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Sabine Consol., Inc. v. State

Citation: 21 ELR 21015
No. Nos. 1069-88, 1070-88, 806 S.W.2d 553/(Tex. Crim. App., 02/13/1991)

The court holds that the Occupational Safety and Health Act (OSH Act) does not preempt a state criminal prosecution of an employer for criminally negligent homicide in the deaths of employees. A corporation and its president pled nolo contendere to the offense of criminally negligent homicide in the deaths of two employees who were killed when walls of an excavation ditch collapsed on them. Subsequently, the defendants appealed, the appeals court reversed the convictions and ordered acquittals on the grounds that OSHA preempts criminal prosecution, and Texas brought this appeal. The court holds that although OSH Act § 667 preempts state occupational safety and health laws and standards, Congress did not intend to expressly or impliedly preempt state criminal laws that affect or involve occupational safety and health. The criminally negligent homicide statute is not a standard as defined by the OSH Act, since it does not set conditions or establish practices or processes to ensure a safe workplace. Moreover, while the OSH Act has penalty provisions for violations of standards and duties, the provisions are not designed to cover a broad range of criminal conduct. The OSH Act's provisions are limited to "willful" conduct when a death results, rather than negligent conduct. The court next observes that given OSH Act § 653(b)(4)'s reservation of other private rights and their incidental regulatory effect, it makes sense that criminal laws were likewise not meant to be preempted. Analogizing to the Supreme Court's decision in Silkwood v. Kerr-McGee Corp., 14 ELR 20077, in which the Court upheld an award of punitive damages in a state tort law action, the court reasons that if Congress was explicitly willing to allow the incidental regulation caused by damage awards under state tort law through § 653(b)(4), Congress did not intend to preempt enforcement of state criminal laws in an area regulated by the OSH Act. Moreover, the Act is not designed to deal with state criminal offenses. The court also holds that this case does not involve conflict preemption, because enforcement of the criminally negligent homicide statute does not conflict with any OSH Act regulations or provisions so that compliance with state and federal law is impossible.

Counsel for Appellants
S. Ronald Keister
Gotcher & Keister
812 San Antonio, Ste. 304, Austin TX 78701
(512) 478-4393

Counsel for Appellee
Ken Oden, County Attorney; Alia Moses, Giselle Horton, Ass't County Attorneys
P.O. Box 1748, Austin TX 78767
(512) 473-9415

Before the court en banc.