State Attorney General Greg Abbott has gone to court to declare that Texas has sovereign immunity from the Americans with Disabilities Act, a landmark federal law guaranteeing full civil rights to people with disabilities. General Abbott is using a disputed constitutional argument to maintain that the United States Congress overstepped its authority by trying to guarantee Texans with disabilities the basic civil right to be free from discrimination. Abbott claims he personally supports the ADA and is only doing his job as an attorney defending his client, the State of Texas. History refutes this offensive characterization of Texas, its elected officials and the people of Texas. In fact, it was a Texan, President George H. W. Bush, who signed the ADA into law in 1991, describing it as among the most significant acts of his presidency. At his side on that glorious morning, wearing his trademark cowboy hat and boots, was Texas businessman and advocate Justin W. Dart, widely known as the father of the ADA. Texas’ congressional delegation at the time overwhelmingly voted in favor of the ADA. Moreover, no Texas state legislator, governor or lieutenant governor has ever gone on record saying the State should have immunity.
Abbott is selective. His contention is that only the State has immunity from acts of discrimination under the ADA. Private businesses, Texas cities and counties and even federal actions within Texas are all subject to the ADA. His position is not the consensus of his fellow attorneys general. While some other states seek sovereign immunity, the majority of state attorneys general filing amicus briefs in the U. S. Supreme Court case Lane v. Tennesee rejected immunity.
In the 2005 session of the Texas Legislature, Abbott opposed SB1128, the ADA waiver of immunity bill filed by Senator Juan Hinojosa at the request of CTD. A deal was offered to CTD: accept a version of the bill from Abbott and he would remove his opposition. According to legal experts, Abbott’s bill would have preserved immunity. Further, it only addressed access to state buildings, already guaranteed under the existing Texas Accessibility Statutes. Rather than accept this offer, CTD rejected the Abbott bill, even though it doomed SB1128.
Subsequently, the 5th Circuit Court ruled against General Abbott, rejecting claims of sovereign immunity. However, the ruling was very narrow. CTD believes that Texas legislation is still needed to forever waive immunity and permanently acknowledge the basic civil right of freedom from discrimination. We will pursue this legislation in the 2007 Texas legislative session. Meanwhile, CTD calls on General Abbott to immediately cease his legal attacks on the ADA.
Sec. 111.001. WAIVER OF IMMUNITY UNDER CERTAIN FEDERAL LAWS.
(a) The Americans with Disabilities Act constituted landmark federal civil rights legislation seeking to protect all Americans and to eliminate barriers to access throughout the nation.
(b) In order to ensure that all Texans have full physical access to the public buildings and facilities in the State of Texas, the sovereign immunity of the State and its political subdivisions, from suit and liability, is waived to allow qualified individuals to file suit in state courts under the express statutory provisions of Title II of the Americans with Disabilities Act, 42 U.S.C. §§12131 et seq., for the limited purpose of obtaining injunctive relief to secure access to buildings and facilities owned by the State or a political subdivision of the State.
(c) This section does not waive the immunity of the State and its political subdivisions in federal courts.
(d) This section does not waive the immunity of the State and its political subdivisions from suits seeking money damages, attorneys fees, or any other form of relief except for injunctive relief.
SECTION 2. This Act applies only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrues before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.
SECTION 3. The effective date of this Act is September 1, 2005.
CHAPTER 111. LIABILITY OF THE GOVERNMENT UNDER CERTAIN FEDERAL LAWS.
Sec. 111.001. WAIVER OF IMMUNITY UNDER CERTAIN FEDERAL LAWS. (a) The sovereign immunity of the State and its political subdivisions, from suit and from liability, is waived for the limited purpose of allowing any person to maintain lawsuits in State and federal courts, and obtain and satisfy judgments, consistent with the limitation on liability set out in this Chapter, against the State, or any of its departments, institutions, agencies, or political subdivisions, under the Americans with Disabilities Act, 42 U.S.C. '' 12101, et seq., and its implementing regulations.
(b) The amount of monetary relief a person receives under subsection (a) of this section shall not exceed the amounts authorized under Sec. 111.002 of this Chapter, or the amounts authorized under the applicable portion of the Americans with Disabilities Act, whichever is less.
(c) Under subsection (a) of this section, the State is not required to provide individuals with disabilities with personal or individually prescribed devices, such as wheelchairs, prescription eyeglasses or hearing aids or to provide services of a personal nature, such as assistance in eating, toileting, or dressing.
(d) A particular change or adjustment under subsection a) of the section would not be required if, under the circumstances involved, it would result in an undue hardship. “Undue hardship” means significant difficulty or expense relative to the operation of the State’s program. Where a particular accommodation would result in an undue hardship, the State must determine if another accommodation is available that would not result in an undue hardship.
Sec. 111.002.
LIMITATION ON AMOUNT OF LIABILITY.
(a) Liability of the State government under this chapter is limited to money damages in a maximum amount of $250,000 for each person and $500,000 for each single occurrence.
(b) Except as provided by Subsection
(c), liability of a unit of local government under this chapter is limited to money damages in a maximum amount of $100,000 for each person and $300,000 for each single occurrence.
(c) Liability of a municipality under this chapter is limited to money damages in a maximum amount of $250,000 for each person and $500,000 for each single occurrence.
SECTION 2. This Act applies only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrues before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.
SECTION 3. The effective date of this Act is _____________, 2005.