• Rothfelder on Texas Sign Height Administrative Rules and the Process to Change Them

    Insider has previously published articles about the on-going legislative and administrative processes for establishing new and grandfathered heights for signs in Texas, including in the June 5, 2017, February 26, 2018, and May 30, 2019 editions. The most recent development was the passage in the 86th Texas Legislative Session of Senate Bill 357, which amends Texas Transportation Code 391.038 effective September 1, 2019, and raises the permitted height of new signs from 42.5’ to 60’, affirms the 85’ grandfathered height for signs existing on March 1, 2017, and adds new penalties for violation of these height laws. The next chapter to add to the story is the commencement of the administrative rule making process, under which the Texas Transportation Commission will enact new height rules consistent with this recently enacted legislation.

    There has been considerable national publicity and controversy recently on administrative rules, or more particularly, how the rule making process has often been short circuited and abused. Hundreds of lawsuits have been filed in the last couple years alleging violations of the Federal Administrative Procedures Act in the rush to implement executive orders and administrative guidance on travel bans, immigration, tariffs, and The Wall. While there is certainly room for different viewpoints on these types of political and policy issues,  most would agree that the implementation of sound administrative rules governing our businesses and conduct ought to follow the checks and balances mandated by constitutional due process.

    This process for billboard regulation starts with the Federal Highway Beautification Act, which among other things provides financial incentives for each of the states to pass their own legislation consistent with the federal standards. The Texas Legislature did so in the passage of Chapter 391 of the Texas Transportation Code. Section 391.032 of that statue, in turn, authorizes a state agency, the Texas Transportation Commission, to pass and enforce administrative rules that detail the activities that are permitted and prohibited in the statute. Those rules on billboards were enacted by the Commission under 43 Texas Administrative Code Sections 21.142 through 21.205, and cover all aspect of billboard operation, including permitting, licensing, location, height, size, lighting, and relocation.

    In passing these or any administrative rules, the agency, in this case the Texas Transportation Commission, is required to follow the notice, hearing, publication, and other due process safeguards of the Texas Administrative Procedures Act, found in Texas Government Code Section 2001. The Act is designed to encourage public participation in the rulemaking process, and includes procedures for when and where to publish proposed new rules; opportunity for public comment, in writing and at hearings; and statements from the agency on the grounds for and against adoption of the rule.

    The staff of the Texas Department of Transportation has recently commenced the administrative rule making process, by informally visiting with stakeholders about the upcoming process and inviting participation in it. While the primary focus of the proposed rules is the incorporation of  the recently enacted legislation on new and grandfathered sign heights, there will be numerous changes proposed to the definitions, procedures, and penalties as well. TxDOT also has a laundry list of provisions it would like to “clean up” and make more “user friendly,” such as the characterization and definition of zoned and unzoned commercial and industrial activities, and the procedures for the relocation and compensation of signs displaced by highway improvements. Likewise, the administrative rule making process encourages public participation, so billboard operators ought to take advantage of the opportunity to influence the existing and proposed rules as well.

    The formal notice, hearing, and publication procedures mandated by the Administrative Procedures Act will probably not be initiated until late 2019 or early 2020. This process is expected to last longer than most, as TxDOT is also seeking to revise numerous rules for its other divisions not related to billboard regulation. Thus, this next chapter on sign height rules will not be completed until sometime next year. In the meantime, Texas billboard operators should become familiar with the existing and proposed rules, and the administrative process to change and enact them.


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