Texas transportation officials have challenged a state district court ruling that effectively abolished the state’s restrictions on highway billboards, in the hopes the court will restore at least some of the rules on commercial ads.

The Texas Attorney General’s Office filed a motion to reconsider with the Third District Court of Appeals in Austin on Sept. 27, on behalf of the Texas Department of Transportation. Many others, including Harris County, the Texas Municipal League and Scenic Texas have filed or plan to file briefs supporting the state’s request.

Aside from aesthetic preferences, supporters of the billboard ban noted about $330 million – one-tenth of what the state receives in federal highway funds each year – are at stake. Federal rules require states to maintain “effective control” of their highways under the U.S. Highway Beautification Act.

Though there has been no indication any loss of federal funds is imminent, billboard ban supporters said Texas, the home of highway beautification champion First Lady Lady Bird Johnson, shouldn’t risk it, even as courts weigh many sign bans nationally.

“The possibility that other courts may declare other billboard statutes unconstitutional is not a good reason for Texas to jump first in line,” lawyer Scott Brister wrote in an amicus brief on behalf of many local agencies.

The appeals court in August struck down significant portions of the Texas Highway Beautification Act, saying the act restricted free speech. The decision applies to the state’s authority to regulate signs, but did not address municipal regulations, such as Houston’s ban on new billboard advertising.

In striking down the law, the Texas court relied on a U.S. Supreme Court ruling that has caused a number of states to revisit parts of their highway beautification regulations, especially related to inhibiting free speech of landowners.

The state appeals court ruling stemmed from a challenge by Auspro Enterprises, related to a 2011 sign erected to support Ron Paul's 2012 presidential campaign. Auspro Enterprises placed the sign on its property along Texas 71.

Michael Kleinman, who also owns the Planet K chain of smoke, erotica and novelty shops in the Austin and San Antonio area, placed the sign in front of the Bee Cave Planet K location.

When TxDOT sought to have Kleinman remove the sign for violating limits on when political signs could be posted, he challenged their authority, citing its limits on his free speech.

The court agreed the beautification act’s rules restricted speech, and further said it could not sever the state’s sign rules apart based on content, striking down the heart of the billboard and sign bans that supporters say have kept Texas highways mostly free of clutter and distracting ads.

In asking the court to reconsider, Deputy Solicitor General Matthew Frederick’s motion argues the court delivered too broad a solution.

“A ban on regulation of commercial speech goes beyond the controversy in this case,” Frederick wrote.

Texas motion in Auspro v. TxDOT by dugbegley on Scribd

Similar arguments were advanced by supporters of the ban, who urged the court to uphold bans on advertising and not rely on state lawmakers to revise the beautification act from scratch. Because of the upcoming elections and restart of the legislative session in January, it could be six to nine months before new laws are passed.

“In the interim, there may be little or no restriction on billboards along major highways, at least within the jurisdictional boundaries of this court,” Brister wrote.

Auspro’s lawyer, Meredith Parenti, however, said in a statement it’s not the court’s place to write law, as TxDOT is asking it to do in part by separating political from commercial speech.

“This is a job for the Legislature, not the judiciary,” Parenti said. “The Supreme Court did not rewrite the sign code … to limit it to commercial billboards, and this court should not do so either.”

There is no timeline for the appeals court to consider the state’s request.

“Although motions for rehearing are traditionally long odds efforts, we are extremely pleased with both the motion and our brief and are convinced that we have presented a compelling case,” said Anne Culver, executive vice-president of Scenic Texas.