Texas Legislator Files Atypical Amicus Brief in Support of 'Pole Tax'

Legislators rarely send amicus briefs to the Texas Supreme Court explaining why a law was passed, because the court usually doesn't listen anyway, two experts say. However, one lawmaker has done just that in a case involving the constitutionality of a state law waggishly known as "the pole tax."
On Nov. 20, state Rep. Ellen Cohen, D-Houston, and two advocacy groups submitted an amicus brief to the high court in Susan Combs, et al. v. Texas Entertainment Association, et al. in the hopes of shedding more light on the reasons the Texas Legislature passed the 2008 law. The law imposes a $5 tax on each customer who enters a sexually oriented business (SOB) that serves alcohol. Cohen, who directed the Houston Area Women's Center for 18 years, sponsored H.B. 1751, which created the SOB law. Even the lawyer who helped craft Cohen's amicus brief says such briefs by legislators attempting to explain why the Legislature passed a law are controversial but, in this case, such a brief was necessary. [See Cohen's amicus brief, the petitioner's brief on the merits and the respondents' brief on the merits.]
In a June 5 opinion in Texas Entertainment Association, Austin's 3rd Court of Appeals set out the following: The case involves a constitutional challenge to the SOB law -- Chapter 47, subchapter B of the Texas Business & Commerce Code. A sexually oriented business association, the Texas Entertainment Association Inc., and a sexually oriented business, Karpod Inc., sued Texas Comptroller of Public Accounts Susan Combs, who collects taxes generated by that law, and Texas Attorney General Greg Abbott, who is charged with enforcing the law, requesting declaratory and injunctive relief. [See the court's opinion.]
Judge Scott Jenkins of Austin's 345th District Court found the law unconstitutional, a decision the state appealed. In its June 5 opinion in Texas Entertainment Association, the 3rd Court affirmed the trial court's decision. Justice Diane Henson concluded the law was unconstitutional because it was a tax on free speech and violated the First Amendment to the U.S. Constitution. Henson also wrote that the law was not content-neutral and could not withstand a strict-scrutiny test.
In a concurring opinion, Chief Justice Woodie Jones agreed that a strict-scrutiny standard should be used when reviewing the law's constitutionality. But Jones wrote that he believed the court should have gone further in its analysis of the law and looked beyond its words to determine whether it was written to "regulate speech or to address secondary effects" -- the negative consequences of combining nude dancing and alcohol. The trial court, Jones wrote, made numerous findings that there was no evidence presented at trial to support the state's contention that the law was written to combat those secondary effects. Jones cited Jenkins' ruling, which states: "There is no evidence that the legislature actually considered or saw any studies claiming a link between sexual assault and the sexually oriented businesses that are responsible for the SOB Tax."
"Therefore, in the absence of any evidence that the legislature's predominant purpose was to address secondary effects, the statute may not be deemed content-neutral and must be reviewed under strict scrutiny ... which the state has conceded it cannot meet," Jones wrote.
Justice David Puryear dissented, concluding "that the state has a substantial interest in combating negative secondary effects and that the statute at issue furthers that interest."
The state appealed the decision to the Supreme Court, which is considering the full briefing provided by the parties in the case. The court has not yet decided whether to grant review