AUSTIN (Legal Newsline)-Texas Attorney General Greg Abbott is intending to appeal a judge's decision that the state's $5-per-patron fee on strip clubs is unconstitutional, a spokesperson told LNL.

The fee, which took effect in January, was approved by state lawmakers as a way to generate annually more than $40 million in additional revenue to help bankroll anti-sexual assault programs as well as health care programs for the uninsured.

However, Travis County District Judge Scott Jenkins ruled last month that the so-called "pole tax" is unconstitutional because the fee infringed on First Amendment protected expression.

In his ruling, the Austin judge ruled that the pole tax didn't pass constitutional muster because, among other things, healthcare had no nexus to the strip clubs that were at least partly bankrolling the programs.

"There is no evidence that combining alcohol with nude erotic dancing cause dancers to be uninsured," the judge wrote.

Tom Kelley, a spokesman for Abbott, told Legal Newsline that the attorney general's office is "intending to appeal" the judge's ruling.

Stewart Whitehead, an Austin attorney for the Texas Entertainment Assn., which challenged the law, told The Los Angeles Times that the law unfairly targeted Texas businesses whose patrons would likely not speak out about the fee.

"We hope this sends a message nationally that these establishments are protected by the First Amendment and you can't impose an unfair tax on them just because they are an easy political target," Whitehead was quoted by the newspaper as saying.

From Legal Newsline: Reach reporter Chris Rizo by e-mail at chrisrizo@legalnewsline.com.