Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/3/2015 10:03:52 AM JEFFREY D. KYLE Clerk No. 03-14-00375-CV THIRD COURT OF APPEALS 12/3/2015 10:03:52 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-14-00375-CV *1 ACCEPTED [8066837] CLERK 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 O PPOSED M OTION FOR L EAVE TO F ILE A PPELLEE ’ S OST -S UBMISSION B RIEF
O THE H ONORABLE T HIRD OURT OF A PPEALS : Pursuant to Texas Rule of Appellate Procedure 38.7, Appellee Texas
Department of Transportation (the “Department”) moves for leave to file a post-
submission brief to address new issues and arguments raised by Appellant AusPro
Enterprises, LP (“AusPro”) at oral argument and in its supplemental reply brief that
could materially affect the analysis and outcome of this case and to which the
Department had no opportunity to respond. The post-submission brief is being filed
concurrently with this motion and complies with Appellate Rule 9.4(i)(2)(B) regarding
the aggregate length of all briefs filed by a party in a court of appeals.
I.
This appeal was submitted on oral argument on November 18, 2015. At
argument, a number of substantial new issues and arguments were raised that were
either not briefed at all by either party or not raised until AusPro’s supplemental reply
brief, to which the Department had no opportunity to respond in writing. New issues
were raised regarding:
• Remedy: The Court asked (and AusPro’s counsel appeared to support) whether a
possible remedy would be excising the time limit in Transportation Code section
391.005, even though AusPro’s briefing never requested that relief and its
supplemental brief expressly stated 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.
• Severability: Counsel for AusPro suggested that Reed v. Town of Gilbert , 135 S. Ct.
2218 (2015), precluded severability, even though its briefing expressly conceded that
Texas’s severability statute applies: “Of course, severability principles would apply
to preserve the Act’s non-content-based provisions.” AusPro Supp. Reply Br. 12; see
id. at 14 n.10 (conceding that even if “content-based provisions are held
unconstitutional, the Act’s general ban on signs would remain”).
• Whether certain provisions satisfied strict scrutiny: AusPro’s counsel suggested
during rebuttal that if the election-speech exemption violates strict scrutiny, then so
must every other content-based exemption; by contrast, AusPro’s briefing admitted
that the exemption for signs for “the protection of life and property,” T EX . RANSP . ODE § 391.031(b)(5), is “supported by a compelling government interest.” AusPro
Supp. Reply Br. 5 n.4; cf. id. at 5 n.1 (conceding that section 391.031(b)(1) does not
violate First Amendment), 6 n.6 (conceding that section 391.031(b)(4) does not
violate First Amendment).
• Which provisions of the Act are at issue: AusPro’s opening brief and initial
supplemental brief challenged only section 391.005’s constitutionality, but its
supplemental reply brief contended for the first time that numerous other provisions
in Chapters 391 and 394 were unconstitutional, including provisions that AusPro
had never even cited before. See AusPro Supp. Reply Br. 5-6. These new challenges
would significantly expand the scope of this appeal and thus warrant granting this
motion.
II.
By not raising these material issues (and others) until its reply brief or oral
argument, including rebuttal, AusPro deprived the Department of the ability to fully
respond (even if the issues are not waived as a result of their omission from AusPro’s
opening brief on appeal). In the interests of fairness and further assisting the Court with
the questions raised during oral argument, the Department respectfully requests an
opportunity to address them in a post-submission brief.
III.
For the foregoing reasons, the Department respectfully requests that the Court
grant this motion for leave and file its post-submission brief submitted concurrently
with this motion.
Respectfully submitted. K EN 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 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 OUNSEL FOR A PPELLEE T EXAS D EPARTMENT OF RANSPORTATION *5 C ERTIFICATE OF C ONFERENCE I certify that on December 1, 2015, I conferred with counsel for Appellant
regarding this motion, and counsel advised that Appellant opposes the motion.
/s/ Douglas D. Geyser Douglas D. Geyser Counsel for Appellee ERTIFICATE OF S ERVICE On December 3, 2015, this motion was served via File & ServeXpress and e-mail
on:
Meredith B. Parenti ARENTI L AW PLLC
P.O. Box 19152
Houston, Texas 77224
[Tel] (281) 224-5848
[Fax] (281) 605-5677
meredith@parentilaw.com
/s/ Douglas D. Geyser Douglas D. Geyser Counsel for Appellee