AUSTIN, Texas — Texas still expects strip clubs to pay its so-called “pole tax” while the state appeals a ruling that declared the fee unconstitutional.

The state comptroller has sent a letter to strip clubs saying the fee is active and that the first reports and payments are due Monday. If they aren’t sent in, a 5 percent penalty takes effect.

Strip clubs have vowed to keep fighting the fee.

“It’s a grave injustice that the attorney general and the comptroller would use procedural court technicalities to continue to trample on the rights of these business owners,” said attorney Stewart Whitehead, who represents the Texas Entertainment Association, which includes more than half the topless clubs in Texas.

Last year, the Legislature overwhelmingly approved a $5 cover fee on strip club patrons and designated the $40 million to be collected annually to sexual assault services and health insurance to the poor.

On March 28, state district Judge Scott Jenkins found that the fee was an illegal tax on “expression that, while politically unpopular, is nevertheless protected by the First Amendment.”

He declared the law invalid and issued an injunction against collecting the fee. But an appeal by Attorney General Greg Abbott automatically suspended the judgment and the injunction.