Titty Tax Hits the Floor

The $5 surcharge on sexually oriented businesses (less delicately known as the Titty Tax) is no more. The state tax, which would have made strip joints, theaters, dance companies, and even fashion shows liable for five bucks per customer if there was even a hint of nipple or buttock, has been chucked out for violating the First Amendment.

In the 53rd District Court on Friday, Judge Scott Jenkins called the surcharge unconstitutional, permanently enjoined the comptroller's office from collecting it, and ordered them to pay the legal expenses for the plaintiffs, the Texas Entertainment Association, Inc. and Karpod, Inc.

Jenkins accepted what has been the association's argument all along, since the tax was introduced last session as House Bill 1751: that the surcharge was a tax on content. The comptroller and the attorney general had, in an earlier hearing, scrabbled to find a constitutional loophole to squeeze it through, but it was very clear what Jenkins thought of that when he chastised them for "singling out a business activity that, while politically unpopular, is nevertheless protected by the First Amendment."

But before Abbott and Combs feel too sorry for themselves, there's real victims of this legal debacle: the Texans who will not benefit from the under/unfunded Health Pool and sexual-abuse programs this tax would have paid for. They will now go without these services, because the Legislature wasn't prepared to fund them properly or constitutionally.