Originally published 2006, cotwd.org
Attorney General Abbott: The State of Texas is immune from federal protections prohibiting discrimination based on a person’s disability
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.
Sovereign immunity is selective. AG Abbott's 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. Tennessee 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 it, 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 2015 Texas legislative session.
UPDATE Oct. 2014: The above was written and posted on the internet in 2006 by the Coalition of Texans with Disabilities. Legislation to waive sovereign immunity for the state’s violations of the ADA has been subsequently filed in 2007, 2009, 2011 and 2013. None of these bills passed. 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.
UPDATE Dec. 2014: Though no longer Attorney General, Greg Abbott has stated that, as Governor, he will not support legislation to waive Texas' sovereign immunity from the ADA. Current Attorney General Ken Paxton has not publicly stated his position on this issue.
See a list of some court cases in which former Attorney General Abbott successfully used the sovereign immunity argument to prevent a suit involving discrimination based on disability from proceeding.