The Honorable Jackie St. Clair Opinion No. H-911 

Commissioner 

Texas Department of Labor & Re: Whether Texas Health 

.Standards and Safety Laws conflict 

P. 0. Box 12157, Capitol Station with the Federal OccupaAustin, Texas 78711 tional Safety and Health 

Act of 1970 or the Federal 

Coal Mine Health and Safety 

Act. 

Dear Commissioner St. Clair: 

You have requested our opinion regarding possible 

federal preemption of a number of state health and safety 

laws. Specifically, you inquire about the present statusof 

article 5182, V.T.C.S., the Protection of Workmen on Buildings 

statute; articles 5173-5180, V.T.C.S., the Health, Safety 

and Morals Act; articles 5677-5679, V.T.C.S.,~the Cotton 

Bailing Act; and articles 5892, 5901-5920;V.T.C.S., which 

regulate coal mining operations. 

Article 5182a, V.T.C.S., the Occupational Safety Act, 

enacted in 1967, superseded the provisions of the Cotton 

Bailing Act and the coal mining regulatory statutes, with 

the exception of article 5920, which was reenacted in 1969. 

Section 18 of the Occupational Safety Act provides: 

All laws or parts of laws in conflict with 

the provisons of this Acts are hereby superseded by the provisions of this Act to the 

extent of such conflict. Acts 1967, 60th 

Leg., ch. 201 at 441. 

p. 3822 
The Honorable Jackie St. Clair - page 2 (A-911) 

Section 15(b), however, specifically exempts article 5182 

and articles 5173-5180. Thus, the question of federal preemption is present with regard to article 5182, articles 5173- 

5180 and article 5920. 

In 1970, Congress enacted the Occupational Safety and 

Health Act, 29 U.S.C. 9s 651-678, which established a broad 

federal scheme to regulate industrial health and safety 

conditions. Although the preemptive nature of the statute 

is evident, section 667 provides: 

Nothing in this chaljter shall prevent any 

State agency or court from asserting jurisdiction under State law over any occupational 

safety and health issue with respect to which 

no standard is in effect under section 655 of 

this title. 

Any state which "desires to assume responsibility for development Andy enforcement . . . of occupational safety and health 

standards" is required to submit a state plan to'the Secretary 

of Labor, who is empowered to exercise both initial approval 

authority and continuing supervision over the state regulations. 

29 U.S.C. § 667(b)-(f). Thus, in determining whether article 

5182 and articles 5173-5180 are still in effect, it is 

necessary to ascertain whether standards have been promulgated 

in a particular area under 29 U.S.C. 5 655. To the extent 

that such standards have been promulgated, as, for example, 

with regard to the construction industry and in most particulars 

of the Health, Safety and Morals Act, the state statutes are 

superseded by federal law, absent a statewide plan approved by 

the Secretary of Labor under 29 U.S.C. 5 667(b). 

Article 5920, which, as we have previously noted, was 

reenacted in 1969 and was thus saved from the repealer provisions of article 5182a, requires bath facilities for 

employees of coal mines. The Federal Coal Mines Health and 

Safety Act, 30 U.S.C. 95 801-960, provides, in section 955: 

(a) No State law in effect on December 30, 1969 

or which may become effective thereafter 

shall be superseded by any provision of 

this chapter or order issued or any mandatory 

health or safety standard, except insofar as 

such State law is in conflict with this 

chapter or with any order issued or any 

mandatory health or safety standard. 

p. 3823 
The Honorable Jackie St., Clair - page 3 (R-911) 

(b) The provisions of any State law or 

regulation in effect upon the operative date 

of this chapter, or which may become effective 

thereafter, which provide for more stringent 

health and safety standards applicable to 

coal mines than do the provisions of this 

chapter or any order issued or any mandatory 

health or safety standard shall not thereby 

be construed or held to be in conflict with 

this chapter. The provisions of any State 

law or regulation in effect December 30, 1969, 

or which may become effective thereafter, 

which provide for health and safety standards 

applicable to coal mines for which no provision 

is contained in this chapter or in any order 

issued or any mandatory health or safety standard, 

shall not be held to be in conflict with this 

chapter. 

Section 877(l) ~of the federal statute grants to the Secretary 

of the Interior the authority to require coal mine operators 

to provide adequate facilities for miners to change clothes 

and bathe. There does not appear to be any conflict between 

this provision and article 5920, and the Secretary of the 

Interior has not promulgated any regulations thereunder which 

would create such conflict. .See 30 C.F.R. S 70.1, et se 

Thus, it is our opinion that a provisions of artize -&O 

remain in effect and, as required therein, are to be enforced 

by the Commissioner of the Department of Labor and Standards. 

You also inquire whether the Department of Labor and 

Standards has been granted authority to promulgate standards 

and enforce compliance under the Administrative Erocedure 

and Texas Register Act, article 6252-13a, V.T.C.S. We do not 

believe article 6252-13a confers on an administrative agency 

any substantive rule-making authority that was not contained 

in other statutory provisions. 

SUMMARY' 

To the extent that federal standards 

have been promulgated by the Secretary of 

Labor pursuant to 29 U.S.C. 5 655, article 

5182 and articles 5173-5180, V.T.C.S., have 

p. 3824 
The Honorable Jackie St.~ Clair - page 4 (H-911) 

been superseded. Article 5920, V.T.C.S., is 

still in effect. The Administrative Procedure 

and Texas Register Act, article 6252-13a, 

V.T.C.S., has conferred no additional rulemaking authority upon the Department of Labor 

and Standards. 

Very truly yours, 

Opinion Committee 

jwb 

p. 3825