Sabine Consol., Inc. v. State

• Decision Date: 13 February 1991
• Docket Number: Nos. 1069-88,1070-88,s. 1069-88
• Citation: 806 S.W.2d 553
• Court: Texas Court of Criminal Appeals
• Parties: 21 Envtl. L. Rep. 21,015, 14 O.S.H. Cas. (BNA) 2049, 1991 O.S.H.D. (CCH) P 29,247 SABINE CONSOLIDATED, INC., & Joseph Tantillo, Appellants, v. The STATE of Texas, Appellee.

Page 553

806 S.W.2d 553

21 Envtl. L. Rep. 21,015, 14 O.S.H. Cas. (BNA) 2049,

1991 O.S.H.D. (CCH) P 29,247

SABINE CONSOLIDATED, INC., & Joseph Tantillo, Appellants, v. The STATE of Texas, Appellee.

Nos. 1069-88, 1070-88.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 13, 1991.

Rehearing Overruled April 3, 1991.

Frank Maloney, S. Belinda Davis Wright, S. Ronald Keister, Austin, for appellants.

Ken Oden, County Atty., Alia Moses and Giselle Horton, Asst. County Attys., Robert Huttash, State's Atty. and Matthew W. Paul, Asst. State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

The issue we consider in this case is whether the Occupational Safety and Health Act of 1970 (OSHA or the Act) (29 U.S.C. § 651 et seq. 1982), preempts Texas from prosecuting appellants for criminally negligent homicide under Tex.Penal Code Ann. § 19.07.

Appellant Tantillo was the president of appellant Sabine Consolidated, Inc. (Sabine). Both appellants pled nolo contendere to the offense of criminally negligent homicide. Sabine was fined $10,000.00, and Tantillo was sentenced to confinement for 180 days, probated for one year, and fined $2,000.00. The charges arose from an excavation trench cave-in on September 10 The Court of Appeals reversed the convictions and ordered acquittals. Sabine Consolidated, Inc. v. State, 756 S.W.2d 865 (Tex.App.-Austin, 1988). The Court of Appeals held that the OSHA provisions reflect implied intent by Congress to usurp the entire field of occupational safety such that criminal prosecution, based upon the violation of state or local standards for working conditions, invades that area of occupational safety preempted by OSHA. We granted the State's petition for discretionary review to address the preemption issue.

1985, in which two employees of Sabine were killed when the walls of the trench collapsed, burying them.

Tex.Penal Code Ann. § 19.07 provides that a person commits an offense if he causes the death of an individual by criminal negligence.

The State charged appellants with criminally negligent homicide by alleging a failure to act; to so charge there must be a statutory duty to act. See Billingslea v. State, 780 S.W.2d 271 (Tex.Cr.App.1989). To establish a duty to act, the State relied upon the Texas Occupational Safety Act, (TOSA), V.A.C.S., Article 5182a, § 3, which provides:

Every employer shall furnish and maintain employment and a place of employment which shall be reasonably safe and healthful for employees. Every employer shall install, maintain, and use such methods, processes, devices, and safeguards, including methods of sanitation and hygiene, as are reasonably necessary to protect the life, health, and safety of such employees, and shall do every other thing reasonably necessary to render safe such employment and place of employment.

The informations alleged, in pertinent part, that appellants were criminally negligent by:

fail[ing] to furnish and maintain a place of employment which was reasonably safe and healthful for the said [deceased], an employee of the said [appellant], and the said [appellant] did then and there fail 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 the said [deceased], by then and there failing to provide an adequate shoring system for the wall of an excavation and by then and there failing to properly slope the wall of an excavation, thereby causing the wall of the said excavation to collapse, which caused the death of the said [deceased], when the said [appellant] had a duty to furnish and maintain a place of employment which was reasonably safe and healthful for the said [deceased] and the said [appellant] had a duty 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 the said [deceased].

OSHA

The purpose and policy of OSHA is "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). To further that purpose Congress authorized the creation of occupational safety and health standards and regulations for "businesses affecting interstate commerce," 29 U.S.C. § 651(b)(3), and enacted a general duty provision for such employers. 29 U.S.C. § 654. ¹

The Act also provides for civil and criminal penalties for violations of the general duty provision or any standard, rule, order, or regulation promulgated pursuant to the Act. 29 U.S.C. § 666. Under this section the following penalties may be assessed:

for a "willful or repeated violation" of specific OSHA standards or the general duty provision, a civil penalty of not more than $10,000.00 may be assessed for each violation; for a "serious violation", meaning there is a substantial probability that death or serious physical harm could result from a condition that exists or from practices or methods in place, a civil penalty of not more than $1,000.00 shall be assessed; for a violation determined not to be serious, a civil penalty of up to $1,000.00 may be assessed; for failure to correct a cited violation, a civil penalty of up to $1,000.00 a day until corrected; for a "willful violation" of OSHA standards which cause death, a criminal penalty of imprisonment for not more than 6 months and/or a fine of not more than $10,000.00 may be assessed; slightly stiffer penalties for one previously convicted of such violation(s); and finally, criminal penalties ranging from imprisonment for 6 months and a fine of between $1,000.00 and $10,000.00 may be assessed for giving advance notice of inspection or making false statements for information required under the Act.

Despite the availability of these penalties OSHA is primarily prophylactic in nature. Whirlpool Corp. v. Marshall, 445 U.S. 1, 12, 100 S.Ct. 883, 890, 63 L.Ed.2d 154, 164 (1980). The Act seeks to establish standards and regulations to prevent death or injury from occurring in the workplace.

PREEMPTION

The doctrine of preemption is based upon the supremacy clause of the United States Constitution, Article VI, cl. 2, which invalidates state laws that "interfere with, or are contrary to," federal law. Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23, 73 (1824). Federal law may supersede state law in three ways. First, Congress can expressly state that the particular federal law preempts state law. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604, 614 (1977). Second, Congressional intent to preempt can be implied from the scheme of federal regulation which is sufficiently comprehensive to make a reasonable inference that Congress left no room for the states to supplement it. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, 1459 (1947). Implied intent can also be found where the federal interest in the field is so strong that it precludes state laws on the same subject. Third, federal law preempts state law when the state law conflicts with the federal law. This conflict occurs when compliance with federal and state laws is, in effect, a physical impossibility, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217-1218, 10 L.Ed.2d 248, 256-257 (1963), or when the state law is "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed.581, 587 (1941). See also Hillsborough County, Fla. v. Auto. Med. Labs., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714, 721 (1985).

OSHA permits states to preempt federal standards of occupational safety and health by adopting their own such standards and plan for enforcement, which must be approved by the Secretary of Labor. 29 U.S.C. § 667. The Act also specifies that states may assert "jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under section 6 [29 USC § 655]." 29 U.S.C. § 667(a). Finally, § 653(b)(4) states:

Nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

EXPRESS PREEMPTION

We will first address the express preemption issue.

Section 667 states, in part:

Nothing in this Act shall prevent any State agency or court from asserting jurisdiction Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated under section 6 [29 USC § 655] shall submit a State plan for the development of such standards and their enforcement.

under State law over any occupational safety or health issue with respect to which no standard is in effect under section 6 [29 USC § 655].

Under this section Congress clearly preempted state occupational safety and health laws and standards for "businesses affecting interstate commerce" unless the State takes steps to establish its own program in accord with OSHA requirements for substituting state standards. However, we do not believe that Congress intended that state criminal laws which affect or involve occupational safety and health be preempted. See and cf. New York Dep't. of Social Services v. Dublino, 413 U.S. 405, 415, 93 S.Ct. 2507, 2514, 37 L.Ed.2d 688, 696 (1973). There is no express language to that effect and other provisions indicate no such intent.

The term "occupational safety and...