AUSTIN, TX — No one is less surprised than the owners of the affected strip clubs, but the Texas Legislature’s much-talked-about 2007 “pole tax” of $5.00 per patron is still considered unconstitutional by the American justice system.That doesn’t mean, however, that the tax isn’t being collected, even though none of the $11.2 million has been distributed to the sexual assault prevention and medically uninsured programs it is supposed to fund. Supporters anticipated that as much as $44 million could be raised with the tax.

On Wednesday, attorneys for the state and its various strip clubs met in appeals court to rehash the legality of the tax, which a previous court ruled in March to be an unconstitutional tax on free speech.

Although a state district judge ruled in March that, however popular or unpopular stripping and the clubs that feature such entertainment may be, levying a tax based on customer count is illegal, Texas Solicitor General James Ho isn’t backing down.

Ho contends that the state should be given the green light to collect the money because it already has the right to regular the sale of alcohol and the degree of nudity allowed in such businesses – and the law specifically refers to clubs which sell alcohol.

According to Ho, “a small and modest fee should be permissible” and does not count as a tax per se. In fact, according to Ho, the strip clubs’ solution is simple: “Remove the alcohol, remove the fee.”

Naturally, the Texas Entertainment Association sees things differently.

“It is a tax on speech,” the association’s attorney, Craig Enoch, insists. The former Texas Supreme Court justice points out further that since only venues that allow nude dancing are being singled out, “This is a tax that is assessed if you are entertaining in the nude.”

Additionally, Enoch doesn’t think the state is wise to pursue its alcohol angle, stating that it will only lead to more First Amendment problems.

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

According to the Associated Press, members of the Texas Association Against Sexual Assault, which both supports the tax… or fee… and is eager to fund its programs, attended Wednesday’s court date in droves. Representatives justify their endorsement of the fee by insisting that live nude entertainment is “the most appropriate, long-term source of funding for sexual assault programs statewide” because it insists it fuels sexual violence against women, especially when coupled with alcohol consumption.