SE Texas Record

Monday, July 8, 2019

Health & Human Services Commission sued in federal court for constitutional violations

By David Yates | Jul 8, 2019


NEW BRAUNFELS - The Texas Health and Human Services Commission was sued in Western District federal court on July 5 for allegedly violating the freedom of speech and right of association of a 75-year-old New Braunfels woman who is a Ward of the state.

A guardianship was imposed upon Shelley Thomson on May 23 after she fell ill with potassium deficiency and visited a hospital emergency room, according to a press release.

HHSC is currently Thomson’s guardian.

“HHSC has a duty to provide Shelley with a guardianship that would encourage and allow maximum self-sufficiency and full exercise of freedoms and liberties,” the complaint states.

As previously reported, once under guardianship, senior citizens like Thomson can be denied voting privileges, choice of food, choice of health insurance, choice of medical care, choice of legal counsel and even choice of visitation with their friends and family members.

In this case, a temporary restraining order has denied Thomson's choice of visitation with Attorney Phil Ross even though she retained him as legal counsel on June 14.

Signed by Comal County Judge Charles A. Stephens on July 3, the TRO states:

“The grounds for ex parte temporary restraining order are alleged to be immediate and irreparable; the injury it is designed to prevent includes specific attempts of Respondent Ross to seek access to the Ward, Shelley Thomson, without authority or permission,” wrote Comal County Judge Stephens in his July 3 order.

Ross v Health and Human Services Commission states that "on June 13, 2019, Phil visited Shelley at Colonial Manor Nursing and Rehab Center, where she was living in a bedroom in a locked section of the facility. Shelley requested Phil’s help and legal assistance at their first meeting.”

The Texas probate guardianship program along with the probate guardianship programs in other states are being confronted with allegations of neglect, fraud and malfeasance as they increasingly constrict the elderly who are experiencing cognitive decline.

Cries of elder abuse around probate guardianship programs gained national attention last year when U.S. Senators Susan Collins of Maine and Bob Casey of Pennsylvania introduced the Guardianship Accountability Act, which is currently pending with the Senate Judiciary Committee in Washington, D.C.

However, advocates believe the proposed law needs to go further in its attempt to protect the aging from exploitation.

“The term ‘guardianship accountability’ sounds good in theory, but the new law is little more than a ‘pretty please’ approach when in fact hardball tactics are needed,” said Tom Coleman, an attorney, founder of the Spectrum Institute and producer of the Hollywood documentary Pursuit of Justice. “The injustices in state guardianship systems are entrenched. ‘Pretty please’ just won’t work.”

Once the Senate Judiciary Committee thoroughly mulls over the proposed GAA, it will be passed along to the Senate floor. In the meantime, it remains to be seen how the federal complaint will impact Comal County Judge Stephens’ TRO, which expires July 15.

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U.S. District Court for the Western District of Texas