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Texas Association Against Sexual Assault

Why lawsuits?

If you’ve wondered why the women who have accused Deshaun Watson of sexual harassment and assault have filed lawsuits against him instead of police reports, this Chron story offers some reasons.

The 22 women suing Deshaun Watson for allegedly sexually assaulting and harassing them have been criticized for not first taking their allegations to police.

But experts say a civil suit is often a sexual assault victim’s best shot at justice.

“In a civil case, you can expect a broader range of accountability,” said Elizabeth Boyce, general counsel and director of policy and advocacy for the Texas Association Against Sexual Assault. “You might settle before trial and that might include a public acknowledgment and apology.”


But experts said there are myriad reasons why a victim would choose to file a case in civil court instead of a criminal complaint — including compensation to pay for any emotional and medical care needed after an assault.

“Victims of sexual assault had something stolen from them,” said Noblet Davidson, founder and clinical director of enCOURAGE Trauma Center in Houston. “They need to be compensated. If you get in a car accident, you get compensated.”

The fear of being outed, for example, can deter a victim from filing a police report, Boyce said — especially when the alleged perpetrator is famous.

“Confidentiality and privacy is always at the heart of these cases,” Boyce said. “Honestly, it’s a fear of any victim of sexual assault that this is going to result in some sort of public condemnation or harassment.”

The nation has seen it play out over and over again, Boyce said.

When California professor Christine Blasey Ford testified before Congress, alleging that now-Supreme court Justice Brett Kavanaugh had sexually assaulted her in high school, she received death threats. She and her family had to move multiple times and had to pay for a private security detail.


For some victims, taking their assault to police can seem hopeless.

Not only are they retraumatized each time they have to describe their assault, Boyce said, but it can also seem as if they are not in control of the outcomes.

“In criminal cases, the state doesn’t represent the victims, they represent the state and they control every aspect of the case,” Boyce said. “And so often (the cases) are refused for prosecution for a variety of reasons — if they think they can’t win or they think there’s too much political pressure.”

The criminal investigation process also is intrusive and time-consuming, with court hearings, follow-ups with police and medical appointments, said Olivia Rivers, executive director of the Houston-area advocacy nonprofit Bridge Over Troubled Waters. Officers may show up at the victim’s house or workplace. Family and friends — who the victim may not want to tell about the assault — may be interviewed to corroborate the report.

“A sexual assault exam can take hours,” she said. “How do you explain to your family why you were at a hospital for that long? Or how do you explain to your employer why you had to miss so much work for court?”

Additionally, the burden of proof also is lower in a civil court than in a criminal prosecution. Civilly, the victims only have to show a preponderance of evidence, but in criminal cases, authorities have to prove beyond a reasonable doubt that the assault happened.

Therefore, it can easier for victims to get some form of justice in a civil court, whether it be a public apology or a monetary award for pain and suffering — especially when there isn’t enough physical evidence to criminally convict a perpetrator.

“Sexual violence … isn’t taken seriously by society,” Rivers said. “This about having their voices heard.”

Sometimes, victims might seek both criminal prosecution and civil damages.

At least one alleged victim has done exactly that, and others may follow. In the meantime, lawsuit #22 is on the books. We won’t know how successful this approach is until we have some resolutions in these cases, but the reason why the lawsuits were filed should be clear.

Still grappling with how to handle sexual harassment claims

I like the idea of putting the authority to investigate harassment claims in the Legislature into an independent body.

Calls for independence between sexual misconduct investigations and those in power have grown in recent months, and experts and several lawmakers agree that impartiality is crucial for building trust in a reporting system at the Capitol, where repercussions for elected officials are virtually nonexistent. But efforts to establish that independence — which could require officeholders to give up their current oversight over investigations — will likely face political challenges in persuading lawmakers to hand over power to a third party.

Any independent entity investigating sexual misconduct at the Capitol would need the power to truly hold elected officials accountable, several lawmakers and legal experts said. That could mean sanctions against officeholders that their colleagues may be unlikely to pursue.

“It cannot be officeholders policing officeholders,” said state Sen. Sylvia Garcia, D-Houston, who is among those calling for an independent investigative agency.


But to alleviate concerns with existing reporting procedures that leave investigations in the hands of elected officials, lawmakers have proposed several ways to establish what they say is needed independence in investigations. Those proposals range from a review panel that doesn’t include lawmakers to a new state entity comparable to the Texas Ethics Commission, which regulates political activities and spending.

The creation of an independent investigative body “is a necessary immediate step” for the Legislature to address skepticism in the current reporting system set up for sexual harassment victims, said Chris Kaiser, director of public policy and general counsel for the Texas Association Against Sexual Assault.

“I don’t think that you have to impugn the work that any investigators are doing currently to accept the fact that that skepticism itself is preventing people from coming forward,” Kaiser said. “It’s really clear the Legislature has a lot of work to do to build trust.”

See here and here for some background. I will just say, if there is an independent body to handle these complaints, it has to be truly independent, by which I mean free from any legislative authority or meddling. I mean, the Texas Ethics Commission is an independent body, but it’s hardly a good role model for this sort of thing. I have a hard time imagining that happening, but if there’s enough of a shakeup in the composition of the Lege, there might be a chance. First and foremost, it needs to be an issue in the campaigns. I’m asking every candidate I interview about harassment and the institutional policies that deal with it. The more we talk about it, the better.

The phony “bathroom” issue

I am so tired of this.


Although Houston’s 36-page equal rights ordinance makes no mention of public restrooms, access to restrooms has become the focus of a raging public debate with the law set to go before voters on election day.

Opponents of the ordinance, largely conservative Christians, have flooded radio and TV with ads saying the law gives men dressed in women’s clothing, including sexual predators, the ability to enter a woman’s restroom. On Tuesday, the group released a TV spot that closes with a man bursting into a stall occupied by a young girl.

Supporters of the law, however, said the ordinance would in no way protect predators, pointing to a longstanding city law that bars someone from entering a restroom of the opposite sex with the intent to “cause a disturbance.” Legal experts agree the equal rights ordinance does not offer any protections to those who commit crimes, such as the oft-cited example of sexual assault, in a bathroom or any other place.

University of Houston law professor Peter Linzer said the law does not mean someone can enter a bathroom with the intent to commit a crime, regardless of gender.

“It’s a phony issue,” Linzer said. “If you commit a crime in a bathroom, you’re going to be prosecuted, and HERO is not a defense.”


Mayor Annise Parker pushed back this week on the idea that the ordinance in any way presents a public safety threat. The law is intended to protect someone’s consistent gender identity, not someone seeking to illegally gain access to a restroom.

“Two-hundred cities, 17 states have the same ordinance that we do or very similar wording that we do,” Parker said. “This just doesn’t happen. It is illegal for a sexual predator to go into a women’s restroom and attack anyone, and the idea that somehow the city of Houston is giving them free license is so offensive.”

Supporters of the ordinance have also questioned the authority of opponents on the issue of sexual conduct, given allegations against one of the group’s leaders.

That of course would be Kendall Baker, who is unironically out there warning people about perverts. I’m tired of talking about the lying and the lying liars who have been doing all this lying, so let’s talk a little about the truth. Here’s some truth about sexual assault from someone who’s spent a lifetime helping people who have been victims of it.

The talking point continues to be one of the most popular right-wing attacks on LGBT non-discrimination laws, and HERO’s opponents have used it relentlessly to weaken support for the measure among women and parents.

But in May 2014, during a public hearing before the Houston city council, HERO supporters gained a powerful voice in their fight against the “bathroom predator” talking point: Cassandra Thomas.

Thomas has spent thirty-one years at the Houston Area’s Women Center (HAWC), an organization dedicated to helping individuals affected by domestic and sexual violence. Aside from serving as HAWC’s Chief Compliance Officer, Thomas is also a member of the National Sexual Violence Resource Center Board and sits on the editorial board of the Sexual Assault Report of the Civic Research Center. She’s won numerous awards for her work on domestic and sexual violence, including a Lifetime Achievement Award from the Texas Association Against Sexual Assault.

Testifying before the city council, Thomas drew on her decades of experience to dismiss opponents’ fearmongering. “If you really want to stop sexual assault,” Thomas said, “then let’s cut out the scare tactics, and let’s speak the truth.”


The problem with the “bathroom predator” talking point, she explained, is that it fundamentally misunderstands how and why sexual assault occurs.

“Transgender people are not my bogeyman in the closet. My bogeyman in the closet is the man who is a rapist who has a position of power, that everyone thinks, because he has power or because he’s nice or because he’s white or because any of those stupid reasons, that ‘I’m safe from him.’ That is my biggest fear.”

Thomas’ position has been echoed by sexual assault experts in states and cities with similar LGBT non-discrimination policies, and it’s supported by research. Sexual assault is overwhelmingly carried out by people victims know and trust — family members or friends, religious and community leaders, etc. — and not random predators who pretend to be transgender.

“It puts a bogeyman face on a group of people who don’t deserve it at all, who are, by no account, through what we know, are dangers,” she added.

Stereotypical images of shady-looking men sneaking into women’s restrooms — which have become a centerpiece of the anti-HERO campaign — give women a “false sense of security,” Thomas explained. “It makes women think that there are only certain places and certain people that I have to be afraid of and that’s not true. We don’t know what rapists look like. There’s no big R on their forehead. And that misinformation sets women up to be injured.”

When asked about why opponents of HERO had latched on to the “bathroom predator” talking point, Thomas dismissed the idea that HERO’s opponents were seriously motivated by a concern for women’s safety. “If it was about women’s safety then these same people would be involved in the anti-violence movement from the start,” she said.

“If these same people were concerned about the safety of women, they would have come out against any number of issues that have come up about sexual violence over the years, but they have been remarkably silent. So all of a sudden women are in danger because of transgender people? No. They’re not.”


Combs tells strip clubs to pay up


Susan Combs

Texas Comptroller Susan Combs is pressing the state’s strip clubs to cough up millions of dollars she says they owe under a new “pole tax” even though the $5-a-patron fee still faces a court challenge.

“Any claim that ongoing litigation is a basis for nonpayment of the Sexually Oriented Business Fee is not valid,” insists an April 11 letter from the comptroller’s tax division that was sent to roughly 200 clubs in Texas that offer nude entertainment.

The fee, which strip club attorneys have claimed is an unfair tax, has been the subject of legal fights virtually since it was passed in 2007 as a way to fund programs for sexual assault victims and health care. The strip clubs’ lobby organization, the Texas Entertainment Association, filed a lawsuit challenging the constitutionality of the fee, arguing that erotic dancing is a form of expression protected by the First Amendment. But in 2011, the Texas Supreme Court ruled the fee did not violate free speech.

A new challenge, still under consideration by the 3rd Court of Appeals, argues that the “pole tax” is unconstitutional because the fees are not used appropriately. In the April 11 letter, Combs’ office said the continuing legal battle doesn’t mean the clubs can avoid paying all the fees they owe since the law took effect six years ago.


“They don’t like to be seen or heard,” state Rep. Harold Dutton, D-Houston, said of the club owners. “And I think that is what caused them to get in the ditch on this thing.”

So far, Dutton is the only lawmaker defending the clubs. In an April 23 letter to Combs, he asked the comptroller why her office decided last month to send out letters while the clubs’ latest court challenge is awaiting a decision from the 3rd Court of Appeals.

“I did send her a letter, asking her what has changed,” said Dutton, who opposes the fee. He said that if sexual assault programs need money, “the Legislature ought to step up to the plate and do that.”

Instead, what often happens, he said, is that lawmakers create fees against things they don’t like, like strip clubs.

“Where does it end once you start down that road?” he said.

A spokesman for the comptroller’s office, R.J. DeSilva, indicated in an emailed response that there was nothing remarkable about the timing of the collection notice.

“Our agency regularly sends notices or updates to taxpayers on various taxes and fees,” he wrote. “This particular notice was to remind business owners that the Sexually Oriented Business Fee is still in effect while litigation continues.”

In 2012, the U.S. Supreme Court declined to hear the strip clubs’ challenge after the Texas Supreme Court determined that the fee does not violate the First Amendment.

Now, the clubs are arguing that the state “fee” is really an occupation tax that should be directed to public schools under the Texas Constitution. They contend that the fee violates the state Constitution, which requires that one-fourth of occupation taxes go to public schools, because none of the money goes to schools.

The clubs’ attorneys are also asking the court to consider free speech provisions in the Texas Constitution, which they claim are broader than that of the First Amendment.

The state maintains that the fee is not an occupation tax, though, and it rejects arguments that it encroaches on free speech.

I must have missed the news about the second lawsuit, because I didn’t find anything in my archives about it. As noted, the original lawsuit was decided in favor of the state in 2011 by the Supreme Court, so it’s fair to wonder why now, almost three years later, the state is finally demanding payment from the clubs and rejecting the argument that ongoing litigation is no excuse. That said, while I may sympathize with Rep. Dutton about how the Lege should appropriate money for various things, the fact remains that the strip club fee was passed by the Lege and has been upheld by the Supreme Court, and wishing that the Lege did its business differently doesn’t change that. Not clear what effect, if any, this may have on the city of Houston’s strip club fee, which is also still being litigated.

SCOTUS declines to hear strip club tax case

The end of the road for this particular bit of litigation.

The U.S. Supreme Court will not take up the adult entertainment industry’s lawsuit against the state’s $5-per-patron strip club tax, justices decided Monday.

“Texas is now one step closer to a sustainable source of funding for rape crisis centers, and most importantly, for supporting sexual assault survivors in their recovery,” said Annette Burrhus Clay, executive director of the Texas Association Against Sexual Assault.

That means the Texas Supreme Court’s ruling — that the fee does not violate the First Amendment — stands. But it doesn’t mean that the industry, years into its legal battle, can’t file yet another suit against other elements of the tax.

The story doesn’t go into what other grounds there may be for litigation, and I don’t care to think about it at this time. Here’s a reminder of the timeline in this case, which first got a ruling from a district court judge in 2008. As I recall, it took about a decade for all the lawsuits over the city of Houston’s SOB ordinance to be resolved. Check back in 2018 or so, I guess.

The strip club tax is on the table

Among the things that conference committee members will be discussing as they try to finalize the budget is a reworking of the strip club tax that was first passed in 2007.

This session, while awaiting a ruling on the case from the Texas Supreme Court, lawmakers attempted a preemptive strike. Fearing, as lower courts have suggested, that linking strip clubs to health insurance was too big of a stretch, they easily added language to a large health reform bill directing all of the strip club fee’s revenues — originally estimated at $87 million over two years — to sexual assault victims and prevention. That measure, Senate Bill 23, died on the clock in the House.

The strip club language is back in the special session — first on Senate Bill 7, a sweeping health reform bill, and now as an amendment to Senate Bill 1, a fiscal matters bill that contains the state’s school finance plan. But it’s in trouble.

Sen. Robert Duncan, R-Lubbock and the author of SB 1, says the purpose of the bill is to fund state government and schools, not to be a landing pad for controversial legislation. He said his colleagues in the upper chamber are lobbying hard on both sides of the issue and that he doesn’t see the provision sticking as lawmakers work out their differences in conference committee.

“I’m trying to be a traffic cop,” he said. “I’m trying to keep a lot of things off of it.”

But supporters of the strip club fee say all kinds of other controversial amendments have been added to SB 1 and don’t seem to be at risk of being killed.

“The courts reviewing the bill … have made it clear that [using the revenue for health insurance] is not a good fit,” said Mica Mosbacher, an advocate for the Texas Association Against Sexual Assault and a sexual assault survivor. “SB 1 provides a remedy.”

Maybe if it were linked to abortion somehow, that would break the stalemate. The House wants this in, the Senate is dithering as you can see. Speaking of which, the State Supreme Court heard the appeal of the strip club tax lawsuit in March of 2010, which is to say 14 months ago. You just can’t rush these things.

Senate approves rape kit testing bill

Earlier this week I mentioned a bill, SB1636, by Sen. Wendy Davis that aimed at getting thousands of untested rape kits analyzed. I’m pleased to say that it was passed unanimously by the Senate today, and now heads to the House.

SB 1636 by state Sen. Wendy Davis, D-Fort Worth, would require a police department to submit a rape kit to a crime lab within at least 30 days of determining that a sexual assault has occurred. DNA analysis would have to be done no later than 90 days after the sexual assault was reported. After testing, the Texas Department of Public Safety would compare the DNA profile to those already in databases maintained by the state and the FBI. To the extent that funding is available, the bill also requires testing of untested rape kits in active cases since 1996.

Initially, an $11 million price tag on the rape kit bill generated concerns among lawmakers and law enforcement officials. Davis, however, changed the measure to require testing only when funding is available and ensure that no new money would be required.

Good. Some background on the bill is here, and a press release by Sen. Davis is here. I hope it will be swiftly passed by the House so the state can get to work on this important task.

Strip club fee appealed to Supreme Court

As expected.

The legal battles continue to spin around Texas’ so-called “pole tax,” a $5 entrance fee at strip clubs that has been ruled an unconstitutional regulation of free expression.

Lawyers for Texas Attorney General Greg Abbott and state Comptroller Susan Combs on Thursday asked the Texas Supreme Court to overturn lower courts that have said the 2-year-old law is unconstitutional.

The fee was meant to fund programs assisting victims of sexual assault. Many clubs have ignored the fee, but more than $12 million has been collected. The money is being held in an account pending the legal battle’s outcome.

The Texas Entertainment Association, which represents strip clubs across the state, sued and a state district judge struck down the law in 2008. A 2-1 ruling last week by the Austin-based 3rd Court of Appeals said the tax improperly singles out a form of expression, nude dancing, for regulation.

As we saw with the Third Court’s opinion, the proponents of the tax believe they have hope for a reversal by the Supremes. I just have my doubts that the matter will be resolved before the courts before the Lege gets another crack at it. Who knows, maybe it’ll be on the call for the special session.

Appeals court upholds strip club tax ban

Score two for the state’s strip clubs.

The 3rd Court of Appeals panel sided against the $5 per-patron fee, passed by the Legislature in 2007 with the goal of raising sexual-assault prevention funds, in a divided 2-1 opinion released Friday.

The split decision, which contained a dissent by the panel’s only Republican justice, rejected the state’s argument that the fee is a lawful alcohol regulation. The justices, rather, said the charge amounted to a content-based tax on protected speech at sexually oriented businesses.

“Differential taxation based on content is subject to strict scrutiny,” the justices wrote in the opinion, referring to a legal standard for such cases that allows speech regulations only if there is an compelling government interest in protecting the public.

Advocates for sexual assault programs were heartened, though, by a strongly worded dissent by Justice David Puryear and by a concurring opinion by Chief Justice J. Woodfin Jones that seemed to open the door to similar regulation in the future.

“We’ve always known that this case would end up at the Texas Supreme Court, no matter how the 3rd Court ruled,” said Torie Camp, deputy director at the Texas Association Against Sexual Assault. “We look forward to pressing those very same arguments before the Texas Supreme Court.”

Puryear wrote that the law should stand because it isn’t aimed at preventing or suppressing topless dancing, but rather seeks to combat a possible correlation between alcohol, erotic expression and sexual assault.

“The statute seems concerned with the regulation of alcohol or the regulation of alcohol and erotic entertainment rather than the suppression of any specific erotic expression,” he wrote.

The original suit was filed in December 2007, three months after the law took effect. The law was struck down last March. You can find the court’s opinion upholding the ruling, written by Justice Henson, here, Chief Justice Jones’ concurring opinion here, and Justice Puryear’s dissent here. I tend to agree with Ms. Camp that the Third Court has given the state hope going forward. Having said that, given the glacial pace at which the Supreme Court operates, I think there’s an excellent chance that the 82nd Lege will be able to address this before they issue a ruling.

The fees not paid

The battle over the dueling strip club bills in the Lege this session has mostly been over how much revenue each would collect. But the state has to actually collect that revenue for any of that to be relevant.

Dozens of strip clubs across Texas have ignored a 2007 law requiring them to charge a $5-per-patron entrance fee, potentially costing the state millions of dollars meant to fund sexual assault programs, records show.

Not a dime has yet been used to help the victims of sexual assault.

Since the law went into effect last year, only about $12.2 million has been collected by the state under the law for sexual assault prevention and treatment, far less than the $50 million that had been expected.

“We are, of course, disappointed,” said Annette Burrhus-Clay, executive director of the Texas Association Against Sexual Assault. “But hopefully there will be more resources set aside for the comptroller to actually monitor this in the future.”

For whatever the reason, I don’t recall seeing that $50 million figure before, but it’s right there in the fiscal note to the original bill, so it must just be a case of faulty memory on my part. Having said that, the modified bill filed by Rep. Ellen Cohen was projected to bring in $16.5 million in annual revenue, or about a third as much. I suppose that’s why the $50 million figure surprised me; the difference is so great.

Cohen said she wasn’t surprised that some clubs have ignored the current law, especially in light of the uncertainty created by the court challenge and by the pending legislation.

“If they want to wait and see what’s going to happen, that’s their choice. They may end up having to pay it and penalties — I don’t know,” she said. “I do respect those clubs that have stepped up to the plate and paid.”


Topless and nude clubs in Houston and San Antonio have remitted about $4.3 million, about a third of the state total, records show.

More than 100 clubs, however, have ignored the fee entirely, while others have paid only small amounts. Some say they don’t want to charge customers more at the door.

Obviously, the court challenge changed things, but I have to ask – what would be the enforcement mechanism for this? I’m guessing a civil suit brought by the Attorney General. I suppose any license renewals, say from the TABC, can be denied pending payment of back taxes as well. Anybody know the answer for sure?

A response from TAASA to the rape kits story

When I posted about that recent Click2Houston story regarding the sexual assault victim who was billed by the hospital for the rape kit, I wondered if this was a screwup or standard procedure. Well, here’s a response to the story from the Texas Association Against Sexual Assault (TAASA) that clears things up.

Recently a Houston television station ran a story about a rape victim who was billed for her own rape exam. The news piece implied this was a common practice in Texas despite being told by several sources, including the Deputy Director of the Texas Association Against Sexual Assault (TAASA), that this was not the case. This news story, riddled with inaccuracies and half truths, was picked up by other news outlets and blogs and it took on a life of its own. Activists, advocates, survivors and other concerned individuals from around the country were justifiably angry and began to demand answers and action. The problem is there isn’t really a problem, just the perception of injustice that is spiraling out of control.

TAASA is concerned that this misinformation will have a chilling effect on a rape victim’s willingness to report the crime and get a forensic/medical exam (rape kit). We want to assure everyone that the cost of a forensic exam is not billed to the victim. This is always the responsibility of law enforcement and they in turn can be reimbursed for up to $700 though the Crime Victim’s Compensation (CVC) fund. If the cost exceeds this amount it is absorbed by the law enforcement agency or hospital, not the victim.

Additional medical treatment is not part of the forensic exam and billed separately. All crime victims, i.e. rape, gunshot, mugging, etc. are billed for medical treatment. They are eligible to apply for reimbursement of these costs through the CVC fund. The CVC fund is statutorily the “payer of last resort,” so if a victim has medical insurance it will be billed first. This is to assure the fiscal integrity of the CVC fund and make certain that funds remain available to crime victims who are uninsured or underinsured. Rape victims are not singled out in this process for reimbursement, it is consistently applied to all crime victims and this process is replicated with few variations across the country.

As with any system there is the possibility of human error. A victim could be misinformed or struggle to make sense of the process. This is the principle reason TAASA believes rape crisis advocates are so valuable to rape victims. Rape crisis advocates are not formally part of the systems or institutions that rape survivors must navigate, but are a valuable ally to victims when they encounter barriers or inconsistencies. I wish the rape victim in the Houston story had an advocate to help her through this very difficult time. Our only interest in this situation is that rape victims are supported and assisted. I encourage rape victims to access the services they so desperately need and not be deterred by the perception that they will be charged for their rape exam.

That was written by Annette Burrhus-Clay, TAASA’s Executive Director. It’s still not clear to me where the error occurred, and I wish she had elaborated on the “inaccuracies and half truths” she said the story contained. It is good to know that this was an aberrant case, hopefully an isolated one, and I certainly agree with the call for rape crisis advocates. If it were earlier in the session, perhaps this story could be used to galvanize support for more funding for these advocates. Given where we are, I suppose the best we can do is try to get the word out and make sure as many people know how it’s supposed to be as possible. Thanks to Baby Snooks for emailing this link to me.

Cohen pulls strip club bill

The battle of the strip club bills is over, as Rep. Ellen Cohen has pulled her bill, thus killing it for the session.

She said “it was clear there was an attempt to find a point of order” — a type of parliamentary maneuver — to kill her measure. So she postponed her measure until after the end of the legislative session, effectively abandoning it. She said she decided to focus instead on fighting for the fee that’s being challenged in court.

The Legislature in 2007 passed a $5-per-patron strip club fee that Cohen proposed. The money was supposed to go toward health insurance for low-income Texans and programs to prevent sexual assault and help victims.

But a judge struck it down, and this year, Cohen proposed tweaking the fee. The state is appealing.

Cohen’s proposal this session was to lower the fee to about $3 per patron and to direct the money only to anti-assault programs, not health insurance. Last year, State District Judge Scott Jenkins found that the state showed a link between strip clubs and sexual violence but failed to show a link between strip clubs and a lack of health insurance.

Judging by what I was seeing on Twitter while this was going on, Rep. Harold Dutton appears to have been the main point-of-order wielder. Even if Rep. Cohen had pressed on, the alternate bill, Rep. Senfronia Thompson’s HB982, which passed the Senate on Tuesday, had a trick up its sleeve.

In a highly unusual vote, the Texas Senate rescinded its earlier final approval of a bill allowing for a new tax on strip clubs — not to fix a wording problem, but to help settle a personal battle in the House.

The issue is between two state representatives from Houston — Ellen Cohen and Senfronia Thompson.

Sen. John Carona, R-Dallas, the Senate sponsor of Thompson’s bill that passed Tuesday, said Thompson wanted to ensure that her bill prevails over a similar measure by Cohen. Cohen’s bill would add a mandatory $3 entry fee on strip clubs, while Thompson’s proposal — one favored by strip club owners — would impose a voluntary tax.

After getting the earlier vote rescinded — a move that veteran senators said they had never seen happen — Corona made it clear he did it at Thompson’s request, not some “big policy issue out there.

“This is all about Representative Thompson and Representative Cohen. It’s their battle,” Carona said. “Senfronia called on me just because she and I have worked successfully on a lot of bills over the years. I guess she figures I was either dumb enough or tough enough to get it passed. I’m still trying to figure out which one.”

The Senate on Tuesday had given final approval to the voluntary tax, and the bill was on its way to the governor. Then, Cohen’s bill came up for debate in the House, meaning it might pass after Thompson’s bill did.

Since the last bill to hit the governor’s desk prevails, Thompson wanted to ensure that her bill would be last.

Of course, it may get vetoed once it gets there, as the Texas Association Against Sexual Assault opposes HB982, and it counts Anita Perry as a board member, so if her word carries any weight, that will be that. At least one other prominent Republican woman has come out against HB982 as well. We’ll know soon enough.

UPDATE: Well, what do you know? Cohen’s bill may live again.

A compromise being brokered by Sens. John Carona, Royce West and Rep. Ellen Cohen would combine the two bills, one supported by sexual assault prevention groups, the other endorsed by the adult entertainment industry.

Though nothing is firm, the compromise bill being considered would allow the Texas Supreme Court to rule on the constitutionality of a $5 per person strip club admissions fee, which has been tied up in litigation since that fee was instituted in 2007.

If the Supreme Court rules in favor of the state, the fee would stay in effect, but would drop to $3. Clubs that haven’t been paying the fee would not face penalties.

If it is ruled unconstitutional, the fee would be repealed, and the state would charge strip clubs a tax of at least 10 percent on admissions fees. The tax would do what the current fee is designed to do — raise money for sexual assault services. Clubs that have been paying the current $5 fee would be refunded with interest.

It ain’t over till it’s over, I guess.

Tuesday Lege roundup

Some more notes about what has been happening in the Lege…

– It looks like the program to test high school athletes for steroids will be scaled back.

Texas lawmakers have reached a deal to slash steroid testing of public high school athletes to less than half of the current program, but still leave it big enough to test thousands of athletes over the next two years.

The deal was struck by House and Senate members negotiating the 2010-2011 budget, lawmakers said Tuesday.

The current $6 million program was designed to test up to 50,000 students by the end of the current school year. The tentative deal for the new program would slash funding to $2 million over the next two years.

Good! Zeroing it out completely would have been better, but I can live with this. Maybe next time it’ll go away.

– There’s still some hope for the omnibus gambling resolution, but Rep. Ed Kuempel has a backup plan ready anyway.

UPDATE: Brandi Grissom tweets that “the fat lady has sung” for the gambling bill.

– If you’re under 21, getting a driver’s license for the first time just got harder.

– A tax on smokeless tobacco, which would fund a medical school repayment fund for doctors who agree to move to rural areas, passed the House.

– And finally, Rep. Senfronia Thompson’s HB982, the alternate strip club tax, has passed the Senate.

The Texas Senate voted on Tuesday to repeal a $5-per-person admission fee on strip clubs that has been ruled unconstitutional and agreed to replace it with a new tax on sexually oriented business.

The bill now goes to Gov. Rick Perry for his consideration even as House members were poised to debate a competing bill favored by sexual assault victim advocates.

Passed in 2007, the strip club admission fee has been ruled unconstitutional by a judge and is currently under appeal. Money collected under that fee was sent to a fund to help sex assault victims and a pool for uninsured Texans.

The new tax proposed by Rep. Senfronia Thompson, D-Houston, would apply to adult movie theaters, adult video stores, adult bookstores and other sexually oriented businesses that charge admission fees. It would total 10 percent of gross admissions receipts.

According to a legislative analysis, the new plan would send 25 percent of the new fee to a state school fund and the rest to a sexual assault victims fund.

But some advocates for victims say the new bill is a ruse put forth by strip club owners, who would not be required to charge admission to their clubs, and would sharply reduce the money collected to help assault victims.

The Texas Association Against Sexual Assault instead supports a separate House bill by Rep. Ellen Cohen, D-Houston, who pushed the original $5 fee. Cohen’s bill would reduce the club entry fee to $3 and dedicate all the money to the sexual assault fund.

Rep. Cohen’s HB2070 is still pending in the House. More here.

Bill filed to modify strip club fee

Got the following from State Rep. Ellen Cohen’s office:

State Representative Ellen Cohen filed House Bill 2070 today to reform the Adult Entertainment Fee she passed during the 80th Legislative Session in 2007.

“We have been successful in raising the money,” Cohen said. “The 1.9 million Texans who are victims of sexual assault could be greatly helped by the $11 million currently collected under this fee. This bill will move us closer to fully addressing sexual assault in Texas.”

Primarily, HB 2070 addresses constitutional concerns with two modifications from the original legislation. First, the new bill eliminates a spending provision that previously directed funds to indigent healthcare and will now dedicate all revenue collected to the Sexual Assault Program Fund 5010. Secondly, the fee assessed on certain sexually-oriented businesses would be lowered from $5 to $3 per patron.

Using all funds generated by the Adult Entertainment Fee directly for sexual assault programs will provide an estimated $18 million per year for the fund. This amount will allow for a comprehensive approach to address sexual assault issues in Texas, including research, prevention, response and sex offender management and treatment.

“In the end, the focus must remain on the victim survivors and providing them with the resources they need,” Cohen said. “As a Legislator, I will continue to work with members of both parties to bring support to those who need it most. I am confident that my fellow Legislators will, as always, vote with their districts in mind and support the thousands of women, children and men who are survivors of sexual assault.”

The original bill was declared unconstitutional by a Travis County court last March, on the grounds that it was a “content-based” tax that did not link the activity being taxed to the programs being funded. That ruling is under appeal by the state, but at the same time the proponents of the original legislation said they would file a bill to address that ruling. And so here we are.

Strip club fee back in court

You may recall that in the last legislative session, a bill (HB1751) was passed that imposed a $5 per customer fee on strip clubs, with the revenue going to a sex assault prevention fund, among other things. That fee was ruled unconstitutional by a Travis County judge in March. Now everyone involved is back in court for the first round of appeals.

In arguments before the state Third Court of Appeals, Texas Solicitor General James Ho said the government should be allowed to collect the fee in part because it can already regulate nude dancing as well as sales of alcohol.

The law specifically applies to strip clubs that sell alcohol. By putting those two elements together, “a small and modest fee should be permissible,” said Ho, the top appeals attorney for state Attorney General Greg Abbott.

The fee is not a tax on constitutionally protected free speech, Ho said.

“Remove the alcohol, remove the fee,” he said.

The Texas Entertainment Association, which represents strip clubs across the state, strenuously disagreed.

“It is a tax on speech,” said the group’s lawyer, Craig Enoch, a former Texas Supreme Court justice. He said the fee is only charged at bars and clubs that have nude dancing.

“This is a tax that is assessed if you are entertaining in the nude,” Enoch said.

The state’s argument that the sale of alcohol is the key component would open other First Amendment issues, Enoch said.

“If this statute is not a tax on speech, the state could tax the Catholic church because it serves alcohol at communion,” Enoch said.

I thought the strip clubs’ argument was weak the first time around, but they prevailed, so who knows. The one thing that is certain is that this will be in the courts for a lot longer, which is making some proponents of the law consider other options.

Annette Burrhus-Clay, executive director of [the Texas Association Against Sexual Assault], said the group will work with lawmakers during the current legislative session to draft a new bill that protects free speech and provides a dedicated source of money.

I’ll keep an eye out for that. A statement from Rep. Ellen Cohen, the sponsor of HB1751, is beneath the fold.