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Supremes Wink at Titty Tax

Constitutionality of less-than-lucrative tax at issue

By Richard Whittaker, Fri., Feb. 3, 2012

Supremes Wink at Titty Tax
Illustration by Jason Stout

There will be no Lone Star strippers in D.C. after the U.S Supreme Court decided it will not review Texas' "pole tax." On Jan. 23 the court announced that it would not consider the latest challenge by the Texas Entertainment Association to the $5 per customer surcharge on bars with nude dancing. However, the case is far from concluded. When District Court Judge Scott Jenkins initially ruled the tax unconstitutional almost four years ago (see "Topless Tax Terminated," April 4, 2008), he ruled only on its potential First Amend­ment violations. Neither he, nor the Texas Supreme Court that overturned his ruling, considered whether it flouts the Texas Constitution. TEA attorney Stewart Whitehead said the case now returns to Jenkins' court to handle those issues. However, there may be a new delay, since almost all the staff members who handled the original trial have left the Attorney General's Office. Once he knows who will be representing the state, Whitehead said, "We'll probably set up a status conference with Judge Jenkins to see where we go next." The surcharge itself has been a complete bust. Proponents, who argued it would aid the state's dramatically underfunded sexual assault programs, claimed it would raise $40 million a year; it has actually produced a fraction of that, and none of it can be spent until the legal wrangling is complete, just in case the state loses and has to return that money to the businesses.

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