Texas SC to hear strip club 'pole tax' case

By Chris Rizo | Feb 12, 2010

Abbott (R)

AUSTIN(Legal Newsline)-The Texas Supreme Court announced that it will consider the constitutionality of the state's controversial strip club tax.

Oral argument of this case will be March 25 at St. Mary's University School of Law in San Antonio, officials said Feb. 12.

Last year, Texas Attorney General Greg Abbott and state Solicitor General James Ho 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 illegal because it violated First Amendment rights.

The appeals court 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.

The 2-1 appeals court ruling affirmed a 2008 decision by state District Judge Scott Jenkins in Travis County.

In their petition for review, Abbott and Ho said the trial court appeals courts erred in their decisions.

"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 Abbott-Ho 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 original lawsuit was brought in 2007 by the Texas Entertainment Association Inc. and Karpod Inc., which owns the Amarillo club.

Money raised by the tax remains unspent. If the tax is declared unconstitutional, the money will be returned to strip club owners.

The case is Susan Combs and Greg Abbott v. Texas Entertainment Association Inc., 09-0481.

From Legal Newsline: Reach staff reporter Chris Rizo at chrisrizo@legalnewsline.com.

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