Tk's Video, Inc. v. Denton County, Texas, Tk's Video, Inc. v. Denton County, Texas , 24 F.3d 705 ( 1994 )

ON PETITION FOR REHEARING

July 26, 1994

Before GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

TK’s Video, Inc. challenged on First Amendment grounds a Denton County order regulating adult businesses. The district court found certain provisions unconstitutional, severed them, and upheld the rest. We found only one remaining constitutional infirmity. See TK’s Video, Inc. v. Denton County, 24 F.3d 705 (5th Cir.1994). We concluded that the county’s order did not guarantee to an adult business operating on the effective date of the ordinance that the status quo would be maintained prior to a final licensing decision, as required by FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227-30, 110 S.Ct. 596, 605-07, 107 L.Ed.2d 603 (1990). We remanded the case to the district court with the instruction to enter judgment declaring that until the Director of Public Works makes a final licensing decision, a license applicant in business on the effective date of the order cannot be regulated by the order.

TK’s petitions for rehearings alleging that we directed the district court to engraft this procedural safeguard directly onto the Denton County order in violation of Universal Amusement Co. v. Vance, 587 F.2d 159, 172 (5th Cir.1978) (en banc), aff'd, 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980), instead of striking down the order altogether. The objection focuses on language in Universal Amusement Co. stating that federal courts cannot rewrite Texas statutes to incorporate the kind of procedural safeguards mentioned in FW/PBS. TK’s alleges that our instruction to the district court amounts to a rewriting of the Denton County order at odds with the original legislative intent behind the order.

TK’s is mistaken. We held that the county cannot prior to a final licensing decision constitutionally regulate under the order by altering the status quo of a license applicant in business on the effective date of the order. Any rewriting of the Denton County order to meet constitutional requirements has been left to the Denton County authorities. Our grant of declaratory relief will support an injunction by the district court to enforce its terms if the other requisites of injunctive relief are shown. That is, TK’s could obtain protection should it need to do so — from any threat to enforce before the final licensing decision, provided TK’s has made application for a license. Implicit in our ruling is a rejection of any contention that this omission in the statute renders it facially invalid. To the contrary, the omission appears to present risk only to TK’s.

TK’s also notes that although we found that the Denton County order was constitutionally deficient in one respect, we did not award attorney’s fees for work done on the appeal. We agree that TK’s has prevailed on a significant constitutional issue on appeal, but leave to the district court the determination of the proper amount of attorney’s fees.

The petition for rehearing is denied.