Auspro Enterprises, LP v. Texas Department of Transportation

Opinion

ACCEPTED 03-14-00375-CV 4360225 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/3/2015 10:12:20 PM JEFFREY D. KYLE No. 03-14-00375-CV CLERK

In the FILED IN 3rd COURT OF APPEALS

Third Court of Appeals AUSTIN, TEXAS 3/3/2015 10:12:20 PM

Austin, Texas JEFFREY D. KYLE Clerk _______________

AUSPRO ENTERPRISES, LP, Appellant, v.

TEXAS DEPARTMENT OF TRANSPORTATION, Appellee. _______________

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

APPELLANT’S MOTION FOR STAY AND FOR SUPPLEMENTAL BRIEFING IN LIGHT OF IMPENDING SUPREME COURT DECISION IN REED V. TOWN OF GILBERT _______________

Meredith B. Parenti State Bar No. 00797202 PARENTI LAW PLLC 7500 San Felipe, Suite 600 Houston, Texas 77063 [Tel] (281) 224-5848 [Fax] (281) 605-5677 meredith@parentilaw.com Counsel for Appellant AusPro Enterprises, LP IDENTITIES OF PARTIES AND COUNSEL

The following is a complete list of the parties, attorneys, and any other

person who has any interest in the outcome of this appeal.

Defandant/Appellant:

AusPro Enterprises, LP

Counsel for Defendant/Appellant:

Meredith B. Parenti State Bar No. 00797202 PARENTI LAW PLLC 7500 San Felipe, Suite 600 Houston, Texas 77063 [Tel] (281) 224-5848 [Fax] (281) 605-5677 meredith@parentilaw.com

Plaintiff/Appellee:

Texas Department of Transportation

Counsel for Plaintiff/Appellee:

Douglas Geyser Assistant Solicitor General Matthew Bohuslav Assistant Attorney General, Transportation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 [Tel] (512) 936-2540 [Fax] (512) 472-3855 douglas.geyser@texasattorneygeneral.gov matthew.bohuslav@texasattorneygeneral.gov

2 TO THE HONORABLE THIRD COURT OF APPEALS:

Appellant AusPro Enterprises, LP files this motion for a stay of this

appeal pending the decision by the Supreme Court of the United States in

Reed v. Town of Gilbert, No. 13-502. Appellant also moves for supplemental

briefing under TEX. R. APP. P. 38.7 to address the forthcoming decision in

Reed, which could very well be dispositive to this appeal.

On January 12, 2015, after Appellant filed its opening brief, the

Supreme Court heard oral argument in Reed, a First Amendment challenge

to an Arizona sign ordinance involving durational and other limitations on

political, ideological, and other types of signs based on the subject matter of

the signs. The question presented in Reed is:

Does Gilbert’s mere assertion of a lack of discriminatory motive render its facially content-based sign code content neutral and justify the code’s differential treatment of Petitioners’ religious signs?

Brief for Petitioners, Reed v. Town of Gilbert, No. 13-502 (Sept. 15, 2014).

The Supreme Court’s determination of this issue could resolve many,

or even possibly all, of the issues raised in this appeal, which involves a First

Amendment challenge to the durational and other limitations on election-

related signs along state highways and interstates under the Texas Highway

Beautification Act and its implementing regulations.

3 In order to preserve scarce judicial and party resources, and to permit

the parties and the Court to consider and address the impact of a decision in

Reed on this case, Appellant respectfully requests a stay of this appeal until

the Supreme Court issues a decision in Reed. If this motion is granted,

Appellant would promptly notify this Court and opposing counsel of the

decision in Reed once issued. Appellant also requests the following

supplemental briefing schedule under TEX. R. APP. P. 38.7 to permit the

parties to address the implications of Reed:

• Appellant will file a supplemental brief of 10,000 words or less within

30 days of the issuance of the Supreme Court’s decision in Reed.

• Appellee will file a supplemental brief of 10,000 words or less within

30 days of service of Appellant’s supplemental brief.

• Appellant may file a reply of 7,500 words or less within 20 days of

service of Appellee’s brief.

A stay and a supplemental briefing schedule will serve the interests of

justice by permitting this Court to be fully apprised of the latest guidance

from the Supreme Court of the United States on the regulation of signs under

the First Amendment. Absent a stay and supplemental briefing, this Court

could reach a premature decision in this case relying on reasoning that could

prove to be obsolete under Reed. Rather than engage in an academic exercise

4 while Reed is pending, a stay would permit the parties and the Court to fully

consider the impact of Reed and apply its reasoning to the issues in this case.

PRAYER

For the above reasons, Appellant respectfully requests a stay of this

appeal and for a supplemental briefing schedule as outlined above.

Respectfully submitted,

/s/ Meredith B. Parenti Meredith B. Parenti PARENTI LAW PLLC 7500 San Felipe, Suite 600 Houston, TX 77063 [Tel] (281) 224-5848 [Fax] (281) 605-5677 meredith@parentilaw.com Counsel for Appellant AusPro Enterprises, LP

5 CERTIFICATE OF CONFERENCE

I certify that on February 27, 2015, I conferred with counsel for Appellee, who represented that Appellee opposes this motion.

/s/ Meredith B. Parenti Meredith B. Parenti

CERTIFICATE OF SERVICE

I certify that on March 3, 2015, I served by a copy of this Motion on the following party via email and through the Court’s electronic filing system:

Douglas Geyser Assistant Solicitor General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Counsel for Appellee Texas Department of Transportation

/s/ Meredith B. Parenti Meredith B. Parenti