AUSTIN, Texas — Lawyers for a group of Texas strip clubs asked a judge Tuesday to declare the state’s new $5-per-customer fee unconstitutional.
State District Judge Margaret Cooper, [pictured] who stepped in to hear the case after Judge Lora Livingston recused herself, did not say when she plans to rule.
The Legislature created the fee last year to pay for sexual assault prevention programs and health insurance for low-income Texans. It went into effect Jan. 1, and a group of strip clubs has been fighting it, saying it is arbitrary because it does not apply to other sexually oriented businesses.
The Texas Entertainment Association Inc. — a group of adult cabarets — and Karpod Inc., the owner of an Amarillo club, sued the state last year. In December, state District Judge Scott Jenkins denied the strip clubs’ request for an injunction to delay the fee, which is expected to generate $44 million a year.
A trial is set for March 3. Meanwhile, the clubs are hoping to persuade a judge to declare the fee unconstitutional.
Stewart Whitehead, a lawyer for the clubs, argued Tuesday that the charge is a tax, not a fee.
“They are simply taking money from my clients and funding other purposes,” Whitehead said.
But Christine Monzingo, who represents the state, said that even if the fee is considered a tax, it’s not unconstitutional. She said the Legislature has the authority to determine who can be charged for the negative effects of an industry. “The Legislature decided that the combination of alcohol and nude performances was more negative than, say, pornography alone,” she said.
Soon after Tuesday’s hearing began, Livingston said she might have a conflict of interest. She said she has served on the Texas Equal Access to Justice Foundation, an organization that pays for legal services for low-income Texans. The strip club legislation says that fees collected may be transferred to that foundation, among other groups.
“I can’t really hear this case,” Livingston said. “I did not directly lobby anybody on this bill, but I may have been in the room with legislators or others when this legislation was discussed.”