Barber v. Texas Department of Transportation

• Decision Date: 05 April 2001
• Docket Number: No. 03-00-00373-CV,03-00-00373-CV
• Citation: 49 S.W.3d 12
• Parties: (Tex.App.-Austin 2001) Pat Barber, Appellant v. Texas Department of Transportation; Charles W. Heald, P.E., Executive Director of the Texas Department of Transportation, in his Official Capacity; John P. Campbell, P.E., Director, Right-Of-Way Division, Texas Department of Transportation, in his Official Capacity; Bill Hale, P.E., Abilene District Engineer, Texas Department of Transportation, in his Official Capacity; Alvin Luedecke, Jr., P.E., Director of Transportation, Planning and Program, Texas Department of Transportation, in his Official Capacity; and John Cornyn, Attorney General of Texas, Appellees
• Court: Texas Court of Appeals

Page 12

49 S.W.3d 12 (Tex.App.-Austin 2001)

Pat Barber, Appellant v. Texas Department of Transportation; Charles W. Heald, P.E., Executive Director of the Texas Department of Transportation, in his Official Capacity; John P. Campbell, P.E., Director, Right-Of-Way Division, Texas Department of Transportation, in his Official Capacity; Bill Hale, P.E., Abilene District Engineer, Texas Department of Transportation, in his Official Capacity; Alvin Luedecke, Jr., P.E., Director of Transportation, Planning and Program, Texas Department of Transportation, in his Official Capacity; and John Cornyn, Attorney General of Texas, Appellees

No. 03-00-00373-CV

Court of Appeals of Texas, Austin.

April 5, 2001

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. 98-09717, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING

Before Justices Kidd, Yeakel and Powers^*

Kidd, Justice

Pat Barber filed suit in Travis County District Court seeking a declaratory judgment that the Texas Highway Beautification Act ("the Texas HBA" or "the Act") was an unconstitutional infringement on his right to free speech under the federal and state constitutions. Barber also sought an injunction prohibiting enforcement of the Act by the Texas Department of Transportation, various officials within the Department, and the Attorney General of Texas (collectively "TxDOT"). TxDOT's motion for summary judgment was granted and the trial court ordered that Barber was permanently enjoined from displaying an outdoor advertising sign on his private property in Mitchell County, Texas. Furthermore, Barber was ordered to pay court costs and TxDOT's reasonable attorneys' fees of $1200. Barber appeals. We will reverse and render judgment regarding the declaratory judgment and injunction. We will reverse and remand regarding costs and attorneys' fees.

BACKGROUND

Barber erected a sign on his private property adjoining Interstate 20, near Colorado City, Texas. The sign read "Just Say NO to Searches" and displayed a phone number. Callers dialing the number reached an answering machine that played the following two-minute message about a citizen's constitutional rights regarding searches:

This recorded information is provided as a public service by Pat Barber's Law Office in regard to the large number of unreasonable searches being pursued by state officers on the highway. Officers are relying on people's ignorance of their right to search.

Many people are being intimidated; often, when an officer has asked for a search and is refused, the officer will threaten to obtain a warrant from a judge. This threat is a bluff because most of the time the officer doesn't have probable cause. When an officer threatens to get a warrant and knows he doesn't have probable cause, he is intimidating the citizen through deception. Most people don't know that an officer can't get a warrant to search unless he proves to a judge that probable cause of a criminal offense exists.

An innocent citizen may have nothing to hide, but has done nothing wrong, and should know that when an unreasonable search request is refused, the officer must let him go.

When an officer has permission to search, the vehicle may be taken apart and the contents are thrown on the ground so the drug dogs can work.

I know about one lady traveling in a late model Suburban who was seen standing by the side of the road trying to hold her hair together in a twenty-mile-per-hour wind while officers threw her possessions on the ground. After the officers finished the search and left, a local citizen stopped and helped her pick up her things.

I am offended by this kind of police behavior, and I feel a duty to inform citizens about their rights. Just say NO to searches . . . it's your constitutional right. If you would like to leave a message, please wait for the beep. Good luck and have a safe trip.

Although located on his private property, Barber's sign was within the corridor along Interstate 20 that is regulated by the Act. The area is not commercial or industrial; therefore, all signs must qualify for an exemption expressly provided by the Act. Barber's sign did not qualify for any exemption. Furthermore, he did not apply for a license or permit prior to erecting the sign as required by the Act.

Barber received a letter from TxDOT stating that his sign violated the Act. The letter demanded that Barber comply with the Act or remove the sign. Barber filed suit against TxDOT in Travis County District Court requesting a temporary injunction, declaratory judgment, and permanent injunction. After a hearing, the district court issued a temporary injunction, prohibiting TxDOT from enforcing the Act against Barber pending a trial on the merits.

Both parties filed motions for summary judgment regarding Barber's claim that the Act was being applied in an unconstitutional manner. After a hearing, the trial court granted partial summary judgment in favor of TxDOT. Subsequently, there was a hearing on TxDOT's counterclaim, seeking removal of the sign. The trial court granted summary judgment, again in favor of TxDOT. Barber was permanently enjoined from displaying the sign and ordered to pay all costs and TxDOT's reasonable attorneys' fees of $1200. Barber removed the sign and filed his notice of appeal.

THE TEXAS HIGHWAY BEAUTIFICATION ACT

This case is about the constitutionality of the Texas HBA. Like similar statutes in other states, the Texas HBA was enacted in response to the federal Highway Beautification Act of 1965. See Tex. Transp. Code Ann. § 391.002(a) (West 1999); 23 U.S.C.A. §§ 131, 136 (West 1990 & Supp. 2000). The federal act requires states to control outdoor advertising signs along interstate and primary highways or suffer a reduction of ten percent in their federal-aid highway funds. 23 U.S.C.A. § 131(b) (West 1990). The federal HBA specifies the minimum standards that the states must enforce to avoid the loss of federal monies, but authorizes the states to enact stricter standards. Id. § 131(k).

Chapter 391 of the Texas Transportation Code is entitled Highway Beautification on Interstate and Primary Systems. Tex. Transp. Code Ann. §§ 391.001-.213 (West 1999 & Supp. 2001). The purposes of the Act are to promote the safety of the traveling public and to protect the esthetic beauty of the Texas landscape. Id. § 391.002(b)(1), (c)(2) (West 1999). The Act dictates that it is a misdemeanor to erect any outdoor advertising¹ that is visible from the interstate, either (1) within 660 feet of the right-of-way; or (2) outside an urban area, more than 660 feet from the right-of-way, if the sign is erected for the purpose of having its message seen from the interstate. Id. § 391.031(a), (d). It is not an offense to erect the following types of signs, regardless of their proximity to rights-of-way: directional; pertaining to natural wonders, or scenic or historic attractions; advertising the sale or lease of the property on which the sign is located; advertising activities conducted on the property on which the sign is located; for the protection of life and property; or signs that are historic or artistic landmarks. Id. § 391.031(b)(1)-(3), (5), (6). It is not an offense to erect any type of sign within areas of industrial or commercial land use. Id. § 391.031(b)(4). Temporary signs relating to public elections and measuring less than fifty square feet are exempt from regulation under the Act. Id. § 391.005.

Prior to erecting any outdoor advertising sign, a person must acquire a license and a permit from the Texas Transportation Commission.² Id. §§ 391.061(a), .067(a). In order to qualify for a license, the applicant must file an application and surety bond, and pay a fee. Id. § 391.062(a). Erecting a sign without a license is a misdemeanor punishable by a fine of $500 to $1000 per day. Id. § 391.061(b). In order to qualify for a permit, the applicant must possess a license, file an application, and pay a fee. Id. § 391.068(a)(1), (b). Permits are only issued for advertising that complies with the Act and with Commission rules. Id. §§ 391.068(a)(2), .032(a). Erecting a sign without a permit is a misdemeanor punishable by a fine of $500 to $1000 per day. Id. § 391.067(b).

The legislature has declared that outdoor advertising erected in violation of the Act "endangers the health, safety, welfare, morals, convenience, and enjoyment of the traveling public and the protection of the public investment in the interstate and primary highway systems" and is a public nuisance. Id. § 391.034(a). On written notice from TxDOT, the owner of outdoor advertising that violates the Act has forty-five days to remove it. Id. § 391.034(b). If the owner does not remove the sign, TxDOT can direct that the attorney general initiate legal action seeking: (1) an injunction prohibiting maintenance of the sign; (2) an injunction requiring removal of the sign; (3) all administrative and legal costs incurred to remove the sign; and (4) a civil penalty of $500 to $1000 per day. Id. §§ 391.034(b), (c), .035(a), (b) (West 1999 & Supp. 2001).

DISCUSSION

A. The Standard of Review

The material facts of this case are not in dispute. Because the propriety of the summary judgment is a question of law, we review the trial court's decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). When both sides move for summary judgment and the trial court grants one motion and denies the other, we review the summary-judgment proof presented by both sides and determine all questions presented. Comm'rs Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). If we find error, we must render the judgment that the trial court should have rendered. Id.

B. The Issue on Appeal

The issue in this appeal is whether the state can prohibit Barber from engaging in purely ideological speech on his own private property. We hold that this prohibition is a violation of Barber's free speech rights guaranteed by the First Amendment to the United...