Texas Dept. of Transp. v. Barber

• Decision Date: 03 July 2003
• Docket Number: No. 01-0414.,01-0414.
• Citation: 111 S.W.3d 86
• Parties: TEXAS DEPARTMENT OF TRANSPORTATION, et al., Petitioners, v. Pat BARBER, Respondent.
• Court: Texas Supreme Court

111 S.W.3d 86

TEXAS DEPARTMENT OF TRANSPORTATION, et al., Petitioners, v. Pat BARBER, Respondent.

No. 01-0414.

Supreme Court of Texas.

Argued November 14, 2002.

Decided July 3, 2003.

Howard G. Baldwin, First Assistant Atty. Gen. of Texas, Robert Searls Johnson, Asst. Solicitor General, Julie Caruthers Parsley, Office of the Solicitor General of Texas, Jeffrey S. Boyd, Office of the Attorney General, Austin, Meredith Bishop Parenti, Weil Gotshal & Manges, College Station, John Cornyn, United States Senate, Washington, DC, William Rich Thompson, II, Austin, for Petitioners.

James C. Harrington, Texas Civil Rights Project, Ted Anthony Ross, Asst. Atty. Gen., Sheri Joy Nasya Tolliver, Texas Civil Rights Project, Austin, for Respondent.

Justice ENOCH delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice O'NEILL, Justice JEFFERSON, Justice SCHNEIDER, and Justice WAINWRIGHT joined.

This case involves the constitutionality of the Texas Highway Beautification Act.¹ We must decide whether the Act, which precludes Pat Barber from displaying a particular billboard on his nonresidential property, violates Barber's free speech rights under the United States Constitution or the Texas Constitution. The court of appeals held that the Act violated Barber's rights under the United States Constitution as applied to his expression of noncommercial, ideological speech.² We disagree and hold that the Act is content neutral and constitutes a valid time, place, and manner restriction as applied to Barber's billboard. We therefore conclude that it does not violate Barber's federal guarantee of free speech. We also conclude that the Texas Constitution affords him no more protection under the circumstances than the federal constitution. We accordingly reverse the court of appeals' judgment and render judgment for petitioners (collectively, "TxDOT").

I. THE TEXAS HIGHWAY BEAUTIFICATION ACT

The Texas Highway Beautification Act was passed in response to the Federal Highway Beautification Act, which requires states to effectively control the erection and maintenance of signs within 660 feet of interstate and primary highways and beyond 660 feet in non-urban areas if the signs are designed to be and are visible from such highways.³ The Federal Act seeks to curb the proliferation of signs along the nation's highways and to "protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty."⁴ The Federal Highway Beautification Act provides that if states fail to make provisions for effectively controlling such signs, they risk losing ten percent of their federal highway funds.⁵

The express purpose of the Texas Act is to comply with federal law: "[I]t is the intent of the legislature to comply with the Highway Beautification Act of 1965 (23 U.S.C. Sections 131, 136, 319) to the extent that it is implemented by the United States Congress. This chapter is conditioned on that law."⁶ The Texas Act declares that outdoor advertising erected in non-compliance with its provisions "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."⁷ It also constitutes a "public nuisance."⁸

Thus, the Texas Act prohibits "outdoor advertising" in a limited area: (1) within 660 feet of a right-of-way, if the advertisement is visible from the interstate or primary highway system, or (2) if outside an urban area, more than 660 feet from the right-of-way, but visible from the highway and erected for the purpose of having its message seen from the highway.⁹ "Outdoor advertising" is defined as:

an outdoor sign, display, light, device, figure, painting, drawing, message, plaque, poster, billboard, or other thing 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.¹⁰

The Texas Act specifically exempts from regulation:

(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 rightof-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.¹¹

In addition, the Texas Act exempts from regulation a sign erected solely for and relating to a public election if the sign:

(1) is on private property;

(2) is erected not earlier than the 90th day before the date of the election and is removed not later than the 10th day after the election date;

(3) is constructed of lightweight material; and (4) has a surface area not larger than 50 square feet.¹²

II. THIS CASE'S HISTORY

In 1997, Barber, who is an attorney, installed an eight foot by sixteen foot billboard on nonresidential property he owned adjacent to Interstate 20, in Mitchell County, Texas. The billboard stated, "Just say NO to Searches," and displayed a telephone number. Callers to that number reached an answering machine that played a two-minute, pre-recorded message about a citizen's rights to refuse to have their vehicles searched by police:

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 highways. 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 20 m.p.h. 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.

A newspaper story about the billboard appeared in the Abilene Reporter News. Barber asserts that, shortly thereafter, he received a letter from TxDOT, the entity charged with enforcing the Texas Highway Beautification Act,¹³ stating that the billboard violated the Act and requesting that Barber remove it. According to Barber, TxDOT did this even though many other roadsigns in Mitchell County did not comply with the Act. Correspondence between Barber and TxDOT ensued but no agreement was reached, and TxDOT set a deadline for Barber to remove his billboard.

In response, Barber filed suit seeking injunctive relief and a declaratory judgment that the Act is unconstitutional. TxDOT counterclaimed, seeking a permanent injunction requiring Barber to remove his billboard. Barber initially secured a temporary injunction prohibiting TxDOT from enforcing the Act against him. But the trial court subsequently overturned the injunction and granted summary judgment to TxDOT, holding that the Act was constitutional under the Texas and United States constitutions, both on its face and as applied to Barber. The trial court permanently enjoined Barber from displaying the billboard. Barber removed his billboard and appealed the trial court's judgment.

The court of appeals reversed.¹⁴ The court of appeals held that the Texas Highway Beautification Act, as applied to Barber, violated the First Amendment to the United States Constitution.¹⁵ According to the court of appeals, the Act permitted Barber to engage in commercial speech and some types of noncommercial speech on his property, but it prohibited purely ideological speech by Barber on his property.¹⁶ Further, the court of appeals concluded that Barber had no adequate alternative means of communicating his message.¹⁷ Because the court concluded that the Act violated Barber's federal guarantee of free speech, it did not resolve the question raised by Barber of whether the Texas Constitution provides more protection than the United States Constitution.¹⁸

TxDOT petitioned this Court to consider these important constitutional questions. We granted the petition and requested supplemental briefing on whether the questions raised were moot because Barber had removed his billboard in...