Auspro Enterprises, LP v. Texas Department of Transportation
506 S.W.3d 688
| Tex. App. | 2016Background
- Auspro placed a Ron Paul campaign sign on its Bee Cave, Texas property along SH‑71; TxDOT ordered removal because the sign lacked a permit and did not fall within the Act’s election‑sign timing exemption.
- TxDOT sued for injunctive relief and penalties; Auspro asserted facial and as‑applied First Amendment challenges to the Texas Highway Beautification Act and TxDOT rules.
- The trial court entered judgment for TxDOT after a bench trial on stipulated facts; Auspro appealed.
- While the appeal was pending, the U.S. Supreme Court decided Reed v. Town of Gilbert, which refined the test for when speech regulations are content‑based and therefore subject to strict scrutiny.
- Applying Reed, the Texas Court of Appeals held that Subchapters B and C of the Texas Highway Beautification Act (and related TxDOT permitting rules) draw distinctions based on the content, purpose, or speaker of signs and are therefore content‑based and presumptively unconstitutional.
- The court severed the content‑based provisions (including the election‑sign exemption and other content‑based exemptions) from the Act, leaving only the core ban and narrowly preserved exemptions (industrial/commercial areas and pre‑1965 signs), and remanded by rendering judgment reversing the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Texas Highway Beautification Act’s outdoor‑advertising rules are content‑based and thus subject to strict scrutiny | Auspro: The Act and TxDOT rules treat signs differently based on topic/message (e.g., election signs), so they are facially content‑based under Reed | TxDOT: Reed is distinguishable; Act favors election speech and Barber controls, so the Act is content‑neutral time/place/manner regulation | Held: Under Reed the Act’s exemptions distinguish speech by subject, purpose, and speaker and are facially content‑based; Reed controls, Barber is displaced on this point |
| Whether the State can satisfy strict scrutiny (compelling interest and narrow tailoring) | Auspro: The distinctions are not narrowly tailored and are underinclusive (aesthetic/safety justifications fail) | TxDOT: Aesthetic and safety are compelling state interests and Barber supports the Act’s constitutionality | Held: Even assuming compelling interests, the Act’s content‑based exemptions are underinclusive and thus fail strict scrutiny |
| Proper remedy for the constitutional violations | Auspro: Seek relief beyond just the election exemption; facial challenge to the Act | TxDOT: Remedy should be limited—sever the election‑sign exemption only; otherwise preserve Subchapters B and C or limit to noncommercial speech | Held: Must sever all content‑based provisions in Subchapters B and C (including election exemption and other content‑based exceptions); preserve non‑speech provisions and Subchapter I commercial‑speech regime where separable |
| Whether Reed’s holding should be limited to noncommercial speech or require rewriting the Act to apply only to commercial speech | Auspro: Reed governs noncommercial speech; facial challenge covers noncommercial regime | TxDOT: Court should sever Act’s application to noncommercial speech only to avoid disturbing commercial‑speech rules | Held: Court refused to rewrite the statute to apply only to commercial speech; the Act’s broad definition of outdoor advertising covers both, so severance must follow the statute’s text and legislative intent |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (clarifies that laws that differentiate speech by topic, message, or purpose are content‑based and subject to strict scrutiny)
- Texas Dep’t of Transp. v. Barber, 111 S.W.3d 86 (Tex. 2003) (upheld Texas Highway Beautification Act under pre‑Reed content‑neutral analysis; court explains Reed undermines Barber’s reasoning)
- City of Ladue v. Gilleo, 512 U.S. 43 (1994) (invalidating broad sign ban and explaining why eliminating exemptions may not cure overbroad prohibition)
- Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) (governing standard for commercial‑speech regulation; distinguishes commercial from noncommercial speech)
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (government speech doctrine; noted for context on permissible government‑speech exceptions)