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The potential for litigation is indeed an extremely sensitive issue in Texas due to the impact of judicial decisions on the state's budget making process. Consequently, the Bush administration's insistence on no punitive damages holds a particular attraction. The Substitute deletes the authority to seek compensatory and punitive damages. Injunctive relief has been incorporated as the primary remedy for violation.

The concept of extending federal civil rights protection to disabled citizens is an issue that is overdue. My personal view is that the Senate substitute, endorsed by the President, his administration, and the Attorney General provides the best approach for the citizens and businesses of this state by striking a critical balance between disability rights and business concerns.

Mr. OWENS. Thank you, Representative Smith.

I think you heard part of the testimony of the previous panel. Mr. SMITH. Yes.

Mr. OWENS. There is a general feeling that this bill does not impose undue hardships for municipal governments and for private industry, and that compliance can be achieved without any great burden that will be assumed by these agencies.

Are you saying that you are not certain that that is the case when you make the appeal for not imposing any compliance requirements which might burden the Texans?

Mr. SMITH. I would be very supportive of Rob Mosbacher's comments and Bob Lanier's comments in response to your questions. I think they have a hands on the premise's view of the circumstances and can best respond to those types of questions.

I feel very confident, to the extent that they would not impose additional costs, and I would take their assessment on face value. The emphasis that I would place from a state perspective is one of recognizing that we are focusing our energies and efforts on what we can do for business recovery, and so our concerns are of a nature to avoid additional expenses related to business.

In reviewing some of the summaries related to comparison of the Senate and House bill, it was my observation that there were a number of comments as to the imposition of punitive damages. My concern would be that which I think has been expressed by the Attorney General and then supported by the President that the elimination of punitive damages would be an issue that we would find more acceptable in the bill than the inclusion of those punitive damages.

Mr. OWENS. Several persons have raised questions about the need for personal attendant services. The present system is prohibitive in terms of once a person goes to work and earns any amount of income, they are denied assistance from the state for a personal attendant.

I think your legislature did consider this problem to some extent, or is considering it. Would you care to elaborate on what is under consideration and your viewpoints on that?

Mr. SMITH. If I understand your question correctly, it may relate to an article that I was just reading where a recent study indicates that, although there may be a great deal of emphasis on the entry level for the disabled, that there are subsequent times where advancement within the system is not being properly attended.

The legislation that you have presented for consideration by this hearing I think is a very effective means of addressing that advanced stage of consideration for advancement in the system. And I find that a very encouraging prospect.

Mr. OWENS. Yes, I am specifically referring to a comment made by Senator Brooks in his written testimony. It appears that Senator Brooks has had trouble getting here, but he did forward his testimony prior to the hearing. He states: "They wanted jobs, but our programs were not structured to meet their needs. Our program was structured around what bureaucrats thought they needed. We were able-that is, the state legislature-to convince our colleagues that personal attendant care for working people was a good invest

ment and put $850,000 in the state's biennial budget for this purpose."

us.

I wondered if you know more about that and could clarify it for

Mr. SMITH. I will have to defer to the Senator on his comments. I apologize to you.

Mr. OWENS. Okay. Thank you very much.

Mr. Bartlett.

Mr. BARTLETT. Mr. Chairman, I would comment that Senator Brooks has such seniority in Texas state government having served in the Texas State Senate since right after the Battle of San Hacinto, that he deserves the right to use the time frame of his choice.

I might say that I know that Ashley Smith has been quite involved in employment rights and employment opportunities in the State of Texas, and I very much appreciate your testimony.

As I understand what you are suggesting is that the goal of this legislation, as it would be of state law in prohibiting discrimination, the goal is to prohibit discrimination and make sure that people can obtain employment. And you can best do that through administrative remedies and through injunctive relief where if you find a case of discrimination, an injunctive relief is that you have got to stop, cease and desist. And it seems to me your testimony is that you can best do that through injunctive relief and other administrative remedies as opposed through punitive damages and compensatory damages and the whole panoply of law suits.

As I understand your testimony, you are urging us to err on the side of administrative and injunctive relief against punitive damages and compensatory damages.

Mr. SMITH. Thank you, Congressman. That expresses very well my intention in the testimony today. And beyond that, the only other consideration that I would offer today in my testimony would be that the phase-in aspects for small business should receive some favorable consideration to the extent you deem it appropriate, in that over 80 percent of the employment in the State of Texas is attributable to what our Department of Commerce identifies as small businesses.

To the extent that the obligations can be phased in to permit them to absorb not only the difficulties of recovery of this economy, but what additional obligations might be placed on them through the legislation, we would deem that to be a reasonable pursuit to the ends of this act.

Mr. BARTLETT. Well, I think it is fair to suggest that as we extend, as we should have long ago, in civil rights protection versus disabilities, extend that to the private sector. It is fair to suggest that small employers have a year or two years, in this case, to understand what it is and to begin to understand how to make the accommodations. And it is not that we are going to let them off the hook, because we should not, but I think the EEOC and the administrative remedies, and the Justice Department will have their hands full with the larger employers for the first two years. And by phasing it in, as you have suggested, it provides for better law and for better accommodation and ultimately for disabled persons hired.

Mr. PAYNE. I do not have questions, but I would hope that most of the administrative remedies for punitive damages will not surface as a deterrent. I do not like damages either, but I do not have that much confidence just with a kind of laissez-faire attitude that many Americans possess.

Mr. OWENS. Thank you, Mr. Payne.

I see the Honorable Chet Brooks has arrived, and we welcome him.

[Applause.]

You may proceed, Senator Brooks.

STATEMENT OF HONORABLE CHET BROOKS, TEXAS STATE

SENATE

Mr. BROOKS. Thank you, Mr. Chairman. I apologize for being late, but I think there is a wonderful irony to be observed. This is one of the only times, I believe, in my life that I have ever noticed that a person who is not disabled could not find a parking place. [Laughter.]

I frequently find wrong people or people who are not disabled blocking the disabled person's place, but today there was no parking place for anyone. You have a very good turnout here.

Mr. Chairman, I have presented already to the committee, I have already sent to the committee a formal statement, and I will not duplicate those observations. I am very pleased that the subcommittee has come to Houston and to Texas. We have been working for some time at the state level and also in our national council state legislatures to try to deal with the problems of disabled Americans.

In our state, we are very proud of some of the advances we have made. We are very frustrated by some of the attempts we have made that are still not quite there, but I think suffice it to say we have one of the most active communities and groups of advocates anywhere in the United States and whatever successes we have been able to achieve are, of course, to their credit.

I would like to touch on about three or four issues that we are trying to deal with in our state now. We believe that the Americans With Disabilities Act of 1989 will be a landmark piece of legislation that may in itself mean more to disabled Americans now and in future generations than any other single act we have ever seen passed in the United States.

[Applause.]

It has many excellent provisions in it. It recognizes and seeks to address problems of opportunities for education, opportunities for jobs, public awareness, the problem of having just people across the country aware of problems that disabled Americans face in trying to get a chance. Access being the major barrier at all places.

You, I am sure, already heard or soon will hear of some of the advances made in Texas and in this community of Houston in trying to improve access. The latest victory that we are extremely proud of is the decision by our Houston Metro that buses that will

be ordered in the future will have lifts on all of them, and they will have access for everyone.

We had for a time been trying to serve disabled Texans, and particularly disabled Houstonians, with special buses, but those special buses simply do not follow general routes, and they are not dependable as transportation if you are trying to hold or job, or if you are trying to meet a class schedule.

We believe that being integrated into the total system will be a very major improvement for our people. And there is one thing I guess we should all remember, that everyone of us in this whole nation is just one auto accident or one major virus away from being disabled, and we should always keep that in mind no matter whether we are fortunate enough not to have encountered disabilities yet in our lives.

And I am pleased that Congress is working hard to try to strengthen the Federal statutes and, of course, that will result in stronger Federal programs. We in the states are very anxious to interface with the Federal effort, to be supportive of that effect in whatever way we can, and we will even put some money where our mouth is. We will even try to get the state match necessary to get new services and new opportunities out there to our people all across the country.

[Applause.]

I think the written statement that I have presented to the committee will speak for itself. And in that I have gone into some detail about the specific legislation we have passed in recent times in Texas, about the provisions and how we are trying to implement those provisions and some areas we hope to anticipate legislation in which we may have greater improvement and greater services, greater awareness and greater access for our people.

I deeply appreciate the opportunity to be with you today, and I will certainly pleased to respond to any questions the distinguished committee members might have.

[The prepared statement of Hon. Chet Brooks follows:]