                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                              November 8, 2007



The Honorable Rodney Ellis                                    Opinion No. GA-0579
Chair, Committee on Government Organization
Texas State Senate                                            Re: Whether the Texas Lottery Commission
Post Office Box 12068                                         violates the Americans with Disabilities Act if
Austin, Texas 78711-2068                                      it fails to provide "meaningful access" to state
                                                              services (RQ-0586-GA)

Dear Senator Ellis:

        You ask whether the Texas Lottery Commission (the "Commission") violates the Federal
Americans with Disabilities Act (the "ADA") if it fails to provide "meaningful access" to state
services.!

I.      Statutory and Regulatory Background

         The ADA is a civil rights law prohibiting discrimination based on disability. See generally
42 U.S.C. §§ 12101-12213 (2000 & Supp. IV 2004). Title I of the ADA prohibits employment
discrimination on the basis of a person's disability. See ide §§ 12111-12117; see also 29 C.F.R.pt.
1630 (2006) (rules promulgated by the Federal Equal Employment Opportunity Commission to
enforce and implement title). Title II prohibits discrimination against disabled persons by public
entities. See 42 U.S.C. §§ 12131-12165 (2000 & Supp. IV 2004); see also 28 C.F.R. pt. 35 (2006).
Title III prohibits discrimination against disabled persons in places of public accommodation. See
42 U.S.C. §§ 12181-12189 (2000); see also 28 C.F.R. pt. 36 (2006).

         Your question, whether the Commission violates the ADA by failing to provide "meaningful
access" to state services, primarily concerns title II, and thus we confine our analysis accordingly.
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs, or
activities ofa public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132
(2000). The United States Department of Justice (the "DOJ") has promulgated rules to enforce and
implement title II. See 28 C.F.R. pt. 35 (2006) (implementing title II, subchapter A). Additionally,




          lLetter from Honorable Rodney Ellis, Chair, Senate Committee on Government Organization, Texas State
Senate, to Honorable Greg Abbott, Attorney General ofTexas (Apr. 25, 2007) (on file with the Opinion Committee, also
available at http://www.oag.state.tx.us).
The Honorable Rodney Ellis - Page 2                    (GA-0579)



the DOJ has published an appendix providing a section-by-section analysis of those rules with
commentary to aid in their implementation. See ide app. A (Section-By-Section Analysis); ide pt. 36,
app. B (Section-By-Section Analysis and Response to Comments). See also Tex. Att'y Gen. Op.No.
JC-0050 (1999) at 1-2 (providing additional background to the ADA).

II.     Analysis

          Title II applies to the actions ofa "public entity," defined to include "any department, agency,
 special purpose district, or other instrumentality of a State." 42 U.S.C. § 12131(1)(b) (2000).
 According to section 12131(1)(b), a state agency, such as the Commission, is a public entity subject
 to the rules and regulations specified by title II ofthe ADA to the extent that title II validly abrogates
 a state's sovereign immunity. 2 See id.; TEX. GOV'TCODEANN. §§ 466.001-.303 (Vemon2004) (the
.State Lottery Act, which establishes the Commission and its administrative authority). Section
 12132 of title II provides that "no qualified individual with a disability shall, by reason of such
 disability, be excluded from participation in or be denied the benefits of the services, programs, or
 activities ofa public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132
 (2000). The DOJ regulation implementing section 12132 requires a "public entity [to] make
 reasonable modifications in policies, practices, or procedures when . . . necessary to avoid
 discrimination on the basis of disability, unless the public entity can demonstrate that making the
 modifications would fundamentally alter the nature ofthe service, program, or activity." 28 C.F.R.
 § 35.130(b)(7) (2006).

        Because title II requires that a public entity comply with regulations very similar to section
504 of the Rehabilitation Act of 1973, courts look to the Rehabilitation Act to interpret the ADA.
See Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794 (2000 & Supp. IV 2004) [hereinafter
Rehabilitation Act]; see also Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1060 n.4
(5th Cir. 1997) (stating that the Rehabilitation Act is the predecessor to the ADA and may be
used to interpret the ADA). The Rehabilitation Act requires a public entity to make reasonable
accommodations when a person with a disability is denied meaningful access to a benefit. 3 See
Alexander v. Choate, 469 U.S. 287, 301 (1985) (stating that "an otherwise qualified handicapped
individual must be provided with meaningful access to the benefit that the grantee offers [and] to
assure meaningful access, reasonable accommodations in the grantee's program or benefit may have
to be made").


         2See United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 882 (2006) (holding that title II abrogates state
sovereign immunity "insofar as Title II creates a private cause of action for damages against the States for conduct that
actually violates the Fourteenth Amendment").

          3Although the Court of Appeals for the Fifth Circuit and other federal courts in Texas have not addressed the
question specifically, other circuit courts have held that "reasonable modification," as it is used in the ADA, does not
create a different standard from "reasonable accommodation," as that term is used in the Rehabilitation Act. See Wong
v. Regents olUniv. oICal., 192 F.3d 807,816 n.26 (9th Cir. 1999); Theriault v. Flynn, 162 F.3d 46,48 n.3 (1st Cir.
1998). However, we note that the Court ofAppeals for the Fifth Circuit has held that the DOJ regulations requiring the
Dallas Area Rapid Transit to provide "reasonable accommodations" in its paratransit service did not apply because the
paratransit service at issue there fell under title II, subtitle B of the ADA, and was subject only to Department of
Transportation regulations. Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 675 (5th Cir. 2004). The Commission's
activities relate to title II, subtitle A of the ADA and are regulated by the DOJ.
The Honorable Rodney Ellis - Page 3           (GA-0579)



         In Jones v. City ofMonroe, a driver who suffered from multiple sclerosis brought suit against
a municipality on the ground that the city's parking program violated title II ofthe ADA by refusing
to provide her with "meaningful access" to the parking program. Jones v. City ofMonroe, Mich.,
341 F.3d 474, 477 (6th Cir. 2003). Although the Court of Appeals for the Sixth Circuit ultimately
ruled against appellant, it nevertheless applied the "meaningful access" standard to title II of the
ADA. Id. at 479. Likewise, in Lee v.City ofLos Angeles, the Court ofAppeals for the Ninth Circuit
equated "meaningful access" with the right to services under title II ofthe ADA: "If a public entity
 denies an otherwise 'qualified individual' 'meaningful access' to its 'services, programs, or
 activities' 'solely by reason of his or her disability, that individual may have an ADA claim against
the public entity." Lee v. City ofLos Angeles, Cal., 250 F.3d 668, 691 (9th Cir. 2001) (footnote
 omitted).

        In conclusion, because there is no controlling judicial authority in Texas, we cannot say as
a matter of law that the Commission would violate title II ~fthe ADA if it fails to provide Texas
residents meaningful access to state services. On the other hand, because of persuasive authority
from other federal appellate jurisdictions, we can say that a Texas court would probably conclude
that the Commission would violate the ADA if it fails to provide Texas residents with meaningful
access to state services.
The Honorable Rodney Ellis - Page 4        (GA-0579)



                                     SUMMARY

                     A court would probably find that the Texas Lottery
              Commission violates the Americans with Disabilities Act ifit fails to
              provide Texas residents with "meaningful access" to state services.

                                            Very truly yours,




KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Rick· Gilpin
Assistant Attorney General, Opinion Committee
