Talking with Bill White campaign aide Bill Kelly last week, the issue of House Bill 1751 – the state’s poorly-written, unconstitutional five dollar stripper surcharge bill – came up. He was wondering what was happening so, hey, Bill, quick update: It’s going before the Texas Supreme Court.
As former chief of staff to bill author Rep. Ellen Cohen, D-Houston, Kelly and Newsdesk agreed to disagree over the constitutionality of the bill. Ultimately, Newsdesk had both District Judge Scott Jenkins and the Third Court of Appeals on their side in saying, no, it’s unconstitutional.
However, the state (which simply won’t let this shabby, ill-written piece of legislation drop, even after major legislative efforts to fix its inherent flaws) filed a further petition for review. This morning the court posted that it will receive oral arguments at the law school at St. Mary’s University in San Antonio on March 25.
In what may seem to many as a slightly backwards process, the justices had already requested that they be fully briefed by both sides before they made this announcement. Now lawyers for the state and the Texas Entertainment Association will have a grand total of 20 minutes each to make oral arguments.
HB 1751 is a constitutional minefield. If the state only enforces its broad terms about nude entertainment around drinking against strip joints, it’s an unequal application of the law. If they charged every venue that was technically covered under those rules (from strip joints to theatrical productions with partial nudity to fashion shows with sheer materials if there was booze around) a $5 per head “fee,” then it was a tax on content and therefore a straight First Amendment violation. However, several other states have eyed this bill as a potential model for a new tax stream, so there’s a vested interest in making this one go all the way to the Supreme Court of the United States.
This article appears in February 12 • 2010.
