Time running out for Dallas woman who wants to sue Texas

Her son was injured by abuse at Denton State School, but she needs legislative permission for lawsuit.

Randy Eli Grothe/FOR AMERICAN-STATESMAN

Farhat Chishty says her caretaking duties have been never-ending since her son Haseeb was injured by a worker at Denton State School. She needs the Legislature's permission to sue the state.

Randy Eli Grothe/FOR AMERICAN-STATESMAN

Farhat Chishty of Dallas uses her computer to follow the Legislature and keep track of a resolution that would allow her to sue the state over injuries her son received at Denton State School. Randy Eli Grothe for american-statesman

By Ken Herman
AMERICAN-STATESMAN STAFF
Saturday, May 23, 2009

The clock could be running out — again — on a mother's effort to get the Legislature's permission for her day in court over debilitating and permanent injuries her son suffered while at the Denton State School.

Under the long-established and courthouse-tested concept of sovereign immunity, Farhat Chishty needs the Legislature's permission to seek justice on behalf of her son Haseeb.

The state doesn't often grant that permission. Since 1989, legislators have filed 307 resolutions seeking permission for lawsuits against the state. Twenty-three have been approved, and two of those approvals were vetoed.

"There are some days when I feel I have to give up," said Chishty, who lives in Dallas but has visited the Capitol frequently and monitors progress on her request via the Internet. "But when I hear (Haseeb's) moaning day and night, that gives me motivation."

Chishty's 35-year-old son lost the use of his arms and legs as a result of abuse in 2002 at the Denton State School, where his mother had sent him to work on behavioral and eating skills. Haseeb had mental disabilities but was physically healthy when he went to the school.

Former Denton State School employee Kevin Miller confessed to abusing Haseeb and is imprisoned in the case.

But Farhat Chishty says that the state — not just a lone former Denton State School employee — bears responsibility for her son's plight. She tried two years ago to get the Legislature to allow her suit to proceed and got approval from the House. But time ran out before the Senate acted. She is in the same situation this session.

The House has approved a resolution authorizing a lawsuit, but the measure has yet to be considered by the full Senate, with 10 days left in the 140-day session. The Senate Jurisprudence Committee, in a 4-0 vote, advanced the resolution Friday night after tearful testimony from Chishty.

The state's stiff-arm against the Chishtys comes despite a December U.S. Justice Department report and state officials' admissions concerning subpar care at the state schools. State and federal officials this week agreed on a $112 million, five-year plan for upgrading the state's 13 institutions for people with mental disabilities.

Haseeb Chishty has lived at his mother's Dallas home since he left the state school in September 2008. His care, she said, never ends.

"Day and night, 24 hours. We have to change his diapers every hour or two. And we have to transfer him from the bed to the chair and the chair to the bed. We need to give him baths. He cannot stay in the wheelchair more than a couple of hours. So every hour we have to do something one way or another," she said. She said his airway has to be suctioned 10 to 12 times a day to prevent him from choking.

The "we" in her comments include a 16-hour-a-day aide, paid for by Medicaid, and her two other adult children, who help out when they can and are financially supporting her. She is separated from her husband. The burdensome care of their son contributed to the breakup, Chishty said. Caring for her son has prevented Chishty, a former licensed vocational nurse and coordinator at the University of Oklahoma Medical Center, from working since 2002.

"We are not the same," Chishty said of her family. "We are broken into pieces." She said her goal is justice, not money, and said she has "never thought of any dollar amount" she wants. State law limits her potential award to $500,000 plus actual medical expenses and attorney's fees.

Chishty said she believes the state is covering up corruption. At a 2007 House committee hearing, Marianne Reat, an attorney for the state's Department of Aging and Disability Services, acknowledged the tragedy of the situation but said the state school should not be blamed for an employee's criminal acts.

In his confession, Miller detailed a culture of negligence, abuse and on-the-job drug use on his shift at the state school. He said supervisors knew of the abuse of residents.

Cecelia Federov, spokeswoman for the Texas Department of Aging and Disability Services, said the agency takes no position on the Chishty resolution.

The Chishtys' roadblock to the courthouse is rooted in the U.S. Constitution's 11th Amendment — and the U.S. Supreme Court's interpretation of it — that limits lawsuits against the government. The state does not have immunity against some types of suits, including those by government whistle-blowers.

Sovereign immunity is a concept carried forward from monarchies and hangs on the notion that the monarch can do no wrong.

"What is the point in a democratic society to follow the king and queen's laws?" Chishty said after a recent trip to the Capitol. "We are responsible for our actions. How come the state is not responsible and nobody can make them responsible for their own actions?"

Sen. John Carona, R-Dallas, who is sponsoring the resolution that would allow Chishty to sue, said he dreads the possibility of having to tell the family that the resolution has failed again.

"I hope not to disappoint them," he said.

At the Capitol, sponsors of sue-the-state resolutions (nine have been filed this year, none approved) say lawmakers should be stingy when it comes to allowing such lawsuits.

"Not everybody is just seeking justice," said Sen. Kel Seliger, R-Amarillo, sponsor of a sue-the-state resolution in a boundary dispute. "A lot of them are just seeking a lot of money."

Rep. Lon Burnam, D-Fort Worth, the House sponsor of the Chishty resolution, said the process is biased against people with potentially legitimate claims.

"I think the state makes it probably overly difficult and complicated to sue them. These things, because we are only here every two years, should be heard first and addressed right away as opposed to running out of time," Burnam said.

Senators on Friday engaged in a debate about sovereign immunity before giving 25-6 approval to a resolution allowing a lawsuit against the Railroad Commission in a case involving a well-plugging dispute.

Sen. Steve Ogden, R-Bryan, accused Sen. Jeff Wentworth, R-San Antonio, the sponsor of the resolution, of favoring a system in which everybody with a complaint against the state could get to the courthouse.

Correct, said Wentworth.

"I don't believe we're the king of England. We shouldn't be acting as a monarch and requiring people who have claims against the government to get permission from the government to sue for wrongdoing," Wentworth said.

Ogden noted that "it's the taxpayers of the state of Texas" who would have to pay the damages.