Texas appeals to keep 'pole tax'

June 12, 2009

By Jim Vertuno The San Marcos Record Fri Jun 12, 2009, 08:24 AM CDT

Austin — The legal battles continue to spin around Texas' so-called "pole tax," a $5 entrance fee at strip clubs that has been ruled an unconstitutional regulation of free expression.

Lawyers for Texas Attorney General Greg Abbott and state Comptroller Susan Combs on Thursday asked the Texas Supreme Court to overturn lower courts that have said the 2-year-old law is unconstitutional.

The fee was meant to fund programs assisting victims of sexual assault. Although many clubs have ignored the fee, more than $12 million has been collected. That money has been held in an account pending the outcome of the legal battle.

The Texas Entertainment Association, which represents strip clubs across the state, sued and a state district judge struck down the law in 2008. A 2-1 ruling last week by the Austin-based 3rd Court of Appeals said the tax improperly singles out a form of expression, nude dancing, for regulation.

Stewart Whitehead, an attorney for the strip clubs, declined comment.

The state has argued that it can impose the fee because it applies only to clubs that sell alcohol while offering live nude entertainment. The strip clubs have countered that fee is unconstitutional because it applies only to clubs that have nude dancing.

The Texas Association Against Sexual Assault contends there's a proven link between live, nude entertainment, consumption of alcohol and sexual violence and wants funding from the fee to go to sexual assault survivors.

The group applauded the quick appeal of last week's court ruling. The Supreme Court did not immediately indicate whether it would agree to consider the appeal.

The Legislature grappled with the issue again this year but couldn't agree on an alternative before the session ended June 1.

Both the House and Senate voted to repeal the fee and replace it with a new tax on sexually oriented business.

That bill was on it's way to Gov. Rick Perry but the Senate pulled it back — a rare move — because some advocates wanted to push for a bill that would keep the fee in place but lower it to $3.

The Houston Chronicle reported in May that about half the strip clubs in Texas aren't paying the fee.

Treasures, a large operation in Houston, has paid $700,000, more than any club in the state. Clubs in Houston and San Antonio have paid $4.3 million, or about a third of the state total.

R.J. DeSilva, spokesman for the comptroller's office, said if the state prevails in court officials will try to collect all unpaid fees and that clubs that haven't paid could also be fined.

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