the challenge rule here three there are particularly noteworthy the st is the matter of standing the nd the tax injunction acts jurisdictional barrier and the rd concerns the fit between state law and the challenge definition of clothing had to identify at least one member club that possessed standing to sue in its own right and it's failed to do so the only one identified by ti is this club it's referred to as odessa to but in the same breath  turns around and says well that clubs not actually a sexually oriented business so it's as if he is trying to have its cake and eat it too and somehow suggest that this one club odessa to is somehow affected enough to trigger a federal jurisdiction but not affect it enough to actually be a sexually oriented business now i could turn of the texan junction act my my point there would be twofold one as far as purpose this charge imposed by the state legislature offsets no regulatory cost of any program it's not commensurate with any service provided by the state to sexually oriented businesses and it doesn't operate in the nature of a penalty on noncompliance like some of the examples i was fifty eight realize it also goes and disputed lead toward important sexual assault victim services in a fine for that  purpose and it does generate revenue tax argument was vigorously presented to the texas supreme court and they just assumed it you agree that it is a question of federal law there would be no reason we would certified it is a question of federal law i agree with that your honor there's no reason to certify that question by a lonely wise point on the tax injunction act would be as far as the purpose and i believe ga has described its purpose as laudable but somehow not sufficiently public to render it a tax under the tax injunction act and we don't think that's a distinction that his court could or could believes or enforce with any any meaningful regularity in cases especially on this one the rd point i'd like to turn to is this fit between state law and the challenge definition of clothing and that brings me to the let me interrupt here i guess before before what's really at issue here so doesn't that make it look more like a no your honor and i think even the district court's analysis of that tax sources fee distinction goes to the underlying statute because there's no question that that's what actually imposes this charge i think t t s arguments about the clothing definition frame it in terms of somehow expanding the scope of the energies to which are that charge are you know are subject but not whether that changes the underlying character of that charge so the court just looks to the fact that the legislature imposes it and even the district court below agreed that factor points toward it being comptroller is imposing itself but even putting that aside all if the court were inclined to agree with t e m a on the tax injunction that point that would still only at best get to the to the merits arguments and there ga would fall short as clothing either contravened statutory text ran contrary to statutory purpose or imposed some obligation beyond what the others the underlying statute imposed and the state court of appeals sided with the comptroller necessarily in determining that the clothing definition did not impose anything beyond what the underlying statute imposes so against that backdrop you see the legal error underlying the premise of the district court's conclusions and basically the rest of this case right at every turn both t a a in the district court suggest that the comptroller has extended or imposed something beyond what a sexually oriented business statute imposes and what the comptroller has said and he explained in in issuing this roy is here's an undefined term in a state statute that the comptroller is taxed within mystery we've got this  term is going to bear its ordinary plain language understanding and i get to go in there is the the interesting sort of parallel litigation state federal and  tried to keep track of the more recent two thousand and twenty rulings in the state intermediate courts but it does seem to me that that texas supreme court it's unanimously was exactly following these secondary effects that they put entire focus as they have to on the negative negative secondary effects but here even with the trial after the summary judgment far as i could tell no one was able to articulate a blighter the crime or the s d s  it is extra set of bars that would be swept in or cause it and i can't find a case anywhere that says if there is no proof of negative secondary effects then we can still somehow pretend this is a neutral things other than suppressing the supreme speech and that's just that's the logic of the district were followed and it seems consistent especially with our m d two decision so i would push back against the premise of that which is got to show proof that expanded set of expressive actors are themselves causing harm and this case is not the empty due case for one simple reason and that is in mt two you had the legislative body saying this current rule doesn't apply to the situation we're going to impose a new rule here where you have is the agency tasked with administering the system statute saying this is what the statute means maybe what they say it's what it means but am i wrong that the record reflects for seven years bars that are more like arguably sports bars where the private parts are covered one way or another were not being passed i mean there may be a retroactive effect but that tells me that now this government conduct just sweeping in a lot more speech it's now it's going to be justified i'm sorry i don't mean to interrupt your honor i don't know go ahead well again the premise of the question is that it is something new happening the answer is no this is what the statute has meant from its inception but i'm going to push back to the you saying what they meant but is it true or not as a activity i don't really know if i can agree to that i consider it just stepping back that this rule is separate again from so we're talking about two different things so the underlying statute was callant almost immediately from its inception enforced at what level those enforcement actions were actually going out but the the point is that after the she a state court litigation about the constitutionality of the entire statute is wrapped up now basically you've got a small trade group saying well during that time we've convinced ourselves that the statute doesn't actually mean what it says and they do so at their peril there's a generally or put a whole definition in the comptroller which there is no additional say due process concern were parties affected negatively by an interpretation of a statute or can say we've got to due process right to to do more there was notice an opportunity for comment  we were led to believe or let ourselves to believe it might mean something different and maybe that all goes to something like an as applied challenge but as far as the facial validity of the rule this is a rule that administers a statute that has been been subject to it and if the court were to go that route it would reach a result that is going reconcilable with what the texas b l c court said in the st district it's not possible to find that this rule extended the statute and in the same time in state court find that it's a valid rule under state law because it can't be a valid rule if it extended anything there are diametrically opposed result what if what if the next ruling what if this group wants you know the next step they want to censor more people in other words they say ok now what about you know be all say or do sports bars we now think the clothing doesn't include say latex rubber so we know before we just excluded  so then all the bars decide ok now we're just going to have a little latex rubber things affixed which i still right now wouldn't trigger the fee if you do a latex rubber little thing on top as opposed to the liquid it would be so then they want to say well we'll get a few that's there are as applied challenges that i'm sure could be brought to a role like this but as far as it's facial validity the comptroller does not stand in the same shoes as the anybody promulgating the new law in  two and if there's a slippery slope type argument what let me appropriate plaintiff in the appropriate case make that record and consider it accordingly but here i mean is probably a best segue to the equal protection argument just for example the clubs that he is saying are similarly situated aren't really similarly situated there are different manners of dress different business models you know right i did you on that point go i mean on appeal you're saying that did you ever tell the court that they were situated this is ruling suggests that that was an argument texas made i believe that we that we did make the argument but i'm not sure  i'm not sure the specific reference your honor is referring to well we're already from the district court finds the fact notably however defendants just not addressed the type of sports bar and grill established in places also asserted similarly situated business because if i remember the trial evidence you chose not to put any on you barely cross and cross examine anybody so where did you make it where did you develop any argument below that sports bars with the naked but it's are just similar so you know  the problem there is that that's a question about equal enforcement of the statute is no question that the rule applies equally everywhere there's no suggestion and we we did already this that that the rule means the same thing  at various institution is not really the definition of clothing that he is complaining about at some level they just elegy the wrong thing in this case they're really complaining about the statute and that's why the court either reverse and render judgment that there's no simple level it's hard to think that the feet could because to chew sure will as did naked dancing but not constitutional as to body paint dancing but that is that essentially your argument and that isn't somehow recycling the argument that was made and lost  i don't i don't see that the supreme court has yet invalidated a restriction the most recent cases alameda books and it looked like they were relaxing the proof standards considerably would your answer be that well justice o'connor til court had to join and negative inference from that refusal is that is that fair to say the distro doesn't mean that there wasn't a secondary effects prove that animated the legislature it's just it was never volunteer or do you think i'm mis i like to address but association standing argument i want to dance quite a controversy before you jump right back to the jurisdictional could you speak to the equal protection ruling and i mean it is a little bit of a stretch  say these are similarly situated right in sports are people there to watch sports and i guess that these bars they're they're they're watching old answers that's it's a different group it's a different we have a very developed record and why these would be similarly situated statute provides but it goes to the sexual assault program whether an administrative agency or the comptroller and determines where the money goes or  that's an issue of tax injunction act which is federal law and one last point on the tax injunction issue is that the tax conjunction and in some positive steps if there is not a speedy and efficient remedy at the administrative or state court  application of the fee to businesses not previously taxed and it went on to explain that if it does interpret the stat he and the will in america contrary to that reached by the district court we now know that that analysis has happened in the controversy fa r opposing counsel said that there were no other state court cases pending where these constitutional issues were at play that's not true there is a case called j a i dining versus hagar and i believe  case number for that is  reflects that it says it's a pretty remarkable proposition that a state administrative agency can't enforce the statute as written without it being declared unconstitutional to issue a rule publicly explaining what it undefined term means on the st amendment he had no response to our point in our reply brief that the rule itself is content neutral on its face it is just a definition of clothing the choice of attire is not inherently protected expression if ga has to explain that oh by the way some people who might be wearing latex also happen to be engaged in protective activity that doesn't give rise to it st and then just one where you just added there i is in your reach worse of attire is not expressive protected expressive ater that would i don't know of any authority for that proposition are you familiar with the seven circuits case of chopin's the attire dangerous way or that becomes classic protected expression a point is when you're looking at the light in crime that's when the court has said the focus is on neutral activity it's the chickens and i'm just quoting the court's opinion from canada versus  eighteen of our reply brief a person's choice of attire is not inherently while a person's choice of attire conveys no particularized message it requires explanatory speech on top of it to make t e s argument that oh by the way some people who are wearing liquid latex or foam or gel or what have you are also engaged in protected activity that's like you know we end up agreeing with the district court that the amended clothing expanding the number of bars that are cover without proof that this other type of dancing causes a negative effect if we end up agreeing that it's a content based restriction do you then concede it would be unconstitutional when married seemed like you only argued have any response to your point there like i don't wear shoes if we conclude that it is content base because the secondary effects doctrine doesn't apply i don't see anywhere in your brief saying that it would survive strict scrutiny do you recall dred would you take that position or would you at that point that except under strict scrutiny it would be unconstitutional i mean i guess i would just say that in the bigger picture that if what the district court found is that this rule brings clubs within the ambit i think that was it ambit of the sexually oriented business statute but we already know from combs one in litigation with this party on the other side that that's a constitutional ambit so if that's where it brings us it's really a nonstarter if i could just t put on evidence establishing its equal protection arguments and it's important they are turned out that the state gets a presumption of regularity and in enforcing and marshalling it's in force and resources that it was