This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing.
Robert Cole and Bonnie Cole v. Motor Vehicle Board of the Texas Department of Transportation and Georgie Boy Manufacturing, Inc. n/k/a Georgie Boy Manufacturing, LLC, No. 03-05-00825-CV (Tex.App.- Austin, June 18, 2008)(Opinion by Justice Pemberton [ PDF ] )(administrative law, appeal) (Before Chief Justice Law, Justices Patterson and Pemberton)
Appeal from 345th District Court of Travis County
M E M O R A N D U M O P I N I O N
This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing. See Tex. Occ. Code Ann. § 2301.204 (West 2004). (1) The district court affirmed the order. In two issues, the Coles argue that the Board lacked statutory authority to make fact findings adverse to the Coles and that both the Board and district court lacked subject-matter jurisdiction because the Coles were not proper parties and lacked standing. We will affirm the district court's judgment.
This proceeding arises in the context of the "hybrid claims resolution process" discussed by the Texas Supreme Court in Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222-26 (Tex. 2002). The underlying controversy concerns a 1994 Georgie Boy motor home purchased by the Coles in June 1994. The Coles claim to have encountered numerous problems with the motor home relating chiefly to overheating and handling difficulties. In 1995, the Coles filed suit in Hays County against the dealer who sold them the motor home, Interstate R.V. Center. They later amended their complaint to allege claims against the manufacturer of the vehicle, appellee Georgie Boy, Inc.; the manufacturer of the vehicle's chassis, Spartan Motors, Inc.; and the engine manufacturer, Cummins Engine Company. The Coles asserted claims under the DTPA, alleging, among other theories, breach of warranty. The lawsuit was later abated and, in 2004, the Coles sent the Board a letter "to file a complaint for unresolved warranty issues" under section 2301.204 of the occupations code. (2)
The Board responded with a letter assigning them a "case advisor" and transmitting a form for filing a "Lemon Law" complaint See Tex. Occ. Code Ann. §§ 2301.601-.613 (West 2004 & Supp. 2007). The Coles completed the Lemon Law form and filed it with the Board. The matter was docketed with the Coles designated as "complainant" and the three manufacturers as "respondents." Spartan moved to dismiss the complaint as untimely. The ALJ granted Spartan's motion and dismissed the complaint, ruling that the vehicle warranties had long since expired and that the Coles had "failed to present a prima facie case that would entitle them to relief under Section 2301.204" because the passage of time "rendered attribution of cause with any degree of legal certainty unfeasible." The Coles filed a motion for rehearing with the Board.
In their rehearing motion, the Coles urged that the Texas Supreme Court had decided Subaru while their suit was pending and that "[i]n light of Subaru . . . and the broad language of Section 2301.204 of the Occupations Code, it was prudent, if not mandatory, for the Complainant to attempt to invoke the jurisdiction of the Board pursuant to section 204 prior to trying the pending District Court case." The Board unanimously agreed, granting the Coles' rehearing motion and remanding the matter to the ALJ. Subsequently, the Board gave notice of hearing "under the authority of the Texas Occupations Code Annotated, Section 2301.204 . . . for the purpose of receiving testimony and other evidence from the parties, to determine whether the Respondent[s] ha[ve] failed to conform the Complainant's vehicle to the express warranty applicable to said vehicle by failing to repair or correct defects or conditions which are covered by the warranty on the vehicle, as alleged by Complainant, and to determine if Complainant is entitled to relief as provided by . . . Section 2301.204."
Pursuant to the notice, a contested case hearing was held in which the Coles presented evidence (including the testimony of two experts) and argued that they "have satisfied their burden to win this case. They have shown that defects exist, that they told the Respondents about the defects but that the Respondents failed to repair the defects. So, the Coles should prevail." (3) The ALJ concluded that there had been no warranty violations by the respondents. The ALJ specifically found that Georgie Boy's express warranty had expired in 1995, that the company had not failed to uphold its warranty obligations, and that "[t]he requirements of Section 2301.204 were not met because the Complainants have not proven that any manufacturing related defective conditions currently exist." The Coles moved for rehearing, which the Board denied by a 6-2 vote. The Coles then sought judicial review in the district court. This district court affirmed the Board's order. This appeal followed.
The Coles acknowledge that they are appealing the Board's decision "solely to ensure that the Board's arbitrary and capricious actions [do] not prejudice" the pending lawsuit in Hays County under Subaru. At this juncture, they attempt to portray the Board proceeding they initiated as a "public interest" complaint that the Board had authority only to "investigate" in its "administrative" capacity. According to the Coles, the Board had statutory authority or jurisdiction during this investigation merely to call them as witnesses, but could not act in a "judicial capacity" to adjudicate their complaint, treat them as parties to a contested case or "adversarial action," or make findings and rulings "against" them.
On appeal, the Coles question whether their lawsuit presents code-based issues whose determination by the Board would have binding effect under Subaru. As the Coles acknowledged in their first motion for rehearing before the Board, however, their warranty complaints clearly present code-based issues within the Board's exclusive jurisdiction. See Tex. Occ. Code Ann. §§ 2301.204, .601-.613; see Subaru, 84 S.W.3d at 222-26.
As we have previously observed, "[e]xactly what type of procedure the Texas Supreme Court contemplated in Butnaru and Subaru" that the Board would use in the hybrid claims-resolution process "remains somewhat unclear," Ford Motor Co. v. Butnaru, 157 S.W.3d 142, 148 (Tex. App.--Austin 2005, no pet.), but it remains that the Board has exclusive jurisdiction within this scheme to decide code-based issues. See Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91, 102 (Tex. App.--Austin 2004, pet. denied). Moreover, "the legislature has granted the Board wide discretion to fashion the procedural mechanisms through which it exercises its jurisdiction." Id. For example, in Buddy Gregg, another Subaru case, we held that the Board had discretion under its enforcement powers to permit a motor coach dealer to initiate a contested case proceeding to determine licensing issues involving a rival company and to permit the dealer to participate in those proceedings as a party. Id. at 101-02.
Throughout each step of the agency proceedings, the Coles participated as parties in an adversarial, contested-case process, presenting evidence and arguing that they had "satisfied their burden to win this case." Such a process was contemplated by the Board's rules governing complaints regarding warranty performance obligations. 16 Tex. Admin. Code §§ 107.1-.11 (2004). The Coles did not complain of this procedure until they filed their motion for rehearing before the Board. Under Subaru and Buddy Gregg, we reject the Coles' arguments that the Board lacked statutory authority or jurisdiction to adjudicate their code-based warranty issues through the procedure it utilized. We accordingly overrule the Coles' issues (4) and affirm the district court's judgment.
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: June 18, 2008
1. Because most of the underlying proceedings predated the legislature's 2005 abolition of the Board and transfer of its functions to the motor vehicle division of the department of transportation, we will refer to the agency as the Board. See Act of May 30, 2005, 79th Leg., R.S., ch. 281, § 7.01, sec. 2301.002(2), (10), 2005 Tex. Gen. Laws 778, 839.
2. The Coles' letter actually referenced "Section 2.04 of the Motor Vehicle Commission Code." The Coles acknowledge that, as is apparent from their subsequent filings, they intended to invoke section 2301.204 of the occupations code. Tex. Occ. Code Ann. § 2301.204(a) (West 2004).
Section 2310.204 provides:
§ 2301.204. COMPLAINT CONCERNING VEHICLE DEFECT.
(a) The owner of a motor vehicle or the owner's designated agent may make a complaint concerning a defect in a motor vehicle that is covered by a manufacturer's, converter's, or distributor's warranty agreement applicable to the vehicle.
(b) The complaint must be made in writing to the applicable dealer, manufacturer, converter, or distributor and must specify each defect in the vehicle that is covered by the warranty.
(c) The owner may also invoke the board's jurisdiction by sending a copy of the complaint to the board.
(d) A hearing may be scheduled on any complaint made under this section that is not privately resolved between the owner and the dealer, manufacturer, converter, or distributor.
3. Complainants' Closing Argument, at 2.
4. In addition to their two issues, the Coles assert in their statement of facts that "[t]he Manufacturers . . . failed to provide substantial evidence." To the extent the Coles intend this as a challenge to whether substantial evidence supports the Board's order, we agree with the Board that the Coles have waived it by failing to identify any specific findings of fact or conclusions of law they contend are not supported by the evidence. See Helle v. Hightower, 735 S.W.2d 650, 654 (Tex. App.--Austin 1987, writ denied).
Showing posts with label administrative law. Show all posts
Showing posts with label administrative law. Show all posts
Sunday, July 6, 2008
Friday, June 27, 2008
Cole v. Motor Vehicle Board of Tx DOT (Tex.App.- Austin 2008)
This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing. See Tex. Occ. Code Ann. § 2301.204 (West 2004). (1) The district court affirmed the order. In two issues, the Coles argue that the Board lacked statutory authority to make fact findings adverse to the Coles and that both the Board and district court lacked subject-matter jurisdiction because the Coles were not proper parties and lacked standing. We will affirm the district court's judgment.
Cole v. Motor Vehicle Board of the Tx DoT 03-05-00825-CV(Tex.App.- Austin, June 18, 2008)(Opinion by Justice Pemberton [ PDF ]) (Before Chief Justice Law, Justices Patterson and Pemberton)Robert Cole and Bonnie Cole v. Motor Vehicle Board of the Texas Department of Transportation and Georgie Boy Manufacturing, Inc. n/k/a Georgie Boy Manufacturing, LLC--Appeal from 345th District Court of Travis County
M E M O R A N D U M O P I N I O N
This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing. See Tex. Occ. Code Ann. § 2301.204 (West 2004). (1) The district court affirmed the order. In two issues, the Coles argue that the Board lacked statutory authority to make fact findings adverse to the Coles and that both the Board and district court lacked subject-matter jurisdiction because the Coles were not proper parties and lacked standing. We will affirm the district court's judgment.
This proceeding arises in the context of the "hybrid claims resolution process" discussed by the Texas Supreme Court in Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222-26 (Tex. 2002). The underlying controversy concerns a 1994 Georgie Boy motor home purchased by the Coles in June 1994. The Coles claim to have encountered numerous problems with the motor home relating chiefly to overheating and handling difficulties. In 1995, the Coles filed suit in Hays County against the dealer who sold them the motor home, Interstate R.V. Center. They later amended their complaint to allege claims against the manufacturer of the vehicle, appellee Georgie Boy, Inc.; the manufacturer of the vehicle's chassis, Spartan Motors, Inc.; and the engine manufacturer, Cummins Engine Company. The Coles asserted claims under the DTPA, alleging, among other theories, breach of warranty. The lawsuit was later abated and, in 2004, the Coles sent the Board a letter "to file a complaint for unresolved warranty issues" under section 2301.204 of the occupations code. (2)
The Board responded with a letter assigning them a "case advisor" and transmitting a form for filing a "Lemon Law" complaint See Tex. Occ. Code Ann. §§ 2301.601-.613 (West 2004 & Supp. 2007). The Coles completed the Lemon Law form and filed it with the Board. The matter was docketed with the Coles designated as "complainant" and the three manufacturers as "respondents." Spartan moved to dismiss the complaint as untimely. The ALJ granted Spartan's motion and dismissed the complaint, ruling that the vehicle warranties had long since expired and that the Coles had "failed to present a prima facie case that would entitle them to relief under Section 2301.204" because the passage of time "rendered attribution of cause with any degree of legal certainty unfeasible." The Coles filed a motion for rehearing with the Board.
In their rehearing motion, the Coles urged that the Texas Supreme Court had decided Subaru while their suit was pending and that "[i]n light of Subaru . . . and the broad language of Section 2301.204 of the Occupations Code, it was prudent, if not mandatory, for the Complainant to attempt to invoke the jurisdiction of the Board pursuant to section 204 prior to trying the pending District Court case." The Board unanimously agreed, granting the Coles' rehearing motion and remanding the matter to the ALJ. Subsequently, the Board gave notice of hearing "under the authority of the Texas Occupations Code Annotated, Section 2301.204 . . . for the purpose of receiving testimony and other evidence from the parties, to determine whether the Respondent[s] ha[ve] failed to conform the Complainant's vehicle to the express warranty applicable to said vehicle by failing to repair or correct defects or conditions which are covered by the warranty on the vehicle, as alleged by Complainant, and to determine if Complainant is entitled to relief as provided by . . . Section 2301.204."
Pursuant to the notice, a contested case hearing was held in which the Coles presented evidence (including the testimony of two experts) and argued that they "have satisfied their burden to win this case. They have shown that defects exist, that they told the Respondents about the defects but that the Respondents failed to repair the defects. So, the Coles should prevail." (3) The ALJ concluded that there had been no warranty violations by the respondents. The ALJ specifically found that Georgie Boy's express warranty had expired in 1995, that the company had not failed to uphold its warranty obligations, and that "[t]he requirements of Section 2301.204 were not met because the Complainants have not proven that any manufacturing related defective conditions currently exist." The Coles moved for rehearing, which the Board denied by a 6-2 vote. The Coles then sought judicial review in the district court. This district court affirmed the Board's order. This appeal followed.
The Coles acknowledge that they are appealing the Board's decision "solely to ensure that the Board's arbitrary and capricious actions [do] not prejudice" the pending lawsuit in Hays County under Subaru. At this juncture, they attempt to portray the Board proceeding they initiated as a "public interest" complaint that the Board had authority only to "investigate" in its "administrative" capacity. According to the Coles, the Board had statutory authority or jurisdiction during this investigation merely to call them as witnesses, but could not act in a "judicial capacity" to adjudicate their complaint, treat them as parties to a contested case or "adversarial action," or make findings and rulings "against" them.
On appeal, the Coles question whether their lawsuit presents code-based issues whose determination by the Board would have binding effect under Subaru. As the Coles acknowledged in their first motion for rehearing before the Board, however, their warranty complaints clearly present code-based issues within the Board's exclusive jurisdiction. See Tex. Occ. Code Ann. §§ 2301.204, .601-.613; see Subaru, 84 S.W.3d at 222-26.
As we have previously observed, "[e]xactly what type of procedure the Texas Supreme Court contemplated in Butnaru and Subaru" that the Board would use in the hybrid claims-resolution process "remains somewhat unclear," Ford Motor Co. v. Butnaru, 157 S.W.3d 142, 148 (Tex. App.--Austin 2005, no pet.), but it remains that the Board has exclusive jurisdiction within this scheme to decide code-based issues. See Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91, 102 (Tex. App.--Austin 2004, pet. denied). Moreover, "the legislature has granted the Board wide discretion to fashion the procedural mechanisms through which it exercises its jurisdiction." Id. For example, in Buddy Gregg, another Subaru case, we held that the Board had discretion under its enforcement powers to permit a motor coach dealer to initiate a contested case proceeding to determine licensing issues involving a rival company and to permit the dealer to participate in those proceedings as a party. Id. at 101-02.
Throughout each step of the agency proceedings, the Coles participated as parties in an adversarial, contested-case process, presenting evidence and arguing that they had "satisfied their burden to win this case." Such a process was contemplated by the Board's rules governing complaints regarding warranty performance obligations. 16 Tex. Admin. Code §§ 107.1-.11 (2004). The Coles did not complain of this procedure until they filed their motion for rehearing before the Board. Under Subaru and Buddy Gregg, we reject the Coles' arguments that the Board lacked statutory authority or jurisdiction to adjudicate their code-based warranty issues through the procedure it utilized. We accordingly overrule the Coles' issues (4) and affirm the district court's judgment.
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: June 18, 2008
1. Because most of the underlying proceedings predated the legislature's 2005 abolition of the Board and transfer of its functions to the motor vehicle division of the department of transportation, we will refer to the agency as the Board. See Act of May 30, 2005, 79th Leg., R.S., ch. 281, § 7.01, sec. 2301.002(2), (10), 2005 Tex. Gen. Laws 778, 839.
2. The Coles' letter actually referenced "Section 2.04 of the Motor Vehicle Commission Code." The Coles acknowledge that, as is apparent from their subsequent filings, they intended to invoke section 2301.204 of the occupations code. Tex. Occ. Code Ann. § 2301.204(a) (West 2004).
Section 2310.204 provides:
§ 2301.204. COMPLAINT CONCERNING VEHICLE DEFECT.
(a) The owner of a motor vehicle or the owner's designated agent may make a complaint concerning a defect in a motor vehicle that is covered by a manufacturer's, converter's, or distributor's warranty agreement applicable to the vehicle.
(b) The complaint must be made in writing to the applicable dealer, manufacturer, converter, or distributor and must specify each defect in the vehicle that is covered by the warranty.
(c) The owner may also invoke the board's jurisdiction by sending a copy of the complaint to the board.
(d) A hearing may be scheduled on any complaint made under this section that is not privately resolved between the owner and the dealer, manufacturer, converter, or distributor.
3. Complainants' Closing Argument, at 2.
4. In addition to their two issues, the Coles assert in their statement of facts that "[t]he Manufacturers . . . failed to provide substantial evidence." To the extent the Coles intend this as a challenge to whether substantial evidence supports the Board's order, we agree with the Board that the Coles have waived it by failing to identify any specific findings of fact or conclusions of law they contend are not supported by the evidence. See Helle v. Hightower, 735 S.W.2d 650, 654 (Tex. App.--Austin 1987, writ denied).
Cole v. Motor Vehicle Board of the Tx DoT 03-05-00825-CV(Tex.App.- Austin, June 18, 2008)(Opinion by Justice Pemberton [ PDF ]) (Before Chief Justice Law, Justices Patterson and Pemberton)Robert Cole and Bonnie Cole v. Motor Vehicle Board of the Texas Department of Transportation and Georgie Boy Manufacturing, Inc. n/k/a Georgie Boy Manufacturing, LLC--Appeal from 345th District Court of Travis County
M E M O R A N D U M O P I N I O N
This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing. See Tex. Occ. Code Ann. § 2301.204 (West 2004). (1) The district court affirmed the order. In two issues, the Coles argue that the Board lacked statutory authority to make fact findings adverse to the Coles and that both the Board and district court lacked subject-matter jurisdiction because the Coles were not proper parties and lacked standing. We will affirm the district court's judgment.
This proceeding arises in the context of the "hybrid claims resolution process" discussed by the Texas Supreme Court in Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222-26 (Tex. 2002). The underlying controversy concerns a 1994 Georgie Boy motor home purchased by the Coles in June 1994. The Coles claim to have encountered numerous problems with the motor home relating chiefly to overheating and handling difficulties. In 1995, the Coles filed suit in Hays County against the dealer who sold them the motor home, Interstate R.V. Center. They later amended their complaint to allege claims against the manufacturer of the vehicle, appellee Georgie Boy, Inc.; the manufacturer of the vehicle's chassis, Spartan Motors, Inc.; and the engine manufacturer, Cummins Engine Company. The Coles asserted claims under the DTPA, alleging, among other theories, breach of warranty. The lawsuit was later abated and, in 2004, the Coles sent the Board a letter "to file a complaint for unresolved warranty issues" under section 2301.204 of the occupations code. (2)
The Board responded with a letter assigning them a "case advisor" and transmitting a form for filing a "Lemon Law" complaint See Tex. Occ. Code Ann. §§ 2301.601-.613 (West 2004 & Supp. 2007). The Coles completed the Lemon Law form and filed it with the Board. The matter was docketed with the Coles designated as "complainant" and the three manufacturers as "respondents." Spartan moved to dismiss the complaint as untimely. The ALJ granted Spartan's motion and dismissed the complaint, ruling that the vehicle warranties had long since expired and that the Coles had "failed to present a prima facie case that would entitle them to relief under Section 2301.204" because the passage of time "rendered attribution of cause with any degree of legal certainty unfeasible." The Coles filed a motion for rehearing with the Board.
In their rehearing motion, the Coles urged that the Texas Supreme Court had decided Subaru while their suit was pending and that "[i]n light of Subaru . . . and the broad language of Section 2301.204 of the Occupations Code, it was prudent, if not mandatory, for the Complainant to attempt to invoke the jurisdiction of the Board pursuant to section 204 prior to trying the pending District Court case." The Board unanimously agreed, granting the Coles' rehearing motion and remanding the matter to the ALJ. Subsequently, the Board gave notice of hearing "under the authority of the Texas Occupations Code Annotated, Section 2301.204 . . . for the purpose of receiving testimony and other evidence from the parties, to determine whether the Respondent[s] ha[ve] failed to conform the Complainant's vehicle to the express warranty applicable to said vehicle by failing to repair or correct defects or conditions which are covered by the warranty on the vehicle, as alleged by Complainant, and to determine if Complainant is entitled to relief as provided by . . . Section 2301.204."
Pursuant to the notice, a contested case hearing was held in which the Coles presented evidence (including the testimony of two experts) and argued that they "have satisfied their burden to win this case. They have shown that defects exist, that they told the Respondents about the defects but that the Respondents failed to repair the defects. So, the Coles should prevail." (3) The ALJ concluded that there had been no warranty violations by the respondents. The ALJ specifically found that Georgie Boy's express warranty had expired in 1995, that the company had not failed to uphold its warranty obligations, and that "[t]he requirements of Section 2301.204 were not met because the Complainants have not proven that any manufacturing related defective conditions currently exist." The Coles moved for rehearing, which the Board denied by a 6-2 vote. The Coles then sought judicial review in the district court. This district court affirmed the Board's order. This appeal followed.
The Coles acknowledge that they are appealing the Board's decision "solely to ensure that the Board's arbitrary and capricious actions [do] not prejudice" the pending lawsuit in Hays County under Subaru. At this juncture, they attempt to portray the Board proceeding they initiated as a "public interest" complaint that the Board had authority only to "investigate" in its "administrative" capacity. According to the Coles, the Board had statutory authority or jurisdiction during this investigation merely to call them as witnesses, but could not act in a "judicial capacity" to adjudicate their complaint, treat them as parties to a contested case or "adversarial action," or make findings and rulings "against" them.
On appeal, the Coles question whether their lawsuit presents code-based issues whose determination by the Board would have binding effect under Subaru. As the Coles acknowledged in their first motion for rehearing before the Board, however, their warranty complaints clearly present code-based issues within the Board's exclusive jurisdiction. See Tex. Occ. Code Ann. §§ 2301.204, .601-.613; see Subaru, 84 S.W.3d at 222-26.
As we have previously observed, "[e]xactly what type of procedure the Texas Supreme Court contemplated in Butnaru and Subaru" that the Board would use in the hybrid claims-resolution process "remains somewhat unclear," Ford Motor Co. v. Butnaru, 157 S.W.3d 142, 148 (Tex. App.--Austin 2005, no pet.), but it remains that the Board has exclusive jurisdiction within this scheme to decide code-based issues. See Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91, 102 (Tex. App.--Austin 2004, pet. denied). Moreover, "the legislature has granted the Board wide discretion to fashion the procedural mechanisms through which it exercises its jurisdiction." Id. For example, in Buddy Gregg, another Subaru case, we held that the Board had discretion under its enforcement powers to permit a motor coach dealer to initiate a contested case proceeding to determine licensing issues involving a rival company and to permit the dealer to participate in those proceedings as a party. Id. at 101-02.
Throughout each step of the agency proceedings, the Coles participated as parties in an adversarial, contested-case process, presenting evidence and arguing that they had "satisfied their burden to win this case." Such a process was contemplated by the Board's rules governing complaints regarding warranty performance obligations. 16 Tex. Admin. Code §§ 107.1-.11 (2004). The Coles did not complain of this procedure until they filed their motion for rehearing before the Board. Under Subaru and Buddy Gregg, we reject the Coles' arguments that the Board lacked statutory authority or jurisdiction to adjudicate their code-based warranty issues through the procedure it utilized. We accordingly overrule the Coles' issues (4) and affirm the district court's judgment.
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: June 18, 2008
1. Because most of the underlying proceedings predated the legislature's 2005 abolition of the Board and transfer of its functions to the motor vehicle division of the department of transportation, we will refer to the agency as the Board. See Act of May 30, 2005, 79th Leg., R.S., ch. 281, § 7.01, sec. 2301.002(2), (10), 2005 Tex. Gen. Laws 778, 839.
2. The Coles' letter actually referenced "Section 2.04 of the Motor Vehicle Commission Code." The Coles acknowledge that, as is apparent from their subsequent filings, they intended to invoke section 2301.204 of the occupations code. Tex. Occ. Code Ann. § 2301.204(a) (West 2004).
Section 2310.204 provides:
§ 2301.204. COMPLAINT CONCERNING VEHICLE DEFECT.
(a) The owner of a motor vehicle or the owner's designated agent may make a complaint concerning a defect in a motor vehicle that is covered by a manufacturer's, converter's, or distributor's warranty agreement applicable to the vehicle.
(b) The complaint must be made in writing to the applicable dealer, manufacturer, converter, or distributor and must specify each defect in the vehicle that is covered by the warranty.
(c) The owner may also invoke the board's jurisdiction by sending a copy of the complaint to the board.
(d) A hearing may be scheduled on any complaint made under this section that is not privately resolved between the owner and the dealer, manufacturer, converter, or distributor.
3. Complainants' Closing Argument, at 2.
4. In addition to their two issues, the Coles assert in their statement of facts that "[t]he Manufacturers . . . failed to provide substantial evidence." To the extent the Coles intend this as a challenge to whether substantial evidence supports the Board's order, we agree with the Board that the Coles have waived it by failing to identify any specific findings of fact or conclusions of law they contend are not supported by the evidence. See Helle v. Hightower, 735 S.W.2d 650, 654 (Tex. App.--Austin 1987, writ denied).
Tuesday, June 26, 2007
Lamar Advertising Co. v. TxDoT (Tex.App.-Austin, Jun 20, 2007)
Lamar Advertising Co. v. Tex. Dep't of Transp. (Tex.App.-Austin, June 20, 2007)(Waldrop)
AFFIRMED: Opinion by Justice G. Alan Waldrop
Before Justices Patterson, Pemberton and Waldrop
03-06-00356-CV
Lamar Advertising Company v. Texas Department of Transportation
Appeal from 261st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-02-003699, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE WALDROP
This case concerns the interpretation and application of an administrative rule regulating outdoor advertising signs. The question at issue is whether the administrative rule applied to "tri-vision" signs (1) prior to 1999 or whether the Department of Transportation is attempting to and may apply the version of the rule as amended in 1999 to signs permitted and existing prior to 1999.
The administrative rule in question was amended in 1999. The parties agree that the post-1999 version of the rule explicitly prohibits the operation of tri-vision signs. See 43 Tex. Admin. Code § 21.154 (2006) (unchanged since 1999). The dispute concerns whether the pre-1999 version of the rule prohibited tri-vision signs and, if not, whether the Department may apply the post-1999 version of the rule to Lamar's pre-existing signs.
Lamar also contends that if the pre-1999 version of the rule is found to apply to tri-vision signs, it is unconstitutionally vague.
We conclude that the pre-1999 version of section 21.154 prohibited the operation of tri-vision signs, therefore, Lamar was not subject to an unconstitutional retroactive application of the post-1999 version of the rule. We also conclude that the pre-1999 version of the rule was not unconstitutionally vague. Consequently, we affirm the judgment of the trial court.
Lamar owns two outdoor advertising signs that are located in the city of Killeen. (2) It applied for and received permits from the Texas Department of Transportation to construct and maintain the two signs in 1989 and 1990, respectively. The signs were converted to tri-vision signs in 1995 and 1998, respectively. The Department renewed Lamar's permits for both signs every year until 2000.
In 1999, the Department amended section 21.154 of the administrative code. This section had, since 1986, prohibited the illumination (3) of signs with "intermittent message[s] of any nature." 11 Tex. Reg. 903 (1986), amended by 24 Tex. Reg. 3733 (1999) (codified at 43 Tex. Admin. Code § 21.154). The 1999 amendment to section 21.154 added subsection (b), which states: "[s]igns with intermittent messages are prohibited, including tri-vision signs with rotating slat messages." 24 Tex. Reg. 3733 (1999) (codified at 43 Tex. Admin. Code § 21.154) (emphasis added). In August 2000, the Department issued an illegal sign notice to Lamar stating that its tri-vision signs were prohibited by section 21.154 and that "[t]he two locations will not be in violation as soon as the displays are changed to one advertisement per side." Lamar stopped the rotation of the slats on both tri-vision signs in response to this notice. (4)
In 2002, Lamar sought a declaration from the trial court that the Department's application of the 1999 amended version of section 21.154 to its tri-vision signs constitutes an unconstitutional retroactive application of the rule. It alleged that "[a]t the time the permits were issued and the billboards installed, signs with intermittent messages, including tri-vision signs with rotating slat messages, were allowed under Texas law." Alternatively, Lamar sought a declaration that if the Department of Transportation was relying on the pre-1999 version of section 21.154 to prohibit its tri-vision signs, the pre-1999 rule was unconstitutionally vague. Lamar requested summary judgment on its claims for declaratory relief. In response, the Department filed a cross-motion for summary judgment, contending that the pre-1999 version of section 21.154 prohibited the operation of tri-vision signs and was not unconstitutionally vague. The trial court granted the Department's motion for summary judgment and denied Lamar's motion.
The pre-1999 version of section 21.154 in question was first promulgated in 1986 and was effective until the section's amendment in 1999. This version of section 21.154 was titled "Lighting of Signs" and provided in relevant part:
Signs may be illuminated, subject to the following restrictions:
(1) signs which contain, include or are illuminated by any flashing, intermittent, or moving light or lights or intermittent message of any nature are prohibited, except those giving only public service information such as time, date, temperature, weather, or similar information.
11 Tex. Reg. 903 (1986), amended by 24 Tex. Reg. 3733 (1999) (codified at 43 Tex. Admin. Code § 21.154).
In 1998, the Department considered an amendment to section 21.154 that "allows the use of changing technology by lifting the prohibition of intermittent messages of any nature" because "[a]dvancing technology has prompted numerous requests for tri-vision or changeable message signs." 23 Tex. Reg. 12270 (1998) (43 Tex. Admin. Code § 21.154) (proposed December 4, 1998). However, instead of lifting the ban on intermittent messages of any nature, the Department ultimately added a broader and more explicit prohibition against tri-vision signs in new subsection (b) of the amended rule. Thus, the amended version of the rule that was adopted in 1999 provided in relevant part:
(a) Lighting. Signs may be illuminated except for signs that contain, include, or are illuminated by:
(1) any flashing, intermittent, or moving light or lights, including any type of screen using animated or scrolling displays, such as an LED (light emitting diode) screen or any other type of video display, even if the message is stationary, except those giving only public information such as time, date, temperature, weather, or similar information.
. . .
(b) Moving parts. Signs with intermittent messages are prohibited, including tri-vision signs with rotating slat messages.
24 Tex. Reg. 3733 (1999) (codified at 43 Tex. Admin. Code § 21.154).
Lamar contends that the Department's illegal sign notice to Lamar in August 2000 applied the 1999 amended version of section 21.154 to its tri-vision signs in an unconstitutionally retroactive manner. The Department responds that while the 1999 amendment to section 21.154 made the prohibition against the operation of tri-vision signs broader and more explicit, the 1986 version of section 21.154 also prohibited the operation of illuminated, tri-vision signs. Specifically, the Department argues that the 1986 version's prohibition against "intermittent message[s] of any nature" included rotating slat messages on illuminated, tri-vision signs. We defer to an agency's interpretation of a valid rule it is charged with administering unless the interpretation is plainly erroneous or inconsistent with the language of the rule. BFI Waste Sys. of N. Am., Inc. v. Martinez Envtl. Group, 93 S.W.3d 570, 575-76 (Tex. App.--Austin 2002, pet. denied); H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., 36 S.W.3d 597, 604 (Tex. App.--Austin 2000, pet. denied).
We are of the opinion that the Department's interpretation of the 1986 version of section 21.154 is not plainly erroneous or inconsistent with the language of the rule. The plain language of the 1986 version of the rule prohibited "intermittent messages of any nature." The only exclusion from this broad prohibition against intermittent messages was for "those [intermittent messages] giving only public service information such as time, date, temperature, weather, or similar information." (5) Sign displays made up of rotating vertical slats that allow different images or messages to appear when the slats turn are capable of providing "intermittent messages." Such intermittent displays, if illuminated and with the rotation system operating, are prohibited by the plain language of the rule both before and after the 1999 amendment. (6)
As we have noted, the pre-1999 rule prohibited illuminated, intermittent messages of any nature by its express terms. Significantly, the Department considered a 1998 proposal to amend the rule to lift the prohibition against intermittent message of any nature and permit tri-vision signs. The Department considered this rule change and, instead of adopting a more lenient treatment of tri-vision signs, adopted an amendment to the rule that made the prohibition of tri-vision signs broader and more explicit. This is consistent with the Department's position that illuminated, tri-vision signs are capable of providing intermittent messages and, thus, were subject to regulation under the pre-1999 version of the rule if they, in fact, displayed intermittent messages.
The Department's interpretation that the 1986 version of section 21.154 prohibited the operation of illuminated, tri-vision signs does not conflict with the plain language of the rule and is consistent with the comments to the Department's proposed amendment to the rule in 1998. The 1999 amendment of section 21.154 partly codified and partly broadened the Department's interpretation of the 1986 regulation. After the 1999 amendment, section 21.154 plainly prohibited the operation of moving tri-vision signs whether illuminated or not. Because section 21.154 has, at all times relevant to this appeal, prohibited the operation of illuminated, tri-vision signs with intermittent messages, the Department's illegal sign notice to Lamar in August 2000 was not an unconstitutional retroactive application of law.
In light of our holding that the 1986 version of section 21.154 prohibited the operation of tri-vision signs, we reject Lamar's argument that its tri-vision signs are legal nonconforming signs. Since the operation of illuminated, tri-vision signs with intermittent messages was prohibited under the 1986 version of the rule, the signs at issue were never legal signs because they were converted to tri-vision signs in 1995 and 1998. Thus, the signs cannot be legal nonconforming signs.
Lamar contends in the alternative that if the 1986 version of section 21.154 prohibited the operation of tri-vision signs, it was unconstitutionally vague. To survive a vagueness challenge, a statute need not spell out with perfect precision what conduct it forbids. Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex. 1998). Due process is satisfied if the prohibition is "set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with." Id. (citing United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 579 (1973)). Moreover, statutes must give fair notice to those to whom the statute is directed. Id. (citing Grayned v. City of Rockford, 408 U.S. 104, 112 (1972)). Lamar contends that, because the application of section 21.154 could result in the revocation of its sign permits, a more heightened standard of review applies. Under this more strict standard of review, which is reserved for criminal statutes and civil statutes or regulations with quasi-criminal penalties, a rule is unconstitutionally vague only if it (1) does not give fair notice of what conduct may be punished, and (2) invites arbitrary and discriminatory enforcement by its lack of guidance for those charged with its enforcement. TXU Generation Co. v. Public Util. Comm'n, 165 S.W.3d 821, 838-39 (Tex. App.--Austin 2005, no pet.); Rooms with a View, Inc. v. Private Nat'l Mortgage Ass'n, Inc., 7 S.W.3d 840, 845 (Tex. App.--Austin 1999, pet. denied); see Ford Motor Co. v. Texas Dep't of Transp., 264 F.3d 493, 508 (5th Cir. 2001).
The Department responds that Lamar is not entitled to rely on the more stringent standard because Lamar did not have its sign permits revoked under the rule. Instead, as the Department points out, Lamar has been allowed to maintain the signs as they were originally permitted and annually renewed, as one-faced signs with no rotating slats or intermittent messages. Moreover, Lamar voluntarily stopped the rotation of the slats in response to the Department's illegal sign notice in 2000, approximately two years before the commencement of this lawsuit. We agree with the Department that Lamar's vagueness challenge should not receive the more strict standard of review reserved for criminal statutes and civil statutes and regulations with quasi-criminal penalties. Thus, we examine whether the ordinary outdoor advertising sign owner exercising ordinary common sense could understand and comply with the rule. Benton, 980 S.W.2d at 437.
We conclude that an ordinary sign owner exercising common sense could understand that the 1986 version of 21.154 prohibited the operation of illuminated signs with intermittent messages, including illuminated, tri-vision signs with the capability of displaying intermittent messages. The plain language of the rule prohibited illuminated signs containing "flashing, intermittent, or moving light or lights or intermittent message[s] of any nature." 11 Tex. Reg. 903 (1986). Although this prohibition did not explicitly include rotating slats containing messages, the rule is not required "to spell out with perfect precision what conduct it forbids." Benton, 980 S.W.2d at 437. Common sense suggests that the prohibition against intermittent messages of any nature included any kind of frequent movement or changing message on the face of the sign (presumably to prevent drivers from being overly distracted). The only exception from this general ban against intermittent messages was for signs displaying public service information. Such a narrow exception suggests that any other type of intermittent or frequently changing message on the face of the sign was prohibited by the rule. Thus, an ordinary sign owner could understand that the operation of tri-vision signs, which are designed to present frequently changing messages from different advertisers to individuals driving by the signs, were prohibited by the rule. We conclude that the 1986 version of section 21.154 was not unconstitutionally vague.
Affirmed.
_______________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: June 20, 2007
1. Tri-vision signs are outdoor signs made up of vertical, three-sided slats that can be rotated. When the slats are rotated, the image on the sign changes. Thus, tri-vision signs can alternate between three different displays at any given time.
2. The record reflects that Richard L. Sweezy was a prior owner of the two signs and had originally obtained the permits for the signs from the Department of Transportation. At some point, Bowlin Outdoor Advertising purchased the signs from Sweezy, and Lamar Advertising Company purchased the signs from Bowlin. For purposes of this appeal, we refer only to Lamar and not to its predecessors in interest.
3. It is undisputed that the two signs at issue are illuminated signs.
4. Although the Department renewed Lamar's sign permits several times while the tri-vision signs were operational, Lamar is not asserting estoppel as a basis for relief.
5. It is undisputed that the two tri-vision signs in this case do not provide public service information.
6. There may be a question under the pre-1999 version of the rule as to what constitutes an "intermittent" message when dealing with tri-vision signs. For example, if a tri-vision sign only rotates and changes its message on the same schedule as the replacement of messages on a nonmoving sign, would this be an "intermittent" message? Simply because a tri-vision sign is capable of displaying intermittent messages does not mean that it, in fact, does so. This is illustrated by the fact that Lamar stopped the rotation mechanism on the signs at issue in this case and the Department does not consider the signs in violation of the rule if they function like nonmoving signs. However, the issue of when a changing message becomes an "intermittent" message is not presented in this case.
AFFIRMED: Opinion by Justice G. Alan Waldrop
Before Justices Patterson, Pemberton and Waldrop
03-06-00356-CV
Lamar Advertising Company v. Texas Department of Transportation
Appeal from 261st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-02-003699, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE WALDROP
This case concerns the interpretation and application of an administrative rule regulating outdoor advertising signs. The question at issue is whether the administrative rule applied to "tri-vision" signs (1) prior to 1999 or whether the Department of Transportation is attempting to and may apply the version of the rule as amended in 1999 to signs permitted and existing prior to 1999.
The administrative rule in question was amended in 1999. The parties agree that the post-1999 version of the rule explicitly prohibits the operation of tri-vision signs. See 43 Tex. Admin. Code § 21.154 (2006) (unchanged since 1999). The dispute concerns whether the pre-1999 version of the rule prohibited tri-vision signs and, if not, whether the Department may apply the post-1999 version of the rule to Lamar's pre-existing signs.
Lamar also contends that if the pre-1999 version of the rule is found to apply to tri-vision signs, it is unconstitutionally vague.
We conclude that the pre-1999 version of section 21.154 prohibited the operation of tri-vision signs, therefore, Lamar was not subject to an unconstitutional retroactive application of the post-1999 version of the rule. We also conclude that the pre-1999 version of the rule was not unconstitutionally vague. Consequently, we affirm the judgment of the trial court.
Lamar owns two outdoor advertising signs that are located in the city of Killeen. (2) It applied for and received permits from the Texas Department of Transportation to construct and maintain the two signs in 1989 and 1990, respectively. The signs were converted to tri-vision signs in 1995 and 1998, respectively. The Department renewed Lamar's permits for both signs every year until 2000.
In 1999, the Department amended section 21.154 of the administrative code. This section had, since 1986, prohibited the illumination (3) of signs with "intermittent message[s] of any nature." 11 Tex. Reg. 903 (1986), amended by 24 Tex. Reg. 3733 (1999) (codified at 43 Tex. Admin. Code § 21.154). The 1999 amendment to section 21.154 added subsection (b), which states: "[s]igns with intermittent messages are prohibited, including tri-vision signs with rotating slat messages." 24 Tex. Reg. 3733 (1999) (codified at 43 Tex. Admin. Code § 21.154) (emphasis added). In August 2000, the Department issued an illegal sign notice to Lamar stating that its tri-vision signs were prohibited by section 21.154 and that "[t]he two locations will not be in violation as soon as the displays are changed to one advertisement per side." Lamar stopped the rotation of the slats on both tri-vision signs in response to this notice. (4)
In 2002, Lamar sought a declaration from the trial court that the Department's application of the 1999 amended version of section 21.154 to its tri-vision signs constitutes an unconstitutional retroactive application of the rule. It alleged that "[a]t the time the permits were issued and the billboards installed, signs with intermittent messages, including tri-vision signs with rotating slat messages, were allowed under Texas law." Alternatively, Lamar sought a declaration that if the Department of Transportation was relying on the pre-1999 version of section 21.154 to prohibit its tri-vision signs, the pre-1999 rule was unconstitutionally vague. Lamar requested summary judgment on its claims for declaratory relief. In response, the Department filed a cross-motion for summary judgment, contending that the pre-1999 version of section 21.154 prohibited the operation of tri-vision signs and was not unconstitutionally vague. The trial court granted the Department's motion for summary judgment and denied Lamar's motion.
The pre-1999 version of section 21.154 in question was first promulgated in 1986 and was effective until the section's amendment in 1999. This version of section 21.154 was titled "Lighting of Signs" and provided in relevant part:
Signs may be illuminated, subject to the following restrictions:
(1) signs which contain, include or are illuminated by any flashing, intermittent, or moving light or lights or intermittent message of any nature are prohibited, except those giving only public service information such as time, date, temperature, weather, or similar information.
11 Tex. Reg. 903 (1986), amended by 24 Tex. Reg. 3733 (1999) (codified at 43 Tex. Admin. Code § 21.154).
In 1998, the Department considered an amendment to section 21.154 that "allows the use of changing technology by lifting the prohibition of intermittent messages of any nature" because "[a]dvancing technology has prompted numerous requests for tri-vision or changeable message signs." 23 Tex. Reg. 12270 (1998) (43 Tex. Admin. Code § 21.154) (proposed December 4, 1998). However, instead of lifting the ban on intermittent messages of any nature, the Department ultimately added a broader and more explicit prohibition against tri-vision signs in new subsection (b) of the amended rule. Thus, the amended version of the rule that was adopted in 1999 provided in relevant part:
(a) Lighting. Signs may be illuminated except for signs that contain, include, or are illuminated by:
(1) any flashing, intermittent, or moving light or lights, including any type of screen using animated or scrolling displays, such as an LED (light emitting diode) screen or any other type of video display, even if the message is stationary, except those giving only public information such as time, date, temperature, weather, or similar information.
. . .
(b) Moving parts. Signs with intermittent messages are prohibited, including tri-vision signs with rotating slat messages.
24 Tex. Reg. 3733 (1999) (codified at 43 Tex. Admin. Code § 21.154).
Lamar contends that the Department's illegal sign notice to Lamar in August 2000 applied the 1999 amended version of section 21.154 to its tri-vision signs in an unconstitutionally retroactive manner. The Department responds that while the 1999 amendment to section 21.154 made the prohibition against the operation of tri-vision signs broader and more explicit, the 1986 version of section 21.154 also prohibited the operation of illuminated, tri-vision signs. Specifically, the Department argues that the 1986 version's prohibition against "intermittent message[s] of any nature" included rotating slat messages on illuminated, tri-vision signs. We defer to an agency's interpretation of a valid rule it is charged with administering unless the interpretation is plainly erroneous or inconsistent with the language of the rule. BFI Waste Sys. of N. Am., Inc. v. Martinez Envtl. Group, 93 S.W.3d 570, 575-76 (Tex. App.--Austin 2002, pet. denied); H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., 36 S.W.3d 597, 604 (Tex. App.--Austin 2000, pet. denied).
We are of the opinion that the Department's interpretation of the 1986 version of section 21.154 is not plainly erroneous or inconsistent with the language of the rule. The plain language of the 1986 version of the rule prohibited "intermittent messages of any nature." The only exclusion from this broad prohibition against intermittent messages was for "those [intermittent messages] giving only public service information such as time, date, temperature, weather, or similar information." (5) Sign displays made up of rotating vertical slats that allow different images or messages to appear when the slats turn are capable of providing "intermittent messages." Such intermittent displays, if illuminated and with the rotation system operating, are prohibited by the plain language of the rule both before and after the 1999 amendment. (6)
As we have noted, the pre-1999 rule prohibited illuminated, intermittent messages of any nature by its express terms. Significantly, the Department considered a 1998 proposal to amend the rule to lift the prohibition against intermittent message of any nature and permit tri-vision signs. The Department considered this rule change and, instead of adopting a more lenient treatment of tri-vision signs, adopted an amendment to the rule that made the prohibition of tri-vision signs broader and more explicit. This is consistent with the Department's position that illuminated, tri-vision signs are capable of providing intermittent messages and, thus, were subject to regulation under the pre-1999 version of the rule if they, in fact, displayed intermittent messages.
The Department's interpretation that the 1986 version of section 21.154 prohibited the operation of illuminated, tri-vision signs does not conflict with the plain language of the rule and is consistent with the comments to the Department's proposed amendment to the rule in 1998. The 1999 amendment of section 21.154 partly codified and partly broadened the Department's interpretation of the 1986 regulation. After the 1999 amendment, section 21.154 plainly prohibited the operation of moving tri-vision signs whether illuminated or not. Because section 21.154 has, at all times relevant to this appeal, prohibited the operation of illuminated, tri-vision signs with intermittent messages, the Department's illegal sign notice to Lamar in August 2000 was not an unconstitutional retroactive application of law.
In light of our holding that the 1986 version of section 21.154 prohibited the operation of tri-vision signs, we reject Lamar's argument that its tri-vision signs are legal nonconforming signs. Since the operation of illuminated, tri-vision signs with intermittent messages was prohibited under the 1986 version of the rule, the signs at issue were never legal signs because they were converted to tri-vision signs in 1995 and 1998. Thus, the signs cannot be legal nonconforming signs.
Lamar contends in the alternative that if the 1986 version of section 21.154 prohibited the operation of tri-vision signs, it was unconstitutionally vague. To survive a vagueness challenge, a statute need not spell out with perfect precision what conduct it forbids. Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex. 1998). Due process is satisfied if the prohibition is "set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with." Id. (citing United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 579 (1973)). Moreover, statutes must give fair notice to those to whom the statute is directed. Id. (citing Grayned v. City of Rockford, 408 U.S. 104, 112 (1972)). Lamar contends that, because the application of section 21.154 could result in the revocation of its sign permits, a more heightened standard of review applies. Under this more strict standard of review, which is reserved for criminal statutes and civil statutes or regulations with quasi-criminal penalties, a rule is unconstitutionally vague only if it (1) does not give fair notice of what conduct may be punished, and (2) invites arbitrary and discriminatory enforcement by its lack of guidance for those charged with its enforcement. TXU Generation Co. v. Public Util. Comm'n, 165 S.W.3d 821, 838-39 (Tex. App.--Austin 2005, no pet.); Rooms with a View, Inc. v. Private Nat'l Mortgage Ass'n, Inc., 7 S.W.3d 840, 845 (Tex. App.--Austin 1999, pet. denied); see Ford Motor Co. v. Texas Dep't of Transp., 264 F.3d 493, 508 (5th Cir. 2001).
The Department responds that Lamar is not entitled to rely on the more stringent standard because Lamar did not have its sign permits revoked under the rule. Instead, as the Department points out, Lamar has been allowed to maintain the signs as they were originally permitted and annually renewed, as one-faced signs with no rotating slats or intermittent messages. Moreover, Lamar voluntarily stopped the rotation of the slats in response to the Department's illegal sign notice in 2000, approximately two years before the commencement of this lawsuit. We agree with the Department that Lamar's vagueness challenge should not receive the more strict standard of review reserved for criminal statutes and civil statutes and regulations with quasi-criminal penalties. Thus, we examine whether the ordinary outdoor advertising sign owner exercising ordinary common sense could understand and comply with the rule. Benton, 980 S.W.2d at 437.
We conclude that an ordinary sign owner exercising common sense could understand that the 1986 version of 21.154 prohibited the operation of illuminated signs with intermittent messages, including illuminated, tri-vision signs with the capability of displaying intermittent messages. The plain language of the rule prohibited illuminated signs containing "flashing, intermittent, or moving light or lights or intermittent message[s] of any nature." 11 Tex. Reg. 903 (1986). Although this prohibition did not explicitly include rotating slats containing messages, the rule is not required "to spell out with perfect precision what conduct it forbids." Benton, 980 S.W.2d at 437. Common sense suggests that the prohibition against intermittent messages of any nature included any kind of frequent movement or changing message on the face of the sign (presumably to prevent drivers from being overly distracted). The only exception from this general ban against intermittent messages was for signs displaying public service information. Such a narrow exception suggests that any other type of intermittent or frequently changing message on the face of the sign was prohibited by the rule. Thus, an ordinary sign owner could understand that the operation of tri-vision signs, which are designed to present frequently changing messages from different advertisers to individuals driving by the signs, were prohibited by the rule. We conclude that the 1986 version of section 21.154 was not unconstitutionally vague.
Affirmed.
_______________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: June 20, 2007
1. Tri-vision signs are outdoor signs made up of vertical, three-sided slats that can be rotated. When the slats are rotated, the image on the sign changes. Thus, tri-vision signs can alternate between three different displays at any given time.
2. The record reflects that Richard L. Sweezy was a prior owner of the two signs and had originally obtained the permits for the signs from the Department of Transportation. At some point, Bowlin Outdoor Advertising purchased the signs from Sweezy, and Lamar Advertising Company purchased the signs from Bowlin. For purposes of this appeal, we refer only to Lamar and not to its predecessors in interest.
3. It is undisputed that the two signs at issue are illuminated signs.
4. Although the Department renewed Lamar's sign permits several times while the tri-vision signs were operational, Lamar is not asserting estoppel as a basis for relief.
5. It is undisputed that the two tri-vision signs in this case do not provide public service information.
6. There may be a question under the pre-1999 version of the rule as to what constitutes an "intermittent" message when dealing with tri-vision signs. For example, if a tri-vision sign only rotates and changes its message on the same schedule as the replacement of messages on a nonmoving sign, would this be an "intermittent" message? Simply because a tri-vision sign is capable of displaying intermittent messages does not mean that it, in fact, does so. This is illustrated by the fact that Lamar stopped the rotation mechanism on the signs at issue in this case and the Department does not consider the signs in violation of the rule if they function like nonmoving signs. However, the issue of when a changing message becomes an "intermittent" message is not presented in this case.
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