An 11th-hour addition to the Texas Department of Transportation sunset bill has raised concerns that billboards in some parts of the state could soar to as high as 85 feet, double the current limit.

TxDOT officials insist the language only reflects what lawmakers intended - allowing those billboards already taller than the state's 42.5-foot limit to remain.

Advocates for tighter sign rules, however, fear the change opens the door to a maximum height of 85 feet for many roadside signs.

"The public never weighed in on this issue," said Margaret Lloyd, vice president for Scenic Texas, which has advocated for tighter controls on signs along freeways. "We were told by both the House and Senate sponsors that this would be a clean bill. We were not expecting this."

At issue is language quietly slipped into TxDOT sunset legislation as it moved from the Texas House to a conference committee to sort out differences between House and Senate versions of the bill.

Rep. John Wray, R-Waxahachie, inserted the language in an amendment aimed at cleaning up an enforcement problem related to long-existing billboards that exceed TxDOT's maximum height of 42.5 feet. The amendment allows for signs as high as 85 feet.

The height-related language remained in the bill as it sailed through the conference committee and got quick nods from both chambers.

Authors of the sunset bill, notably Sen. Robert Nichols, R-Jacksonville, stressed the intent was to have the height change only apply to billboards already over the 42.5-foot limit. Existing signs can remain their current height, essentially grandfathered in, while billboards now at or below the limit will remain at their height. Anything built later cannot go taller than 42.5 feet.

The state rules apply only to areas outside municipalities that regulate signs, where about 25,000 billboards currently are permitted. In cities such as Houston, local rules governing size and location of billboards carry the day.

Currently, the state has some enforcement issue with 159 billboards around Texas, transportation officials said. Others could exist that exceed the 42.5-foot standard, but were erected prior to height rules being established in 1986.

Concerns remain

Gov. Greg Abbott signed the bill, with language related to the new height rules applying to billboards erected prior to March 1, 2017.

Lloyd and others remain concerned about how TxDOT is adjusting to the new rules and are worried it opens a door to all billboards installed before March 1 going higher.

"It says any billboard before March 1, 2017, can be 85 feet," Lloyd said.

The proposed rule change, which the Texas Transportation Commission will consider as early as November, includes a section that says a "structure erected prior to March 1 ... may not be higher than 85 feet."

That section is followed by another that states billboards can be rebuilt "at a height that does not exceed the height of the sign" on March 1.

TxDOT officials said they believe they have fulfilled what the legislature decided, while providing some leeway so that TxDOT does not have to meticulously measure every sign, many of which are on private property that could pose challenges with access.

Officials said they do not believe the rule changes allow for any billboards to be taller than they are now.

"Whatever height they were, that is what they get to be," said Gus Cannon, director of right of way for TxDOT.

That interpretation, however, remains unclear, according to those in favor of strict sign controls and others who argue the regulations go too far.

Russ Horton, an Austin lawyer who has spoken critically of some of Texas' efforts to regulate billboards, said TxDOT cannot interpret the law in a way that conflicts with what legislators passed, regardless of what they meant to do.

Horton said a "carve out" for non-compliant signs could pose problems should the sign industry want to challenge the agency's rules for not adhering to the legislation.

"If you have an agency rule that exceeds its legislative statute, that is an easy attack," Horton said.

Bill redefines signs

Billboard height is just one of the issues TxDOT faces related to roadway signs. The agency also worked with lawmakers to address court challenges, including one that nullified parts of Texas' highway beautification act. The court ruling led to SB 2006, which redefines signs and eliminates an earlier distinction that differentiated between commercial speech, such as advertising a business, and political speech, such as supporting a candidate or party viewpoint.

Horton said the state's efforts might have fallen short simply because they have responded to a court tossing a rule by trying to write a new law, which also aims to control types of signs.

"You multiply the problem if you create another regulatory scheme," Horton said.

Texas, home to the late Lady Bird Johnson, the first lady who championed highway beautification in the 1960s, has stricter rules for signs and billboards than many other states. Many, Horton said, do not regulate height at all because it is not covered in the national Highway Beautification Act.

He called it "a little unrealistic" that large numbers of billboards would sprout up taller than 42.5 feet because the actual dimensions of signs remain the same. Advertisers are not likely to put their signs farther from where people can see them.

Signs taller than trees

Lloyd, meanwhile, said she worries any taller signs stand to ruin local character.

"When I drive through Georgia or Alabama along their federal system … I see billboards that are towering over the trees and it is horrible," Lloyd said. "It is pretty shocking to see signs that are twice as tall as the trees."

A lot of the problem, she said, could have been avoided by a more open and timely process in Austin.

"I think the big picture for us was, the process here was horrendous and whenever there is legislation passed it needs to go through the public," she said.