ADDRESSING CONCERNS

The questions Jones raised over the legislative history of the SOB law are part of the reason Cohen says she sent the amicus brief to the high court. The Texas Association Against Sexual Assault and the Texas Legal Services Center, advocacy groups that have an interest in protecting women from violence, joined Cohen in her brief.
"To the extent there is any lingering question about the legislature's purpose in enacting House Bill 1751, Representative Cohen -- the bill's primary sponsor and a longtime leader in the battle against sexual assault -- submits this brief to make clear that the legislation she championed was intended to combat sexual assault and rape," Cohen wrote in the amicus brief.
"I was dissatisfied with the lower court's decision," Cohen says. "I think that there is a preponderance of support that demonstrates that where alcohol and live nude dancing occur, there's an increase in criminal activity."
Chris Kratovil, a partner in the Dallas office of K&L Gates who represents the three amici, says Jones' concurring opinion opens the door for the high court to consider additional legislative history in analyzing the Legislature's reasons for passing the law.
"He left open the possibility that he would have affirmed an identical law based on a deeper legislative history," Kratovil says.
"It's our position that as a general rule legislative history is a poor barometer of constitutionality," Kratovil says. "The court should look at what the law says and what it does, not what was said in floor speeches. But to the extent the Supreme Court shares Chief Justice Jones' concerns about the legislative history, this brief is meant to cure those concerns."
G. Stewart Whitehead, a partner in the Austin office of Winstead who represents the Texas Entertainment Association and Karpod in the case, declines comment. But in their Oct. 15 brief to the Supreme Court, they maintain that the SOB law is meant to provide funding to various sexual assault prevention programs in Texas rather than for the purpose of preventing a negative secondary effect.
"House Bill 1751, which enacted the tax, was passed by the 80th Legislature without the benefit of any studies addressing the impact the tax would have on protected speech or the need for the government to restrain protected free speech to achieve any sort of governmental interest advanced by the tax," the Texas Entertainment Association and Karpod say in their brief. "In fact, no claim was ever made to the Legislature that there was a link between sexually oriented businesses and sexual violence in Texas."
In its Oct. 30 brief, the state argues that the SOB law is not unconstitutional under the First Amendment for a variety of reasons, including that the U.S. Supreme Court has blessed numerous similar laws over the past four decades.
The state also argues that the decision in the case should not turn on legislative history. If it did, "the Legislature could cure [the law] in the next legislative session simply by re-enacting it with a better record."
"Rep. Cohen's legislation is entirely constitutional under Supreme Court precedent, regardless of the legislative history," says Texas Solicitor General James Ho, who represents the state in the case. "Nonetheless, we appreciate the representative's supportive amicus brief, which simply confirms that the Legislature intended to prevent sexual assault -- not to suppress speech."
Roger Townsend, an appellate lawyer and partner in the Houston office of Alexander Dubose & Townsend who is not involved in the case, says it is unusual for a legislator to file an amicus brief with the Supreme Court explaining why a law was passed.
"It's not the first time it's happened. But there's a trend today to believe that there is not such a thing as legislative history," Townsend says. U.S. Supreme Court Justice Antonin Scalia is at the forefront of that movement that questions the use of legislative history in appellate court analysis, he says. "Is it the history of the author, the committee, the whole body?" he asks.
Former Texas Supreme Court Justice Scott Brister, now a partner in the Austin office of Andrews Kurth, agrees with Townsend.
Brister says the high court usually is wary of amicus briefs by legislators who try to explain the intent behind a law for two reasons: "No. 1, you can usually tell the purpose of a statute from a statute. So if somebody is saying the purpose of this statute is not obvious on the face of the statute, courts are skeptical of that," Brister says. "And the second is, I've never seen an amicus brief that was by a majority of the Legislature that passed it. And of course, that's what counts."