Texas’ Sovereign Immunity
Senator Hinojosa has filed SB 296 to waive sovereign immunity. (Jan. 19, 2017)
What is sovereign immunity?
"Sovereign immunity" is a legal doctrine that says a state may claim an exemption from compliance with a federal law.
This constitutional argument can be used in a court of law to maintain that the United States Congress overstepped its authority by trying to enforce federal laws at the state level. This is a states' rights argument.
Sovereign Immunity in Texas
Currently, the State of Texas claims sovereign immunity in cases involving the Americans with Disabilities Act (ADA), a landmark federal law guaranteeing full civil rights to people with disabilities. This argument has successfully prevented persons claiming discrimination based on disability from having their day in court.
As Attorney General, Greg Abbott contended that the State has immunity from its violations acts of the ADA. Private businesses, Texas cities and counties and even federal actions within Texas are all subject to the ADA. In other words, he does not mean that the ADA doesn't apply in Texas. Rather, a person who wants to sue the State on grounds of discrimination because of disability could have their case dismissed in a court of law. View a list of cases in which the sovereign immunity defense was used (source: Dallas Morning News).
A precedent has been set for this practice. When he was Texas' Attorney General, Abbott went to court to declare that Texas has sovereign immunity from the ADA. Abbott claimed he personally supports the ADA and was only doing his job as an attorney defending his client, the State of Texas. However, though no longer Attorney General, Abbott has stated that, as Governor, he will not support legislation to waive Texas' sovereign immunity from the ADA (source: Texas Disability Issues Forum candidate questionnaire). Current Attorney General Ken Paxton has not publicly stated his position on this issue.
Why Texas should waive it
There are at least 3 million Texans with disabilities. Many individuals and groups, including CTD, hold that the state’s denial of ADA protections is highly offensive.
Support of the sovereign immunity argument is not the consensus among state 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. Tennessee rejected immunity.
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 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 (until Abbott) or lieutenant governor has ever gone on record saying the State should have immunity.
In Texas, legislation waiving sovereign immunity from the ADA would not specifically require Texas to provide any services or equipment to a person with a disability and includes liability limitations in the event of a suit. There would be no expectation of a significant number of suits; in fact, bills filed in Legislative sessions have had zero fiscal notes.
CTD's call to the Lege to waive Sovereign Immunity
Since 2005, CTD has led advocacy efforts to waive Texas' sovereign immunity from the ADA as a matter of principle. Such legislation would guarantee that Texans have the basic civil right of freedom from discrimination by the State of Texas based on disability. We are indebted to Senator Juan "Chuy" Hinojosa for tirelessly standing with us in these efforts.
In the 2005 session of the Texas Legislature, then AG Abbott opposed SB 1128, the ADA waiver of immunity bill filed by Senator Hinojosa at CTD's request. 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 it, even though it doomed SB 1128.
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.
CTD has continued to push for legislation that waives sovereign immunity for the state’s violations of the ADA. Sen. Hinojosa and our allies have filed such bills in 2007, 2009, 2011, 2013, and 2015. In 2015, our members flooded the appropriate committee clerk's office with calls and emails to urge that Sen. Hinojosa's bill receive a hearing. It did not, and we continue to fight for the full protection of the ADA in Texas.