Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 3/3/2015 10:12:20 PM JEFFREY D. KYLE Clerk No. 03-14-00375-CV THIRD COURT OF APPEALS 3/3/2015 10:12:20 PM JEFFREY D. KYLE 03-14-00375-CV AUSTIN, TEXAS *1 ACCEPTED [4360225] CLERK In the Third Court of Appeals Austin, Texas _______________ A US 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 _______________ PPELLANT ’ S M OTION FOR S TAY AND FOR S UPPLEMENTAL B RIEFING IN L IGHT OF I MPENDING S UPREME OURT D ECISION IN
R EED V T OWN OF G ILBERT _______________ State Bar No. 00797202 7500 San Felipe, Suite 600 Houston, Texas 77063 Counsel for Appellant AusPro Enterprises, LP *2 I DENTITIES OF ARTIES AND OUNSEL The following is a complete list of the parties, attorneys, and any other person who has any interest in the outcome of this appeal.
Defandant/Appellant:
AusPro Enterprises, LP
Counsel for Defendant/Appellant:
State Bar No. 00797202
7500 San Felipe, Suite 600
Houston, Texas 77063
[Tel] (281) 224-5848
[Fax] (281) 605-5677
Plaintiff/Appellee:
Texas Department of Transportation
Counsel for Plaintiff/Appellee:
Douglas Geyser
Assistant Solicitor General
Matthew Bohuslav
Assistant Attorney General, Transportation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
douglas.geyser@texasattorneygeneral.gov
matthew.bohuslav@texasattorneygeneral.gov
T O THE H ONORABLE T HIRD OURT OF A PPEALS :
Appellant AusPro Enterprises, LP files this motion for a stay of this appeal pending the decision by the Supreme Court of the United States in
Reed v. Town of Gilbert , No. 13-502. Appellant also moves for supplemental
briefing under T EX R. PP . P. 38.7 to address the forthcoming decision in
Reed , which could very well be dispositive to this appeal.
On January 12, 2015, after Appellant filed its opening brief, the Supreme Court heard oral argument in Reed , a First Amendment challenge
to an Arizona sign ordinance involving durational and other limitations on
political, ideological, and other types of signs based on the subject matter of
the signs. The question presented in Reed is:
Does Gilbert’s mere assertion of a lack of discriminatory motive render its facially content-based sign code content neutral and justify the code’s differential treatment of Petitioners’ religious signs?
Brief for Petitioners, Reed v. Town of Gilbert , No. 13-502 (Sept. 15, 2014).
The Supreme Court’s determination of this issue could resolve many, or even possibly all, of the issues raised in this appeal, which involves a First
Amendment challenge to the durational and other limitations on election-
related signs along state highways and interstates under the Texas Highway
Beautification Act and its implementing regulations.
In order to preserve scarce judicial and party resources, and to permit the parties and the Court to consider and address the impact of a decision in
Reed on this case, Appellant respectfully requests a stay of this appeal until
the Supreme Court issues a decision in Reed . If this motion is granted,
Appellant would promptly notify this Court and opposing counsel of the
decision in Reed once issued. Appellant also requests the following
supplemental briefing schedule under T EX R. PP . P. 38.7 to permit the
parties to address the implications of Reed :
• Appellant will file a supplemental brief of 10,000 words or less within 30 days of the issuance of the Supreme Court’s decision in Reed. • Appellee will file a supplemental brief of 10,000 words or less within 30 days of service of Appellant’s supplemental brief.
• Appellant may file a reply of 7,500 words or less within 20 days of service of Appellee’s brief.
A stay and a supplemental briefing schedule will serve the interests of justice by permitting this Court to be fully apprised of the latest guidance
from the Supreme Court of the United States on the regulation of signs under
the First Amendment. Absent a stay and supplemental briefing, this Court
could reach a premature decision in this case relying on reasoning that could
prove to be obsolete under Reed . Rather than engage in an academic exercise
while Reed is pending, a stay would permit the parties and the Court to fully
consider the impact of Reed and apply its reasoning to the issues in this case. RAYER
For the above reasons, Appellant respectfully requests a stay of this appeal and for a supplemental briefing schedule as outlined above.
Respectfully submitted, /s/ Meredith B. Parenti 7500 San Felipe, Suite 600 Houston, TX 77063 Counsel for Appellant AusPro Enterprises, LP *6 C ERTIFICATE OF C ONFERENCE I certify that on February 27, 2015, I conferred with counsel for Appellee, who represented that Appellee opposes this motion.
/s/ Meredith B. Parenti Meredith B. Parenti ERTIFICATE OF S ERVICE I certify that on March 3, 2015, I served by a copy of this Motion on the following party via email and through the Court’s electronic filing
system:
Douglas Geyser
Assistant Solicitor General
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Counsel for Appellee Texas Department of Transportation
/s/ Meredith B. Parenti