BILL ANALYSIS

C.S.H.B. 238

By: Bernal

Urban Affairs

Committee Report (Substituted)

BACKGROUND AND PURPOSE

A 2016 investigative report by the Austin American-Statesman found that migrant agricultural workers were being subjected to inhumane living conditions, including in empty shipping containers and sewage-flooded homes. While the Texas Department of Housing and Community Affairs (TDHCA) is currently responsible for overseeing migrant labor housing facility regulations, it lacks adequate accountability and enforcement mechanisms to address noncompliance with facility standards, particularly for repeat offenders. TDHCA has previously had no full-time staff assigned to investigations and no civil penalty schedule for repeated housing facility violations. Despite reports of noncompliance, TDHCA has not penalized a facility operator since 2005. Further, migrant laborers may be reluctant to report violations or collected damages related to substandard housing conditions because of fear of retaliation, which creates a major barrier to investigations and enforcement. C.S.H.B. 238 seeks to address these issues by strengthening the TDHCA penalty structure for violations of provisions governing migrant labor housing facilities and by providing for increased accountability and enforcement of those provisions.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is expressly granted to the Texas Department of Housing and Community Affairs in SECTION 1 of this bill.

ANALYSIS

C.S.H.B. 238 amends the Government Code to change the amount of the civil penalty for a violation of provisions governing migrant labor housing facilities or a rule adopted under those provisions from $200 for each day that the violation occurs to a minimum of $50 for each person occupying the migrant labor housing facility in violation of those provisions for each day that the violation occurs. The bill does the following with respect to the violations and penalties:

· extends the authority to bring an action to collect a civil penalty to the Texas Department of Housing and Community Affairs (TDHCA), who must do so through a prescribed contested case hearing process;

· authorizes an action to collect a civil penalty to also be brought by a migrant agricultural worker if a complaint regarding the violation for which the civil penalty is sought has been submitted to TDHCA and, at the time the complaint is submitted, the worker lives in the migrant labor housing facility that is the subject of the complaint and is not temporarily in the United States under an H2-A visa;

· requires TDHCA by rule to adopt a penalty schedule that increases the amount of the penalty assessed against a person who commits repeat violations; and

· requires a penalty collected through an action brought by TDHCA, a county attorney, or the attorney general to be deposited to the credit of the general revenue fund and restricts appropriation of the penalty to TDHCA for the enforcement of provisions governing migrant labor housing facilities.

C.S.H.B. 238 prohibits an action to collect a civil penalty for a violation regarding a migrant labor housing facility from being brought during the following periods:

· while a contested case hearing brought by TDHCA and relating to the same migrant labor housing facility is pending;

· while an action for injunctive relief relating to the same violation is pending;

· while an action brought by a county attorney or the attorney general and relating to the same migrant labor housing facility is pending; or

· while the facility operator is waiting for the facility to be inspected to confirm remediation of the violation or is providing housing at another facility to which the migrant agricultural workers who occupied the facility that is the subject of the action have been relocated.

C.S.H.B. 238 establishes that such a civil penalty begins accruing on the earlier of:

· for a violation subject to the general remediation period prescribed by the bill, the day TDHCA determines, based on information submitted by the facility operator, that the operator has failed to remedy the violation or the day an inspection by TDHCA establishes that the operator has failed to remedy the violation; or

· for a violation that TDHCA determines poses an imminent hazard or threat to the health and safety of the occupants of the facility, the 31st day following the date that notification of the complaint is received from TDHCA, unless the operator has relocated the migrant agricultural workers who occupied the facility that is the subject of the complaint.

C.S.H.B. 238 requires TDHCA to do the following with regard to complaints regarding a migrant labor housing facility:

· establish a process by rule for the submission to TDHCA of such a complaint, determining whether a complaint is unfounded or does not violate the standards adopted by TDHCA, and the investigation, resolution, or dismissal of a complaint, including confirmation of remediation through the methods prescribed by the bill;

· not later than the fifth day after the date on which a complaint is received, provide the operator of the facility that is the subject of complaint notice that includes the date the complaint was received, the complaint's subject matter, the name of each person contacted in relation to the complaint, if any, and the timeline for remedying a complaint that is not otherwise dismissed by TDHCA; and

· serve such notification via registered or certified mail, return receipt requested, if unable to make contact with the operator for the purpose of serving the notification.

The bill authorizes TDHCA to dismiss a complaint that it determines is unfounded or does not violate the standards adopted by rule. The bill requires TDHCA to provide timely notice of any complaint dismissal, including the explanation for the dismissal, to the applicable facility operator and to include a statement of the reason for the dismissal in the record of the complaint.

C.S.H.B. 238 requires the operator of a migrant labor housing facility to remedy a complaint not later than the seventh day after the date that notice of the complaint is received from TDHCA, unless the operator is subject to the other remediation period prescribed by the bill. The bill requires TDHCA to establish by rule a procedure by which a facility operator may submit proof of remediation of a complaint through visual evidence and a sworn affidavit. The bill requires TDHCA to have the facility inspected as soon as possible following the seventh day after the date that proof of remediation is received to ensure remediation of the complaint.

C.S.H.B. 238 sets out the following provisions that apply to a complaint alleging a violation that TDHCA determines poses an imminent hazard or threat to the health and safety of the occupants of the migrant labor housing facility, including violations of TDHCA rules concerning sanitation:

· a requirement for the operator of the facility that is the subject of the complaint to remedy the complaint not later than the 30th day after the date that notice of the complaint is received by the operator;

· an authorization for TDHCA to refer the complaint to a local authority for immediate inspection of the facility; and

· a requirement for TDHCA to establish by rule a procedure for requiring the owner of the facility to relocate or provide for the relocation of the facility's occupants to another housing facility if the remediation of the complaint is projected to take longer than a period of 30 days.

The bill excludes from the relocation requirement a migrant agricultural worker who is temporarily in the United States under an H2-A visa. The housing facility to which a person is relocated must meet applicable occupancy standards, must be located in the same vicinity as the vacated facility, and may not require a rent payment from a displaced migrant agricultural worker that exceeds the rent charged for the vacated facility.

C.S.H.B. 238 prohibits the following from retaliating against a person for filing a complaint or providing information in good faith relating to a possible violation of provisions governing migrant labor housing facilities:

· a person who owns, establishes, maintains, operates, or otherwise provides a migrant labor housing facility;

· a person who employs a migrant agricultural worker who occupies a migrant labor housing facility; or

· a farm labor contractor.

C.S.H.B. 238 authorizes the court in a suit brought under provisions governing migrant labor housing facilities to award reasonable attorney's fees to the prevailing party.

C.S.H.B. 238 requires TDHCA to identify other state agencies that may interact with occupants of migrant housing facilities to assist TDHCA in identifying and locating unlicensed migrant labor housing facilities. The bill expressly restricts the purposes for which information provided to TDHCA by such agencies may be used to identify and locate unlicensed migrant labor housing facilities and requires the information to be free of identification information relating to individual migrant agricultural workers. The information is confidential and not subject to disclosure under state public information law.

C.S.H.B. 238 requires TDHCA to adopt the rules necessary to implement the bill's provisions not later than March 1, 2024. The bill's provisions relating to civil penalties, the complaint process, remediation of complaints, and interagency cooperation apply only to a violation that occurs on or after the bill's effective date.

EFFECTIVE DATE

September 1, 2023.

COMPARISON OF INTRODUCED AND SUBSTITUTE

While C.S.H.B. 238 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill.

Both the introduced and the substitute authorize certain migrant agricultural workers to bring an action to collect a civil penalty for a violation regarding a migrant labor housing facility. However, the introduced provided this authority to a migrant agricultural worker who, at the time of the violation, lived in the facility that is the subject of the violation, whereas the substitute provides this authority to a migrant agricultural worker if a complaint regarding the violation is submitted to TDHCA and, at the time the complaint is submitted, the worker lives in the facility that is the subject of the complaint and is not temporarily in the United States under an H2-A visa.

The substitute includes the following provisions which did not appear in the introduced:

· provisions establishing the date on which a civil penalty begins accruing;

· a prohibition against bringing an action to collect a civil penalty while certain hearings or actions are pending or while certain remediation steps are in progress;

· a requirement for TDHCA to establish a specified complaint process;

· requirements for TDHCA to serve specified notice of a complaint to the applicable facility operator not later than the fifth day after receiving the complaint and to send such notice via registered or certified mail if unable to make contact with the operator;

· an authorization for TDHCA to dismiss a complaint that it determines to be unfounded or not in violation of the applicable standards and requirements for TDHCA action when a complaint is dismissed;

· provisions regarding the remediation of complaints in general, including a deadline and procedures for TDHCA to verify remediation is completed;

· provisions regarding the remediation of a complaint that alleges a violation that TDHCA determines poses an imminent hazard or threat to the facility's occupants, including a deadline, an authorization to refer the complaint to a local authority for immediate inspection of the facility, and requirements for the relocation of facility occupants to another housing facility if remediation is projected to extend past the deadline; and

· a requirement for TDHCA to identify other state agencies that may interact with occupants of migrant housing facilities to assist TDHCA in identifying and locating unlicensed migrant labor housing facilities and provisions establishing authorized uses and confidentiality of the information provided by such agencies.