations and leave 

the rest of the Act and the regulations intact.” AusPro Supp. Br. 18. The 

Department agrees that, should the Court find that section 391.005 

violates strict scrutiny, it should invalidate only that section and leave 

the remainder intact. 

Indeed, there is no basis for striking down the entire Act. The Act 

easily operates as a coherent whole without section 391.005. It fully 

specifies how signs are regulated without depending on the election-sign 

exemption. The only difference would be that some signs that were 

permissible during the 100 days around an election would now be 

banned. But the Legislature would obviously prefer that scenario to one 

in which all signs can be posted in all areas at all times. See, e.g., Coral 

Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1348 (11th Cir. 
15 

2004) (rejecting facial challenge because “it [is] wholly implausible that 

the City would have preferred no sign ordinance at all to one that 

contains all the current parts of the Amended Sign Code other than the 

suspect content regulations”); TEX. TRANSP. CODE § 391.002(b) 

(legislative declaration that the Act “is necessary . . . to: (1) promote the 

health, safety, welfare, morals, convenience, and enjoyment of the 

traveling public; and (2) protect the public investment in the interstate 

and primary systems”); Barber, 111 S.W.3d at 103 (“[A]esthetics and 

public safety on the highway are recognized as substantial governmental 

goals.”). 

That conclusion is confirmed by the fact that section 391.005 was 

not added until two years after the Legislature passed the Act. See Act of 

Apr. 25, 1997, 75th Leg., R.S., ch. 60, § 1, 1997 Tex. Gen. Laws 129, 129. 

This shows that the Act (unsurprisingly) functions without the 

exemption. The limited remedy of invalidating section 391.005 is thus the 

only permissible one. 

By contrast, AusPro’s request for facial invalidation asks the Court 

to nullify the entire Act based on the arguably content-based nature of a 

single, narrow exemption that does not matter one whit to AusPro’s 
16 

conduct. If the Court does not reject AusPro’s free-speech challenge, it 

should therefore craft an appropriately narrow judicial remedy by 

invalidating only section 391.005 (and the corresponding administrative 

regulation 43 TEX. ADMIN. CODE § 21.146(a)(9)).8

III. REED IS WHOLLY IMMATERIAL TO AUSPRO’S PRIOR-RESTRAINT 

CHALLENGE. 

AusPro also could have complied with the Act by obtaining a license 

and permit for its sign. See TEX. TRANSP. CODE §§ 391.061, .067; 

Department Br. 34-35. On appeal, AusPro argued that these licensing 

and permitting regulations comprised unconstitutional prior restraints. 

The Department contended that AusPro forfeited this challenge by 

omitting it in the trial court and that the challenge was meritless. In its 

Supplemental Brief, AusPro addresses only the forfeiture argument. But 

Reed could not possibly touch on Texas’s rules for preserving claims in 

the trial court. Although this Court’s order permitted supplemental 

briefing solely to “address[] the effect of the Reed opinion on this appeal,” 

 

8 Reed did not consider severability. But the sign code there, with its 23 separate 

categories imposing myriad, varied restrictions, likely would have been more difficult 

to parse than the mere excision of the later-enacted section 391.005. Moreover, there 

is no indication that the town’s sign code had a severability presumption similar to 

Texas Government Code section 311.032(c). 
17 

Mem. Op. 2, Apr. 29, 2015 (order abating appeal and granting 

supplemental briefing), the Department will respond so that the Court 

has full briefing on the waiver issue. 

The Department explained that a prior-restraint challenge 

fundamentally differs from an absolute ban on speech and that, in the 

trial court, AusPro never raised a prior-restraint challenge nor cited a 

single licensing or permitting regulation. Department Br. 35-37; cf. id. at 

44-45 (explaining how AusPro’s failure prejudices the Department on 

appeal). AusPro responds that it “has every right to challenge TxDOT’s 

licensing and permitting regime because it was prosecuted civilly for 

failure to comply with it.” AusPro Supp. Br. 16. The Department agrees. 

But to challenge the licensing and permitting scheme, AusPro had to 

actually challenge the licensing and permitting scheme. The point is that 

AusPro failed to do so until its opening brief on appeal. Yet raising these 

arguments for the first time on appeal plainly does not satisfy Appellate 

Rule 33.1(a) or this Court’s precedents on waiver. See Department Br. 35-

37. 

Attempting to cure that deficiency, AusPro proclaims that 

“[w]ithout question” it did indeed raise a prior-restraint claim by 
18 

asserting “that ‘the statutes and regulations on which [the Department] 

relies violate AusPro’s right to free speech’ on their face and as applied 

under the First Amendment and the Texas Constitution.” AusPro Supp. 

Br. 17 (citation omitted). That is far too vague and broad a statement to 

put the Department and trial court on notice of a prior-restraint 

challenge, which involves a different legal test and different facts. 

Regardless, AusPro’s prior-restraint challenge is meritless. See

Department Br. 37-45. The Department’s arguments to that effect rested 

largely on AusPro’s misinterpretation of the licensing and permitting 

regulations. Reed, needless to say, had no occasion to address Texas’s 

regulations under the Act. That decision therefore has no effect on this 

part of AusPro’s appeal. 

IV. REED ALSO HAS NO BEARING ON ANY INDEPENDENT PROTECTION 

AFFORDED BY THE TEXAS CONSTITUTION. 

AusPro’s Supplemental Brief discusses its complaint under the 

Texas Constitution, even though (as AusPro implicitly concedes) the U.S. 

Supreme Court could not possibly have anything to say about Texas’s 

Constitution. 

On the merits of this complaint, AusPro offers nothing to 

rehabilitate the deficiencies identified by the Department’s principal 
19 

brief. Instead, it resorts to baseless allegations, falsely asserting that the 

Department is “tr[ying] to dodge the Texas Constitution.” AusPro Supp. 

Br. 19. To the contrary, the Department merely wants AusPro to comply 

with Texas Supreme Court precedent requiring a litigant to explain why

the Texas Constitution offers greater protection than its federal 

counterpart, rather than resting on the litigant’s mere say-so. See, e.g., 

Kinney v. Barnes, 443 S.W.3d 87, 92 (Tex. 2014) (“‘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.’” (quoting Operation 

Rescue-Nat’l v. Planned Parenthood of Houston & Se. Tex., Inc., 975 

S.W.2d 546, 559 (Tex. 1998)); Department Br. 46-47. AusPro evidently is 

unable to do so. Its challenge must fail. 
20 

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
21 

CERTIFICATE OF SERVICE

 On August 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 3,895 words, excluding the portions of the brief exempted 

by Rule 9.4(i)(1). 

 /s/ Douglas D. Geyser 

 Douglas D. Geyser