Auspro Enterprises, LP v. Texas Department of Transportation

Opinion

ACCEPTED 03-14-00375-CV 4213371 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/19/2015 1:56:30 PM JEFFREY D. KYLE CLERK No. 03-14-00375 -CV

FILED IN In the Court of Appeals 3rd AUSTIN, COURT OF APPEALS TEXAS for the Third Judicial District2/19/2015 1:56:30 PM JEFFREY D. KYLE Austin, Texas Clerk

AUSPRO ENTERPRISES, LP, Appellant, v. TEXAS DEPARTMENT OF TRANSPORTATION, Appellee.

On Appeal from the 345th Judicial District Court of Travis County, Texas

APPELLEE’S BRIEF

KEN PAXTON SCOTT A. KELLER Attorney General of Texas Solicitor General

CHARLES E. ROY DOUGLAS D. GEYSER First Assistant Attorney Assistant Solicitor General General State Bar No. 24059817

MATTHEW BOHUSLAV Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-2540 Fax: (512) 474-2697 douglas.geyser@texasattorneygeneral.gov

ORAL ARGUMENT CONDITIONALLY REQUESTED TABLE OF CONTENTS

Index of Authorities.................................................................................. iv

Statement of the Case ............................................................................... x

Statement Regarding Oral Argument ..................................................... xi

Issues Presented...................................................................................... xii

Statement of Facts .................................................................................... 2

I. The Texas Highway Beautification Act .................................. 2

II. AusPro’s Illegal Sign ............................................................... 8

Summary of Argument .............................................................................. 9

Argument ................................................................................................. 11

I. The Restrictions Imposed By The Act And Its Implementing Regulations Are Valid Time, Place, And Manner Restraints. ............................................................... 11

A. Time, Place, And Manner Restrictions Are Subject To Intermediate Scrutiny. ........................................... 11

B. Barber Controls The Outcome Here. ........................... 13

1. Barber held that the Act is a valid time, place, and manner restriction. ............................ 13

2. AusPro’s purported distinctions of Barber are meritless........................................................ 17

C. Intermediate Scrutiny Governs AusPro’s Challenge...................................................................... 21

D. The Act And Its Regulations Pass Intermediate Scrutiny. ....................................................................... 32

ii II. The Permitting And Licensing Regulations Are Also Content Neutral And Thus Not Unconstitutional Prior Restraints. ............................................................................. 34

A. AusPro Forfeited Its Challenge To The Licensing And Permitting Regulations. ....................................... 35

B. Regardless, AusPro’s Prior-Restraint Challenge Is Meritless. ...................................................................... 37

1. The licensing and permitting regulations are content neutral. ................................................... 38

2. The regulations contain adequate standards to control official discretion. ............................... 42

III. The Act And Its Regulations Do Not Violate The Texas Constitution........................................................................... 46

Prayer ...................................................................................................... 49

Certificate of Service ............................................................................... 50

Certificate of Compliance ........................................................................ 50

iii INDEX OF AUTHORITIES

Cases

Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002)......................................................... 46-47

Bloedorn v. Grube, 631 F.3d 1218 (11th Cir. 2011) ................................................. 44-45

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ........................................................................ 20

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) ........................................................................ 27

Citizens United v. FEC, 558 U.S. 310 (2010) ............................................................ 15, 30, 33

City of Antioch v. Candidates’ Outdoor Graphic Serv., 557 F. Supp. 52 (N.D. Cal. 1982) ................................................... 23

City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) ........................................................................ 14

City of Ladue v. Gilleo, 512 U.S. 43 (1994) .............................................................. 14, 19, 29

City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) .................................................................. 36, 44

City of Painesville Bldg. Dep’t v. Dworken & Bernstein Co., L.P.A., 733 N.E.2d 1152 (Ohio 2000) ............................................. 24

City of Renton v. Playtime Theatres, 475 U.S. 41 (1986) .......................................................................... 28

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) .................................................................. 12, 31

iv Collier v. City of Tacoma, 854 P.2d 1046 (Wash. 1993) (en banc) ........................................... 24

Covenant Media of S.C. v. City of N. Charleston, 493 F.3d 421 (4th Cir. 2007) ........................................ 15, 26, 27, 41

Curry v. Prince George’s Cnty., Md., 33 F. Supp. 2d 447 (D. Md. 1999) .................................................. 23

Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992).......................................................... 47, 48

Freedman v. Maryland, 380 U.S. 51 (1965) .......................................................................... 37

Frisby v. Schultz, 487 U.S. 474 (1988) ........................................................................ 11

Granite State Outdoor Adver., Inc. v. City of St. Petersburg, Fla., 348 F.3d 1278 (11th Cir. 2003) ........................................ 38, 44

Hill v. Colorado, 530 U.S. 703, 719 (2000) ........................................ 12, 19, 20, 25, 26

John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir. 1980) ............................................................... 22

Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014).............................................................. 46

Knoeffler v. Town of Mamakating, 87 F. Supp. 2d 322 (S.D.N.Y. 2000) ............................................... 23

Lauder, Inc. v. City of Houston, Tex., 670 F.3d 664 (5th Cir. 2012) .................................................... 37, 45

Maryland v. Universal Elections, Inc., 729 F.3d 370 (4th Cir. 2013) .......................................................... 31

v McCormack v. Twp. of Clinton, 872 F. Supp. 1320 (D.N.J. 1994) (mem. op.) .................................. 23

Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) ........................................................................ 20

Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir. 1992) ...................................................... 15

Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) .................................................................. 11, 14

Nat’l Adver. Co. v. Town of Babylon, 900 F.2d 551 (2d Cir. 1990) ............................................................ 23

Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546 (Tex. 1998) ..................................... 46

Orazio v. Town of N. Hempstead, 426 F. Supp. 1144 (E.D.N.Y. 1977) ................................................ 23

Rappa v. New Castle Cnty., 18 F.3d 1043 (3d Cir. 1994) ............................................................ 22

S. Or. Barter Fair v. Jackson Cnty., Or., 372 F.3d 1128 (9th Cir. 2004) .................................................. 44, 45

Serv. Emps. Int’l Union, Local 5 v. City of Houston, 595 F.3d 588 (5th Cir. 2010) ............................................... 26-27, 41

Snyder v. Phelps, 131 S. Ct. 1207 (2011) .................................................................... 31

Tex. Dep’t of Pub. Safety v. Garcia, 327 S.W.3d 898 (Tex. App.—Austin 2010, pet. denied)................. 36

Tex. Dep’t of Transp. v. Barber, 111 S.W.3d 86 (Tex. 2003)...................................................... passim

vi Tex. Entm’t Ass’n v. Combs, 431 S.W.3d 790 (Tex. App.—Austin 2014, pet. denied)........... 46, 47

Thomas v. Chi. Park Dist., 534 U.S. 316 (2002) .................................................................. 37, 42

Union City Bd. of Zoning v. Justice Outdoor Displays, Inc., 467 S.E.2d 875 (Ga. 1996) .............................................................. 22

United States v. Stevens, 559 U.S. 460 (2010) .................................................................. 22, 23

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ................................................ 12, 13, 14, 32, 44

Wheeler v. Comm’r of Highways, 822 F.2d 586 (6th Cir. 1987) (cited in Barber)......................... 15, 29

Whitton v. City of Gladstone, Mo., 54 F.3d 1400 (8th Cir. 1995) .......................................................... 23

Constitutional Provisions, Statutes and Rules

TEX. CONST. art. I, § 8 ........................................................ x, xii, 46, 47, 48

23 U.S.C. § 131(b) ...................................................................................... 2

23 U.S.C. § 131(c) ...................................................................................... 2

43 TEX. ADMIN. CODE § 21.142(14) .......................................................... 40

43 TEX. ADMIN. CODE § 21.144 .................................................................. 7

43 TEX. ADMIN. CODE § 21.146(a) .................................................... 4, 7, 38

43 TEX. ADMIN. CODE § 21.146(a)(9) .......................................................... 7

43 TEX. ADMIN. CODE § 21.147(a) ............................................................ 26

43 TEX. ADMIN. CODE § 21.147(a)(1) ........................................................ 26

vii 43 TEX. ADMIN. CODE § 21.148 ................................................................ 40

43 TEX. ADMIN. CODE § 21.149 .................................................... 39, 40, 41

43 TEX. ADMIN. CODE § 21.149(b) ............................................................ 40

43 TEX. ADMIN. CODE § 21.152 ................................................ 7, 38, 42, 43

43 TEX. ADMIN. CODE § 21.153 ............................................................... 38

43 TEX. ADMIN. CODE § 21.152(a) ............................................................ 40

43 TEX. ADMIN. CODE § 21.153(b) ................................................ 39, 40, 41

43 TEX. ADMIN. CODE § 21.159 ............................................................ 8, 42

43 TEX. ADMIN. CODE § 21.163(d) ............................................................ 43

43 TEX. ADMIN. CODE § 21.164(a) ............................................................ 43

43 TEX. ADMIN. CODE § 21.166(a) ........................................................ 7, 38

43 TEX. ADMIN. CODE § 21.182 ...................................................... 8, 38, 43

43 TEX. ADMIN. CODE § 21.189 ...................................................... 8, 39, 43

43 TEX. ADMIN. CODE § 21.190............................................................. 8, 39

TEX. GOV’T CODE § 311.032(c) ............................................................ 27, 41

TEX. TRANSP. CODE § 391.001(10)........................................................ 3, 15

TEX. TRANSP. CODE § 391.002(b)................................................................ 2

TEX. TRANSP. CODE § 391.005 .................................................... 5, 7, 18, 34

TEX. TRANSP. CODE § 391.031(a)................................................................ 3

TEX. TRANSP. CODE § 391.031(b) ............................................................... 3

TEX. TRANSP. CODE § 391.031(b)(1) ........................................................... 4

viii TEX. TRANSP. CODE § 391.031(b)(3) ......................................................... 24

TEX. TRANSP. CODE § 391.031(b)(4) ......................................................... 34

TEX. TRANSP. CODE § 391.031(d) ............................................................... 8

TEX. TRANSP. CODE § 391.032(a).............................................................. 38

TEX. TRANSP. CODE § 391.061 .................................................................. 34

TEX. TRANSP. CODE § 391.061(a)................................................................ 7

TEX. TRANSP. CODE § 391.067 .............................................................. 7, 34

TEX. R. APP. P. 33.1(a) ............................................................................. 36

Other Authorities

39 TEX. REG. 7954 (2014) ........................................................................... 7

ix STATEMENT OF THE CASE

Nature of the Case: The Texas Department of Transportation (the “Department”) sued AusPro Enterprises, LP (“AusPro”) for civil penalties and injunctive relief for maintaining a sign in violation of the Texas Highway Beautification Act and its implementing regulations. CR.3- 8.1 AusPro asserts, as affirmative defenses, that the statute and regulations violate the Fourteenth Amendment’s incorporation of the First Amendment right to free speech and Article I, § 8 of the Texas Constitution. CR.14.

Trial Court: The Honorable Timothy J. Sulak 345th District Court, Travis County, Texas

Course of Proceedings: The parties agreed to stipulated facts, see CR.52-55, and the trial court conducted a bench trial.

Trial Court Disposition: The trial court entered final judgment for the Department. It (a) enjoined AusPro from maintaining the illegal sign, (b) awarded a civil penalty of $3,500, and (c) concluded that the statute and regulations were constitutional. CR.107-09. The court later entered findings of fact and conclusions of law. CR.116-17.

1Citations of the Clerk’s Record are formatted “CR.[page]”. Citations of the Reporter’s Record are formatted “RR.[page]”.

x STATEMENT REGARDING ORAL ARGUMENT

AusPro asserts that oral argument is warranted because “this case

raises issues of first impression.” AusPro Br. xi. To the contrary, as

explained below, AusPro’s position is materially indistinguishable from

the plaintiff’s in Texas Department of Transportation v. Barber, 111

S.W.3d 86 (Tex. 2003), which upheld the Texas Highway Beautification

Act’s constitutionality against a free-speech challenge premised on

political speech. If the Court decides to hear oral argument, however, the

Department wishes to participate.

xi ISSUES PRESENTED

This appeal involves two aspects of the Texas Highway

Beautification Act (the “Act”) and its implementing regulations.2 First,

the Act generally prohibits signs adjacent to, and visible from, certain

highways. That ban is subject to various exemptions, however, including

one for onsite signs (i.e., signs pertaining to on-premises activities) and

another limited one for election-related signs. Second, even if the sign

doesn’t pertain to onsite activities or election speech, it may be erected in

a commercial zone (like AusPro’s property) if the owner has obtained a

license and permit.

The issues presented are:

1. Whether the Act’s prohibition of offsite signs communicating political speech along highways imposes a valid time, place, and manner restriction.

2. (a) Whether AusPro forfeited its prior-restraint challenge to the Act’s licensing and permitting regulations by failing to raise this complaint in the district court. (b) If not, whether those regulations constitute an invalid prior restraint.

3. Whether the Act and its implementing regulations violate Article I, Section 8 of the Texas Constitution.

2This brief cites the regulations in effect during the period that is the subject of the Department’s enforcement action against AusPro (July through October 2011). See CR.54. The 2011 regulations are attached as the appendix to this brief.

xii No. 03-14-00375

In the Court of Appeals for the Third Judicial District Austin, Texas AUSPRO ENTERPRISES, LP, Appellant, v. TEXAS DEPARTMENT OF TRANSPORTATION, Appellee.

On Appeal from the 345th Judicial District Court of Travis County, Texas

APPELLEE’S BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

In Texas Department of Transportation v. Barber, 111 S.W.3d 86

(Tex. 2003), the Texas Supreme Court upheld the Act’s constitutionality

against a free-speech challenge premised on political speech. Barber

thoroughly examined relevant U.S. Supreme Court precedent, all the

various exemptions in the Act, and the test for time, place, and manner

restrictions. Although AusPro futilely attempts to distinguish Barber—

and then all but ignores that precedent throughout the opening brief’s discussion of the very issues Barber resolved—Barber squarely requires

rejection of AusPro’s arguments about election-related speech.

As to the licensing and permitting regulations, AusPro forfeited its

challenge by failing to raise it in the trial court. But even if AusPro had

preserved this complaint, its arguments fail on the merits. AusPro

misreads the regulations and misstates the appropriate constitutional

test. Accordingly, the trial court’s judgment should be affirmed.

STATEMENT OF FACTS

I. THE TEXAS HIGHWAY BEAUTIFICATION ACT

The Act was passed in response to the federal Highway

Beautification Act of 1965, which docks a state ten percent of its share of

Federal highway-aid funds if the state does not maintain “effective

control” of “outdoor advertising” adjacent to its highways. 23 U.S.C.

§ 131(b), (c). The Legislature expressly declared the Act’s intention to

comply with that federal incentive and to advance safety and aesthetics

goals. TEX. TRANSP. CODE § 391.002(b) (declaring that purpose of Act is to

“promote the health, safety, welfare, morals, convenience, and enjoyment

of the traveling public” and to “protect the public investment in the

interstate and primary systems”). “Outdoor advertising” includes

2 anything “designed, intended, or used to advertise or inform if any part

of the advertising or information content is visible from the main-

traveled way of the interstate or primary system.” Id. § 391.001(10). That

definition covers both commercial and noncommercial speech. Barber,

111 S.W.3d at 99.

The Act generally prohibits such advertising in two types of areas:

(1) “within 660 feet of the nearest edge of a right-of-way if the advertising

is visible from the main-traveled way of the interstate or primary

system,” and (2) “outside an urban area if the advertising is located more

than 660 feet from the nearest edge of a right-of-way, is visible from the

main-traveled way of the interstate or primary system, and is erected for

the purpose of having its message seen from the main-traveled way of the

interstate or primary system.” TEX. TRANSP. CODE § 391.031(a).

That ban is qualified, however, by several exemptions that

“accommodate as much speech as possible and still accomplish the goals

of preserving the landscape and promoting travel safety.” Barber, 111

S.W.3d at 103; see TEX. TRANSP. CODE § 391.031(b) (listing six

3 exemptions);3 43 TEX. ADMIN. CODE § 21.146(a) (“Exempt Signs”). The

basic division between acceptable and forbidden outdoor advertising

rests on the location of the property and whether the sign pertains to

activities on the property. In noncommercial and non-industrial areas,

the Act generally bans offsite speech but “allows all onsite commercial

speech and all onsite noncommercial speech.” Barber, 111 S.W.3d at 99.

A few exemptions permit even offsite signs in those areas (e.g., directions

to natural wonders, see TEX. TRANSP. CODE § 391.031(b)(1), and certain

3 Along with the election-sign exemption discussed below, the statute exempts:

“(1) directional or other official outdoor advertising authorized by law, including advertising pertaining to a natural wonder or a scenic or historic attraction;

(2) outdoor advertising for the sale or lease of the property on which it is located;

(3) outdoor advertising solely for activities conducted on the property on which it is located;

(4) outdoor advertising located within 660 feet of the nearest edge of a right-of-way in an area in which the land use:

(A) is designated industrial or commercial under authority of law; or

(B) is not designated industrial or commercial under authority of law but the land use is consistent with an area designated industrial or commercial;

(5) outdoor advertising that has as its purpose the protection of life and property; or

(6) outdoor advertising erected on or before October 22, 1965, that the commission, with the approval of the secretary of the United States Department of Transportation, determines to be a landmark of such historic or artistic significance that preservation is consistent with the purposes of this subchapter.” Id.

4 election-related signs, see id. § 391.005), but these “bear a direct

relationship to the State’s interest in promoting travel safety while

minimizing the number of signs” and “accommodate[ing] as much speech

as possible.” Barber, 111 S.W.3d at 103. In commercial and industrial

areas, signs bearing both commercial and noncommercial speech are

acceptable, “regardless of whether that speech relates to activities on the

property,” id. at 99, provided that the owner obtains a license and permit,

as discussed below. The exemptions in the regulations largely track the

statutory exemptions, subject to the administrative agency’s power to

reasonably construe and implement the statute.4

4 Effective July 1, 2011, and during the period at issue here, 43 TEX. ADMIN. CODE § 21.146(a) exempted:

“(1) an on-premise sign that meets the criteria provided by §21.147 of this division (relating to On-premise Sign) except as provided by subsection (c) of this section;

(2) a sign that has the purpose of protecting life or property;

(3) a sign that provides information about underground utility lines;

(4) an official sign that is erected by a public officer, public agency, or political subdivision under the officer’s, agency’s, or political subdivision’s constitutional or statutory authority;

(5) a sign required by the Railroad Commission of Texas at the principal entrance to or on each oil or gas producing property, well, tank, or measuring facility to identify or to locate the property if the sign is no larger than necessary to comply with the Railroad Commission's regulations;

(6) a sign of a nonprofit service club, charitable association, religious organization, chamber of commerce, nonprofit museum, or governmental entity that gives

5 information about the meetings, services, events, or locations of the entity and that does not exceed an area of 32 square feet;

(7) a public service sign that:

(A) is located on a school bus stop seating bench or shelter;

(B) identifies the donor, sponsor, or contributor of the shelter;

(C) contains a public service message that occupies at least 50 percent of the area of the sign;

(D) has no content other than that described by subparagraphs (B) and (C) of this paragraph;

(E) is authorized or approved by the law of the entity that controls the highway involved, including being located at a place approved by the entity;

(F) has a sign face that does not exceed an area of 32 square feet; and

(G) is not facing the same direction as any other sign on that seating bench or shelter;

(8) a sign that shows only the name of a ranch on which livestock are raised or a farm on which crops are grown and the directions to, telephone number, or internet address of the ranch or farm and that has a sign face that does not exceed an area of 32 square feet;

(9) a sign that:

(A) relates only to a public election;

(B) is located on private property;

(C) is erected after the 91st day before the date of the election and is removed before the 11th day after the election date;

(D) has a sign face that does not exceed an area of 50 square feet; and

(E) contains no commercial endorsement; and

(10) a sign identifying the name of a recorded subdivision located at an entrance to the subdivision or on property owned by or assigned to the subdivision, home owners association, or other entity associated with the subdivision.”

6 AusPro’s challenge focuses on the election-sign exemption, which

exempts from the Act “a sign erected solely for and relating to a public

election,” provided that the sign is maintained only between ninety days

before the election and ten days after the election. TEX. TRANSP. CODE

§ 391.005; see 43 TEX. ADMIN. CODE § 21.146(a)(9).5

If a sign does not fall within section 391.005 or most of the statutory

carve-outs in section 391.031(b), the owner must obtain both a license

and a permit from the Department. See 43 TEX. ADMIN. CODE §§ 21.144

(“Except as provided by this division, a person may not obtain a permit

for a sign under this division unless the person holds a currently valid

license . . . .”), 21.146(a) (listing signs “exempt from this division,”

including election signs). Most relevant to this appeal, a sign in an

industrial or commercial zone needs a license and permit. See, e.g., TEX.

TRANSP. CODE §§ 391.061(a), 391.067; 43 TEX. ADMIN. CODE § 21.166(a).

The license application requires the applicant’s contact

information, the location of the sign, a fee, and a surety bond. See 43 TEX.

ADMIN. CODE § 21.152. The permit application also requires more

5 In 2014, the election-sign exemption in the regulations was moved to paragraph (a)(10), where it currently resides. 39 Tex. Reg. 7954, 7956 (2014).

7 detailed information about the sign’s location and design. See id.

§ 21.159. In reviewing the permit application, Department staff

evaluates physical characteristics of the proposed sign but not its

content. See, e.g., id. §§ 21.182 (“Sign Face Size and Positioning”), 21.189

(“Sign Height Restrictions”), 21.190 (“Lighting of and Movement on

Signs”).

The penalty for violating the Act is $500-$1000 per offense, where

“[e]ach day of the proscribed conduct is a separate offense.” E.g., TEX.

TRANSP. CODE § 391.031(d).

II. AUSPRO’S ILLEGAL SIGN

AusPro owns property along State Highway 71 in Bee Cave, Texas.

CR.52. The property is zoned commercial and is occupied by a “funky gift

store[]” called Planet K. Id. On July 7, 2011, AusPro’s owner placed a sign

near the building’s front porch that contained the text “Ron Paul

Revolution,” “President,” and “RonPaul2012.com.” CR.53; see CR.58

(photograph of sign). The sign was visible from the highway for at least

seven days between July 7 and October 1. CR.53. AusPro conceded that

its sign did not fall within the time period specified in the Act’s election-

8 sign exemption. CR.54. It also conceded that it did not obtain a license or

permit. CR.53.

The Department notified AusPro in July 2011 that its sign violated

the Act for failing to satisfy the election-sign exemption or the permitting

requirements. CR.59-60. After AusPro failed to remove its sign, the

Department brought this enforcement action. CR.3-8. AusPro answered

and asserted as affirmative defenses that the Act and its regulations

“violate Aus[P]ro’s right to free speech” under the United States and

Texas Constitutions. CR.14. The trial court held a bench trial based on

stipulated facts and rendered final judgment for the Department.

CR.107-109; see CR.52-55 (stipulated facts).

SUMMARY OF ARGUMENT

The validity of the Act’s general prohibition on signs visible from

federally-funded highways turns on whether the Act is content neutral.

Barber has resolved that inquiry in favor of content neutrality. The Texas

Supreme Court considered all the Act’s exemptions, including the one for

election speech, and concluded that the Act does not favor commercial

speech over noncommercial speech and that the exemptions are justified

without reference to the content of speech.

9 AusPro attempts to distinguish Barber primarily by arguing that

Barber did not address the election-sign exemption. But AusPro’s

position is indistinguishable from that of the plaintiff in Barber. Both

AusPro and Barber erected political signs that didn’t pertain to onsite

activities, and both argued that the restrictions on such signs were

content based and thus unconstitutional. The fact that Barber controls

this appeal is evident because Barber effectively rejected every specific

argument AusPro makes here.

Because the Act and its regulations are content neutral, they need

satisfy only intermediate scrutiny. Barber decided that question as well,

finding that the Act and its exemptions were narrowly tailored to

advance substantial government interests and left adequate alternatives

for property owners along the highways subject to the Act.

As to the licensing and permitting regulations, AusPro forfeited

that challenge by not raising it in the trial court. Regardless, the

argument fails on the merits. Content-neutral licensing schemes must

provide sufficient constraints on the administrator’s discretion. The

regulations here fulfill that requirement by conditioning the standards

on signs’ definitive physical characteristics.

10 Because the Act and its regulations satisfy the First Amendment,

they also satisfy the Texas Constitution’s free-expression guarantee.

AusPro hasn’t offered any explanation of Article I, Section 8’s text,

history, or purpose that would justify a different result for a content-

neutral time, place, and manner restriction that targets merely the

noncommunicative characteristics of signs.

ARGUMENT

I. THE RESTRICTIONS IMPOSED BY THE ACT AND ITS IMPLEMENTING REGULATIONS ARE VALID TIME, PLACE, AND MANNER RESTRAINTS.

A. Time, Place, And Manner Restrictions Are Subject To Intermediate Scrutiny.

The right to free speech is not absolute. See, e.g., Frisby v. Schultz,

487 U.S. 474, 479 (1988) (“[E]ven protected speech is not equally

permissible in all places and at all times.” (citation and internal

quotation marks omitted)). That is particularly true where the method of

communication, like a sign or billboard, “combines communicative and

noncommunicative aspects,” for “the government has legitimate interests

in controlling the noncommunicative aspects of the medium.”

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 502 (1981) (plurality

op.); see id. at 501 (“Each method of communicating ideas is a law unto

11 itself and that law must reflect the differing natures, values, abuses and

dangers of each method.” (internal quotation marks omitted)). The State

thus may regulate “the time, place, or manner of protected speech,

provided [that] the restrictions ‘are justified without reference to the

content of the regulated speech, that they are narrowly tailored to serve

a significant governmental interest, and that they leave open ample

alternative channels for communication of the information.’” Ward v.

Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty.

for Creative Non-Violence, 468 U.S. 288, 293 (1984)).

As AusPro acknowledges, the crucial question is whether the

challenged regulation is content neutral. See AusPro Br. 13; see also, e.g.,

Barber, 111 S.W.3d at 98. The law is content neutral if (1) “it is not a

regulation of speech,” but instead “is a regulation of the places where

some speech may occur”; (2) “it was not adopted because of disagreement

with the message it conveys”; or (3) “the State’s interests . . . are

unrelated to the content of the [regulated parties’] speech.” Hill v.

Colorado, 530 U.S. 703, 719-20 (2000) (citation and internal quotation

marks omitted).

12 Content-neutral laws are subject only to intermediate scrutiny, not

strict scrutiny. Barber, 111 S.W.3d at 93. Intermediate scrutiny requires

narrow tailoring to significant government interests and adequate

alternative methods of communication. E.g., Ward, 491 U.S. at 791.

Barber shows that the Act and its regulations satisfy these time, place,

and manner strictures.

B. Barber Controls The Outcome Here.

1. Barber held that the Act is a valid time, place, and manner restriction.

Barber held that the Act satisfies the time, place, and manner test.

111 S.W.3d at 89. Because the Texas Supreme Court effectively rejected

every one of the arguments AusPro makes and thereby dictates the result

here, we review that opinion in detail.

Barber addressed a free-speech challenge from an individual who

had erected a sign communicating political speech (“Just say NO to

Searches”) on his own nonresidential property. Id. at 91; see id. at 98

(accepting characterization of sign as “political ideological speech”). After

reviewing and synthesizing U.S. Supreme Court precedents on time,

13 place, and manner restrictions, see id. at 93-98,6 the Court explained that

the threshold question was “whether the Act is content based or content

neutral.” Id. at 98.

As to that crucial threshold issue, the Supreme Court first rejected

Barber’s argument that regulations burdening “political and ideological

speech” are “automatically” reviewed under strict scrutiny; rather, the

regulation merely must fit the time, place, and manner framework. Id.

The Court then turned to Barber’s arguments that the exemptions in the

Act rendered it content based by “mak[ing] certain distinctions based on

subject matter.” Id. Specifically, Barber asserted that the Act treated

commercial speech more favorably than noncommercial speech (the

identical attack AusPro advances here) and treated election speech more

favorably than other political speech. Id.

The Court roundly disagreed, finding instead that the Act “allows

all onsite commercial speech and all onsite noncommercial speech”:

The Act defines “outdoor advertising” broadly. It includes both commercial and noncommercial speech, encompassing “advertising or information.” Further, the Act permits both

6 The Court discussed at length many of the cases AusPro relies on, among others: Ward; Metromedia; City of Ladue v. Gilleo, 512 U.S. 43 (1994); and City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993). Throughout AusPro’s brief, it fails to acknowledge that Barber settled how these cases apply to the Act.

14 types of speech in noncommercial and non-industrial areas as long as that speech relates to activities on the property. It also permits both types of speech in commercial and industrial areas, regardless of whether that speech relates to activities on the property.

Id. at 99 (citing TEX. TRANSP. CODE § 391.001(10)). The Act thus was

content neutral because it “permit[ted] commercial and noncommercial

speech everywhere that relates to an activity on the property.” Id. Other

courts have agreed that such an onsite/offsite distinction constitutes

content neutrality. See, e.g., Covenant Media of S.C. v. City of N.

Charleston, 493 F.3d 421, 432-35 (4th Cir. 2007); Messer v. City of

Douglasville, 975 F.2d 1505, 1509 (11th Cir. 1992) (cited in Barber);

Wheeler v. Comm’r of Highways, 822 F.2d 586, 590-91 (6th Cir. 1987)

(cited in Barber).

Addressing the election-speech exemption, the Court conceded that

it was “arguably content based” by favoring such speech over Barber’s

non-election-related political speech. Barber, 111 S.W.3d at 100.

Nonetheless, that exemption “serves purposes unrelated to the content of

expression” and consistent with the overall goals of the Act. Id.; cf.

Citizens United v. FEC, 558 U.S. 310, 334 (2010) (“It is well known that

the public begins to concentrate on elections only in the weeks

15 immediately before they are held. There are short timeframes in which

speech can have influence.”). So that exemption, too, did not disturb the

Act’s content neutrality.

In sum, the Act and its exemptions “bear a direct relationship to the

State’s interest in promoting travel safety while minimizing the number

of signs along a narrow federal corridor.” Barber, 111 S.W.3d at 103. The

exemptions also “accommodate as much speech as possible and still

accomplish the goals of preserving the landscape and promoting travel

safety.” Id. The Act as a whole is content neutral.

Applying intermediate scrutiny, the Supreme Court upheld the Act.

First, “aesthetics and public safety on the highway are recognized as

substantial governmental goals.” Id. at 103. Second, the Act was

narrowly tailored to those goals because it restricted speech only “in non-

industrial and noncommercial areas to that which relates to an on-

premise activity or to an upcoming public election.” Id. Third, for that

same reason, the Act left open “adequate alternative avenues for

communication.” Id. at 104-05. To that end, the Court expressly rejected

the argument that Barber’s alternatives were inadequate because they

would not allow his sign on his own property. Id. at 104.

16 2. AusPro’s purported distinctions of Barber are meritless.

AusPro cannot escape Barber, for AusPro’s sign is illegal for

precisely the same reason Barber’s sign was illegal: Each sign falls within

section 391.031(a)’s broad prohibition of signs adjacent to and visible

from state highways, and each sign contains noncommercial, political

speech that does not fit within any of the Act’s exemptions. AusPro offers

a potpourri of distinctions, but each is wrong, irrelevant, or both. See

AusPro Br. 11-13.

First, AusPro mainly tries to distinguish Barber on the grounds

that AusPro is challenging the election-sign exemption itself, whereas

Barber’s sign “was governed by the Act’s general prohibition on signs

rather than by [the election-sign] exemption.” AusPro Br. 11-12. AusPro

misunderstands how the statute operates. The election-sign exemption,

section 391.005, does not bar AusPro’s sign. The exemption is just that:

an exemption. Section 391.005 does not ban anything at all; rather, it

saves potential offenders from the general ban. In other words, AusPro’s

sign is illegal not because of section 391.005 but because of section

391.031(a). Neither AusPro nor Barber met the election-sign

exemption—AusPro because of the durational limits and Barber because

17 it was not “erected solely for and relating to a public election.” TEX.

TRANSP. CODE § 391.005. Both signs communicated political speech

unrelated to onsite activities within the geographic area covered by the

Act.

The key point is that if section 391.005 were stricken from the

books, AusPro’s sign would still violate the Act. And Barber makes clear

that the Legislature acted within constitutional limits banning offsite,

political signs. The fact that the Legislature decided to allow some offsite

speech in the form of election speech during a few months of the year

doesn’t mean that the Legislature had to allow that speech during the

entire year. Indeed, if political speech had that kind of special status, the

plaintiff in Barber would have won. Cf. Barber, 111 S.W.3d at 98.

Second, AusPro asserts that Barber’s comments that the election-

sign exemption does not render the Act content-based were dicta. AusPro

Br. 12. That is both wrong and irrelevant. The Barber plaintiff contended

that the Act was not content neutral because the election-sign exemption

favored election-related speech over other speech. 111 S.W.3d at 100.

Exemptions that do not cover the plaintiff are without doubt pertinent to

free-speech challenges because they might undermine the argument that

18 the statute’s restrictions are not justified without reference to the content

of the restricted speech. See, e.g., Hill, 530 U.S. at 723 (“[A] statute that

restricts certain categories of speech only lends itself to invidious use if

there is a significant number of communications, raising the same

problem that the statute was enacted to solve, that fall outside the

statute’s scope, while others fall inside.”); City of Ladue v. Gilleo, 512 U.S.

43, 50-51 (1994) (stating that constitutional challenge might succeed if

“the measure in effect restricts too little speech because its exemptions

discriminate on the basis of the signs’ messages”). To hold that the Act

was content neutral and subject to intermediate scrutiny, the Supreme

Court necessarily had to address and reject Barber’s argument about the

election-sign exemption. And AusPro’s point is irrelevant because, as just

discussed, AusPro is injured not by section 391.005 but by section

391.031(a).

Third, AusPro notes that its affirmative defenses include a facial

challenge, while Barber brought only an as-applied challenge. AusPro Br.

13. That is true but meaningless. AusPro’s argument misconceives the

function of a facial challenge. In the First Amendment context, a facial

challenge in the form of “the overbreadth doctrine enables litigants ‘to

19 challenge a statute not because their own rights of free expression are

violated, but because of a judicial prediction or assumption that the

statute’s very existence may cause others not before the court to refrain

from constitutionally protected speech or expression.’” Hill, 530 U.S. at

731-32 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)).7 But

AusPro does not and cannot identify how the Act “applies to any conduct

more likely to be protected by the First Amendment than [its] own

[election] sign[].” Members of the City Council of Los Angeles v. Taxpayers

for Vincent, 466 U.S. 789, 802 (1984). Indeed, the entire thrust of

AusPro’s brief is that its speech deserves the very highest protection of

all.

What highlights the hollowness of the facial versus as-applied

distinction in this case is that AusPro can’t explain how the analysis in

Barber differs from the analysis of its purported facial attack. AusPro’s

inability to do so is unsurprising in light of the discussion infra Part I.C,

which shows that Barber addressed and rejected every one of AusPro’s

7 A facial challenge therefore also implicates a court’s remedy in the same way: if a narrowing construction is impossible and severing is unavailable, the court invalidates even the part of the statute that could be validly applied to the plaintiff’s conduct.

20 own arguments. Accordingly, even if AusPro could somehow distinguish

Barber’s precise holding, the Supreme Court’s discussion of the relevant

issues would still require affirmance.

C. Intermediate Scrutiny Governs AusPro’s Challenge.

Barber forecloses AusPro’s efforts to paint the Act’s and its

regulations’ exemptions as content based. AusPro presses a number of

arguments in an effort to have this Court apply strict scrutiny, but each

one is squarely refuted by Barber.

First, AusPro asserts that the “election sign exemption is content

based because the content of a sign determines how long it may be

displayed.” AusPro Br. 19. To the extent that the election-sign exemption

is “arguably content based,” Barber, 111 S.W.3d at 100, it is because the

exemption favors election speech over non-election political speech.

AusPro can’t complain about that. And even so, Barber held that section

391.005 does not make the Act content based because this exemption

“serves purposes unrelated to the content of expression [and] is [thus]

deemed neutral.” Id. (citation and internal quotation marks omitted).

More importantly, as already discussed, it’s not the election-sign

exemption that bars AusPro’s sign. See supra 17-18. The prohibition

21 derives instead from Transportation Code section 391.031(a). The

various lines drawn by the Act’s exemptions—including the one for

certain election signs—were considered and approved by Barber as being

content neutral.

AusPro’s discussion of the case law on this point completely omits

Barber. See AusPro Br. 19-26. AusPro instead mistakenly relies on cases

from other jurisdictions or U.S. Supreme Court cases that predate

Barber. And many of those U.S. Supreme Court opinions—City of Ladue,

Metromedia, and Discovery Network—were discussed in detail in Barber,

which explained why those decisions supported the Texas Supreme

Court’s holding that the Act is constitutional.8 AusPro simply cannot

evade the Texas Supreme Court’s binding precedent.

The one post-Barber opinion that AusPro cites, United States v.

Stevens, 559 U.S. 460 (2010), is easily distinguishable. See AusPro Br. 25.

Stevens invalidated a federal law that criminalized the depiction of

8 Barber even distinguished some of the non-U.S. Supreme Court cases that AusPro discusses. Compare, e.g., AusPro Br. 18 n.5 (citing Rappa v. New Castle Cnty., 18 F.3d 1043 (3d Cir. 1994); John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir. 1980); Union City Bd. of Zoning v. Justice Outdoor Displays, Inc., 467 S.E.2d 875 (Ga. 1996)), with Barber, 111 S.W.3d at 102 & nn.93-95 (stating that “cases from other jurisdictions suggesting otherwise [i.e., that the Act is content based] are distinguishable” and citing, among others, Rappa, John Donnelly, and Union City).

22 animal cruelty. 559 U.S. at 464. Unlike the Act, that law “explicitly

regulate[d] expression based on content.” Id. at 468 (emphasis added).

Barber forecloses any similar characterization of the Act and its

exemptions.

And the cases that AusPro emphasizes from other jurisdictions (all

of which predate Barber) that Barber itself did not address are

distinguishable because the laws there didn’t prohibit the challenger’s

political speech as a result of an onsite/offsite distinction like the Act

does.9 And even if they were not distinguishable, this Court must of

course follow the Texas Supreme Court.

9 See Whitton v. City of Gladstone, Mo., 54 F.3d 1400, 1404 (8th Cir. 1995) (explaining that sign code allowed “permanent year around ground sign expressing support for a particular sports team,” while imposing time limits on “identical sign . . . advocating a particular candidate for political office”); Nat’l Adver. Co. v. Town of Babylon, 900 F.2d 551, 554 n.1, 556-57 (2d Cir. 1990) (invalidating ordinance that limited sign content to commercial messages); Knoeffler v. Town of Mamakating, 87 F. Supp. 2d 322, 327 (S.D.N.Y. 2000) (finding that ordinance favored “commercial signs over non- commercial signs” by allowing on-site advertising while imposing time limits on and requiring permit for noncommercial signs); Curry v. Prince George’s Cnty., Md., 33 F. Supp. 2d 447, 448-49 (D. Md. 1999) (addressing ordinance imposing ban on campaign and public-interest signs at private residences, without any indication of an onsite/offsite distinction for all speech); McCormack v. Twp. of Clinton, 872 F. Supp. 1320, 1324 (D.N.J. 1994) (mem. op.) (invalidating ordinance that “obviously favors commercial speech” by applying limits only to political speech); City of Antioch v. Candidates’ Outdoor Graphic Serv., 557 F. Supp. 52, 58 (N.D. Cal. 1982) (mem. op.) (“Commercial speech, although subject to other limitations in the city’s municipal sign ordinance, is merely regulated in Antioch; political speech is outlawed except during the sixty day period before an election.”); Orazio v. Town of N. Hempstead, 426 F. Supp. 1144, 1148 (E.D.N.Y. 1977) (invalidating time limits on “political wall signs affixed to a candidate’s campaign headquarters” that did not likewise apply to “non-

23 Second, AusPro argues that the election-sign exemption

impermissibly “favors certain forms of commercial and other speech over

election speech” by “singl[ing] out election speech for durational

limitations not applicable to other topics of speech.” AusPro Br. 26. That

argument misreads the statute and (once again) wholly ignores Barber.

The Act treats election speech no worse than it treats commercial

and other noncommercial speech. As Barber explained, “the Act allows

all onsite commercial speech and all onsite noncommercial speech.” 111

S.W.3d at 99. Had AusPro’s sign pertained to some activities on its

property, the sign would not have violated the Act—because it would

have constituted “outdoor advertising solely for activities conducted on

the property on which it is located.” TEX. TRANSP. CODE § 391.031(b)(3);

see Barber, 111 S.W.3d at 99 (holding that the Act allows all types of

speech “as long as that speech relates to activities on the property”).

political wall signs which ‘advertise the nature of the business being conducted on those premises’ ”); City of Painesville Bldg. Dep’t v. Dworken & Bernstein Co., L.P.A., 733 N.E.2d 1152, 1158 (Ohio 2000) (invalidating zoning code provision that placed time limits on residential, political sign but not “upon any other category of signs”); Collier v. City of Tacoma, 854 P.2d 1046 (Wash. 1993) (en banc) (addressing citywide time limits on political signs (including residential signs), where “on-site commercial signs” were treated more favorably).

24 In support of its argument, AusPro gives an example where a sign

saying “Buy Your Ron Paul Bumper Stickers Here” would satisfy the Act

even though its “Ron Paul Revolution” sign would not. AusPro Br. 26-27.

But that bumper-sticker sign would comply not because the Act favors

commercial speech, but because it favors onsite speech. Again, as Barber

explained, the Act “regulates signs based on their location” and “does not

favor commercial speech over noncommercial speech.” 111 S.W.3d at 102.

Notably, the Supreme Court dismissed another example nearly identical

to AusPro’s: “[R]ural property owners that do not live on their property

would be permitted to display a sign saying, ‘Watermelons for sale’ if they

erected a fruit stand on the property, but they would not be permitted to

display a sign expressing their political views.” Id. at 104. AusPro’s

example is equally unpersuasive for the same reason.

Moreover, the limited content examination necessary to determine

whether a sign relates to on-premises activities does not make the statute

content based. See, e.g., Hill, 530 U.S. at 721 (in holding that regulation

was content neutral, stating, “[w]e have never held, or suggested, that it

is improper to look at the content of an oral or written statement in order

to determine whether a rule of law applies to a course of conduct”);

25 Covenant Media, 493 F.3d at 434 (approving of onsite/offsite distinction

and holding, “[t]o the extent that the Sign Regulation required looking

generally at what type of message a sign carries to determine where it

can be located, this ‘kind of cursory examination’ did not make the

regulation content based” (quoting Hill, 530 U.S. at 721)).

The Department acknowledges that Barber described the

regulations’ definition of an onsite sign as “constitutionally suspect”

because it limited the onsite exemption to commercial signs. 111 S.W.3d

at 100; see 43 TEX. ADMIN. CODE § 21.147(a) (defining “on-premise

sign”).10 The potential infirmity of section 21.147 does not help AusPro

for three reasons. First, as discussed, the Act itself prohibits AusPro’s

sign and thus provides a valid basis for the Department’s enforcement

action. Second, the allowance for onsite signs expressing noncommercial

speech wouldn’t have saved AusPro’s sign because its sign didn’t pertain

to onsite activities. Accordingly, section 21.147’s limits are irrelevant. Cf.

Serv. Emps. Int’l Union, Local 5 v. City of Houston, 595 F.3d 588, 598

10At the time Barber was decided, section 21.147 limited onsite signs to those that refer to “commercial” activity. The 2011 version deleted “commercial,” but still limited such signs to identifying “a business” or its “products or services.” 43 TEX. ADMIN. CODE § 21.147(a)(1).

26 (5th Cir. 2010) (holding that, in First Amendment facial challenge,

“plaintiff must establish injury under a particular provision of a

regulation that is validly applied to its conduct, then assert ‘a facial

challenge, under the overbreadth doctrine, to vindicate the rights of

others not before the court under that provision’ (citation omitted));

Covenant Media, 493 F.3d at 429-30 (holding that invoking the term

“facial challenge” “does not provide [a litigant] a passport to explore the

constitutionality of every provision of the Sign Regulation”). Third, in all

events, even if the Court were to find section 21.147(a) unconstitutional

(despite its uselessness for AusPro), the proper remedy would be to sever

the offending provision, which would avoid any chilling effect of that

section’s commercial limitation. See TEX. GOV’T CODE § 311.032(c).11 Even

with the regulations’ problematic definition of on-premise sign excised,

AusPro’s sign remains illegal.

Although it’s true that a few exemptions allow certain other signs

pertaining to offsite activities (such as directional signs), Barber

11Severing is appropriate in the First Amendment context. See, e.g., Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501, 506 & n.14 (1985); cf. Covenant Media, 493 F.3d at 438 (noting “principle that invalidating a whole statute may nullify more of the work of the people’s elected representatives than is constitutionally necessary”).

27 considered that issue as well. The Supreme Court held that those

exemptions “bear a direct relationship to the State’s interest in

promoting travel safety while minimizing the number of signs along a

narrow federal corridor,” and thus did not render the Act non-content-

neutral. Barber, 111 S.W.3d at 103. AusPro’s complaint that some

exemptions allow non-election speech year-round thus fails. AusPro Br.

27-28. The exemptions either fit within the onsite/offsite distinction that

Barber expressly approved or otherwise are “‘justified without reference

to the content of the regulated speech.’” Barber, 111 S.W.3d at 100

(quoting City of Renton v. Playtime Theatres, 475 U.S. 41, 48 (1986)).

AusPro’s sign highlights the permissible manner in which the Act

and its regulations operate. The Act does not prohibit erecting election

signs per se. It merely prohibits offsite signs in certain locations, i.e.,

adjacent to, and visible from, certain highways. The fact that AusPro’s

sign in its current form might not legally be placed anywhere else on

AusPro’s property doesn’t reveal a legislative judgment about the value

of its content, but only the physical, noncommunicative characteristics of

the sign, as well as the location of the property. As Barber holds, that

kind of judgment does not trigger strict scrutiny.

28 AusPro responds that this “secondary effects” analysis does not

apply to political speech, AusPro Br. 38-42, but as discussed above,

Barber held otherwise. The Court expressly stated that the Act generally

“control[s] the secondary effects of billboards and signs along the

interstate and primary highway system.” Barber, 111 S.W.3d at 100. And

as to the Act’s various exemptions, it agreed with the Sixth Circuit’s

conclusion regarding a similar statute that the Act is “‘not directed at the

content of the messages, but at their secondary effects.’” Id. at 101

(quoting Wheeler, 882 F.2d at 590). And, again, Barber, like AusPro, also

premised his claim on political speech. Id. at 100. Barber thus once more

forecloses AusPro’s position.

Third, citing the U.S. Supreme Court’s opinion in City of Ladue,

AusPro argues that strict scrutiny applies to any restriction of speech on

one’s own property. AusPro Br. 34. AusPro again runs headlong into

Barber: “[T]he special concerns the Supreme Court noted in City of Ladue

about prohibiting an individual from displaying signs in the yards or

windows of their homes do not apply here.” 111 S.W.3d at 104; cf., e.g.,

City of Ladue, 512 U.S. at 55, 58 (expressing concern about “residential

signs [being] an important and distinct medium of expression” and noting

29 “special respect for individual liberty in the home” (emphases added)).

AusPro for once acknowledges that Barber addressed this issue, but

remarkably cites only the dissent, completely ignoring the majority’s

holding on this same point. See AusPro Br. 34.

Fourth, AusPro contends that strict scrutiny applies because

highways “have long been recognized as quintessential public fora for

assembly and debate.” AusPro Br. 35. Were that so, Barber would have

come out the other way. Once more, AusPro wholly disregards Barber’s

existence.

Finally, relying mainly on Citizens United v. FEC, AusPro obliquely

suggests that restrictions on political speech always merit strict scrutiny.

AusPro Br. 30-33. Citizens United did apply strict scrutiny, but that case

addressed what was unquestionably a content-based regulation: an

outright ban on electioneering communications. 558 U.S. at 318-19.

Neither Citizens United nor any other case changed the rule that

“regulations involving noncommercial speech—which includes political

and ideological speech—can be subject to intermediate scrutiny if they

are content neutral.” Barber, 111 S.W.3d at 98. That much is clear from

subsequent U.S. Supreme Court cases, which have reaffirmed the

30 principle that “‘[e]ven protected speech is not equally permissible in all

places and at all times’” but instead “is ‘subject to reasonable time, place,

or manner restrictions.’” Snyder v. Phelps, 131 S. Ct. 1207, 1217-18

(2011) (addressing speech that “highlight[ed]” “political” issues of “public

import”) (quoting Clark, 468 U.S. at 293); see also, e.g., Maryland v.

Universal Elections, Inc., 729 F.3d 370, 376 (4th Cir. 2013) (applying

intermediate scrutiny to law that burdened political speech).

AusPro evidently recognizes this facet of Citizens United by arguing

only that a “[c]ontent-[b]ased” restriction of political speech triggers strict

scrutiny. AusPro Br. 29. As discussed above, and as Barber holds, the Act

is content neutral. Further, the general rule noted in Barber is a sensible

one. If every law that somehow burdened political speech—even as part

of a content-neutral, time, place, and manner restriction of

noncommunicative aspects of conduct—were subject to strict scrutiny,

then, in light of the extraordinary hurdle that strict scrutiny imposes,

nearly every speech restriction in the country would fall (at least to an

as-applied challenge). That is not the law.

31 D. The Act And Its Regulations Pass Intermediate Scrutiny.

Content-neutral time, place, and manner restrictions must be

(1) narrowly tailored to serve (2) substantial government interests, and

(3) must leave open adequate alternative means of communication. See,

e.g., Ward, 491 U.S. at 791. Barber easily resolves those inquiries for this

appeal.

First, “aesthetics and public safety on the highway are recognized

as substantial governmental goals.” Barber, 111 S.W.3d at 103. AusPro

does not argue otherwise. Cf. CR.53-54 (stipulating that the purpose of

the “Act is to control the secondary effects of billboards and signs along

the interstate and primary highway system such as stemming visual

clutter on the landscape and promoting travel safety”).

Second, the Act is “sufficiently narrowly tailored” because it

“accommodate[s] as much speech as possible and still accomplish[es] the

goals of preserving the landscape and promoting travel safety.” Barber,

111 S.W.3d at 103-04. As Barber explained, noncommercial speech is

permitted (1) in industrial and commercial areas, regardless of whether

it pertains to onsite activities, (2) in all areas as long as it does relate to

onsite activities, and (3) everywhere not adjacent to and visible from

32 highways. Id. at 103. Once again, AusPro ignores Barber’s holding on this

point.

Moreover, as applied to election speech, the Act is even more lax,

for it allowed AusPro’s sign during the critical “weeks immediately before

[elections] are held,” the time period during which “[i]t is well known that

the public begins to concentrate on elections.” Citizens United, 558 U.S.

at 334. Because the Act is narrowly tailored as applied to non-election,

noncommercial speech, then a fortiori it is narrowly tailored as applied

to election speech.

Third, for largely the same reasons, the Act supplies sufficient

alternative methods of communication. Barber, 111 S.W.3d at 104-05.

AusPro argues that the sign couldn’t be placed anywhere else on the

property, that AusPro doesn’t own any other property along Highway 71,

and that AusPro wanted to inform people travelling along that highway

specifically. AusPro Br. 38. Those same arguments were made by the

plaintiff in Barber, and the Supreme Court rejected each one. See 111

S.W.3d at 104-05. Once again, Barber is fatal to AusPro’s position,

despite AusPro’s failure even to acknowledge the opinion’s discussion of

the adequacy of alternatives. And here AusPro stipulated that it places

33 political signs on its other properties, CR.53, showing that it has

successfully availed itself of the types of opportunities Barber explained

remain open.

It is no response that Barber didn’t specifically address narrow

tailoring or adequate alternatives regarding election speech, but only

non-election political speech. Because section 391.005 allows election

signs during part of the year, AusPro has more opportunities to engage

in its election speech than the plaintiff in Barber had for his non-election

speech. Barber requires affirmance.

II. THE PERMITTING AND LICENSING REGULATIONS ARE ALSO CONTENT NEUTRAL AND THUS NOT UNCONSTITUTIONAL PRIOR RESTRAINTS.

AusPro’s sign also violated the Act because AusPro had not secured

a license and permit. See TEX. TRANSP. CODE §§ 391.061, 391.067.

Although AusPro wouldn’t have needed a permit had it complied with the

election-sign exemption, see id. § 391.005 (providing that “[t]his chapter

does not apply to” signs meeting the election-sign exemption), it also

could have availed itself of the Act’s separate allowance for signs erected

in industrial or commercial areas, provided that their owners have a

license and permit, see TEX. TRANSP. CODE § 391.031(b)(4); cf. CR.52

34 (stipulation that AusPro’s property “is zoned for commercial use”).12 The

licensing and permitting regulations, like the rest of the Act, are content

neutral, and consequently satisfy the relevant constitutional test.

A. AusPro Forfeited Its Challenge To The Licensing And Permitting Regulations.

In the trial court, AusPro never complained that the licensing and

permitting regulations constitute an invalid prior restraint. It instead

argued its challenge as a complete ban on political speech. See, e.g., CR.68

(stating that the Act “is an outright ban on political speech”); RR.26

(counsel arguing that the Act “is a strict prohibition on political

speech”).13 What’s more, AusPro’s trial brief focused exclusively on the

Act’s election-sign exemption and never even mentioned or cited any of

the Department’s regulations, let alone the permitting and licensing

12 AusPro questions whether, had it applied for a permit, one could have been issued “for a sign that does not fall within the election sign exemption or any other exemption under the Act, and, in AusPro’s case, that [the Department] has already deemed ‘illegal.’ ” AusPro Br. 49. AusPro misreads the statute and the Department’s enforcement letter. As noted above, a separate allowance exists for signs in industrial and commercial areas. And the Department characterized the sign as “illegal” because AusPro did not have a permit. CR.10. That characterization in no way suggests that the Department would have denied AusPro a permit for the same sign at the same location. 13Even when the permitting process came up during the hearing, AusPro’s counsel didn’t pursue the issue. See, e.g., RR.22-23.

35 regulations in particular. AusPro has therefore forfeited its prior-

restraint challenge to those regulations. See, e.g., TEX. R. APP. P. 33.1(a);

Tex. Dep’t of Pub. Safety v. Garcia, 327 S.W.3d 898, 903 (Tex. App.—

Austin 2010, pet. denied) (“The Department has waived the argument

that section 163.435 of the Revised Oregon Statutes is substantially

similar to section 43.25 of the penal code by not raising it in the district

court.”).

That AusPro generally asserted a First Amendment challenge is

insufficient to preserve its prior-restraint complaint. Cf. AusPro Br. 49

n.9. A licensing or permitting prior restraint poses a “different

constitutional harm[]” than an outright ban on expressive conduct. City

of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 762-64 (1988)

(discussing “the different concerns animating our test to determine

whether an expressive activity may be banned entirely, and our test to

determine whether it may be licensed in an official’s unbridled

discretion”). As City of Lakewood indicates, and as AusPro’s briefing and

the discussion below demonstrate, the prior-restraint objection comprises

an independent complaint within the meaning of Appellate Rule 33.1(a).

36 The trial court cannot be reversed based on a theory that was never

presented to it.

B. Regardless, AusPro’s Prior-Restraint Challenge Is Meritless.

As with outright bans on speech, the appropriate test of a licensing

or permitting scheme turns on whether it is content neutral. See Thomas

v. Chi. Park Dist., 534 U.S. 316, 321-23 (2002). Content-based prior

restraints must satisfy the three requirements enunciated in Freedman

v. Maryland, 380 U.S. 51 (1965): “(1) any restraint prior to judicial review

can be imposed only for a specified brief period during which the status

quo must be maintained; (2) expeditious judicial review of that decision

must be available; and (3) the censor must bear the burden of going to

court to suppress the speech and must bear the burden of proof once in

court.” Thomas, 534 U.S. at 321 (citation and internal quotation marks

omitted)). AusPro erroneously suggests that all prior restraints must

meet those standards. AusPro Br. 54-55. To the contrary, content-neutral

time, place, and manner regimes need only “contain adequate standards

to guide the official’s decision and render it subject to effective judicial

review.” Thomas, 534 U.S. at 323; see, e.g., Lauder, Inc. v. City of

Houston, Tex., 670 F.3d 664, 665 (5th Cir. 2012) (per curiam) (holding

37 that judicial review is not required); Granite State Outdoor Adver., Inc.

v. City of St. Petersburg, Fla., 348 F.3d 1278, 1281-83 (11th Cir. 2003)

(same). The Department’s regulations are content neutral and

sufficiently constrain official discretion.

1. The licensing and permitting regulations are content neutral.

The Department generally requires licenses and permits for signs

only in industrial and commercial zones. See TEX. TRANSP. CODE

§ 391.032(a) (providing that the Department “by rule may regulate the

orderly and effective display of outdoor advertising consistent with the

customary use of outdoor advertising in this state in” commercial and

industrial areas); 43 TEX. ADMIN. CODE § 21.146(a) (exempting from

regulations signs matching Transportation Code section 391.031(b)’s

categories, but not signs in industrial or commercial areas); id.

§ 21.166(a) (providing that the Department will issue a permit only to

signs in commercial and industrial areas). That distinction is plainly

based on location, not on content, and AusPro has not argued otherwise.

Moreover, the regulations condition the award of a license or permit on

physical characteristics of the proposed sign, not its content. See, e.g., id.

§§ 21.152-21.153 (license application and issuance), 21.182 (“Sign Face

38 Size and Positioning”), 21.189 (“Sign Height Restrictions”), 21.190

(“Lighting of and Movement on Signs”).

Of the various regulatory provisions governing the licensing and

permitting process, AusPro objects to only two of them as drawing

content-based lines. AusPro Br. 56-58 (discussing 43 TEX. ADMIN. CODE

§§ 21.149, 21.153(b)). Its arguments about each provision fail for two

reasons: (1) AusPro misreads both provisions, and (2) even if it correctly

interpreted the regulations, the flaws wouldn’t shield AusPro from the

Department’s enforcement action.

AusPro first complains about section 21.153(b), which provides:

“The department will not issue a license to an entity that is not

authorized to conduct business in this state.” 43 TEX. ADMIN. CODE

§ 21.153(b); see AusPro Br. 56. Without explanation, AusPro asserts that

this provision “favor[s] commercial speech.” Id. at 58. Evidently AusPro

thinks that only entities that “conduct business” may obtain licenses. But

that is not what section 21.153(b) says. Rather, section 21.153(b) excludes

certain entities—foreign corporations, essentially—from obtaining

licenses. That section does not say, “The Department will issue licenses

only to entities authorized to conduct business in this State.” To the

39 contrary, any “person” may apply for a license. 43 TEX. ADMIN. CODE

§ 21.152(a). And the regulations define “person” as “[a]n individual,

association, partnership, limited partnership, trust, corporation, or other

legal entity.” Id. § 21.142(14). The regulation accordingly does not “favor

commercial speech” and is content neutral.

Next, AusPro targets section 21.149, which requires that certain

nonprofit signs advertise only the nonprofit itself or onsite activities. Id.

§ 21.149(b). AusPro concludes that, as a result, “noncommercial speech is

not permitted unless otherwise exempted.” AusPro Br. 57. But those

limits apply only if the nonprofit wants to take advantage of section

21.148’s exemption from the license requirement. See 43 TEX. ADMIN.

CODE § 21.148 (“A nonprofit organization may erect or maintain a

nonprofit sign without obtaining an outdoor advertising license, but the

organization must obtain a permit under § 21.149 . . . .” (emphases

added)). If the nonprofit wants to post content other than that listed in

section 21.148, it can do so simply by going through the licensing process.

Section 21.149 therefore does not render the regulations content based.

In all events, even if AusPro correctly interpreted sections 21.153(b)

and 21.149, they are irrelevant to its defense. As to section 21.153(b),

40 AusPro is not an “entity that is not authorized to conduct business in this

state.” Id. § 21.153(b). Accordingly, it is not injured by that provision.

Likewise, AusPro is not a nonprofit, so any content limit imposed by

section 21.149(b) would not have harmed it. Addressing the

constitutionality of those provisions would thus result in what amounts

to an advisory opinion. Cf. Serv. Emps. Int’l Union, 595 F.3d at 598

(holding that, in First Amendment facial challenge, “plaintiff must

establish injury under a particular provision of a regulation that is

validly applied to its conduct, then assert ‘a facial challenge, under the

overbreadth doctrine, to vindicate the rights of others not before the court

under that provision’ (citation omitted)); Covenant Media, 493 F.3d at

429.

Furthermore, AusPro can’t argue that the permitting regulations

must be invalidated in toto because the Court would be obligated to sever

only the offending provisions (i.e., sections 21.149 and 21.153(b)). See

TEX. GOV’T CODE § 311.032(c). The remaining provisions would easily

comprise a functioning licensing and permitting scheme that regulates

only signs’ physical characteristics. Cf. Covenant Media, 493 F.3d at 438

(noting “principle that invalidating a whole statute may nullify more of

41 the work of the people’s elected representatives than is constitutionally

necessary”).

2. The regulations contain adequate standards to control official discretion.

Because the regulations are content neutral, they need only

“contain adequate standards to guide the official’s decision and render it

subject to effective judicial review.” Thomas, 534 U.S. at 323. AusPro

doesn’t expressly argue that the regulations fail to provide those

standards. Instead, it contends that the regulations are “bewildering,”

“byzantine,” and “arcane.” AusPro Br. 52-54. That is pure hyperbole.

The regulations broadly require the applicant’s contact

information, the location of the property, the location of the sign, the

design of the sign, a fee, and a surety bond. E.g., 43 TEX. ADMIN. CODE

§§ 21.152 (“License Application”), 21.159 (“Permit Application”). The

Department respectfully disagrees that those requirements are

perplexing or that gathering that information is unduly burdensome.

Regardless, those requirements don’t leave any discretion in the

hands of the administrator. Section 21.153(a) plainly states that a license

“will issue . . . if the requirements of § 21.152 . . . are satisfied.” Id.

§ 21.153(a) (emphasis added). In turn, section 21.152 requires the

42 applicant’s contact information, the county where the sign will be

maintained, a surety bond, a power of attorney from the surety company,

and a license fee. Id. § 21.152. There is not an ounce of “unbridled

discretion” in those terms.

The permit standards are similarly constrained. Section 21.163

states that the Department “will review the permit application for

completeness and compliance with all the requirements of this division.”

Id. § 21.163(d). AusPro obliquely implies that this leaves some room for

administrator interpretation, but it can’t point to any provision of the

regulations that might allow the administrator to engage in any content

or viewpoint censorship. See AusPro Br. 53. The regulations require

evaluation only of physical characteristics of the signs, like size, height,

and positioning. See, e.g., 43 TEX. ADMIN. CODE §§ 21.182, 21.189.

AusPro further complains that the regulations don’t provide an

“ultimate deadline” for a permitting decision. AusPro Br. 53. The 2011

regulations promise a decision within 45 days, but if the decision cannot

be made within that timeframe, “the department will notify the applicant

of the delay and provide the reason for the delay and provide an estimate

for when the decision will be made.” 43 TEX. ADMIN. CODE § 21.164(a). A

43 strict deadline is unnecessary in a content-neutral permitting scheme.

See, e.g., Granite State, 348 F.3d at 1281-82 (rejecting argument that

“lack of specific time limits confers excessive discretion” and holding that

any “‘abuse must be dealt with if and when a pattern of unlawful

favoritism appears’”); S. Or. Barter Fair v. Jackson Cnty., Or., 372 F.3d

1128, 1138 (9th Cir. 2004) (holding that content-neutral regulation “need

not include either a deadline for consideration by the governing body or

a provision for prompt judicial review”).

These latter two points highlight the unfairness of AusPro’s failure

to raise its prior-restraint challenge in the trial court. Even if the

standards and time limits weren’t constitutionally sufficient on their

face, the U.S. Supreme Court has explained that where “a well-

understood and uniformly applied practice has developed that has

virtually the force of a judicial construction, the state law is read in light

of those limits. That rule applies even if the face of the statute might not

otherwise suggest the limits imposed.” City of Lakewood, 486 U.S. at 770

n.11; see also, e.g., Ward, 491 U.S. at 795 (holding that city policy sufficed

to impose standards “[e]ven if the language of the guideline were not

sufficient on its face”); Bloedorn v. Grube, 631 F.3d 1218, 1237 (11th Cir.

44 2011) (“We consider the actual policies and practices employed by the

University, not just the [permitting] policy’s text.”). The Department

wasn’t on notice that it needed an affidavit or other evidence from its staff

regarding its implementation of the permitting scheme, and the trial

court had no reason to think it needed to consider this issue.

AusPro also complains about the fee requirements, AusPro Br. 53,

but “there is nothing unconstitutional in a [government’s] charging a fee.”

S. Or. Barter Fair, 372 F.3d at 1139.

AusPro’s final argument is that the regulations are

unconstitutional for failing to provide for judicial review. AusPro Br. 54-

55. But as explained above, content-neutral permitting schemes need not

do so. See supra at 37-38; see also, e.g., Lauder, 670 F.3d at 665 (“As a

content-neutral time, place, and manner restriction that does not leave

enforcing officials with unbridled discretion, the newsrack ordinance

need not contain an explicit provision for judicial review.”). That principle

is unsurprising given the consequences of the alternative: if every

licensing regime that even indirectly burdened speech required a judicial

outlet, the courts could be overwhelmed. The Department’s regulations

pass constitutional muster.

45 III. THE ACT AND ITS REGULATIONS DO NOT VIOLATE THE TEXAS CONSTITUTION.

Because the Act and its regulations satisfy the First Amendment to

the U.S. Constitution, they also satisfy the Texas Constitution’s free-

expression guarantee. See TEX. CONST. art. I, § 8. AusPro offers no reason

why the Texas Constitution would invalidate a content-neutral, time,

place, and manner restriction of expressive conduct that also includes

noncommunicative characteristics.

“‘Article I, Section 8 may be more protective of speech in some

instances than the First Amendment, but if it is, it must be because of

the text, history, and purpose of the provision, not just simply because.’”

Kinney v. Barnes, 443 S.W.3d 87, 92 (Tex. 2014) (quoting Operation

Rescue-Nat’l v. Planned Parenthood of Houston & Se. Tex., Inc., 975

S.W.2d 546, 559 (Tex. 1998)). Accordingly, “a party claiming that the

Texas Constitution offers greater free-speech protection must explain

how the text, history, or purpose of the state constitution supports that

argument.” Tex. Entm’t Ass’n v. Combs, 431 S.W.3d 790, 801 (Tex. App.—

Austin 2014, pet. denied). “‘The mere assertion that the state provision

is broader than the federal means nothing . . . .’” Id. (quoting Bentley v.

46 Bunton, 94 S.W.3d 561, 578 (Tex. 2002)). AusPro offers nothing but “bare

assertions” to support its claim under the Texas Constitution. Id.

As to the Act’s ban of offsite noncommercial speech (including

political speech), Barber already decided that this prohibition does not

violate the Texas Constitution. See 111 S.W.3d at 106. As AusPro does

throughout its brief, it again pretends that Barber doesn’t exist. Instead,

AusPro merely discusses how earlier Texas Supreme Court cases

indicated that the language of Article I, Section 8 differs from the First

Amendment and that the Texas provision might provide greater

protection. AusPro Br. 58-63. Its analysis fails to distinguish Barber or

articulate any specific reasons why the outcome here should be different

under the Texas Constitution.

As to the permitting and licensing regulations (even if AusPro

hadn’t forfeited this challenge, see supra Part II.A), AusPro likewise

“fail[s] to show how the text, history, or purpose of the Texas Constitution

offers greater protection for this type of speech.” Tex. Entm’t Ass’n, 431

S.W.3d at 801. AusPro submits only the bare assertion that prior

restraints are presumed unconstitutional, citing Davenport v. Garcia,

834 S.W.2d 4 (Tex. 1992). See AusPro Br. 64. But Davenport addressed a

47 judicial gag order constituting a “sweeping injunction” of all public and

private discussion of a certain case outside the courtroom. Davenport, 834

S.W.2d at 6. That judicial injunction bears scant resemblance to the Act’s

targeted regulations.

AusPro doesn’t even begin to explain why a standard harsher than

the First Amendment rule would govern a content-neutral permitting

regime that aims at noncommunicative aspects of AusPro’s conduct and

adequately restrains the administrator’s discretion in reviewing

applications. Invalidating all licensing regimes that touch on political

speech would effect a sea change in free-speech law and would unduly

impede government entities from enacting regulations designed to

protect the public. AusPro’s conclusory assertions about Article I, Section

8 do not justify that result.

48 PRAYER

The judgment of the district court should be affirmed.

Respectfully submitted.

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

SCOTT A. KELLER Solicitor General

/s/ Douglas D. Geyser DOUGLAS D. GEYSER Assistant Solicitor General State Bar No. 24059817

MATTHEW BOHUSLAV Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-2540 Fax: (512) 474-2697 douglas.geyser@texasattorneygeneral.gov

COUNSEL FOR APPELLEE TEXAS DEPARTMENT OF TRANSPORTATION

49 CERTIFICATE OF SERVICE

On February 19, 2015, the foregoing brief was served via File &

ServeXpress and e-mail on:

Meredith B. Parenti PARENTI LAW PLLC P.O. Box 19152 Houston, Texas 77224 [Tel] (281) 224-5848 [Fax] (281) 605-5677 meredith@parentilaw.com

Counsel for Appellant AusPro Enterprises, LP

/s/ Douglas D. Geyser Douglas D. Geyser

CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this

brief contains 9,739 words, excluding the portions of the brief exempted

by Rule 9.4(i)(1).

/s/ Douglas D. Geyser Douglas D. Geyser

50 nesses by adding off-premise signs to areas that are deficient of This agency hereby certifies that the adoption has been reviewed off-premise signs. They also request that the department help by legal counsel and found to be a valid exercise of the agency’s the outdoor industry maintain existing signs which keep a busi­ legal authority. ness healthy. Filed with the Office of the Secretary of State on April 1, 2011. RESPONSE: The department agrees in part with this comment. The department is charged with regulating the outdoor adver­ TRD-201101263 tising industry. The department’s goal is not to increase or limit Bob Jackson the number of billboards but rather to effectively and consistently General Counsel regulate the billboard program. The department believes that Texas Department of Transportation these new rules will enable the department to carry out its statu­ Effective date: July 1, 2011 tory responsibilities in a fair and equitable manner. Proposal publication date: December 3, 2010 COMMENT: Property Rights Association commented and re­ For further information, please call: (512) 463-8683 quested that the department look at anything that removes the opportunity to have a sign, makes it tougher for sign owners ♦ ♦ ♦ to be in business, or removes a source of income for property owners. DIVISION 1. SIGNS RESPONSE: The department has considered these issues and 43 TAC §§21.141 - 21.203 believes these rules balance the business opportunities for sign STATUTORY AUTHORITY companies and property owners against the department respon­ sibility to regulate outdoor advertising issues. The rules do in The new sections are adopted under Transportation Code, some situations limit new billboard construction. The depart­ §201.101, which provides the commission with the authority to ment feels that the changes made in this area are necessary establish rules for the conduct of the work of the department, to address enforcement and compliance issues. The rules now and more specifically, Transportation Code, §391.032, which require the business activity to be open for 180 days prior to the provides authority to establish rules to regulate the orderly permit application and that the business is open 25 hours per and effective display of outdoor advertising on primary roads; week. The department feels that these changes are necessary Transportation Code, §391.063, which provides authority for the to improve enforcement and to prohibit billboard construction in commission to set fees for the issuance of an outdoor adver­ areas that do not qualify under the statute. Transportation Code, tising license; Transportation Code, §391.065, which provides §391.031 allows billboards in locations that, although not zoned authority to establish rules to standardize forms and regulate the commercial, the land use is consistent with an area zoned for issuance of outdoor advertising licenses; Transportation Code, those purposes. By requiring the business to be in operation §394.004, which provides the commission with the authority 180 days and open 25 hours per week the department is trying to establish rules to regulate the erection and maintenance to ensure that billboards are only placed in areas that comply of signs on rural roads; and Transportation Code, §394.025, with the statutory requirement. In addition, the department has which provides authority for the commission to set fees for the added several features that benefit the property owner in these issuance of an outdoor advertising license. rules such as the land owner notices. CROSS REFERENCE TO STATUTE SUBCHAPTER I. REGULATION OF SIGNS Transportation Code, Chapters 391 and 394. ALONG INTERSTATE AND PRIMARY §21.141. Purpose. HIGHWAYS This division is established to regulate the orderly and effective display 43 TAC §§21.141 - 21.163 of outdoor advertising along a regulated highway within the State of Texas. STATUTORY AUTHORITY §21.142. Definitions. The repeals are adopted under Transportation Code, §201.101, which provides the commission with the authority to establish The following words and terms, when used in this subchapter, shall rules for the conduct of the work of the department, and more have the following meanings, unless the context clearly indicates oth­ specifically, Transportation Code, §391.032, which provides au­ erwise. thority to establish rules to regulate the orderly and effective (1) Commission--The Texas Transportation Commission. display of outdoor advertising on primary roads; Transportation Code, §391.063, which provides authority for the commission (2) Department--The Texas Department of Transportation. to set fees for the issuance of an outdoor advertising license; (3) Erect--To construct, build, raise, assemble, place, affix, Transportation Code, §391.065, which provides authority to es­ attach, embed, create, paint, draw, or in any other way bring into being tablish rules to standardize forms and regulate the issuance of or establish. outdoor advertising licenses; Transportation Code, §394.004, which provides the commission with the authority to establish (4) Freeway--A divided, controlled access highway for rules to regulate the erection and maintenance of signs on ru­ through traffic. The term includes a toll road. ral roads; and Transportation Code, §394.025, which provides (5) Highway--The width between the boundary lines of a authority for the commission to set fees for the issuance of an publicly maintained way any part of which is open to the public for outdoor advertising license. vehicular travel. CROSS REFERENCE TO STATUTE (6) Interchange--A system of interconnecting roadways in Transportation Code, Chapters 391 and 394. conjunction with one or more grade separations that provides for the

36 TexReg 2442 April 15, 2011 Texas Register movement of traffic between two or more roadways or highways on Except as provided by this chapter, unless a person holds a permit is­ different levels. sued under §21.164 of this division (relating to Decision on Applica­ tion) or §21.200 of this division (relating to Local Control), the person (7) Intersection--The common area at the junction of two may not erect or maintain an outdoor sign that is: highways that are on the primary system. The common area includes the area within the lateral boundary lines of the roadways. (1) within 660 feet of the nearest edge of the right of way of a regulated highway if any part of the sign’s advertising or informa­ (8) Interstate highway system--Highways designated offi­ tion content is visible from any place on the main-traveled way of the cially by the commission and approved pursuant to 23 United States highway; or Code §103 as part of the national system of interstate and defense high­ ways. (2) outside of the jurisdiction of an incorporated city and more than 660 feet from the nearest edge of the right of way of a regu­ (9) License--An outdoor advertising license issued by the lated highway if any part of the sign’s advertising or information con­ department. tent is visible from the main-traveled way of the highway and the sign (10) Main-traveled way--The traveled way of a highway was erected for the purpose of having its advertising or information that carries through traffic. In the case of a divided highway, the trav­ content seen from the main-traveled way of the highway. eled way of each of the separate roadways for traffic in opposite di­ §21.144. License Required. rections is a main-traveled way. It does not include such facilities as frontage roads, turning roadways, or parking areas. (a) Except as provided by this division, a person may not ob­ tain a permit for a sign under this division unless the person holds a (11) National Highway System--Highways designated of­ currently valid license issued under §21.153 of this division (relating ficially by the commission and approved pursuant to 23 United States to License Issuance) applicable to the county in which the sign is to be Code §103 as part of the national highway system. erected or maintained. (12) Nonconforming sign--A sign that was lawfully (b) A license is valid for one year from the date of issuance or erected but that no longer complies with a law or rule because of most recent renewal. changed conditions or because the law or rule was amended after the sign was erected or that fails to comply with a law enacted or rule §21.146. Exempt Signs. adopted after the sign was erected. (a) The following signs are exempt from this division: (13) Nonprofit sign--A sign that is erected and maintained (1) an on-premise sign that meets the criteria provided by by a nonprofit organization under a permit issued under §21.149 of this §21.147 of this division (relating to On-premise Sign) except as pro­ division (relating to Nonprofit Sign Permit). vided by subsection (c) of this section; (14) Person--An individual, association, partnership, lim­ (2) a sign that has the purpose of protecting life or property; ited partnership, trust, corporation, or other legal entity. (3) a sign that provides information about underground (15) Primary system--Highways designated by the com­ utility lines; mission as the federal-aid primary system and any highway on the National Highway System. The term includes all roads designated as (4) an official sign that is erected by a public officer, public part of the National Highway System as of 1991. agency, or political subdivision under the officer’s, agency’s, or politi­ cal subdivision’s constitutional or statutory authority; (16) Public park--A public park, forest, playground, nature preserve, or scenic area designated and maintained by a political sub­ (5) a sign required by the Railroad Commission of Texas at division or governmental agency. the principal entrance to or on each oil or gas producing property, well, tank, or measuring facility to identify or to locate the property if the sign (17) Regulated highway--A highway on the interstate high­ is no larger than necessary to comply with the Railroad Commission’s way system or primary system. regulations; (18) Rest area--An area of public land designated by the (6) a sign of a nonprofit service club, charitable associa­ department as a rest area, comfort station, picnic area, or roadside park. tion, religious organization, chamber of commerce, nonprofit museum, (19) Sign--An object that is designed, intended, or used or governmental entity that gives information about the meetings, ser­ to advertise or inform, including a sign, display, light, device, figure, vices, events, or locations of the entity and that does not exceed an area painting, drawing, message, plaque, placard, poster, billboard, logo, or of 32 square feet; symbol. (7) a public service sign that: (20) Sign face--The part of the sign that contains advertis­ (A) is located on a school bus stop seating bench or ing or information and is distinguished from other parts of the sign, shelter; including another sign face, by borders or decorative trim. The term does not include a lighting fixture, apron, or catwalk unless it displays (B) identifies the donor, sponsor, or contributor of the a part of the advertising or information contents of the sign. shelter; (21) Sign structure--All of the interrelated parts and mate­ (C) contains a public service message that occupies at rials, such as beams, poles, braces, apron, frame, catwalk, and stringers least 50 percent of the area of the sign; that are used, designed to be used, or intended to be used to support or (D) has no content other than that described by subpara­ display a sign face. graphs (B) and (C) of this paragraph; (22) Visible--Capable of being read or identified by a per­ (E) is authorized or approved by the law of the entity son with normal visual acuity. that controls the highway involved, including being located at a place §21.143. Permit Required. approved by the entity;

ADOPTED RULES April 15, 2011 36 TexReg 2443 (F) has a sign face that does not exceed an area of 32 (1) separated from the real property on which the business square feet; and activity is located by a road or highway or by another business; (G) is not facing the same direction as any other sign on (2) devoted to a separate purpose unrelated to the adver­ that seating bench or shelter; tised business activity; (8) a sign that shows only the name of a ranch on which (3) held under an easement or other lesser property interest livestock are raised or a farm on which crops are grown and the direc­ than the property interest in the land on which the business activity is tions to, telephone number, or internet address of the ranch or farm and located; or that has a sign face that does not exceed an area of 32 square feet; (4) a narrow strip or other configuration of land that cannot (9) a sign that: be put to any reasonable use related to the advertised business activity other than for signing purposes. (A) relates only to a public election; (d) A sign is not an on-premise sign if: (B) is located on private property; (1) the sign consists principally of brand name or trade (C) is erected after the 91st day before the date of the name advertising and the product or service advertised is only inci­ election and is removed before the 11th day after the election date; dental to the principal activity; (D) has a sign face that does not exceed an area of 50 (2) the sign advertises activities that are not conducted on square feet; and the premises; or (E) contains no commercial endorsement; and (3) the sign provides rental income to the owner of the real (10) a sign identifying the name of a recorded subdivision property on which it is located, unless the owner of the real property located at an entrance to the subdivision or on property owned by or receives the income from an on-premise business for the use of the sign. assigned to the subdivision, home owners association, or other entity (e) For the purposes of this subsection: associated with the subdivision. (1) the date of the closing of a sales transaction is the date (b) This division does not apply to a sign that was erected be­ that legal title to a property is conveyed to a purchaser for property fore October 23, 1965 and that the commission, with the approval of under a contract to buy; and the Secretary of the United States Department of Transportation, has determined to be a landmark sign of such historic or artistic signifi­ (2) the date of the closing of a lease transaction is the date cance that preservation would be consistent with the purposes of the that the landlord and tenant enter into a binding lease of a property. Highway Beautification Act of 1965, 23 United States Code §131. §21.148. Exception to License Requirement for Nonprofit Signs. (c) An on-premise sign cannot be erected earlier than one year A nonprofit organization may erect or maintain a nonprofit sign with­ before the date that the business for which the sign is erected will open out obtaining an outdoor advertising license, but the organization must and conduct business. obtain a permit under §21.149 of this division (relating to Nonprofit §21.147. On-premise Sign. Sign Permit) to erect or maintain such a sign. (a) An on-premise sign is a sign that: §21.149. Nonprofit Sign Permit. (a) A nonprofit service club, charitable association, religious (1) is located on the real property of a business and consists organization, chamber of commerce, nonprofit museum, or govern­ only of: mental entity may obtain a permit under this section to erect or maintain (A) the name, logo, trademark, telephone number, and a nonprofit sign. internet address of that business; or (b) To qualify as a nonprofit sign, the sign must: (B) an identification of that business’s principal or ac­ (1) be in a municipality or the extraterritorial jurisdiction cessory products or services offered on the property; of a municipality; (2) only advertises the sale of the real property on which (2) advertise or promote only: the sign is located and is removed within 90 days after the date of the closing of the real property transaction; or (A) the municipality; (3) only advertises the lease, including a pre-lease, of the (B) a political subdivision whose jurisdiction is wholly real property on which the sign is located and is removed within 90 or partially located in the municipality; or days after the date of the closing of the lease transaction. (C) the entity that will hold the permit, but may only (b) For the purposes of this section, a sign is located on the real give information about the meetings, services, events, or location of property of a business if: the entity; and (1) the real property on which the sign is located and the (3) comply with each sign requirement under this division real property on which the activity of the business is conducted are one from which it is not specifically exempted. contiguous tract that is under common ownership; or (c) An application for a permit under this section must be in (2) the sign is located on the real property of a commer­ a form prescribed by the department and must include, in detail, the cial development and the businesses of the development share the sign content of the message to be displayed on the sign. structure of that sign. (d) After a permit is issued, the permit holder must obtain ap­ (c) For the purpose of subsection (b)(1) of this section, real proval from the department to change the message of the sign. The de­ property is not considered to be a part of one contiguous tract if the partment may issue an order of removal of the sign if the permit holder real property on which the sign is located is: fails to obtain that approval.

36 TexReg 2444 April 15, 2011 Texas Register (e) If a sign ceases to qualify as a nonprofit sign, the permit (A) in the amount of $2,500 for each county designated for the sign is subject to cancellation under §21.176 of this division under subsection (a)(2) of this section up to a maximum of $10,000; (relating to Cancellation of Permit). (B) payable to the commission to reimburse the depart­ (f) If the holder of a permit issued under this section loses its ment for removal costs of a sign that the license holder unlawfully nonprofit status or wishes to change the sign so that it no longer quali­ erects or maintains; and fies as a nonprofit sign the permit holder must: (C) in a form prescribed by the department, executed by (1) obtain a license under §21.153 of this division (relating a surety company authorized to transact business in this state; to License Issuance); and (2) a duly certified power of attorney from the surety com­ (2) convert the sign permit to a permit for a sign other than pany authorizing the surety company’s representative to execute the a nonprofit sign and pay the original permit and renewal fees provided bond on the effective date of the bond; and by §21.175 of this division (relating to Permit Fees). (3) the license fee prescribed by §21.156 of this division §21.150. Continuance of Nonconforming Signs. (relating to License Fees). (a) Notwithstanding other provisions of this division, the de­ §21.153. License Issuance. partment will renew a permit for a nonconforming sign only if the sign (a) The department will issue a license if the requirements of structure: §21.152 of this division (relating to License Application) are satisfied. (1) was lawful on the later of the date it was erected or (b) The department will not issue a license to an entity that is became subject to the control of the department; and not authorized to conduct business in this state. (2) remains substantially the same as it was on the later of §21.154. License Not Transferable. the date it was erected, became subject to the department’s control, or became a nonconforming sign. A license issued under this division is not transferable. (b) A sign that was legally erected before March 3, 1986 in a §21.155. License Renewals. railroad, utility, or road right of way that is not owned by the state or a political subdivision may be maintained as a nonconforming sign if all (a) To continue a license in effect, the license must be renewed. other requirements of this division are met. (b) To renew a license, the license holder must file a written ap­ (c) A nonconforming sign may not be: plication in a form prescribed by the department accompanied by each applicable license fee prescribed by §21.156 of this division (relating (1) removed and re-erected for any reason, other than a re­ to License Fees). The application must be received by the department quest by a condemning authority; or before the 46th day after the date of the license’s expiration and must (2) substantially changed, as described by §21.191 of this include at a minimum: division (relating to Repair and Maintenance). (1) the complete legal name, mailing address, and tele­ (d) A nonprofit organization that holds a permit for a noncon­ phone number of the license holder; forming sign that otherwise qualifies for a permit under §21.149 of this (2) number of the license being renewed; division (relating to Nonprofit Sign Permit) may convert the permit to one issued under that section. (3) proof of current surety bond coverage; and

§21.151. Time Proposed Roadway Becomes Subject to Division. (4) the signature of the license holder or person signing on behalf of the business entity. For the purposes of this division, a proposed roadway becomes a road­ (c) A license is not eligible for renewal if the license holder is way or a proposed interchange becomes an interchange: not authorized to conduct business in this state. (1) when environmental clearance and the approved align­ §21.156. License Fees. ment have been obtained from the Federal Highway Administration; or (2) if environmental clearance and approved alignment (a) The amount of the fee for the issuance of a license issued from the Federal Highway Administration are not required for a under this subchapter is $125. proposed roadway, when the alignment is approved by the department (b) The amount of the annual renewal fee is $75. or other political subdivision responsible for constructing the roadway. (c) In addition to the $75 annual renewal fee, an additional late §21.152. License Application. fee of $100 is required for a renewal license application that is received before the 45th day after the expiration date of the license. (a) To apply for a license under this division, a person must file an application in a form prescribed by the department. The application (d) A license fee is payable by check, cashier’s check, or must include at a minimum: money order made payable to the Texas Highway Beautification Fund, and must be submitted with the application. If the check or money (1) the complete legal name, mailing address, and tele­ order is dishonored upon presentment, the license is voidable. phone number of the applicant; and (e) The department will provide a renewal notification to the (2) designation of each county in which the applicant’s license holder at least 45 days before the date of the license expira­ signs are to be erected or maintained. tion and if the license is not renewed before it expires, the department (b) The application must be signed, notarized, and filed with within 20 days after the date of expiration will provide notification to the department and be accompanied by: the license holder of the opportunity to file a late renewal application. (1) a fully executed outdoor advertiser’s surety bond: §21.157. Temporary Suspension of License.

ADOPTED RULES April 15, 2011 36 TexReg 2445 If the department is notified by a surety company that a bond is being (4) the complete legal name and address of the owner of canceled, the department will notify the license holder by certified mail the designated site; that a new bond must be obtained and filed with the department before (5) a statement of whether the requested sign is located the bond cancellation date or the 30th day after the day of the receipt within an incorporated city or within the city’s extraterritorial juris­ of the notice, whichever is later. diction; §21.158. License Revocation. (6) the site owner’s or the owner’s authorized representa­ (a) The department will revoke a license and will not issue or tive’s original signature on the application demonstrating: renew permits or transfer existing permits under the license if: (A) consent to the erection and maintenance of the sign; (1) the surety bond is not provided within the time specified and by the department under §21.152 of this division (relating to License Application) or §21.155 of this division (relating to License Renewals); (B) right of entry onto the property of the sign location by the department or its agents; (2) surety bond coverage is terminated under §21.157 of this division (relating to Temporary Suspension of License); (7) a document from the city that provides the city’s current zoning map or the portion of that map applicable to the sign’s location; (3) the number of final enforcement actions of this sub­ and chapter, or Transportation Code, Chapter 391, committed by the license holder in the aggregate equal or exceed: (8) information that details how and the location from which the sign will be erected and maintained. (A) 10 percent of the number of valid permits held by the license holder if the license holder holds more than 1,000 sign per­ (b) If the sign is a nonprofit sign, the application must include mits; verification of the applicant’s nonprofit status. (B) 20 percent of the number of valid permits held by (c) If the sign is to be located within the jurisdiction of a mu­ the license holder if the license holder holds at least 500 but fewer than nicipality, including the extraterritorial jurisdiction of the municipality, 1,000 sign permits; that is exercising its authority to regulate outdoor advertising, a certi­ fied copy of the permit issued by the municipality must be submitted (C) 25 percent of the number of valid permits held by with the application unless documentation is provided to show that the the license holder if the license holder holds at least 100 but fewer than municipality requires: 500 sign permits; or (1) the issuance of a department permit before the munici­ (D) 30 percent of the number of valid permits held by pality’s; or the license holder if the license holder holds fewer than 100 sign per­ mits; or (2) the erection of the sign within a period of less than twelve months after the date of the issuance of the municipal permit. (4) the license holder has not complied with previous final administrative enforcement actions regarding the license or any permit (d) The application must be: held under the license. (1) notarized; (b) The department will send notice by certified mail of an ac­ (2) filed with the department’s division responsible for the tion under this section to the address of record provided by the license outdoor advertising program in Austin; and holder. (3) accompanied by the fee prescribed by §21.175 of this (c) The notice will clearly state: division (relating to Permit Fees). (1) the reasons for the action; (e) The application must include a sketch that shows: (2) the effective date of the action; (1) the location of the poles of the sign structure; (3) the right of the license holder to request an administra­ (2) the exact location of the sign faces in relation to the sign tive hearing; and structure; (4) the procedure for requesting a hearing including the pe­ (3) the means of access to the sign; and riod in which the request must be made. (4) the distance from the buildings, landmarks, right of way (d) A request for an administrative hearing under this section line, other signs, and other distinguishable features of the landscape. must be made in writing to the department within 45 days after the date that the notice is mailed. §21.161. Site Owner’s Consent; Withdrawal. (e) If timely requested, an administrative hearing will be con­ (a) A site owner’s consent to the erection and maintenance of ducted in accordance with Chapter 1, Subchapter E of this title (relating the sign and access to the site by the department or its agent is pro­ to Procedures in Contested Case). vided with a permit application under §21.159 of this division (relating to Permit Application). The consent operates for the life of the lease §21.159. Permit Application. or until the owner delivers to the department and to the sign owner a (a) To obtain a permit for a sign, a person must file an appli­ written statement that permission for the maintenance or inspection by cation in a form prescribed by the department. The application must the department or its agents of the sign has been withdrawn and docu­ include, at a minimum: mentation showing that the lease allowing the sign has been terminated in accordance with the terms of the lease agreement or through a court (1) the complete name and address of the applicant; order. (2) the original signature of the applicant; (b) If the sign owner provides documentation that the sign (3) the proposed location and description of the sign; owner is disputing the lease termination, the department will not

36 TexReg 2446 April 15, 2011 Texas Register cancel the permit until a settlement signed by both parties or a court ment plate on a form prescribed by the department accompanied by the order settling the dispute is delivered to the department. replacement plate fee prescribed by §21.175 of this division (relating to Permit Fees). §21.163. Permit Application Review. (a) The department will consider permit applications in the or­ (e) Failure to apply for a replacement permit plate or attach the der of the receipt of the applications. plate to the sign structure as required in subsection (a) of this section within 60 days after the date of receipt of written notification from the (b) If an application is returned to an applicant because it is not department that the permit plate is not attached or not visible may result complete or has incorrect information, the application loses its priority in the cancellation of the permit under §21.176 of this division (relating position. to Cancellation of Permit). (c) The department will hold an application that is for the same §21.166. Sign Location Requirements. site as or a conflicting site with that of an application that the depart­ (a) The department will not issue a permit under this division ment previously received until the department makes a final decision unless the sign for which application is made is located along a roadway on the previously received application or returns it to the applicant. The to which Transportation Code, Chapter 391, applies and is in: department will notify the applicant that the applicant’s application is being held because an application for the same or a conflicting site was (1) an unzoned commercial or industrial area; or previously received. For the purposes of this subsection, the date of a (2) a zoned commercial or industrial area. final decision on an application is: (b) Subsection (a) of this section does not apply to a sign that (1) the date of the final decision on an appeal under §21.170 was lawfully in existence when it became subject to Transportation of this division (relating to Appeal Process for Permit Denials); or Code, Chapter 391. (2) if an appeal is not filed within the period provided by §21.168. Conversion of Certain Authorization to Permit. §21.170 of this division, on the 46th day after the date the denial notice was received under §21.164 of this division (relating to Decision on (a) The department will convert a registration issued under Application). §21.409 of this chapter (relating to Permit Application) or a permit is­ sued under §21.407 of this chapter (relating to Existing Off-Premise (d) The department will review the permit application for com­ Signs) to a permit under this division if a highway previously regulated pleteness and compliance with all requirements of this division. Mea­ under Transportation Code, Chapter 394 becomes subject to Trans­ surements will be taken at the site to determine if the sign placement portation Code, Chapter 391. meets the spacing and location requirements. (b) A holder of a permit or registration converted under this §21.164. Decision on Application. section is not required to pay an original permit fee under §21.175 of (a) The department will make a decision on an application this division (relating to Permit Fees). The permit must be renewed within 45 days after the date of receipt of the application. If the de­ under §21.172 of this division (relating to Permit Renewals), on the cision cannot be made within the 45 day period the department will date the renewal of the permit or registration issued under §21.407 or notify the applicant of the delay and provide the reason for the delay §21.409 of this chapter, as appropriate, would have been due. and provide an estimate for when the decision will be made. (c) If a sign owner has prepaid registration fees under §21.407 (b) If the permit application is approved, the department will of this chapter, the outstanding balance will be credited to the sign issue a permit for the sign by sending a copy of the approved application owner’s annual renewal fee. and a sign permit plate to the applicant. (d) The department will issue a sign permit plate to a holder (c) If the permit application is not approved, the department of a permit or a registration converted under this section at no charge. will send a copy of the denied application and a notice that states the If a replacement plate is needed after the initial issuance, a fee will be reason for the denial. charged in accordance with §21.175 of this division. (d) If an application is denied, the department will notify the §21.169. Notice of Sign Becoming Subject to Regulation. landowner identified on the permit application of the denial. The notice (a) The department will send notice by certified mail to the is for informational purposes only, and does not convey any rights to owner of a sign that becomes subject to Transportation Code, Chapter the landowner. The landowner may not appeal the denial unless the 391 because of the construction of a new highway, the change in des­ landowner is also the applicant. ignation of an existing highway, or decertification of a certified city. If §21.165. Sign Permit Plate. the owner of the sign cannot be identified from the information on file with the department, the department will give notice by prominently (a) The sign owner shall securely attach the sign permit plate posting the notice on the sign for a period of 45 consecutive days. to the part of the sign structure that is nearest to and visible from the closest right of way not later than the 30th day after the date that: (b) If the owner of a sign described by subsection (a) of this section does not hold a license issued under §21.153 of this division (1) the sign is erected; or (relating to License Issuance), the owner must obtain the license within (2) the permit is issued if the sign is lawfully in existence 60 days after the day that: when the highway along which it is located becomes subject to this (1) the department sends notice under subsection (a) of this division. section; or (b) The sign permit plate may not be removed from the sign. (2) the 45-day posting period under subsection (a) of this (c) The sign permit plate must remain visible from the closest section ends. right of way at all times. §21.170. Appeal Process for Permit Denials. (d) If a sign permit plate is lost or stolen or becomes illegible, (a) If a sign permit is denied, the applicant may file a request the sign owner must submit to the department a request for a replace­ with the executive director for an appeal.

ADOPTED RULES April 15, 2011 36 TexReg 2447 (b) The request for appeal must: (c) To transfer one or more sign permits, the permit holder must send to the department a written request in a form prescribed by (1) be in writing; the department accompanied by the prescribed transfer fee. (2) contain: (d) If the request is approved, the department will send to the (A) a copy of the denied permit application; transferor and to the transferee a copy of the approved permit transfer form. (B) a statement of why the denial is believed to be in error; and (e) A permit issued to a nonprofit organization under §21.149 of this division (relating to Nonprofit Sign Permit) may be transferred to (C) evidence that supports the issuance of the applica­ another nonprofit organization that does not hold a license issued under tion, such as drawings, surveys, or photographs; and §21.153 of this division if the sign will be maintained as a nonprofit (3) be received within 45 days after the date the denial no­ sign. tice was received. (f) A permit issued to a nonprofit organization under §21.149 (c) The executive director or the executive director’s designee of this division may be converted to a regular permit and transferred who is not below the level of assistant executive director, will make to a person that is not a nonprofit organization if the transferee holds a final determination on the appeal within 60 days after the date that a license for the county in which the sign is located at the time of the the executive director receives the request for appeal. If the final de­ transfer and the sign meets all requirements of this division. termination is that the permit is denied, the executive director or the (g) The department may approve the transfer of one or more executive director’s designee will send the final determination to the sign permits from a transferor whose license has expired to a person applicant stating the reason for denial. If the determination is that the who holds a license, with or without the signature of the transferor, if application be approved, the department will issue the permit in accor­ the person provides to the department: dance with §21.164 of this division (relating to Decision on Applica­ tion). (1) legal documents showing the sign has been sold; and (d) If the executive director or designee is unable to make a (2) documents that indicate that the transferor is dead or final determination on the appeal within the 60-day period under sub­ cannot be located. section (c) of this section, the department will notify the applicant by (h) The department will not approve the transfer of a permit if mail of the delay and provide an estimated time in which a final deter­ cancellation of the permit is pending or has been abated awaiting the mination will be made. outcome of an administrative hearing. §21.171. Permit Expiration. §21.174. Amended Permit. (a) A permit is valid for one year. (a) To perform customary maintenance or to make substantial (b) A permit automatically expires on the date that the license changes to the sign or sign structure under §21.191 of this division under which the permit was issued expires or is revoked by the depart­ (relating to Repair and Maintenance) a permit holder must submit an ment under §21.158 of this division (relating to License Revocation). amended permit application. To change the sign face of an existing §21.172. Permit Renewals. permitted sign to an electronic sign under Division 2 of this subchapter (a) To be continued in effect, a sign permit must be renewed. (relating to Electronic Signs) a permit holder must submit an amended permit application. (b) A permit is eligible for renewal if the sign for which it was issued continues to meet all applicable requirements of this division (b) The amended permit application must be submitted on a and Transportation Code, Chapter 391. form prescribed by the department and must provide the information required under §21.159 of this division (relating to Permit Application) (c) To renew the permit, the permit holder must file with the applicable to an amended permit and indicates the change from the in­ department a written application in a form prescribed by the depart­ formation in the original application for the sign permit. The amended ment accompanied by the applicable fees prescribed by §21.175 of this application is not required to contain the signatures of the land owner division (relating to Permit Fees). The application must be received by or city representative. the department before the 46th day after the date of the permit’s expi­ ration. (c) The new sign face size, configuration, or location must meet all applicable requirements of this division and if the amended (d) A permit may not be renewed if the sign for which it was permit is to erect an electronic sign, the requirements of Division 2 of issued is not erected to the extent that it includes a sign face before the this subchapter. first anniversary of the date that the permit was issued. (d) The holder of a permit for a nonconforming sign may apply (e) The department will provide a renewal notification to the for an amended permit to perform eligible customary maintenance un­ license holder at least 30 days before the date of the permit expiration der §21.191(b) of this division. An amended permit will not be issued and if the permit is not renewed before it expires the department within for a substantial change as described by §21.191(c) of this division to 20 days after the date of expiration will provide notification to the li­ a nonconforming sign. cense holder of the opportunity to file a late renewal. (e) Making a change to a sign that requires an amended permit §21.173. Transfer of Permit. without first obtaining an amended permit is a violation of this division, (a) A sign permit may be transferred only with the written ap­ except as provided by subsection (g) of this section and will result in proval of the department. an administrative enforcement action. (b) At the time of the transfer, both the transferor and the trans­ (f) The department will make a decision on an amended permit feree must hold a valid license issued under §21.153 of this division application within 45 days of the date of the receipt of the amended (relating to License Issuance), except as provided in subsections (e) ­ permit application. If the decision cannot be made within the 45 day (g) of this section. period the department will notify the applicant of the delay, provide the

36 TexReg 2448 April 15, 2011 Texas Register reason for the delay and provide an estimate of when the decision will permit application but at a location that does not meet all spacing re­ be made. quirements of this chapter or in accordance with the sketch or other assertions contained in the permit application; (g) If maintenance or changes authorized under this section are being made on a conforming sign because of a natural disaster, the de­ (6) is repaired or altered without obtaining a required partment may waive the requirement that the required amended permit amended permit under §21.174 of this division (relating to Amended be issued before the work begins. If the department grants a waiver un­ Permit); der this subsection, the permit holder shall submit the amended permit (7) is built by an applicant who uses false information on a application within 60 days after the date that the work is completed. material issue of the permit application; If the maintenance or changes violate this section or the permit holder fails to submit the amended permit application as required by this sub­ (8) is erected, repaired, or maintained in violation of section, the sign is subject to enforcement and removal actions. §21.199 of this division (relating to Destruction of Vegetation and Access from Right of Way Prohibited); §21.175. Permit Fees. (9) has been made more visible by the permit holder clear­ (a) The amounts of the fees related to permits under this sub­ ing vegetation from the highway right of way in violation of §21.199 chapter are: of this division; (1) $100 for an original or amended permit for a sign; (10) is located in an unzoned commercial or industrial area (2) $100 for an original or amended permit issued under and the department has evidence that an activity supporting the un­ Division 2 of this subchapter for an electronic sign; zoned commercial or industrial area was created primarily or exclu­ sively to qualify the area as an unzoned commercial or industrial area, (3) $100 for an original permit for a sign that was lawfully and that no business has been conducted at the activity site within one in existence when the sign became subject to Transportation Code, year; or Chapter 391; (11) does not have the permit plate properly attached under (4) $75 for the renewal of a permit; §21.165 of this division (relating to Sign Permit Plate). (5) $75 for the renewal of a permit issued under Division 2 (b) Before initiating an enforcement action under this section, of this subchapter for an electronic sign; the department will notify the sign owner in writing of the violation of (6) $25 for the transfer of a permit up to a maximum of subsection (a)(5) or (11) of this section and will give the sign owner $2,500 for a single transaction regardless of the location of the sign; 60 days to correct the violation and provide proof of the correction the and department. (7) $25 for a replacement sign permit plate. (c) Upon determination that a permit should be canceled, the department will mail a notice of cancellation to the address of the record (b) The original and renewal permit fee for a nonprofit sign license holder. The notice must state: permit is $10. (1) the reason for the cancellation; (c) In addition to the $75 annual renewal fee, an additional late fee of $100 is required for a renewal of a permit that is received before (2) the effective date of the cancellation; the 46th day after the permit expiration date. (3) the right of the permit holder to request an administra­ (d) No fee is charged for the transfer of a permit issued to a tive hearing on the cancellation; and nonprofit organization to another nonprofit under §21.173 of this divi­ (4) the procedure for requesting a hearing and the period sion (relating to Transfer of Permit). The fee provided under subsection for filing the request. (a)(6) of this section applies to the conversion and transfer of a permit issued to a nonprofit organization to a person other than a nonprofit or­ (d) A request for an administrative hearing under this section ganization under §21.173 of this division. must be in writing and delivered to the department within 45 days after the date that the notice of cancellation is received. (e) A fee prescribed by this section is payable by check, cashier’s check, or money order. If a check or money order is dishon­ (e) If timely requested, an administrative hearing will be con­ ored upon presentment, the permit, renewal, or transfer is void. ducted in accordance with Chapter 1, Subchapter E of this title (relating to Procedures in Contested Case) and the cancellation is abated until the §21.176. Cancellation of Permit. cancellation is affirmed by order of the commission. (a) The department will cancel a permit for a sign if the sign: (f) A permit holder may voluntarily cancel a permit by submit­ (1) is removed, unless the sign is removed and re-erected ting a request in writing after the sign has been removed. Subsections at the request of a condemning authority; (c) - (e) of this section do not apply to a permit voluntarily canceled under this subsection. (2) is not maintained in accordance with this division or Transportation Code, Chapter 391; (g) The department will notify the landowner identified on the permit application of a cancellation enforcement action. The notice is (3) is damaged beyond repair, as determined under §21.197 for informational purposes only, and does not convey any rights to the of this division (relating to Discontinuance of Sign Due to Destruction); landowner. The landowner may not appeal the cancellation unless the (4) is abandoned, as determined under §21.181 of this di­ landowner is also the holder of the permit. vision (relating to Abandonment of Sign); §21.177. Commercial or Industrial Area. (5) is erected after the effective date of this section and is For the purposes of this division, a commercial or industrial area is: not built within twenty feet of the location described in the permit ap­ plication or is built within twenty feet of the location described in the

ADOPTED RULES April 15, 2011 36 TexReg 2449 (1) a zoned commercial or industrial area described by measured from the outer edge of the regularly used building, parking §21.178 of this division (relating to Zoned Commercial or Industrial lot, storage, or processing area to a point perpendicular to the centerline Area); or of the main-traveled way. (2) an unzoned commercial or industrial area described by (h) A sign is not required to meet the requirements of subsec­ §21.179 of this division (relating to Unzoned Commercial or Industrial tion (d)(1)(A), (2), or (3) of this section or §21.180 of this division Area). (relating to Commercial or Industrial Activity) to maintain conforming status if the permit for the sign was issued before the effective date of §21.179. Unzoned Commercial or Industrial Area. this section. (a) An unzoned commercial or industrial area is an area that: §21.180. Commercial or Industrial Activity. (1) is within 800 feet, measured along the edge of the high­ way right of way perpendicular to the centerline of the main-traveled (a) For the purposes of this division, a commercial or industrial way, of and on the same side of the highway as the principal part of at activity is an activity that: least two adjacent recognized commercial or industrial activities that (1) is customarily allowed only in a zoned commercial or meet the requirements of subsection (c) of this section; industrial area; and (2) is not predominantly used for residential purposes; and (2) is conducted in a permanent building or structure per­ (3) has not been zoned under authority of law. manently affixed to the real property that: (b) A part of the regularly used buildings, parking lots, or stor­ (A) has an indoor restroom, running water, functioning age or processing areas of each of the commercial or industrial activ­ electrical connections, and permanent flooring, other than dirt, gravel, ities must be within 200 feet of the highway right of way and portion or sand; of the permanent building in which the activity is conducted must be (B) is visible from the traffic lanes of the main-traveled visible from the main-traveled way. way; (c) For commercial or industrial activities to be considered ad­ (C) is not primarily used as a residence; and jacent for the purposes of subsection (a)(1) of this section, the regularly used buildings, parking lots, storage or processing areas of the activi­ (D) has at least 400 square feet of its interior floor space ties may not be separated by a vacant lot, an undeveloped area that is devoted to the activity. more than 50 feet wide, a road, or a street. (b) The following are not commercial or industrial activities: (d) Two activities that occupy the same building qualify as ad­ (1) agricultural, forestry, ranching, grazing, farming, and jacent activities for the purposes of subsection (a)(1) of this section, if: related activities, including the operation of a temporary wayside fresh (1) each activity: produce stand; (A) has at least 400 square feet of floor space dedicated (2) an activity that is conducted only seasonally; to that activity; and (3) an activity that has not been conducted at its present (B) is an activity that is customarily allowed only in a location for at least 180 days; zoned commercial or industrial area; (4) an activity that is not conducted by at least one person (2) the two activities are separated by a dividing wall con­ who works for the business at the activity site for at least 25 hours per structed from floor to ceiling; week on at least five days per week and for which the hours during which the activity is conducted are posted at the activity site; (3) the two activities have access to the restroom facilities during all hours the activity is staffed or opened; and (5) the operation or maintenance of: (4) the two activities operate independently of one another. (A) an outdoor advertising structure; (e) For the purposes of subsection (d) of this section, two sep­ (B) a recreational facility, such as a campground, golf arate product lines offered by one business are not considered to be two course, tennis court, wild animal park, or zoo, other than the related activities. activities conducted in a building or structure that meets the require­ ments of subsection (a)(2) of this section and the parking facilities for (f) To determine whether an area is not predominantly used for that building or structure; residential purposes under subsection (a)(2) of this section, not more than 50 percent of the area, considered as a whole, may be used for res­ (C) an apartment house or residential condominium; idential purposes. A road or street is considered to be used for residen­ (D) a public or private preschool, secondary school, tial purposes only if residential property is located on both of its sides. college, or university, other than a trade school or corporate training The area to be considered is the total of actual or projected frontage of campus; the commercial or industrial activities plus 800 feet on each side of that frontage, measured along the highway right of way to a depth of 660 (E) a quarry or borrow pit, other than the related activ­ feet. The depth of an unzoned commercial or industrial area is mea­ ities conducted in a building or structure that meets the requirements sured from the nearest edge of the highway right of way perpendicular of subsection (a)(2) of this section and the parking facilities for that to the centerline of the main-traveled way of the highway. building or structure; (g) The length of an unzoned commercial or industrial area is (F) a cemetery; or measured from the outer edge of the regularly used building, parking (G) a place that is primarily used for worship; lot, storage, or processing area of the commercial or industrial activity and along or parallel to the edge of the pavement of the highway. If (6) an activity that is conducted on a railroad right of way; the business activity does not front the highway, a projected frontage is and

36 TexReg 2450 April 15, 2011 Texas Register (7) an activity that is created primarily or exclusively to (2) the area of the protrusion does not exceed 35 percent of qualify an area as an unzoned commercial or industrial area. the area indicated on the sign permit; and (c) For the purposes of this section, a building is not primarily (3) the sign face, including the area of the protrusions, does used as a residence if more than 50 percent of the building’s square not exceed 907 square feet in area. footage is used solely for the business activity. (d) The area is measured by the smallest square, rectangle, tri­ (d) A sign is not required to meet the requirements of subsec­ angle, circle, or combination that encompasses the entire sign face. tions (a)(2)(C) (as clarified by subsection (c) of this section), (a)(2)(D), (e) A sign may have two or more sign faces that are placed (b)(3), or (b)(4) of this section to maintain conforming status if the per­ back-to-back, side-by-side, stacked, or in "V" type construction with mit for the sign was issued before the effective date of this section. not more than two faces presented in each direction. If such an ar­ §21.181. Abandonment of Sign. rangement is used, the sign structure or structures are considered to be one sign for all purposes. Two sign faces which together exceed 907 (a) The department may consider a sign abandoned and cancel square feet in area, including temporary protrusions, may not face in the sign’s permit if: the same direction. (1) the sign face is blank or without legible advertising or (f) Two sign faces that face in the same direction may be pre­ copy for a period of 365 consecutive days or longer; or sented as one face by covering both faces and the area between the faces (2) the sign needs to be repaired or is overgrown by trees with an advertisement, as long as the size limitations of subsection (a) or other vegetation. of this section are not exceeded. (b) Small temporary signs, such as garage sale signs or cam­ §21.189. Sign Height Restrictions. paign signs, that are attached to the structure do not constitute legible (a) Except as provided by subsection (f) of this section, a sign advertising or copy for the purpose of ending the period under subsec­ may not be erected that exceeds an overall height of 42-1/2 feet. tion (a)(1) of this section. (b) A roof sign that has a solid sign face surface may not at (c) The department will not consider the payment of property any point exceed 24 feet above the roof level. taxes or the retention of a sign as a balance sheet asset in determining whether the sign permit should be canceled under this section. (c) A roof sign that has an open sign face in which the uniform open area between individual letter or shapes is not less than 40 percent (d) The department may initiate the cancellation process if the of the total gross area of the sign face may not at any point exceed 40 department has evidence that supports the fact that the sign face has feet above the roof level. been blank or has been without legible advertisement or copy for 365 days, such as photographs showing that on at least four dates through­ (d) The lowest point of a projecting roof sign or a wall sign out the 365-day period the sign was in the same condition or was de­ must be at least 14 feet above grade. grading. Evidence is not required for each of the 365 days. (e) For the purposes of this section, height is measured from (e) If the location of the abandoned sign is allowed under this the grade level of the centerline of the main-traveled way closest to division, the department may issue a permit for the sign site to anyone the sign, at a point perpendicular to the sign location. A frontage road who submits an application that meets the requirements of this division. of a controlled access highway or freeway is not considered the main- The department will not issue a permit for an abandoned sign that is traveled way for purposes of this subsection. located in a place that does not meet the requirements of this division. (f) The height measurement does not include any renewable (f) For the purposes of this section "copy" includes any adver­ energy device such as solar panels or wind turbines that are attached to tisement that the sign is available for lease. the sign structure above the sign face to improve the energy efficiency of the sign structure. (g) A multi-face sign is not abandoned unless all sign faces may be considered abandoned under this section. §21.190. Lighting of and Movement on Signs. (h) Before initiating a cancellation process under this section (a) A sign may not contain or be illuminated by flashing, inter­ the department will provide notice to the sign owner and land owner as mittent, or moving lights, including any type of screen using animated identified on the permit application of the abandonment determination or scrolling displays, except that this subsection does not apply to a and allow the sign owner 60 days to correct the issue. sign that only provides public service information, such as time, date, §21.182. Sign Face Size and Positioning. temperature, weather, or similar information. (b) Except for a relocated sign, any new sign may be illumi­ (a) A sign face may not exceed: nated but only by: (1) 672 square feet in area; (1) upward lighting of no more than 4 luminaires per direc­ (2) 25 feet in height; and tion of the sign face or faces of the structure; or (3) 60 feet in length. (2) downward lighting of no more than 4 luminaires per direction of the sign face or faces of the structure. (b) For the purposes of this section, border and trim are in­ cluded as part of the sign face. (c) Lights that are a part of or illuminate a sign: (c) Notwithstanding the area limitation provided by subsection (1) must be shielded, directed, and positioned to prevent (a)(1) of this section, one or more temporary protrusions may be added beams or rays of light from being directed at any portion of the traveled to a sign, provided that: ways of a regulated highway; (1) the sign face, including the protrusions, meets the (2) may not be of such intensity or brilliance as to cause height and length limitations of subsection (a) of this section; vision impairment of a driver of any motor vehicle on a regulated high-

ADOPTED RULES April 15, 2011 36 TexReg 2451 way or otherwise interfere with the driver’s operation of a motor vehi­ (2) adding a catwalk to the sign structure. cle; and (c) The following are examples of substantial changes that (3) may not obscure or interfere with the effectiveness of may be made but require an amended permit application before the an official traffic sign, device, or signal. initiation of such an activity: (d) A temporary protrusion on a sign may be animated only (1) adding lights to an unilluminated sign or adding more if it does not create a safety hazard to the traveling public. A tempo­ intense lighting to an illuminated sign whether or not the lights are rary protrusion may not be illuminated by flashing or moving lights or attached to the sign structure; enhanced by reflective material that creates the illusion of flashing or (2) changing the number of poles in the sign structure; moving lights. (3) adding permanent bracing wires, guy wires, or other (e) Reflective paint or reflective disks may be used on a sign reinforcing devices; face only if the paint or disks do not: (4) changing the material used in the construction of the (1) create the illusion of flashing or moving lights; or sign structure, such as replacing wooden material with metal material; (2) cause an undue distraction to the traveling public. (5) adding faces to a sign or changing the sign configura­ (f) A neon light may be used on a sign face only if: tion; (1) the light does not flash; (6) increasing the height of the sign; (2) the light does not cause an undue distraction to the trav­ (7) changing the configuration of the sign structure, such eling public; and as changing a "V" sign to a stacked or back to back sign, or a single face sign to a back-to back sign; and (3) the permit for the sign specifies that the sign is an illu­ minated sign. (8) moving the sign structure or sign face in any way un­ less the movement is made in accordance with §21.192 of this division (g) This division does not prohibit a temporary protrusion that (relating to Permit for Relocation of Sign). displays only alphabetical or numerical characters and that satisfies this subsection and the requirements of §21.182 of this division (relating to (d) To add a catwalk to a sign structure the catwalk must meet Sign Face Size and Positioning), relating to a temporary protrusion. Occupational Safety and Health Administration guidelines. The display on the temporary protrusion may be a digital or other elec­ §21.192. Permit for Relocation of Sign. tronic display, but if so: (1) it must consist of a stationary image; (a) A sign may be relocated in accordance with this section, §21.193 of this division (relating to Location of Relocated Sign), (2) it may not change more frequently than four times in §21.194 of this division (relating to Construction and Appearance of any 24 hour period; and Relocated Sign), and §21.195 of this division (relating to Relocation of (3) the process of any change of display must be completed Sign within Municipality) if the sign is legally erected and maintained within two minute. and will be within the highway right of way as a result of a highway construction project. §21.191. Repair and Maintenance. (b) To relocate a sign under this section, the permit holder must (a) The following are considered to be routine maintenance obtain a new permit under §21.164 of this division (relating to Decision activities that do not require an amended permit: on Application), but the permit fee is waived. (1) the replacement of nuts and bolts; (c) To receive a new permit to relocate a sign under this sec­ tion, the permit holder must submit a new permit application that iden­ (2) nailing, riveting, or welding; tifies that the application is for the relocation of an existing sign due to (3) cleaning and painting; a highway construction project. The new location must meet all local codes, ordinances, and applicable laws. (4) manipulation of the sign structure to level or plumb it; (d) Notwithstanding other provisions of this section, if only (5) changing of the advertising message; a part of a sign will be located within the highway right of way as a (6) the replacement of minor parts if the materials of the result of the construction project, the sign owner may apply to amend minor parts are the same type as those being replaced and the basic the existing permit for the sign to authorize: design or structure of the sign is not altered; (1) the adjustment of the sign face on a monopole sign that (7) changing all or part of the sign face structure but only if would overhang the proposed right of way to the land on which the materials similar to those of the sign face being replaced are used; and sign’s pole is located, including adding a second pole if required to support the adjustment for a legal non-conforming monopole sign; (8) upgrading existing lighting for an energy efficient light­ ing system. (2) the relocation of the poles and sign face of a multiple sign structure that are located in the proposed right of way from the (b) The following are considered to be customary maintenance proposed right of way to the land on which the other poles of the sign activities that may be made but require an amended permit before the structure are located; or initiation of such an activity: (3) a reduction in the size of a sign structure that is located (1) replacement of poles, but only if not more than one-half partially in the proposed right of way so that the sign structure and sign of the total number of poles of the sign structure are replaced in any 12 face are removed from the proposed right of way. month period and the same material is used for the replacement poles; and

36 TexReg 2452 April 15, 2011 Texas Register (e) A permit application for the relocation of a sign must be (6) within five feet of any highway right of way line. submitted within 36 months after the earlier of the date the original (f) A sign, at the time of and after its relocation, must be within sign was removed or the date the original sign was required to move. 800 feet of at least one recognized commercial or industrial activity The sign owner is required to continue to renew the sign permit and pay about which the sign provides information and that is located on the the permit renewal fee for the sign to remain eligible for relocation. same side of the highway. §21.193. Location of Relocated Sign. (g) The spacing limitations provided in subsection (e) of this (a) To receive a new permit for relocation, an existing sign section do not apply to on-premise signs or directional or official must be relocated on a part of the same parcel of land on which the signs that are exempted from the application of Transportation Code, sign was situated before relocation in a location that is allowed under §391.031. this section. (h) A sign may not be relocated from a road regulated under (b) If the sign owner can demonstrate that the location under this division to a rural road regulated by Subchapter K of this chapter subsection (a) of this section is not physically or economically feasible (relating to Control of Signs along Rural Roads). for a sign structure, the sign owner, on approval by the department, §21.194. Construction and Appearance of Relocated Sign. may relocate the sign to any other location that is allowed under this subsection. The owner is not entitled to additional relocation benefits (a) A relocated sign must be constructed with the same number under §21.196 of this division (relating to Relocation Benefits) if the of poles and of the same type of materials as the existing sign. A relo­ sign structure is relocated further than 50 miles from the location of the cated sign may not exceed the maximum height provided by §21.189 existing sign. of this division (relating to Sign Height Restrictions). The number of sign faces and lighting, if any, of the relocated sign may not exceed the (c) The location of the relocated sign must be within a zoned number of faces or lighting, if any, of the existing sign. commercial or industrial area as described by §21.178 of this division (relating to Zoned Commercial or Industrial Area) or an unzoned com­ (b) The size of each of the sign faces of a relocated sign that mercial or industrial area, as described by §21.179 of this division (re­ are visible to approaching traffic may not exceed the smaller of the size lating to Unzoned Commercial or Industrial Area) except that an un­ of the existing sign face or an area of 1,200 square feet, a height of 25 zoned commercial or industrial area may include only one recognized feet, and a length of 60 feet. commercial or industrial activity. (c) The sign faces of a relocated sign may be placed back-to­ (d) A sign may not be relocated to a place where it: back, side-by-side, stacked, or in "V" type construction with not more than two displays facing any direction, except that if the area of a sign (1) can cause a driver to be unduly distracted in any way; face exceeds 350 square feet, sign faces may not be stacked or placed (2) will obscure or otherwise interfere with the effective­ side-by-side. The sign structure and sign faces are considered one sign. ness of an official traffic sign, signal, or device; or §21.195. Relocation of Sign within Municipality. (3) will obstruct or interfere with the driver’s view of ap­ (a) If an existing sign is located within the incorporated bound­ proaching, merging, or intersecting motor vehicle or rail traffic. aries of a municipality that is approved by the department to control (e) A sign may not be relocated to a place that is: outdoor advertising under §21.200 of this division (relating to Local Control) and the sign will be relocated within the incorporated bound­ (1) within 500 feet of a public park that is adjacent to a aries of the same municipality, permission to relocate the sign must be regulated highway, with the limitation provided under this paragraph obtained only from the municipality in accordance with the municipal­ applying: ity’s sign and zoning ordinances. (A) on either side of a regulated highway that is on a (b) Permission from the municipality to relocate the sign is re­ nonfreeway primary system; or quired to receive relocation benefits from the department under §21.196 (B) on the side of the highway adjacent to the public of this division (relating to Relocation Benefits). park if the regulated highway is on an interstate or freeway primary §21.196. Relocation Benefits. system; (a) Relocation benefits will be paid in accordance with Sub­ (2) if outside of an incorporated municipality along a reg­ chapter G of this chapter (relating to Relocation Assistance and Bene­ ulated highway, adjacent to or within 500 feet of: fits) for the relocation of a sign under §21.192 of this division (relating (A) an interchange, intersection at grade, or rest area; to Permit for Relocation of Sign) or §21.195 of this division (relating or to Relocation of Sign within Municipality).

(B) a ramp or the ramp’s acceleration or deceleration (b) The owner of an existing sign that is being relocated must lane; enter into a written agreement with the governmental entity that is ac­ quiring the right-of-way in which the sign is located. In the agreement (3) for a highway on the interstate or freeway primary sys­ the owner, in consideration of the payment by the governmental en­ tem, closer than 500 feet to another permitted sign on the same side of tity of relocation benefits, waives and releases any claim for damages the highway; against the governmental entity and the state for any temporary or per­ (4) for a highway on the nonfreeway primary system and manent taking of the sign. outside of a municipality, closer than 300 feet to another permitted sign §21.197. Discontinuance of Sign Due to Destruction. on the same side of the highway; (a) If a sign is partially destroyed by a natural force outside the (5) for a highway on the nonfreeway primary system and control of the permit holder, including wind, tornado, lightening, flood, within the incorporated boundaries of a municipality, closer than 100 fire, or hurricane, the department will determine whether the sign can feet to another permitted sign on the same side of the highway; or be repaired without an amended permit.

ADOPTED RULES April 15, 2011 36 TexReg 2453 (b) The department may require the sign owner to submit an (c) The department will rescind a removal demand if the de­ estimate of the proposed work, including an itemized list of the mate­ partment determines the demand was issued incorrectly. rials to be used and the manner in which the work will be done. The §21.199. Destruction of Vegetation and Access from Right of Way department will allow the sign to be repaired without an amended per­ Prohibited. mit if the department determines that the damage is not substantial. If the damage is determined to be substantial the sign owner must obtain (a) A person may not: an amended permit under §21.174 of this division (relating to Amended Permit). (1) trim or destroy a tree or other vegetation on the right of way for any purpose related to this division; or (c) The department will cancel the existing permit if it deter­ mines the damage to the sign is substantial under subsection (g) of this (2) erect or maintain a sign from the right of way. section and an amended permit is not obtained by the sign owner within (b) The department will initiate enforcement action if the per­ one year after the date that the department first became aware of the mit holder, or someone acting on behalf of the permit holder, violates damage. this section. (d) If a permit is canceled under this section or §21.176 of this (c) Subsection (a)(2) of this section does not apply to the main­ division (relating to Cancellation of Permit) the remaining sign struc­ tenance of a sign if: ture must be dismantled and removed without cost to the state. (1) the state right of way is the only available access for (e) A sign that is totally or partially destroyed by vandalism a sign on railroad right of way to which §21.150(b) of this division or a motor vehicle accident may be rebuilt as described on the most (relating to Continuance of Nonconforming Signs) applies; and recently approved permit application. (2) the sign owner notifies the department and obtains ap­ (f) If a decision to cancel a permit is appealed, the sign may proval of the department before accessing the sign for maintenance. not be repaired during the appeal process. (d) It is not a violation to trim the portion of the tree or vege­ (g) Damage is considered to be substantial if the cost to repair tation that encroaches onto private property at the private property line the sign would exceed 60 percent of the cost to replace it with a sign as long as the trimming occurs from the private property. of the same basic construction using new materials and at the same location. §21.200. Local Control.

(h) If a sign is partially destroyed by a natural force outside (a) The department may authorize a political subdivision to ex­ the control of the sign owner in an area that receives a state or federal ercise control over outdoor signs in its jurisdiction. If the political sub­ disaster declaration and the sign owner has documentation to show that division receives approval under this section, it will be listed as a certi­ the sign damage is not considered substantial the sign may be repaired fied city and a permit issued by that political subdivision is acceptable without a prior determination by the department under subsection (b) instead of a permit issued by the department within the approved area. of this section if the sign is repaired within 180 days after the date of the (b) To be considered for authorization under this section, the event and if within 60 days after the date of completion of the repairs, political subdivision must submit to the department: the owner submits to the department: (1) a copy of its sign regulations; (1) photos of the partially destroyed sign and the repaired sign; and (2) a copy of its zoning regulations;

(2) a notarized affidavit executed by the sign owner con­ (3) information about the number of personnel who will be taining: dedicated to the program and what type of records will be maintained, including whether the political subdivision maintains an inventory of (A) the permit number of the sign; signs that can be provided to the department in an electronic format (B) a statement that the sign was damaged by the natural that is acceptable to the department; and force; (4) an enforcement plan that includes the removal of illegal (C) a statement that the cost to repair the sign was less signs. than 60 percent of the cost of a new sign with the same basic construc­ (c) The department, after consulting with the Federal Highway tion; and Administration, shall determine whether a political subdivision has es­ (D) a statement that the sign was repaired in the same tablished and will enforce within its corporate limits standards and cri­ configuration and with like materials according to the most recent ap­ teria for size, lighting, and spacing of outdoor signs consistent with the proved permit. purposes of the Highway Beautification Act of 1965, 23 United States Code §131, and with customary use. The size, lighting, and spacing (i) A sign repaired in violation of this subsection is subject to requirements of the political subdivision may be more or less restric­ enforcement and removal. tive than the requirements of this division as long as the requirements §21.198. Order of Removal. comply with the federal requirements, such as the prohibition of signs over 1,200 square feet in size and spacing of less than 500 feet. The (a) If a sign permit expires without renewal or is canceled or if authorization does not include the area in a municipality’s extraterrito­ the sign is erected or maintained in violation of this division, the owner rial jurisdiction. of the sign, on a written demand by the department, shall remove the sign at no cost to the state. (d) The department may meet with a political subdivision to ensure that it is enforcing the standards and criteria in accordance with (b) If the owner does not remove the sign within 30 days of the subsection (c) of this section. day that the demand is sent, the department will remove the sign and will charge the sign owner for the cost of removal, including the cost (e) After approval under this section, the political subdivision of any court proceedings. shall:

36 TexReg 2454 April 15, 2011 Texas Register (1) provide to the department: STATUTORY AUTHORITY (A) a copy of each amendment to its sign and zoning The new sections are adopted under Transportation Code, regulations when the amendment is proposed and adopted; and §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, (B) a copy of any change to its corporate limits and its and more specifically, Transportation Code, §391.032, which extraterritorial jurisdiction, if covered by the approval; provides authority to establish rules to regulate the orderly (2) annually provide to the department: and effective display of outdoor advertising on primary roads; Transportation Code, §391.063, which provides authority for the (A) an electronic copy of the sign inventory; and commission to set fees for the issuance of an outdoor adver­ (B) report of the number of sign permits issued and the tising license; Transportation Code, §391.065, which provides status of all pending enforcement actions; and authority to establish rules to standardize forms and regulate the issuance of outdoor advertising licenses; Transportation Code, (3) participate in at least one video conference or telecon­ §394.004, which provides the commission with the authority ference sponsored by the department each year. to establish rules to regulate the erection and maintenance (f) The political subdivision may: of signs on rural roads; and Transportation Code, §394.025, which provides authority for the commission to set fees for the (1) set and retain the fees for issuing a sign permit; and issuance of an outdoor advertising license. (2) establish the period for which a sign permit is effective. CROSS REFERENCE TO STATUTE (g) The department will conduct an on-site compliance moni­ Transportation Code, Chapters 391 and 394. toring review every two years. §21.251. Definition. (h) The department may withdraw the approval of a political subdivision given under this section if the department determines that In this division, "electronic sign" means a sign, display, or device that the political subdivision does not have an effective sign control pro­ changes its message or copy by programmable electronic or mechanical gram. The department will consider whether: processes.

(1) the standards and criteria of political subdivision’s sign §21.253. Issuance of Permit. regulations continue to meet the requirements of subsection (c) of this (a) The department will issue a permit for an electronic sign if section; the application for the permit: (2) the political subdivision maintains an accurate sign in­ (1) satisfies the requirements of this division and any appli­ ventory and annually provides the inventory to the department in an cable requirements of Division 1 of this subchapter (relating to Signs); electronic format; and and (3) the political subdivision enforces the sign regulations (2) has attached to it: and annually reports enforcement actions as required. (A) a certified copy of the permit issued by the munici­ (i) The department may reinstate a political subdivision’s au­ pality that gives permission for the electronic sign; or thority on the showing of a new plan that meets the requirements of (B) if the municipality does not issue permits, a certified subsection (c) of this section. copy of written permission for the electronic sign from the municipal­ §21.201. Fees Nonrefundable. ity. A fee paid to the department under this division is nonrefundable. (b) A permit from the department is required for the erection of an electronic sign even if the requested sign location is within a city §21.202. Property Right Not Created. certified under §21.200 of this chapter (relating to Local Control). Issuance of a permit or license under this division does not create a §21.255. Location. contract or property right in the permit or license holder. (a) An electronic sign may be located, relocated, or upgraded This agency hereby certifies that the adoption has been reviewed only along a regulated highway and within: by legal counsel and found to be a valid exercise of the agency’s (1) the corporate limits of a municipality that allows elec­ legal authority. tronic signs under its sign or zoning ordinance; or Filed with the Office of the Secretary of State on April 1, 2011. (2) within the extraterritorial jurisdiction of a municipality described by paragraph (1) of this subsection that under state law has TRD-201101265 extended its municipal regulation to include that area. Bob Jackson General Counsel (b) Two electronic signs may not be located on the same sign Texas Department of Transportation structure. An electronic sign may not be located within 1,500 feet of Effective date: July 1, 2011 another electronic sign on the same side of the highway. Proposal publication date: December 3, 2010 §21.259. Contact Information. For further information, please call: (512) 463-8683 (a) The owner of an electronic sign shall provide to the depart­ ♦ ♦ ♦ ment contact information for a person who is available to be contacted at any time and who is able to turn off the electronic sign promptly if DIVISION 2. ELECTRONIC SIGNS a malfunction occurs or is able to accommodate an emergency noti­ fication request from a local authority under §21.258 of this division 43 TAC §§21.251 - 21.260 (relating to Emergency Information).

ADOPTED RULES April 15, 2011 36 TexReg 2455 (b) The department will share the contact information with the Bob Jackson appropriate local authority that has jurisdiction over the location of the General Counsel electronic sign. Texas Department of Transportation §21.260. Application of Other Rules. Effective date: July 1, 2011 Proposal publication date: December 3, 2010 The requirements and other provisions of Division 1 of this subchapter For further information, please call: (512) 463-8683 (relating to Signs) apply to an electronic sign, except that if this division conflicts with a provision of Division 1 of this subchapter, this division ♦ ♦ ♦ controls. 43 TAC §§21.401 - 21.442, 21.444 - 21.446 This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s STATUTORY AUTHORITY legal authority. The new sections are adopted under Transportation Code, §201.101, which provides the commission with the authority to Filed with the Office of the Secretary of State on April 1, 2011. establish rules for the conduct of the work of the department, TRD-201101266 and more specifically, Transportation Code, §391.032, which Bob Jackson provides authority to establish rules to regulate the orderly and effective display of outdoor advertising on primary roads; General Counsel Transportation Code, §391.063, which provides authority for the Texas Department of Transportation commission to set fees for the issuance of an outdoor adver­ Effective date: July 1, 2011 tising license; Transportation Code, §391.065, which provides Proposal publication date: December 3, 2010 authority to establish rules to standardize forms and regulate the For further information, please call: (512) 463-8683 issuance of outdoor advertising licenses; Transportation Code, ♦ ♦ ♦ §394.004, which provides the commission with the authority to establish rules to regulate the erection and maintenance SUBCHAPTER K. CONTROL OF SIGNS of signs on rural roads; and Transportation Code, §394.025, which provides authority for the commission to set fees for the ALONG RURAL ROADS issuance of an outdoor advertising license. 43 TAC §§21.401, 21.411, 21.421, 21.431, 21.441, 21.451, CROSS REFERENCE TO STATUTE 21.461, 21.471, 21.481, 21.491, 21.501, 21.511, 21.521, Transportation Code, Chapters 391 and 394. 21.531, 21.541, 21.542, 21.551, 21.561, 21.571, 21.572, 21.581 §21.402. Definitions.

STATUTORY AUTHORITY The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates oth­ The repeals are adopted under Transportation Code, §201.101, erwise. which provides the commission with the authority to establish rules for the conduct of the work of the department, and more (1) Commission--The Texas Transportation Commission. specifically, Transportation Code, §391.032, which provides au­ (2) Department--The Texas Department of Transportation. thority to establish rules to regulate the orderly and effective display of outdoor advertising on primary roads; Transportation (3) Erect--To construct, build, raise, assemble, place, affix, Code, §391.063, which provides authority for the commission attach, embed, create, paint, draw, or in any way bring into being or to set fees for the issuance of an outdoor advertising license; establish. Transportation Code, §391.065, which provides authority to es­ (4) Main-traveled way--The through traffic lanes exclusive tablish rules to standardize forms and regulate the issuance of of frontage roads, auxiliary lanes, and ramps. outdoor advertising licenses; Transportation Code, §394.004, which provides the commission with the authority to establish (5) Permit--The authorization granted for the erection of a rules to regulate the erection and maintenance of signs on ru­ sign, subject to this subchapter and Transportation Code, Chapter 394. ral roads; and Transportation Code, §394.025, which provides (6) Person--An individual, association, partnership, lim­ authority for the commission to set fees for the issuance of an ited partnership, trust, corporation, or other legal entity. outdoor advertising license. (7) Portable sign--A sign designed to be mounted on a CROSS REFERENCE TO STATUTE trailer, bench, wheeled carrier, or other non-motorized mobile structure Transportation Code, Chapters 391 and 394. or on skids or legs. This agency hereby certifies that the adoption has been reviewed (8) Rural road--A road, street, way, highway, thoroughfare, by legal counsel and found to be a valid exercise of the agency’s or bridge that is located in an unincorporated area and is not privately legal authority. owned or controlled, any part of which is open to the public for vehic­ ular traffic, and over which the state or any of its political subdivisions Filed with the Office of the Secretary of State on April 1, 2011. have jurisdiction. TRD-201101264 (9) Sign--A thing that is designed, intended, or used to ad­ vertise or inform, including a sign, display, light, device, figure, paint­ ing, drawing, message, plaque, placard, poster, billboard, logo, or sym­ bol.

36 TexReg 2456 April 15, 2011 Texas Register (10) Sign face--The part of the sign that contains the adver­ (1) removed and re-erected for any reason, other than a re­ tising or information contents and is distinguished from other parts of quest by a governmental entity; or the sign and another sign face by borders or decorative trim. The term (2) substantially changed, as described by §21.434 of this does not include a lighting fixture, apron, or catwalk unless it displays subchapter (relating to Repair and Maintenance). a part of the advertising or information contents of the sign. §21.409. Permit Application. (11) Sign structure--All of the interrelated parts and mate­ rials, such as beams, poles, braces, apron, catwalk, and stringers, that (a) To obtain a permit for a sign, a person must file an appli­ are used, designed to be used, or intended to be used to support or dis­ cation in a form prescribed by the department. The application at a play a sign face. minimum must include: §21.407. Existing Off-Premise Signs. (1) the complete name and address of the applicant; (a) A sign that existed before September 1, 1985 and that was (2) the original signature of the applicant; registered not later than December 30, 1985 does not require a permit issued under this subchapter as long as the registration remains valid. (3) the proposed location and description of the sign; (b) The sign registration is valid only for the location indicated (4) the complete legal name and address of the owner of on the original registration application and only for the sign described the designated site; on that application. (5) a statement of whether the requested sign is located (c) The sign registration must be renewed on or before January within an incorporated city or a city’s extraterritorial jurisdiction; 1 of the year of its expiration. (6) the site owner’s or the owner’s authorized representa­ (d) The registration will automatically terminate if: tive’s signature on the application demonstrating consent to the erection and maintenance of the sign and right of entry onto the property of the (1) the sign is removed for any reason other than to change sign location by the department or its agents; the advertising; (7) information that details how and the location from (2) the registration is not renewed; or which the sign will be erected and maintained; and (3) the sign is replaced with another structure. (8) additional information the department considers neces­ (e) To renew the registration, the holder must: sary to determine eligibility. (1) file a written request, on the form prescribed by the de­ (b) The application must be: partment; (1) notarized; (2) submit a renewal fee of $10 per year for a period of up (2) filed with the department’s division responsible for the to five years; and Outdoor Advertising Program in Austin; and (3) display the registration number on the sign structure in (3) accompanied by the fee prescribed by §21.424 of this numerals with a minimum height of two inches and a minimum width subchapter (relating to Permit Fees). of one inch. (c) The application must include a sketch that shows: (f) The registration allows for routine and customary repairs and maintenance as provided under §21.434 of this subchapter (relating (1) the location of the poles of the sign structure; to Repair and Maintenance), but substantial changes are not authorized (2) the exact location of the sign faces in relation to the sign for existing signs. An amended permit under §21.423 of this subchap­ structure; ter (relating to Amended Permit) must be obtained prior to performing any customary repairs or maintenance. (3) the means of access to the sign; and (g) The owner of an off-premise sign that was in existence be­ (4) the distance from the buildings, landmarks, right of way fore September 1, 1985 and not duly registered or the registration for line, other signs, and other distinguishable features of the landscape. which was timely renewed shall remove the sign at the owner’s expense §21.410. Site Owner’s Consent; Withdrawal. upon written notification by the department, unless it is an exempt sign. (h) The registration of a sign may be transferred upon filing (a) A site owner’s consent to the erection and maintenance of with the department, on a form prescribed by the department, a request the sign and access to the site by the department or its agent is provided for the transfer and payment of the transfer fee. with a permit application under §21.409 of this subchapter (relating to Permit Application). The consent operates for the life of the lease or §21.408. Continuance of Nonconforming Signs. until the owner delivers to the department and the sign owner a writ­ (a) Notwithstanding other provisions of this subchapter, the ten statement that permission for the maintenance or inspection by the department will renew a permit for a nonconforming sign only if the department or its agents of the sign has been withdrawn and documen­ sign structure: tation showing that the lease allowing the sign has been terminated in accordance with the terms of the lease agreement or through a court (1) was lawful on the later of the date it was erected or order. became subject to the control of the department; and (b) If the sign owner provides documentation that the sign (2) remains substantially the same as it was on the later of owner is disputing the lease termination, the department will not the date it was erected, became subject to the department’s control, or cancel the permit until a settlement signed by both parties or a court became a nonconforming sign due to change in statute, rule, or condi­ order settling the dispute is delivered to the department. tion. §21.412. Permit Application Review. (b) A nonconforming sign may not be:

ADOPTED RULES April 15, 2011 36 TexReg 2457 (a) The department will consider permit applications in the or­ §21.416. Commercial or Industrial Activity. der of the receipt of the applications. (a) For the purposes of this subchapter, a commercial or indus­ (b) If an application is returned to an applicant because it is not trial activity is an activity that: complete or has incorrect information, the application loses its priority position. (1) is customarily allowed only in a zoned commercial or industrial area; and (c) The department will hold an application that is for the same site as or a conflicting site with that of an application that the depart­ (2) is conducted in a permanent building or structure af­ ment previously received until the department makes a final decision fixed to the real property that: on the previously received application or returns it to the applicant. For (A) has an indoor restroom, running water, functioning the purposes of this subsection, the date of a final decision on an appli­ electrical connections, and permanent flooring, other than dirt, gravel, cation is: or sand; (1) the date of the final decision on an appeal under §21.418 (B) is visible from the traffic lanes of the main-traveled of this subchapter (relating to Appeal Process for Permit Denials); or way; (2) if an appeal is not filed within the period provided by (C) is not primarily used as a residence; and §21.418 of this subchapter, on the 46th day after the date the denial notice was received under §21.413 of this subchapter (relating to De­ (D) has at least 400 square feet of its interior floor space cision on Application). devoted to the activity.

(d) The department will review the permit application for (b) The following are not commercial or industrial activities: completeness and compliance with all requirements of this subchap­ (1) agricultural, forestry, ranching, grazing, farming, and ter. Measurements will be taken at the site to determine if the sign related activities, including the operation of a temporary wayside fresh placement meets the spacing and location requirements. produce stand; §21.413. Decision on Application. (2) an activity that is conducted only seasonally; (a) The department will make a decision on an application within 45 days of the date of receipt of the application. If the decision (3) an activity that has not been conducted at its present cannot be made within the 45 day period the department will notify the location for at least 180 days; applicant of the delay providing the reason for the delay, and provide (4) an activity that is not conducted by at least one person an estimate of when the decision will be made. who works for the business at the activity site for at least 25 hours per (b) If the application is approved, the department will issue a week on at least five days per week and for which the hours during permit for the sign by sending a copy of the approved application and which the activity is conducted are posted at the activity site; a sign permit plate to the applicant. (5) the operation or maintenance of: (c) If the application is not approved, the department will send (A) an outdoor advertising structure; a copy of the denied application and a notice that states the reason for the denial. (B) a recreational facility, such as a campground, golf course, tennis court, wild animal park, or zoo, other than the related (d) If an application is denied, the department will notify the activities conducted in a building or structure that meets the require­ landowner identified on the permit application of the denial. The notice ments of subsection (a)(2) of this section and the parking facilities for is for informational purposes only, and does not convey any rights to that building or structure; the landowner. The landowner may not appeal the denial unless the landowner is also the applicant. (C) an apartment house or residential condominium;

§21.414. Sign Permit Plate. (D) a public or private preschool, secondary school, college, or university, other than a trade school or corporate training (a) The sign owner shall securely attach the sign permit plate campus; to the part of the sign structure that is nearest to the rural road and visible from the closest right of way not later than the 30th day after (E) a quarry or borrow pit, other than the related activ­ the date that the sign is erected. ities conducted in a building or structure that meets the requirements of subsection (a)(2) of this section and the parking facilities for that (b) The sign permit plate may not be removed from the sign. building or structure; (c) The sign permit plate must remain visible from the closest (F) a cemetery; or right of way at all times. (G) a place that is primarily used for worship; (d) If a sign permit plate is lost or stolen or becomes illegible, the sign owner must submit to the department a request for a replace­ (6) an activity that is conducted on a railroad right of way; ment plate in a form prescribed by the department accompanied by the and replacement plate fee prescribed by §21.424 of this subchapter (relat­ (7) an activity that is created primarily or exclusively to ing to Permit Fees). qualify an area as an unzoned commercial or industrial area. (e) Failure to apply for a replacement permit or attach the plate (c) For the purposes of this section, a building is not primarily to the sign structure as required in subsection (a) of this section within used as a residence if more than 50 percent of the building’s square 60 days of the date of written notification from the department that the footage is used solely for the business activity. permit plate is not visible or attached may result in an enforcement action under §21.425 or §21.426 of this subchapter (relating to Cancel­ (d) A sign is not required to meet the requirements of subsec­ lation of Permit and Administrative Penalties, respectively). tions (a)(2)(C) (as clarified by subsection (c) of this section), (a)(2)(D),

36 TexReg 2458 April 15, 2011 Texas Register (b)(3), or (b)(4) of this section to maintain conforming status if the per­ (relating to Repair and Maintenance), a permit holder must submit an mit for the sign was issued before the effective date of this section. amended permit application. §21.418. Appeal Process for Permit Denials. (b) The amended permit application must be submitted on a form prescribed by the department that provides the information re­ (a) If a sign permit is denied, the applicant may file a request quired under §21.409 of this subchapter (relating to Permit Applica­ with the executive director for an appeal. tion) that is applicable to an amended permit and indicates the change (b) The request for appeal must: from the information in the original application for the sign permit. The amended permit will not require the signature of the land owner or city (1) be in writing; representative. (2) contain: (c) The new sign face size, configuration, or location must (A) a copy of the denied permit application; meet all applicable requirements of this subchapter. (B) a statement of why the denial is believed to be in (d) The holder of a permit for a nonconforming sign may apply error; and for an amended permit to perform eligible customary maintenance un­ der §21.434 of this subchapter. An amended permit will not be issued (C) evidence that supports the issuance of the applica­ for a substantial change, as described by §21.434(c) of this subchapter, tion, such as drawings, surveys, or photographs; and to a nonconforming sign. (3) be received within 45 days after the date the denial no­ (e) Making a change to a sign that requires an amended permit tice was received. without first obtaining an amended permit is a violation of this sub­ (c) The executive director or the executive director’s designee, chapter and will result in an administrative enforcement action. who may not be below the level of assistant executive director, will (f) The department will make a decision on an amended permit make a final determination on the appeal within 60 days after the date application within 45 days of the date receipt of the amended permit that the executive director receives the request for appeal. If the final application. If the decision cannot be made within the 45 day period the determination is that the permit is denied, the executive director or the department will notify the applicant of the delay, provide the reason for executive director’s designee will send the final determination to the the delay, and provide an estimate for when the decision will be made. applicant stating the reason for denial. If the final determination is that the application be approved, the department will issue the permit in (g) In the event of a natural disaster the department may waive accordance with §21.413 of this subchapter (relating to Decision on the requirement that a required amended permit be issued prior to the Application). repair of a conforming sign. If the department waives this requirement the amended permit must be submitted within 60 days of the comple­ (d) If the executive director or the designee is unable to make tion of the repairs. If the repairs are in violation of these rules or the a final determination on the appeal within the 60-day period under sub­ permit holder fails to submit the amended permit application the sign section (c) of this section, the department will notify the applicant by is subject to enforcement and removal actions. mail of the delay and provide an estimated time in which a final deter­ mination will be made. §21.424. Permit Fees. §21.420. Permit Expiration. (a) The amounts of the fees related to permits under this sub­ chapter are: A permit is valid for one year. (1) $100 for an original or amended permit for a sign; §21.421. Permit Renewals. (2) $75 for the renewal of a permit; (a) To continue in effect, a permit must be renewed. (3) $25 for the transfer of a permit up to a maximum of (b) A permit is eligible for renewal if the sign for which it was $2,500 for a single transaction regardless of the location of the sign; issued continues to meet all applicable requirements of this subchapter and and Transportation Code, Chapter 394. (4) $25 for a replacement sign permit plate. (c) To renew the permit, the permit holder must file with the department a written application in a form prescribed by the depart­ (b) In addition to the $75 annual renewal fee, an additional late ment accompanied by the applicable fees prescribed by §21.424 of this fee of $100 is required for a renewal of a permit that is received before subchapter (relating to Permit Fees). The application must be received the 46th day after the permit expiration date. by the department before the 46th day after the date of the permit ex­ (c) A fee prescribed by this section is payable by check, piration. cashier’s check, or money order. If a check or money order is dishon­ (d) A permit may not be renewed if the sign for which it was ored upon presentment, the permit, renewal, or transfer is void. issued is not erected to the extent that it includes a sign face before the §21.425. Cancellation of Permit. first anniversary of the date the permit was issued. (a) The department will cancel a permit for a sign if the sign: (e) The department will provide a renewal notification to the licensee at least 30 days before the date of the permit expiration and (1) is removed, unless the sign is removed and re-erected if the permit is not renewed before it expires the department within 20 at the request of a condemning authority; days after the date of expiration will provide notification to the licensee (2) is not maintained in accordance with this subchapter or of the opportunity to file a late renewal. Transportation Code, Chapter 394; §21.423. Amended Permit. (3) is damaged beyond repair, as determined under §21.439 (a) To perform customary maintenance or to make substantial of this subchapter (relating to Discontinuance of Sign Due to Destruc­ changes to the sign or sign structure under §21.434 of this subchapter tion);

ADOPTED RULES April 15, 2011 36 TexReg 2459 (4) is abandoned, as determined under §21.427 of this sub­ §21.426. Administrative Penalties. chapter (relating to Abandonment of Sign); (a) The department may impose administrative penalties (5) is erected after the effective date of this section and is against a person who intentionally violates Transportation Code, not built within 20 feet of the location described in the permit appli­ Chapter 394 or this subchapter. cation or is built within 20 feet of the location described in the permit application but at a location that does not meet all spacing requirements (b) The amount of the administrative penalty may not exceed of this chapter or in accordance with the sketch or other assertions con­ the maximum amount of a civil penalty that may be imposed under tained in the permit application; Transportation Code, §394.081 and will based on the following:

(6) is repaired or altered without obtaining a required (1) $150 for a violation of a permit plate requirement under amended permit under §21.423 of this subchapter (relating to Amended §21.414 of this subchapter (relating to Sign Permit Plate); Permit); (2) $250 for a violation of: (7) is built by an applicant who uses false information on a (A) a registration requirement of §21.407 of this sub­ material issue of the permit application; chapter (relating to Existing Off-Premise Signs); or (8) is erected, repaired, or maintained in violation of (B) erecting the sign at the location other than the loca­ §21.441 of this subchapter (relating to Destruction of Vegetation and tion specified on the application, except that if the actual sign location Access from Right of Way Prohibited); does not conform to all other requirements the department will seek (9) has been made more visible by the permit holder clear­ cancellation of the permit; ing vegetation from the highway right of way in violation of §21.441 (3) $500 for: of this subchapter; (A) maintaining or repairing the sign from the state (10) is in an unzoned commercial or industrial area and the right of way; or department has evidence that an activity supporting the unzoned com­ mercial or industrial area was created primarily or exclusively to qual­ (B) performing customary maintenance on any sign or ify the area as an unzoned commercial or industrial area and that no substantial maintenance on a conforming sign without first obtaining business has been conducted at the activity site within one year; or an amended permit; or

(11) does not have the permit plate properly attached under (4) $1000 for erecting a sign from the right of way. §21.414 of this subchapter (relating to Sign Permit Plate). (c) In addition to the penalties assessed under subsection (b) of (b) Before initiating an enforcement action under this section, this section, the department may seek to recover the cost of repairing the department will notify a sign owner in writing of a violation of any damage to the right of way done by the sign owner or on the sign subsection (a)(5) or (11) of this section and will give the sign owner 60 owner’s behalf. days to correct the violation and provide proof of the correction to the (d) Before initiating an enforcement action under this section, department. the department will notify the sign owner in writing of a violation of (c) Upon determination that a permit should be canceled, the subsection (b)(1) or (2)(B) of this section and will give the sign owner department will mail a notice of cancellation to the address of the record 60 days to correct the violation and provide proof of the correction to license holder. The notice must state: the department.

(1) the reason for the cancellation; (e) Upon determination to seek administrative penalties the department will mail a notice of the administrative penalties to the last (2) the effective date of the cancellation; known address of the permit holder. The notice must clearly state: (3) the right of the permit holder to request an administra­ (1) the reasons for the administrative penalties; tive hearing on the cancellation; and (2) the amount of the administrative penalty; and (4) the procedure for requesting a hearing and the period for filing the request. (3) the right of the holder of the permit to request an ad­ ministrative hearing. (d) A request for an administrative hearing under this section must be in writing and delivered to the department within 45 days after (f) A request for an administrative hearing under this section the date that the notice of cancellation is received. must be made in writing and delivered to the department within 45 days after the date of the receipt of the notice. (e) If timely requested, an administrative hearing will be con­ ducted in accordance with Chapter 1, Subchapter E of this title (relating (g) If timely requested, an administrative hearing shall be con­ to Procedures in Contested Case) and the cancellation will be abated ducted in accordance with Chapter 1, Subchapter E of this title (relating until the cancellation is affirmed by order of the commission. to Procedures in Contested Case), and the imposition of administrative penalties will be abated unless and until that action is affirmed by order (f) A permit holder may voluntarily cancel a permit by submit­ of the commission. ting a request in writing after the sign for which the permit was issued has been removed. Subsections (c) - (e) of this section do not apply to §21.428. Sign Face Size and Positioning. a permit voluntarily canceled under this subsection. (a) An off-premise sign face may not exceed: (g) The department will notify the landowner identified on the (1) 672 square feet in area; permit application of a cancellation enforcement action. The notice is for informational purposes only, and does not convey any rights to the (2) 25 feet in height; and landowner. The landowner may not appeal the cancellation unless the (3) 60 feet in length. landowner is also the permit holder.

36 TexReg 2460 April 15, 2011 Texas Register (b) For the purposes of subsection (a) of this section, border tions in a manner that causes only one of the signs to be visible within and trim are included as part of the sign face. the specified spacing area. (c) Notwithstanding the area limitation provided by subsection (g) An off-premise sign may not be erected within five feet of (a)(1) of this section, one or more temporary protrusions may be added a rural road right-of-way line. to a sign, provided that: (h) An off-premise sign must be erected within 800 feet of at (1) the sign face, including the protrusions, meets the least one recognized commercial or industrial activity. The commercial height and length limitations of subsection (a) of this section; or industrial activity must be on the same side of the rural road as the sign. (2) the area of the protrusion does not exceed 35 percent of the area indicated on the sign permit; and (i) Distance from the commercial or industrial activity is mea­ sured from the outer edges of the regularly used buildings, parking lots, (3) the sign face, including the area of the protrusions, does storage facilities, or processing areas of the commercial or industrial not exceed 907 square feet in area. activity. Measurements are not made from the property line unless the (d) The area is measured by the smallest square, rectangle, tri­ property lines coincide with the regularly used portions of the activity. angle, circle, or combination that encompasses the entire sign face. (j) A sign may not be located in a place that creates a safety (e) A sign may not be erected that has more than two faces hazard, including a location that: fronting a particular direction of travel on the main-traveled way. (1) is likely to cause a driver to be unduly distracted; (f) A sign erected in a back-to-back or V-type configuration, (2) obscures or interferes with the effectiveness of an offi­ may have only one face fronting a particular direction of travel. cial traffic sign, signal, or device; or (g) A sign face that exceeds 454 square feet in area, including (3) obstructs or interferes with the driver’s view of ap­ cutouts, may not be stacked on or placed side by side with another proaching, merging, or intersecting roadway or rail traffic. sign face. Two sign faces may not be stacked or placed side by side if combined they exceed 907 square feet in area. (k) A sign may not be located in an area that is adjacent to or within 1,000 feet of a rest area. (h) A sign face may consist of commercial electronic variable message signs (CEVMS), otherwise referred to as rotating slat signs (l) The distance from a rest area is measured along the right or tri-vision signs, provided that the rotation is completed within one of way line from the outer edges of the rest area boundary abutting the second and the message is stationary for at least 10 seconds following right of way. a rotation. (m) The center of a sign may not be located within 250 feet of (i) If a sign is built with a smaller face than the size shown on the nearest point of the boundary of a public park. the permit application or if the face is reduced in size after it is built, (n) This subsection applies only if a public park boundary an amended permit will be required to increase the size of the face. abuts the right of way of a regulated highway. A sign may not be §21.429. Spacing of Signs. located within 1,500 feet of the boundary of the public park, as (a) An off-premise sign having a sign face area of at least 301 measured along the right of way line from the nearest common point square feet may not be located within 1,500 feet of another off-premise of the park’s boundary and the right of way. This limitation applies on sign on the same side of the roadway. both sides of the rural road. (b) An off-premise sign having a sign face area of at least 100 §21.432. Height Restrictions. but less than 301 square feet may not be located within 500 feet of (a) Except as provided in subsection (f) of this section a sign another off-premise sign having a sign face within that range or within may not be erected that exceeds an overall height of 42-1/2 feet. 1500 feet of an off-premise sign that has a sign face of at least 301 square feet and is on the same side of the roadway. (b) A roof sign that has a solid sign face surface may not at any point exceed 24 feet above the roof level. (c) An off-premise sign having a face area of less than 100 square feet may not be located within 150 feet of another off-premise (c) A roof sign that has an open sign face in which the uniform sign having a sign face of less than 100 square feet, within 500 feet of open area between individual letter or shapes is not less than 40 percent a sign with a face area of at least 100 but less than 301 square feet, or of the total gross area of the sign face may not at any point exceed 40 within 1,500 feet of an off-premise sign with a face area of at least 301 feet above the roof level. square feet that is on the same side of the roadway. (d) The lowest point of a projecting roof sign or a wall sign (d) Two signs located at the same intersection do not violate must be at least 14 feet above grade. this section if they: (e) For the purposes of this section, height is measured from (1) are located so that their messages are not directed to­ the grade level of the centerline of the main-traveled way closest to the ward traffic flowing in the same direction; and sign, at a point perpendicular to the sign location. (2) are not visible from the main-traveled way of an inter­ (f) The height measurement does not include any renewable state or federal-aid primary highway. energy device such as solar panels or wind turbines that are attached to the sign structure above the sign face to improve the energy efficiency (e) For the purposes of this section, the space between signs of the sign structure. is measured between points along the right of way of the roadway per­ pendicular to the center of the signs. §21.433. Lighting. (f) The spacing requirements of this section do not apply to (a) A sign may not contain or be illuminated by any flashing, signs separated by buildings, natural surroundings, or other obstruc­ intermittent, or moving light except that this subsection does not apply

ADOPTED RULES April 15, 2011 36 TexReg 2461 to a sign that only provides public service information, such as time, (6) the replacement of minor parts if the materials of the date, temperature, or weather. minor parts are the same type as those being replaced and the basic design or structure of the sign is not altered; (b) Except for a relocated sign, any new sign may be illumi­ nated but only by: (7) changing all or part of the sign face structure but only if materials similar to those of the sign face being replaced are used; and (1) upward lighting of no more than four luminaires per direction of the sign face or faces of the structure; or (8) upgrading existing lighting for an energy efficient light­ ing system. (2) downward lighting of no more than four luminaires per direction of the sign face or faces of the structure. (b) The following are considered to be customary maintenance activities that may be made but require an amended permit prior to the (c) Lights that are a part of or illuminate a sign: initiation of such an activity: (1) must be shielded, directed, and positioned to prevent (1) replacement of poles, but only if not more than one-half beams or rays of light from being directed at any portion of the traveled of the total number of poles of the sign structure are replaced in any 12 ways of a regulated rural road; month period and the same material is used for the replacement poles; (2) may not be of such intensity or brilliance as to cause and vision impairment of a driver of any motor vehicle on a regulated rural (2) adding a catwalk to the sign structure. road or otherwise interfere with the driver’s operation of a motor vehi­ cle; and (c) The following are examples of substantial changes that may be made but require an amended permit application before the (3) may not obscure or interfere with the effectiveness of initiation of such an activity: an official traffic sign, device, or signal. (1) adding lights to an unilluminated sign or adding more (d) A temporary protrusion on a sign may be animated only intense lighting to an illuminated sign whether or not the lights are if it does not create a safety hazard to the traveling public. A tempo­ attached to the sign structure; rary protrusion may not be illuminated by flashing or moving lights or enhanced by reflective material that creates the illusion of flashing or (2) changing the number of poles in the sign structure; moving lights. (3) adding permanent bracing wires, guy wires, or other (e) Reflective paint or reflective disks may be used on a sign reinforcing devices; face only if the paint or disks do not: (4) changing the material used in the construction of the (1) create the illusion of flashing or moving lights; or sign structure, such as replacing wooden material with metal material; (2) cause an undue distraction to the traveling public. (5) adding faces to a sign or changing the sign configura­ tion; (f) A neon light may be used on a sign face only if: (6) increasing the height of the sign; (1) the light does not flash; (7) changing the configuration of the sign structure, such (2) the light does not cause an undue distraction to the trav­ as changing a "V" sign to a stacked or back to back sign, or a single eling public; and face sign to a back-to back sign; and (3) the permit for the sign specifies that the sign is an illu­ (8) moving the sign structure or sign face in any way unless minated sign. the movement is made in accordance with §21.435 of this subchapter (g) This subchapter does not prohibit a temporary protrusion (relating to Permit for Relocation of Sign). that displays only alphabetical or numerical characters and that satis­ (d) To add a catwalk to a sign structure the catwalk must meet fies this subsection and the requirements of §21.428 of this subchapter Occupational Safety and Health Administration guidelines. (relating to Sign Face Size and Positioning) relating to a temporary pro­ trusion. The display on the temporary protrusion may be a digital or §21.435. Permit for Relocation of Sign. other electronic display, but if so: (a) A sign may be relocated in accordance with this section, (1) it must consist of a stationary image; §21.436 of this subchapter (relating to Location of Relocated Sign), and §21.437 of this subchapter (relating to Construction and Appearance of (2) it may not change more frequently than four times in Relocated Sign) if the sign is legally erected and maintained and will any 24 hour period; and be within the highway right of way as a result of a construction project. (3) the process of any change of display must be completed (b) To relocate a sign under this section, the permit holder must within two minutes. obtain a new permit under §21.409 of this subchapter (relating to Per­ §21.434. Repair and Maintenance. mit Application), but the permit fee is waived. (a) The following are considered to be routine maintenance (c) To receive a new permit to relocate a sign, the permit holder activities that do not require an amended permit: must submit a new permit application that identifies that the applica­ tion is for the relocation of an existing sign due to a highway project. (1) the replacement of nuts and bolts; The new location must meet all local codes, ordinances, and applicable (2) nailing, riveting, or welding; laws. (3) cleaning and painting; (d) Notwithstanding other provisions of this section, if only a part of a sign will be located within the highway right of way as a (4) manipulation of the sign structure to level or plumb it; result of the construction project, the sign owner may apply to amend (5) changing of the advertising message; an existing permit for the sign to authorize:

36 TexReg 2462 April 15, 2011 Texas Register (1) the relocation of the sign face of a monopole sign that rials to be used and the manner in which the work will be done. The would overhang the proposed right of way from that location to the department will allow the sign to be repaired without an amended per­ land on which the sign’s pole is located; mit if the department determines that the damage is not substantial. If the damage is determined to be substantial the sign owner must ob­ (2) the relocation of the poles and sign face of a multiple tain an amended permit under §21.423 of the subchapter (relating to sign structure that are located in the proposed right of way from the Amended Permit). proposed right of way to the land on which the other poles of the sign structure are located; or (c) The department will cancel the existing permit if it deter­ mines the damage to the sign is substantial under subsection (g) of this (3) a reduction in the size of a sign structure that is located section and an amended permit is not obtained by the sign owner within partially in the proposed right of way, so that the sign structure and sign one year after the date that the department first became aware of the face are removed from the proposed right of way. damage. (e) A permit for the relocation of a sign must be submitted (d) If a permit is canceled under this section or §21.425 of within 36 months from the earlier of the date the original sign was this subchapter (relating to Cancellation of Permit) the remaining sign removed or the date the original sign was required to move. The sign structure must be dismantled and removed without cost to the state. owner is required to continue to renew the sign permit and pay the permit renewal fee for the sign to remain eligible for relocation. (e) A sign that is totally or partially destroyed by vandalism or a motor vehicle accident may be rebuilt as described on the most §21.436. Location of Relocated Sign. recently approved permit application. (a) To receive a new permit for relocation, an existing sign must be relocated on a part of the same parcel of land on which the (f) If a decision to cancel a permit is appealed, the sign may sign was situated before relocation in a location that is allowed under not be repaired during the appeal process. this section. (g) Damage is considered to be substantial if the cost to repair (b) If the sign owner can demonstrate that the location under the sign would exceed 50 percent of the cost to replace it with a sign subsection (a) of this section is not physically or economically feasi­ of the same basic construction using new materials and at the same ble for a sign structure, the sign owner, on approval by the department, location. may relocate the sign to any other location that is allowed under this (h) A sign that is partially destroyed by a natural force outside section. The owner is not entitled to additional relocation benefits un­ the control of the permit holder in an area that receives a state or fed­ der §21.438 of this subchapter (relating to Relocation Benefits) if the eral disaster declaration and the sign owner has documentation to show sign structure is relocated further than 50 miles from the location of the that the sign damage would not be considered substantial the sign may existing sign. be repaired without prior determination by the department if, repaired (c) The location of the relocated sign must be within the re­ within 180 days of the event and if within 60 days of the completion of quired distance of a commercial or industrial activity as described by the repairs, the owner submits the following: §21.416 of this subchapter (relating to Commercial or Industrial Activ­ (1) photos of the partially destroyed sign and the repaired ity). sign; and (d) A sign may not be relocated to a place where it: (2) a notarized affidavit executed by the permit holder con­ (1) is likely to cause a driver to be unduly distracted in any taining: way; (A) the permit number of the sign; (2) will obscure or otherwise interfere with the effective­ (B) a statement that the sign was damaged by the natural ness of an official traffic sign, signal, or device; or force; (3) will obstruct or interfere with the driver’s view of ap­ (C) a statement that the cost to repair the sign was less proaching, merging, or intersecting motor vehicle or rail traffic. than 60 percent of the cost of a new, sign with the same basic construc­ (e) A sign may not be relocated from a rural road to a highway tion; and that is subject to Subchapter I of this chapter (relating to Regulation of (D) a statement that the sign was repaired in the same Signs along Interstate and Primary Highways). configuration and with like materials according to the most recent ap­ (f) Spacing requirements of §21.429(a) - (c) of this subchapter proved permit. (relating to Spacing of Signs) apply to signs relocated under this sec­ (i) A sign repaired in violation of this subsection is subject to tion. enforcement and removal. (g) A sign may not be relocated to a place that is: §21.441. Destruction of Vegetation and Access from Right of Way (1) within 500 feet of a public park that is adjacent to a rural Prohibited. road on either side of the roadway; or (a) A person may not: (2) within five feet of any highway right of way line. (1) destroy a tree or other vegetation on the right of way §21.439. Discontinuance of Sign Due to Destruction. for any purpose related to this subchapter; or (a) If a sign is partially destroyed by a natural force outside the (2) erect or maintain a sign from the right of way. control of the permit holder, including wind, tornado, lightening, flood, fire, or hurricane, the department will determine whether the sign can (b) The department will initiate an enforcement action if the be repaired without an amended permit. permit holder, or someone acting on behalf of the permit holder, vio­ lates this section. (b) The department may require the permit holder to submit an estimate of the proposed work, including an itemized list of the mate­

ADOPTED RULES April 15, 2011 36 TexReg 2463 (c) It is not a violation to trim the portion of the tree or vege­ (2) the date of the closing of a lease transaction is the date tation that encroaches onto private property at the private property line that the landlord and tenant enter into a binding lease of a property. as long as the trimming occurs from the private property. This agency hereby certifies that the adoption has been reviewed §21.442. On-Premise Signs. by legal counsel and found to be a valid exercise of the agency’s legal authority. (a) A business may not maintain more than five on-premise signs on a frontage of a single rural road at a single business location. Filed with the Office of the Secretary of State on April 1, 2011. (b) A permit under §21.404 of this subchapter (relating to Per­ TRD-201101267 mit Required) is not required to erect an on-premise sign. Bob Jackson (c) An on-premise sign is a sign that: General Counsel Texas Department of Transportation (1) is located on the real property of a business and consists only of: Effective date: July 1, 2011 Proposal publication date: December 3, 2010 (A) the name, logo, trademark, telephone number, and For further information, please call: (512) 463-8683 internet address of that business; or (B) an identification of that business’s principal and ac­ ♦ ♦ ♦ cessory products or services offered on the property; or SUBCHAPTER Q. REGULATION OF (2) only advertises the sale or lease of the real property on DIRECTIONAL SIGNS which the sign is located and is removed within 90 days after the date of the closing of the real property transaction. 43 TAC §§21.941 - 21.947 (d) For the purposes of this section, a sign is located on the real STATUTORY AUTHORITY property of a business if: The new sections are adopted under Transportation Code, (1) the real property on which the sign is located and the §201.101, which provides the commission with the authority to real property on which the activity of the business is conducted are one establish rules for the conduct of the work of the department, contiguous tract that is under common ownership; or and more specifically, Transportation Code, §391.032, which provides authority to establish rules to regulate the orderly (2) the sign is located on the real property of a commer­ and effective display of outdoor advertising on primary roads; cial development and the businesses of the development share the sign Transportation Code, §391.063, which provides authority for the structure of that sign. commission to set fees for the issuance of an outdoor adver­ (e) For the purpose of subsection (d)(1) of this section, real tising license; Transportation Code, §391.065, which provides property is not considered to be a part of one contiguous tract if the authority to establish rules to standardize forms and regulate the real property on which the sign is located is: issuance of outdoor advertising licenses; Transportation Code, §394.004, which provides the commission with the authority (1) separated from the real property on which the business to establish rules to regulate the erection and maintenance activity is located by a road or highway or by another business; of signs on rural roads; and Transportation Code, §394.025, (2) devoted to a separate purpose unrelated to the adver­ which provides authority for the commission to set fees for the tised business activity; issuance of an outdoor advertising license. (3) held under an easement or other lesser property interest CROSS REFERENCE TO STATUTE than the property interest in the land on which the business activity is Transportation Code, Chapters 391 and 394. located; or This agency hereby certifies that the adoption has been reviewed (4) is a narrow strip or other configuration of land that can­ by legal counsel and found to be a valid exercise of the agency’s not be put to any reasonable use related to the advertised business ac­ legal authority. tivity other than for signing purposes. (f) A sign is not an on-premise sign if: Filed with the Office of the Secretary of State on April 1, 2011. (1) the sign consists principally of brand name or trade TRD-201101268 name advertising and the product or service advertised is only inci­ Bob Jackson dental to the principal activity; General Counsel (2) the sign advertises activities that are not conducted on Texas Department of Transportation the premises; or Effective date: July 1, 2011 Proposal publication date: December 3, 2010 (3) the sign provides rental income to the owner of the real For further information, please call: (512) 463-8683 property on which it is located, unless the owner of the real property receives the income from an on-premise business for the use of the sign. ♦ ♦ ♦ (g) For the purposes of this subsection: PART 3. AUTOMOBILE BURGLARY (1) the date of the closing of a sales transaction is the date that legal title to a property is conveyed to a purchaser for property AND THEFT PREVENTION AUTHORITY under a contract to buy; and

36 TexReg 2464 April 15, 2011 Texas Register