Auspro Enterprises, LP v. Texas Department of Transportation
03-14-00375-CV
| Tex. App. | Aug 19, 2015Background
- AusPro Enterprises challenges the Texas Highway Beautification Act’s general ban on signs visible from highways and its election-sign exemption (§391.005) in relation to AusPro’s on-site sign.
- Reed v. Town of Gilbert (2015) held some content-based sign restrictions are unconstitutional; Barber v. TxDOT (2003) remains controlling for on-site/off-site distinctions.
- The Act bans signs within 660 feet of a highway’s edge if visible from main-traveled ways (§391.031(a)(1)); the election-sign exemption exempts certain election signs.
- AusPro argues the election-sign exemption is content-based and harms its election speech; the Department argues the exemption saves election speech and the Act remains constitutional.
- Severability entitled to be used: if §391.005 is invalid, the remainder of the Act can operate independently; the Court should strike only the invalid portion.
- AusPro did not preserve a proper prior-restraint challenge; Reed has no bearing on licensing/permitting regulations under the Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of Reed on election-sign exemption | AusPro argues Reed requires reversal of the exemption | TxDOT argues exemption saves election speech and is not injurious | Reed immaterial; exemption does not injure AusPro; Barber controls on-site/off-site distinctions |
| Content-based nature of the Act's exemption | AusPro contends exemption is content-based and discriminatory | Department asserts exemption is non-harmful and speech-preserving | Exemption not harmful; election speech saved; Act is content-neutral overall |
| Remedy for invalidation of §391.005 | Court should invalidate Act broadly | Only §391.005 should be invalidated; rest remains | Severability preserves rest of Act; invalidate only §391.005 |
| Reed's impact on prior-restraint challenge | Reed affects licensing/permitting challenges | Reed has no bearing; claim was waived | Prior-restraint challenge not aided by Reed; the challenge not preserved |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (U.S. 2015) (content-based exemptions; implications for offsite bans discussed)
- Tex. Dep’t of Transp. v. Barber, 111 S.W.3d 86 (Tex. 2003) (upheld Act as content-neutral; onsite/offsite distinctions permissible)
- Geeslin v. State Farm Lloyds, 255 S.W.3d 786 (Tex. App.—Austin 2008) (severability considerations in Texas statutes)
- Rose v. Doctors Hosp., 801 S.W.2d 841 (Tex. 1990) (severability and constitutional interpretation guidance)
- Hill v. Colorado, 530 U.S. 703 (U.S. 2000) (balanced approach to public-interest restrictions in speech)