On August 26th, the Austin Court of Appeals issued an opinion declaring that key sections of the Texas Highway Beautification Act (TxHBA) are unconstitutional. As a result, TxDOT’s authority to regulate billboards is eliminated. This decision (Auspro Enterprises v. Texas Department of Transportation) finds that the bulk of the TxHBA is unconstitutional because it violates the First Amendment free speech clause under a recent U.S. Supreme Court opinion in the case of Reed v. Town of Gilbert.
Neither the Reed nor Auspro case was about off-premise billboards (Reed was about small temporary signs and Auspro involves a “Ron Paul for President” political sign). Nevertheless, the Court wiped out the entire TxDOT billboard licensing and permitting scheme. The Court’s remedy was very broad — it could have simply focused only on the provision regarding political signs on private property, all that was at issue in Auspro.
The State and Scenic Texas agree that TxDOT may not regulate non-commercial political speech on private property. Our position is that the Court should modify its remedy so that the primary purpose of the TxHBA — licensing and permitting of outdoor commercial advertising signs — remains in place.
What’s at stake if the Auspro decision stands
- The state of Texas loses all authority to regulate billboards anywhere on the federal highway system.
- The State could lose 10% of its federal highway funding for failing to meet a federal mandate to “effectively control outdoor advertising.”
- The sole enforcement mechanism remaining would be in those Texas cities that have adopted municipal sign codes. Texas counties have no sign regulatory authority.
- Unregulated, un-permitted, commercial advertising billboards, of any number, size or height, will spring up along highways across the state.
- On September 27th, the Texas Attorney General will ask the Court to grant a Motion for Rehearing to reconsider the remedy in this case. – DONE READ THE FULL MOTION
- Scenic Texas will file an amicus curaie brief, authored by former Texas Supreme Court Justice Scott Brister, to support the AG’s motion. – DONE READ THE FULL AMICUS BRIEF
- On December 8, 2016 the court denied the State’s Motion for Rehearing, withdrew its August 26th Auspro opinion and judgment and entered a substituted opinion and judgment.
- Texas Attorney General has stated this ruling will be appealed to the Texas Supreme Court.
- With the Texas Legislature in session, Scenic Texas will support legislation to resolve any constitutional problems in the Texas Highway Beautiful Act.
LIST OF AMICUS PARTNERS
AIA San Antonio
American Planning Association, Texas Chapter
City of Fort Worth
Gillespie County Economic Development Commission
Hill Country Alliance
Houston NW Chamber of Commerce
San Antonio Conservation Society
Texas Association of Counties
Texas City Attorneys Association
Texas Conference of Urban Counties
Texas Economic Development Council
Texas Municipal League
Town of Westover Hills
Scenic Texas, Inc. and its Chapters in Houston, San Antonio, Dallas, Fort Worth, Austin, the Hill Country, and Comal and Fayette Counties, and its affiliate, Scenic Galveston
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