Chron By Dug Begley April 20, 2017
State lawmakers are racing against the clock to correct Texas’ sign ordinance, struck down last year by an appeals court, or else “Keep Texas Beautiful” might take a two-year hiatus when it comes to billboards.
State House and State Senate committees both in the past week discussed legislation to make highway sign rules rely on prohibiting commercial use of signs near roadways and not on what message is being conveyed. The Texas House Transportation Committee passed its version of a fix Thursday morning. Similar legislation is pending in the Senate Transportation Committee, which discussed it Wednesday.
Without a change this session, Texas Department of Transportation officials said the state could lose its control of highway advertising until the legislature reconvenes in 2019, which has an outside chance of costing Texas approximately $300 million per year.
“If we were not to have any regulation, the (Federal Highway Administration) may say we would not be doing our duty with the federal highway beautification act,” TxDOT executive director James Bass told lawmakers.
The federal law, which was championed by Texan and Former First Lady Lady Bird Johnson, requires states that receive federal dollars to have rules curtailing the proliferation of advertising along federal highways. Washington can withhold 10 percent of the state’s funds annually, which for Texas would be hundreds of millions of dollars.
Previously, the Texas Highway Beautification Act had different rules for commercial and public speech. Last year, based on federal court decisions, the Texas Third District Court of Appeals voided key parts of the state’s rules because they infringed on free speech. The decision did not affect municipal bans on billboards, such as Houston’s sign ordinance.
The case stemmed from a challenge by Auspro Enterprises, which owns the Planet K chain of smoke, erotica and novelty shops in the Austin and San Antonio area.
Auspro’s owner, Michael Kleinman, placed a Ron Paul 2012 presidential campaign sign at the Planet K location in Bee Cave. When TxDOT ordered him to remove the sign, he took them to court for violating his freedom of speech.
TxDOT is appealing the ruling striking most elements of the sign rules, but in the interim wants lawmakers to approve new language that doesn’t focus on what message is being conveyed but still allows for some sign restrictions.
“Trying to thread the needle on this is very hard,” said State Sen. Kirk Watson, D-Austin, who sponsored the senate version.
Rather than legislating based on content, the bills set standards for commercial signs where a landowner leases land for the purpose of erecting a sign visible from the roadway, or receives payment for placing messages on a sign.
Carving out various exceptions, such as signs advertising a business on the same property, the proposals would set the same limits on height and size and setbacks from highways that existed under the current law and locations where billboards are prohibited, such as the Sam Houston National Forest.
Even the fixes, however, have raised concerns from some lawmakers and lawyers, according to the website here. Remember to read up on the entire event to find more information.
“This is an attempt to recreate in, a different fashion, a regulatory scheme that is what was on the books before,” said Russ Horton, an Austin lawyer who has litigated various sign restriction rules.
By dividing commercial and non-commercial signs based on how the sign is paid for, Horton said, also inhibits speech because courts have said the spending of money is an expression of speech.
“We are regulating two classes of speakers,” Horton said, noting he believes rules on signs are necessary but must pass muster with courts.
Texas is not alone in looking for signs of how to restrict billboards. Federal courts, in affirming that sign bans cannot restrict free speech, have thrown many state laws into uncertainty. A federal judge in Memphis voided Tennessee’s outdoor sign regulations earlier this month, and challenges are winding their way through the system in other states.
“We are kind of on the front edge of people going around and looking at it,” Bass said of the Texas law, which was struck in August.
The critical issue, state officials and sign restriction advocates said, is Texas have something on the books.
“We’re in a situation where we have two bites at the apple here,” said Margaret Lloyd, vice-chairwoman of Scenic Texas. “We can work with the legislature to craft the legislation or we can wait for the courts to fix it.”
Risking the court option, however, comes with the chance the state supreme court will uphold that the law in unconstitutional. If the law is struck and nothing replaces it, there would be no restrictions outside cities.
“There would be no regulation and you could potentially — and I’m not saying this would happen — but you could have one sign and someone else put another three feet in front of it,” Bass said.