Sign regulations may hit dead end without new law

Keeping Texas beautiful — or at least free from a blitz of billboards along state highways — is racing the legislative clock in Austin.

The Texas House and Senate are considering bills to change state regulations of billboards in response to a court ruling last year that tossed out key portions of the Texas Highway Beautification Act.

If the bills aren’t approved, the state could lose control of highway advertising and possibly as much as $300 million per year in federal funding, until the Legislature reconvenes in 2019.

“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,” Texas Department of Transportation Executive Director James Bass told lawmakers.

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.

The Texas Third District Court of Appeals last year voided some of the state’s billboard regulations, saying differing rules for commercial and political signs infringed on the free speech rights of property owners.

Municipal bans on billboards, such as Houston’s sign ordinance, are unaffected.

The ruling 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 the Texas Department of Transportation ordered him to remove the sign, he took them to court for violating his freedom of speech.

TxDOT is appealing the ruling, but in the interim wants lawmakers to approve new language that shifts focus away from the message being conveyed and 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.

Close to same limits

The House and Senate committees in the past week discussed legislation to make highway sign regulations focus on prohibiting commercial use of signs near roadways and not on the message.

The bills set standards for commercial signs, those for which a landowner leases land for the purpose of erecting a sign visible from the roadway, or receives payment for placing messages on a sign.

Except for a few exceptions — such as signs advertising a business on the same property — the proposals would set the same limits on height, size and setbacks from highways that existed under the current law.

It includes locations where billboards are prohibited, such as the Sam Houston National Forest.

Even the fixes have raised concerns from some lawmakers and lawyers.

“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.

Dividing commercial and non-commercial signs based on how the sign is paid for continues to inhibit speech, Horton said, because courts have said spending money is an expression of speech.

“We are regulating two classes of speakers,” he said, noting that he believes rules on signs are necessary but must pass muster with courts.

‘Two bites at the apple’

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 down in August.

The critical issue, state officials and sign restriction advocates said, is for Texas to 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 Texas Supreme Court will uphold the lower court ruling that the law is unconstitutional. That would leave the state with no restrictions outside of 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 3 feet in front of it,” Bass said.

The lack of state regulations could possibly jeopardize federal funding.

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.