No. 03-14-00375-CV



# In the Court of Appeals for the Third Judicial District Austin, Texas

A US P RO E NTERPRISES , LP,

Appellant , v. T EXAS D EPARTMENT OF T RANSPORTATION , Appellee. On Appeal from the 345th Judicial District Court of Travis County, Texas

A PPELLEE ’ S S UPPLEMENTAL B RIEF A DDRESSING T HE E FFECT O F R EED V . T OWN OF G ILBERT

, 135 S. C T . 2218 (2015)

K EN P AXTON Attorney General of Texas C HARLES E. R OY First Assistant Attorney General S COTT A. K ELLER Solicitor General D OUGLAS D. G EYSER Assistant Solicitor General State Bar No. 24059817 M ATTHEW B OHUSLAV Assistant Attorney General O FFICE OF THE A TTORNEY G ENERAL 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

CLERKii T ABLE OF C ONTENTS 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 Solel y 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 ......................... ............................................... 21iii I NDEX OF A UTHORITIES 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 Hous ton & 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) ........................ .................................... 14iv

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 T EX

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. C ODE § 21.146(a)(9) ................................... ..................... 16 Act of Apr. 25, 1997, 75th Leg., R.S., ch. 60, § 1, 1997 Tex. Gen. Laws 129 ..................................... ........................................... 15 T EX

. G OV ’ T C ODE § 311.032(c) ..................................... ....................... 13, 16 T EX

. T RANSP

. C ODE § 391.002(b) ..................................... ......................... 15 T EX

. T RANSP

. C ODE § 391.005 ........................................ v, 7, 10, 14, 15, 16 T EX

. T RANSP

. C ODE § 391.031(a)(1) .................................. ................ 8, 9-10 T EX

. T RANSP

. C ODE § 391.031(b) ..................................... ......................... 11 T EX

. T RANSP

. C ODE § 391.061 ........................................ .......................... 16 T EX

. T RANSP

. C ODE § 391.067 ........................................ .......................... 16 T EX

. R. A PP

. P. 33.1(a) ....................................... ..................................... 17 T EX

. R. A PP

. P. 38.1(i) ........................................ ...................................... 11v

S UPPLEMENTAL S TATEMENT R EGARDING O RAL A RGUMENT Reed v. Town of Gilbert , 135 S. Ct. 2218 (2015), does not change the proper outcome of this case or create a need for or al argument. AusPro’s assertion that Reed “undoubtedly” requires reversal, AusPro Supplemental Brief (“Supp. Br.”) ii, rests on the s ame misreading of the Texas Highway Beautification Act that infected its opening brief. AusPro continues to argue that the election-speech exempti on (T EX

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. C ODE § 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, t o 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 becau se it “allows all onsite commercial speech and all onsite noncommercial speech”). Barber therefore remains controlling. Should the Court non etheless decide to hear oral argument, the Department respectfully req uests to participate.No. 03-14-00375-CV



# In the Court of Appeals for the Third Judicial District Austin, Texas

A US P RO E NTERPRISES , LP,

Appellant , v. T EXAS D EPARTMENT OF T RANSPORTATION , Appellee. On Appeal from the 345th Judicial District Court of Travis County, Tex as

A PPELLEE ’ S S UPPLEMENTAL B RIEF A DDRESSING T HE E FFECT O F R EED V . T OWN OF G ILBERT

, 135 S. C T . 2218 (2015)

T O THE H ONORABLE T HIRD C OURT OF A PPEALS : AusPro’s contention that Reed v. Town of Gilbert , 135 S. Ct. 2218 (2015), affects this appeal rests on a misreading o f 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 th e contrary, that exemption allows certain election speech that would otherwise be barred by the Act’s general, content-neutral prohibition o f signs visible from2

highways. Even if the exemption draws a content-bas ed line, that line would, if anything, favor the very type of election speech that AusPro advocates. The exemption thus in no way harms AusPr o, 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 bindin g 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 o pinion 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 woul d fail in any event, the trial court’s judgment should be affirmed.3 A RGUMENT I. R EED C ONSIDERED A L AW T HAT O N I TS F ACE I MPOSED H ARSHER R ESTRICTIONS O N T HE P LAINTIFFS ’ S IGNS S OLELY D UE T O T HEIR C ONTENT . 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. C t. at 2224. Most notably, the town allowed “ideological signs” in al l zoning districts at all times of the year; “political signs” in only certai n zoning districts during limited times around elections; and “temporary dire ctional signs” in even fewer areas and during even more limited times than “political signs.” Id. at 2224-25. These three categories of signs were al so 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 wan ted to post temporary signs announcing meeting times and locati ons for church services. Id. at 2225. The church owned no building, so the meet ings occurred at varying locations, and signs were thus posted throughout
town. Id. The church was twice cited for posting signs outsi de the narrow time limits afforded to temporary directional signs (which limits did not4

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, th e 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 communicativ e content.” Id. at 2226; see id. at 2227 (explaining that government regulation is contentbased “if [the] law applies to particular speech be cause of the topic discussed or the idea or message expressed” or if i t “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 o f the sign” at issue. Id. at 2227. Specifically, the church’s “signs invitin g 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 treat ed less favorably than ideological or political signs) . The Court found it irrelevant that “the Town did not adopt its regulat ion of speech [based on] disagree[ment] with the message conveyed, and i ts justifications for5

regulating temporary directional signs were unrelat ed to the content of the sign.” Id. at 2227 (citation and internal quotation marks omi tted) (alterations in original). That is because “an inno cuous 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 just ifications of “aesthetic appeal and traffic safety” were “comp elling governmental interests,” but concluded that the code’s 23 catego ries rendered it “hopelessly underinclusive.” Id. 1 For instance, temporary directional signs were just as aesthetically unpleasing as ideo logical or political ones, and temporary directional signs did not “pose a gre ater 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 t o distract a driver than a sign directing the public to a nearby church meeting.”); id. at 2239 (Kagan, J., concurring in the judgment) (writing th at the sign code’s

1 AusPro misstates the opinion on this point, writin g 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 aes thetic 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 traveler s get to where they are going is left a mystery”). Writing for himself and two other justices who join ed the majority opinion, Justice Alito explained that the Court lef t undisturbed a number of common sign regulations that would remain conten t-neutral. Id. at 2233 (Alito, J., concurring). Most importantly, the se three justices concluded that “[r]ules distinguishing between on-p remises 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 sce nic spots”). 2 As explained below and as Justice Alito’s opinion make s clear, Reed leaves intact the Texas Supreme Court’s conclusion in Barber that the Act and its ban on offsite signs survive First Amendment sc rutiny.

2 The three remaining justices concurred only in the judgment and would have assumed that intermediate scrutiny applied, but nev ertheless invalidated the town’s sign code due to “[t]he absence of any sensible bas is for” the distinctions among the 23 categories of signs. Id. at 2239 (Kagan, J., concurring in the judgment).7

II. A US P RO ’ S S IGN V IOLATED C ONTENT -N EUTRAL R ESTRICTIONS U NDER T HE A CT . A. AusPro’s Challenge Misreads The Act And Reed ’s Effect. AusPro’s claim fails because the Act does not impos e a contentbased restriction on election signs. AusPro’s argum ent to the contrary doubles down on its opening brief’s misstatement on how the Act operates. AusPro writes that the election-sign exem ption “singl[es] out [election] speech . . . for disparate treatment.” A usPro 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 d o: it saves certain election signs from the general ban on sign s visible from Texas highways. See Department Br. 17-18; T EX

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. C ODE § 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, therefor e did not cause its injury. As a result, even if Reed confirms Barber ’s assessment that “the8

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 t he advertising is visible from the main-traveled way of the interstate or pri mary system.” T EX

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. C ODE § 391.031(a)(1). AusPro does not challenge that re striction, which is plainly not content-based. Accordingly, th e election-sign exemption from that ban in no way “restricts” AusPro’s speec h. Trying to place itself in the same box as the Reed plaintiffs—whose temporary directional signs were posted outside a t ime limit that would not have applied had their signs’ content been “ide ological”—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-s ign exemption. See Department Br. 19-20; cf. Serv. Emps. Int’l Union, Local 5 v. City of Hou ston , 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 chall enge, under the overbreadth doctrine, to vindicate the rights of others not before the co urt 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 o verbreadth 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 q uotation 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 onsit e commercial speech and all onsite noncommercial speech” throughout the year. Barber , 111 S.W.3d at 99. Had AusPro’s election speech pertaine d 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 o f the Act or Barber ’s holding dooms its arguments. The difference between AusPro’s position and the ch allengers’ in Reed is stark. In Reed , the sign code contained impermissible contentbased exemptions that treated other signs more favo rably than the challengers’, based solely on the content of the ch allengers’ signs. Here, as explained, the election-sign exemption does not treat any type of content more favorably than AusPro’s content. Accor dingly, unlike in Reed , a content-based restriction does not harm AusPro. Its sign is illegal not because it is election speech but because of it s location, i.e., “within 660 feet of the nearest edge of a right-of-way if t he advertising is visible10

from the main-traveled way of the interstate or pri mary system.” T EX

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. C ODE § 391.031(a)(1). Again, even without the challenge d exemption in section 391.005, AusPro’s sign would r emain illegal. By contrast, if the plaintiffs’ signs in Reed had been, for instance, “ideological signs,” their signs would have been permitted in al l zoning districts at all times of the year. 135 S. Ct. at 2224. A content-ba sed distinction therefore harmed the Reed

plaintiffs in a way that the election-speech exemp tion does not harm AusPro. Notably, AusPro does not appear to challenge the Ac t’s onsite/offsite distinction as content-based. See, e.g. , AusPro Supp. Br. 7 (arguing only that election-sign exemption is conte nt-based regulation and referring to “election sign exemption challenge d by AusPro”). That choice is prudent, for such a challenge would fail. Barber held that the onsite-sign exemption “regulates signs based on the ir 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 tha t rules distinguishing between offsite and onsite signs are content-neutra l). 4 Likewise, AusPro’s targeted complaint about the ele ction-sign exemption also does not appear to contest the Act’s other limited exemptions, which pertain either to onsite activiti es, directions, or safety. See T EX

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. C ODE 391.031(b); cf. AusPro Supp. Br. 14 (arguing that “[t]he election sign exemption is not narrowly tail ored” but not making similar argument about other exemptions). 5 In dicta, the Reed majority all but announced that signs “to guide traffic or t o identify hazards and ensure safety” would survive. 135 S. Ct. at 2232 (m ajority 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) (citatio n omitted)). After Reed , an innocuous purpose cannot save a facially conte nt-based statute from strict scrutiny. But to the extent tha t 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, a nd the Act is facially content neutral under Barber

because it regulates signs based on their location

.
5 AusPro vaguely states, without discussion or analy sis, that “the Act ‘does make certain distinctions based on subject matter,’ such as the exemptions for directional signs, signs relating to natural wonders or histori c 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 exe mptions, cf. T EX

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. P. 38.1(i), and is inconsistent with AusPro’s assertion of a ch allenge to the election-sign exemption, full stop.12

Justice Alito’s concurrence similarly determined th at the majority opinion does not cast doubt on the constitutionalit y of “all manner of signs to promote safety, as well as directional sig ns 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 al l types of signs or prohibiting all types of signs, including, for inst ance, 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 fa cial and asapplied challenges,” the Court has the “option[]” t o “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 concl usions 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) (“Ac cording to the City, the primary government interests in enforcing this statute agai nst day laborers are to promote traffic safety and control. Public safety is a comp elling 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 T EX

. G OV ’ T C ODE 311.032(c) (“[I]f any provision of the statute or its application to any person or circumstance is held i nvalid, the invalidity does not affect other provisions or applications of the statute that can be given effect without the invalid provision or appli cation, 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—sev er out the unconstitutional aspects and save the balance of th e scheme.” Geeslin , 255 S.W.3d at 797. This Court described the severab ility inquiry as one into legislative intent: When, therefore, a part of a statute is unconstitut ional, that fact does not authorize the courts to declare the r emainder 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 passe d the one without the other. . . . If, when the unconstitutio nal portion is stricken out, that which remains is complete in its elf, and

7 Severing is appropriate even in the First Amendmen t 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 “princi ple that invalidating a whole statute may nullify more of th e work of the people’s elected representatives than is constitutionally necessary” ).14

capable of being executed in accordance with the ap parent legislative intent, wholly independent of that whic h 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 impermis sible here. Far from it, AusPro concedes that “the Court could simp ly strike down the election sign exemption contained in the Act and it s regulations and leave the rest of the Act and the regulations intact.” Au sPro 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 ent ire 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 s igns 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 al l 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”); T EX

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. C ODE § 391.002(b) (legislative declaration that the Act “is necessary . . . to: (1) promote the health, safety, welfare, morals, convenience, and e njoyment of the traveling public; and (2) protect the public invest ment in the interstate and primary systems”); Barber , 111 S.W.3d at 103 (“[A]esthetics and public safety on the highway are recognized as subs tantial governmental goals.”). That conclusion is confirmed by the fact that secti on 391.005 was not added until two years after the Legislature pas sed the Act. See Act of Apr. 25, 1997, 75th Leg., R.S., ch. 60, § 1, 1997 T ex. Gen. Laws 129, 129. This shows that the Act (unsurprisingly) functions without the exemption. The limited remedy of invalidating secti on 391.005 is thus the only permissible one. By contrast, AusPro’s request for facial invalidati on asks the Court to nullify the entire Act based on the arguably con tent-based nature of a single, narrow exemption that does not matter one w hit to AusPro’s16

conduct. If the Court does not reject AusPro’s free -speech challenge, it should therefore craft an appropriately narrow judi cial remedy by invalidating only section 391.005 (and the correspo nding administrative regulation 43 T EX

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. C ODE § 21.146(a)(9)). 8 III. R EED I S W HOLLY I MMATERIAL T O A US P RO ’ S P RIOR -R ESTRAINT C HALLENGE . AusPro also could have complied with the Act by obt aining a license and permit for its sign. See T EX

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. C ODE §§ 391.061, .067; Department Br. 34-35. On appeal, AusPro argued that these licensing and permitting regulations comprised unconstitution al prior restraints. The Department contended that AusPro forfeited this challenge by omitting it in the trial court and that the challen ge was meritless. In its Supplemental Brief, AusPro addresses only the forfe iture argument. But Reed could not possibly touch on Texas’s rules for pres erving claims in the trial court. Although this Court’s order permit ted supplemental briefing solely to “address[] the effect of the Reed opinion on this appeal,”

8 Reed did not consider severability. But the sign code t here, with its 23 separate categories imposing myriad, varied restrictions, li kely would have been more difficult to parse than the mere excision of the later-enacte d section 391.005. Moreover, there is no indication that the town’s sign code had a se verability 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 cha llenge fundamentally differs from an absolute ban on speec h and that, in the trial court, AusPro never raised a prior-restraint challenge nor cited a single licensing or permitting regulation. Departme nt Br. 35-37; cf. id. at 44-45 (explaining how AusPro’s failure prejudices t he Department on appeal). AusPro responds that it “has every right t o challenge TxDOT’s licensing and permitting regime because it was pros ecuted civilly for failure to comply with it.” AusPro Supp. Br. 16. Th e Department agrees. But to challenge the licensing and permitting schem e, AusPro had to actually challenge the licensing and permitting sch eme. The point is that AusPro failed to do so until its opening brief on a ppeal. 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 proclaim s that “[w]ithout question” it did indeed raise a prior-re straint claim by18

asserting “that ‘the statutes and regulations on wh ich [the Department] relies violate AusPro’s right to free speech’ on th eir face and as applied under the First Amendment and the Texas Constitutio n.” AusPro Supp. Br. 17 (citation omitted). That is far too vague an d broad a statement to put the Department and trial court on notice of a p rior-restraint challenge, which involves a different legal test an d different facts. Regardless, AusPro’s prior-restraint challenge is m eritless. See Department Br. 37-45. The Department’s arguments to that effect rested largely on AusPro’s misinterpretation of the licens ing 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. R EED A LSO H AS N O B EARING O N A NY I NDEPENDENT P ROTECTION A FFORDED B Y T HE T EXAS C ONSTITUTION . AusPro’s Supplemental Brief discusses its complaint under the Texas Constitution, even though (as AusPro implicit ly concedes) the U.S. Supreme Court could not possibly have anything to s ay about Texas’s Constitution. On the merits of this complaint, AusPro offers noth ing to rehabilitate the deficiencies identified by the Dep artment’s principal19

brief. Instead, it resorts to baseless allegations, falsely asserting that the Department is “tr[ying] to dodge the Texas Constitu tion.” AusPro Supp. Br. 19. To the contrary, the Department merely want s AusPro to comply with Texas Supreme Court precedent requiring a liti gant to explain why the Texas Constitution offers greater protection th an 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, Secti on 8

may be more protective of speech in some instances tha n 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 P RAYER The judgment of the district court should be affirm ed. Respectfully submitted. K EN P AXTON Attorney General of Texas C HARLES E. R OY First Assistant Attorney General S COTT A. K ELLER Solicitor General /s/ Douglas D. Geyser D OUGLAS D. G EYSER Assistant Solicitor General State Bar No. 24059817 M ATTHEW B OHUSLAV Assistant Attorney General O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-2540 Fax: (512) 474-2697 douglas.geyser@texasattorneygeneral.gov C OUNSEL FOR A PPELLEE T EXAS D EPARTMENT OF T RANSPORTATION21 C ERTIFICATE OF S ERVICE On August 19, 2015, the foregoing brief was served via File & ServeXpress and e-mail on: Meredith B. Parenti P ARENTI L AW 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

C ERTIFICATE OF C OMPLIANCE In compliance with Texas Rule of Appellate Procedu re 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