The association's filing describes the surcharge as an "occupational tax," and under current law, 25% of funds raised for such a tax must go to public education, which HB 1751 does not allow. The bill also extends the definition of "nude" to cover anything from full-nude strip joints to theatrical productions with partially see-through costumes. If the comptroller's office charges only strip joints, it could violate Article VIII of the Texas Constitution, which guarantees equal and uniform taxation. Attorneys for the plaintiffs said that even if these problems could be fixed, they are secondary to the central issue: Such performances are protected speech and cannot be singled out for a special tax. The petition warned that the surcharge "is so overbroad that it will chill the protected speech of others not before the Court."
Asked for comment on the suit, the comptroller's office deferred to the attorney general's office, which declined to respond. Bill Kelly, Cohen's chief of staff, said he was disappointed that the Texas Entertainment Association had filed the suit. He said he expects the attorney general to fight it vigorously and warned the Texas Entertainment Association, "They're going to spend a lot of money on lawyers, and it's not going to do them any good." He added that if the injunction is upheld, Cohen would bring a new surcharge bill back next session. "If a judge says this is wrong because of A, B, and C," he said, "we're going to go back next session and fix A, B, and C."
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