The Austin Chronicle

Topless Tax Bottoming Out?

On the Lege

By Richard Whittaker, May 22, 2009, News

Lawmakers may be getting cold feet about repealing the controversial "titty tax," risking funding for sexual-assault programs on an unconstitutional surcharge stuck in the appeals courts.

The Senate is reconsidering its vote on House Bill 982 by Rep. Senfronia Thompson, D-Houston, which is intended to dig the state out of an awkward legal problem and provide cash for sexual-assault programs. Until last week, Thompson's bill appeared ready to replace last session's HB 1751, authored by fellow Houston Democrat Ellen Cohen, which created a $5 admission surcharge on sexually oriented businesses. The law was so broadly written, however, that it also affected other establishments or events where alcohol is served, such as experimental theatre or fashion shows with partial nudity. Both Cohen and Texas Solicitor General James Ho have repeatedly glossed over the fact that the surcharge has been ruled an unconstitutional tax on content. ("For some reason, the state skips past this in lots of their argument," Stewart Whitehead, attorney for adult-cabaret trade body the Texas Entertainment Assoc­i­ation, drily told the House Ways & Means Committee on April 1.)

Thompson's bill, modeled on similar constitutional taxes in other states, is a flat 10% tax on admission fees to strip clubs, which the Texas Entertainment Association has already said it will not challenge. But now it has seemingly stalled in the Senate after its sponsor, Sen. John Carona, R-Dallas, requested reconsideration of the vote after its final passage, and it's now listed as postponed business.

Thompson points to concerns raised by the Texas Association Against Sexual Assault, which lobbied heavily and consistently for the Cohen surcharge. She said, "I think there's a belief that the lawsuit on appeal at the 3rd Circuit should go forward. And secondly, they believe that the voluntary giving of 10 percent of the door by the industry is not concrete enough for them to rely on."

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