Sabine Consol., Inc. v. State
| Decision Date | 31 August 1988 |
| Docket Number | 3-87-055-CR,Nos. 3-87-051-C,s. 3-87-051-C |
| Citation | 756 S.W.2d 865 |
| Parties | 13 O.S.H. Cas. (BNA) 1881, 1988 O.S.H.D. (CCH) P 28,361 SABINE CONSOLIDATED, INC., Appellant, v. The STATE of Texas, Appellee. Joe TANTILLO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Frank Maloney, S. Ronald Keister, Maloney, Gotcher & Yeager, P.C., Austin, for appellants.
Ken Oden, Co. Atty., Alia Moses, Asst. Co. Atty., Austin, for appellee.
Before POWERS, BRADY and CARROLL, JJ.
ON MOTIONS FOR REHEARING
The prior opinion handed down by this Court on May 4, 1988, is withdrawn and the following is substituted therefor.
Both appellants were charged with criminally negligent homicide and pleaded nolo contendere to the charge after argument on pretrial motions. The trial court accepted the pleas and found both appellants guilty. We will reverse the judgments of the trial court and render judgments of acquittal in both causes.
Appellant Tantillo was the president of appellant Sabine Consolidated, Inc. (Sabine). In September 1985, two construction workers employed by Sabine were killed when the trench they were working in collapsed. Two months later, the Travis County grand jury indicted both Sabine and Tantillo for criminally negligent homicide. The Travis County Attorney followed those indictments with complaints and informations based on the same charge and conduct, and the State chose to proceed on the latter basis.
Appellants were charged under Tex.Pen.Code Ann. § 19.07 (1974), which provides that a person commits an offense if he causes the death of an individual by criminal negligence. 1 Each information stated that [appellant] "fail[ed] to furnish and maintain a place of employment which was reasonably safe and healthful for [the deceased and] fail[ed] to install and maintain and use such methods and processes and devices and safeguards as were reasonably necessary to protect the life and health and safety of [deceased and] fail[ed] to properly slope the wall of an excavation, thereby causing the wall of the excavation to collapse, which caused the death of [the deceased]."
The parties agree that this language means that appellants were charged with a failure to perform certain acts, and that those omissions amounted to criminally negligent conduct. The parties also agree that it is not an offense for a person to omit to perform an act unless a statute makes the specific omission an offense or specifically imposes the duty to act. See Ronk v. State, 544 S.W.2d 123 (Tex.Cr.App.1976).
As part of a plea agreement, the parties chose to "try" the cases solely on pretrial motions. Appellants filed motions to quash the informations, contending that the trial court had no jurisdiction over the cases because they were based on occupational safety issues and that field of law has been preempted by the Federal Occupational Safety and Health Act (OSHA) of 1970, 29 U.S.C. § 651 et seq. The trial court denied
the motions, and appellants agreed to plead "no contest" while expressly reserving their right to appeal the denial of the motions.
According to the State, appellants failed to fulfill the obligations under the general duty clause of the Texas Occupational Safety Act (TOSA), Tex.Rev.Civ.Stat.Ann. art. 5182a, § 3 (1987). It provides that an employer shall furnish and maintain a reasonably safe place of employment. The information in these causes tracked that "duty" language and charged appellants with being criminally negligent by virtue of failing to fulfill a duty to maintain certain safety standards at their place of employment.
Appellants continue to argue that OSHA has completely preempted state action relating to such standards. The State concedes that OSHA standards cover the workplace at issue here, but contends that OSHA does not preempt the exercise of state criminal laws in that workplace.
The Occupational Health and Safety Act was passed "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. § 651(b) (1982). To accomplish this purpose, the Act authorizes promulgation of workplace health and safety standards. To enforce those standards, OSHA provides civil and criminal penalties. The potential range of these penalties closely approximates or exceeds those available under the Texas criminal statutes under which appellants were convicted.
The doctrine of preemption derives from the Supremacy Clause, U.S. Const. art. VI, cl. 2, which makes federal law superior to any conflicting state law. A federal statute preempts a state action if either of two conditions obtains: (1) if Congress evidences, expressly or by implication, an intent to occupy a given field, the state action is invalid; (2) if Congress has not chosen to occupy a given field, the state action is invalid only to the extent it conflicts with the workings of the federal law. Silkwood v. Kerr-McGee, 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). For convenience, we will label the former type of preemption "absolute" and the latter "conditional."
The question is what effect Congress intended OSHA to have on state laws. The State argues that the state action here does not conflict with federal occupational safety law but rather promotes the policies found in OSHA. We agree. But we find that Congress implicitly intended that OSHA accomplish an absolute preemption of state laws and actions.
OSHA's legislative history suggests that Congress never explicitly considered the question of the interplay between OSHA and state criminal laws, but instead focused entirely on state occupational safety laws, worker compensation laws and traditional civil tort actions. Consequently, our determination of Congressional intent must be found in the plain language of the statute and case law.
This determination turns on two sections of OSHA: Section 653(b)(4) provides:
"Nothing in this chapter shall be construed to enlarge or diminish or affect in any manner the common law or statutory rights, duties or liabilities of employers and employees under any law with respect to injuries, disease or death of employees arising out of, or in the course of, employment."
Section 667(a) provides:
"Nothing in this chapter shall prevent any state agency or court from asserting jurisdiction under state law over any occupational safety or health issue with respect to which no standard is in effect under section 655 of this title." 2
We read § 667(a) to mean that the states are free to establish and enforce any laws relating to worker safety so long as those laws or actions do not entail establishing or enforcing standards affecting occupational safety issues that are addressed by OSHA standards. 3 We are not alone in this interpretation. "[Section 667(a) ] has been consistently interpreted by OSHA and the courts to bar the exercise of state jurisdiction over issues addressed by an OSHA standard, even where the state law may arguably be more stringent or where OSHA has not explicitly addressed a provision." New Jersey State Chamber of Commerce v. Hughey, 600 F.Supp. 606 (D.N.J.1985).
Based on these sections of OSHA, we find that Congress intended by implication to absolutely preempt the field of workplace safety regulation. We hold that § 667(a) absolutely preempts all state regulation of workplace safety where such regulation would effectively establish state safety standards in areas governed by OSHA. 4
Nor does § 653(b)(4) save the state action. Courts have held that this section was merely "intended to preserve the existing private rights of an injured employee." Frohlick Crane Service, Inc. v. OSHRC, 521 F.2d 628, 631 (10th Cir.1975) (emphasis added). Section 653(b)(4) addresses only actions between employers and employees, not the relationship between state and federal law or the right of state prosecuting attorneys to bring criminal prosecutions.
We are not the first state court to consider this conflict. Last year, an Illinois appellate court faced the same issue: "whether state criminal prosecutions based on conditions in the workplace are preempted by [OSHA]." People v. Chicago Magnet Wire Corp., 157 Ill.App.3d 797, 110 Ill.Dec. 142, 510 N.E.2d 1173 (1987), pet. allowed, 116 Ill.2d 564, 113 Ill.Dec. 306, 515 N.E.2d 115 (1987).
In that case, an employer was charged with aggravated battery for exposing employees to federally regulated substances and for violating OSHA standards for working conditions. The state alleged that these actions amounted to a breach of the employer's duty to provide a safe workplace for the employees. The defendants argued that OSHA preempted the exercise of even state criminal laws in the area of workplace safety standards. The appellate court agreed with defendants and affirmed the trial court's dismissal of the indictments.
We concur with that court's holding that OSHA preempts any state regulation of workplaces governed by OSHA safety standards, to the extent that such regulation effectively establishes new workplace safety standards. We also believe that the criminal prosecutions here amount to such regulation.
While the criminal actions here do not literally purport to establish worker safety standards, the criminal charges were based on a failure to perform a duty found in a statute which does prescribe safety standards. The practical effect of such charges is to set up a body of state law affecting workplace safety issues already governed by federal standards promulgated pursuant to § 655 of OSHA. Specifically, the effect is to establish local standards governing the digging of Section 667(a) and the cited cases make it clear that such state regulation is entirely preempted by federal law. By using the TOSA language in its complaints, the State implicitly acknowledges that it is attacking the appellants'...
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