Greg Abbott (R)
AUSTIN, Texas (Legal Newsline)-The Texas Supreme Court has been asked to weigh in on the constitutionality of the state's strip club tax.
Texas Attorney General Greg Abbott and state Solicitor General James Ho have asked the state's high court to review a decision by the 3rd Court of Appeals that said the $5 tax on admission to strip clubs was not legal because it violated First Amendment rights.
In a 2-1 opinion, the judges said lawmakers were wrong to raise sexual-assault prevention funds on the backs of strip club patrons. The court rejected the state's argument that the fee was an alcohol regulation levy.
"While nude dancing 'falls only within the outer ambit of the First Amendment's protection,' it is nevertheless protected as expressive conduct," Appeals Court Justice Diane Henson wrote for the majority.
In their petition for review, state officials said the appeals court erred in its decision.
"The Founding Fathers did not remotely intend for the First Amendment to prevent state and local governments from combating rape and other crimes by regulating the sale and consumption of alcohol in certain adult establishments," the petition says. "They could not have fathomed that the Constitution would someday be used to establish a right to consume alcohol while watching live nude entertainment in public."
The lawsuit was brought in 2007 by the Texas Entertainment Association Inc. and Karpod Inc., which owns the Amarillo club.
So far, the so-called pole tax has raised $12.7 million. The revenue remains unspent in a bank account. If the state loses its case at the Supreme Court, the money will be returned to strip club owners.
From Legal Newsline: Reach staff reporter Chris Rizo at firstname.lastname@example.org.