BILL ANALYSIS

 

 

Senate Research Center	H.B. 238
	By: Bernal et al. (Flores)
	Water, Agriculture & Rural Affairs
	5/18/2023
	Engrossed

 

 

 

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

 

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 collect damages related to substandard housing conditions because of fear of retaliation, which creates a major barrier to investigations and enforcement.

 

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.

 

H.B. 238 amends current law relating to the regulation of migrant labor housing facilities and changes the amount of a civil penalty.

 

RULEMAKING AUTHORITY

 

Rulemaking authority is expressly granted to the Texas Department of Housing and Community Affairs in SECTION 1 (Sections 2306.933, 2306.934, 2306.935, and 2306.936, Government Code) of this bill.

 

SECTION BY SECTION ANALYSIS

 

SECTION 1. Amends Subchapter LL, Chapter 2306, Government Code, by amending Section 2306.933 and adding Sections 2306.934, 9306.935, 2306.936, 2306.937, 2306.938, 2306.939, and 2306.940, as follows:

 

Sec. 2306.933. CIVIL PENALTY. (a) Provides that a person who violates Subchapter LL (Migrant Labor Housing Facilities) or a rule adopted under this subchapter is subject to a civil penalty of not less than $50 for each person occupying the migrant labor housing facility in violation of this subchapter for each day that the violation occurs, rather than a civil penalty of $200 for each day that the violation occurs.

 

(b) Authorizes an action to collect a civil penalty under this section to be brought by:

 

(1) the Texas Department of Housing and Community Affairs (TDHCA) through the contested case hearing process described by Section 2306.930(b) (relating to providing that Chapter 2001 (Administrative Procedure) and TDHCA rules for holding a contested case hearing govern the procedures for the suspension or revocation of a license);

 

(2) the county attorney for the county in which the violation occurred, or the attorney general, at the request of TDHCA; or

 

(3) a migrant agricultural worker if:

 

(A) a complaint regarding the violation for which the civil penalty is sought has been submitted under Section 2306.934; and

 

(B)� at the time the complaint described by Paragraph (A) is submitted, the worker:

 

(i)� lives in the migrant labor housing facility that is the subject of the complaint; and

 

(ii)� is not temporarily in the United States under an H2-A visa authorized by 8 U.S.C. Section 1101(a)(15)(H)(ii)(a).

 

(c)� Prohibits an action to collect a civil penalty under this section from being brought while:

 

(1)� a contested case hearing, brought by TDHCA under Section 2306.930(b) and relating to the same migrant labor housing facility, is pending;

 

(2)� an action for injunctive relief relating to the same violation is pending under Section 2306.932 (Injunctive Relief);

 

(3)� an action brought by a county attorney or the attorney general and relating to the same migrant labor housing facility is pending; or

 

(4)� the operator of the migrant labor housing facility that is the subject of the action is:

 

(A)� waiting for the facility to be inspected under Section 2306.935(c) to confirm remediation of the violation that is the subject of the action; or

 

(B)� providing housing at a facility under Section 2306.936(d) to which the migrant agricultural workers who occupied the facility that is the subject of the action have been relocated.

 

(d)� Provides that a civil penalty under this section begins accruing on the earlier of:

 

(1)� for a violation with a remediation period described by Section 2306.935, the day that:

 

(A)� TDHCA determines based on information submitted under Section 2306.935(b) that the operator has failed to remedy the violation; or

 

(B)� an inspection described by Section 2306.935(c) establishes that the migrant housing facility operator has failed to remedy the violation; or

 

(2)� for a violation with a remediation period described by Section 2306.936, the 31st day following the date that notification of the complaint is received from TDHCA, unless the operator has relocated under Section 2306.936(d) the migrant agricultural workers who occupied the facility that is the subject of the complaint.

 

(e)� Requires TDHCA by rule to adopt a penalty schedule that increases the amount of the penalty assessed against a person who repeatedly violates this subchapter or rules adopted under this subchapter.

 

(f)� Provides that penalty collected under Subsection (b)(1) or (2) is required to be deposited to the credit of the general revenue fund and is authorized to be appropriated only to TDHCA for the enforcement of this subchapter.

 

Sec. 2306.934.� COMPLAINT; NOTICE; DISMISSAL.� (a)� Defines "designated representative."

 

(a-1)� Requires TDHCA by rule to establish a process for:

 

(1)� the submission to TDHCA of a complaint regarding a migrant labor housing facility;�

 

(2)� determining whether a complaint is unfounded or does not violate the standards adopted by TDHCA; and

 

(3)� the investigation, resolution, or dismissal of a complaint submitted under Subdivision (1), including confirmation of remediation through the methods described by Sections 2306.935 and 2306.936.

 

(a-2) Requires that the process established under Subsection (a-1)(1) allow the submission of complaints:

 

(1)� only by:

 

(A)� an occupant of the migrant labor housing facility that is the subject of the complaint;

 

(B)� a prospective occupant of the migrant labor housing facility that is the subject of the complaint;

 

(C)� the designated representative of a person described by Paragraph (A) or (B); or

 

(D)� an individual, including the owner or tenant of an adjacent property, that has observed a clear violation of this subchapter; and

 

(2)� through TDHCA's Internet website, in person at any TDHCA office, or by telephone or written notice to TDHCA.

 

(b)� Requires TDHCA, not later than the fifth day after the date on which TDHCA receives a complaint, to notify the operator of the migrant labor housing facility that is the subject of the complaint.� Requires that notice under this subsection include:

 

(1)� the date that the complaint was received;

 

(2)� the subject matter of the complaint;

 

(3)� the name of each person contacted in relation to the complaint, if any; and

 

(4)� the timeline for remedying a complaint that is not otherwise dismissed by TDHCA.

 

(c)� Requires TDHCA to serve the notification of the complaint via registered or certified mail, return receipt requested if TDHCA is unable to make contact with an operator of a migrant labor housing facility for the purpose of serving a notification of a complaint.

 

(d)� Provides that TDHCA is authorized to dismiss the complaint and is required to include a statement of the reason for the dismissal in the record of the complaint, if TDHCA determines that a complaint is unfounded or does not violate the standards adopted by rule.� Requires TDHCA to provide timely notice of any dismissal of the complaint, including the explanation for the dismissal, to the operator of the migrant labor housing facility that is the subject of the complaint.

 

(e)� Prohibits a designated representative from being required to reveal the name of any migrant agricultural worker on whose behalf the representative submitted a complaint under this section if TDHCA reviews the written authorization establishing the representation and verifies that the representative is authorized to submit the complaint.

 

Sec. 2306.935.� REMEDIATION OF COMPLAINT IN GENERAL.� (a)� Requires the operator of a migrant labor housing facility, subject to Section 2306.936,� to remedy the complaint not later than the seventh day after the date that notice is received under Section 2306.934.

 

(b)� Requires TDHCA by rule to establish a procedure by which the operator of a migrant labor housing facility is authorized to submit proof of remediation of a complaint through visual evidence and a sworn affidavit.

 

(c)� Requires TDHCA, for an operator of a migrant labor housing facility who receives notice under Section 2306.934(c) or who does not submit proof of remediation in the manner provided by Subsection (b), to have the facility inspected as soon as possible following the seventh day after the date that notice is received under Section 2306.934, to ensure remediation of the complaint.

 

Sec. 2306.936.� REMEDIATION OF COMPLAINT REGARDING CERTAIN VIOLATIONS.� (a)� Provides that this section applies only to a complaint that alleges a violation that TDHCA determines poses an imminent hazard or threat to the health and safety of the occupants of the facility, including violations of rules adopted by TDHCA concerning sanitation.

 

(b)� Requires the operator of a migrant labor housing facility that is the subject of a complaint described by Subsection (a) to remedy the complaint, subject to Subsection (d), not later than the 30th day after the date that notice is received under Section 2306.934.

 

(c)� Authorizes TDHCA to refer a complaint described by Subsection (a) to a local authority for immediate inspection of the migrant labor housing facility.

 

(d)� Requires TDHCA by rule to establish a procedure for requiring the owner of a migrant labor housing facility to relocate or provide for the relocation to another housing facility of the occupants of a facility that is the subject of a complaint under Subsection (a) if the remediation of that complaint is projected to take longer than a period of 30 days.� Provides that a housing facility to which a person is relocated under this subsection:

 

(1)� is required to meet the occupancy standards adopted under this subchapter;

 

(2)� is required to be located in the same vicinity as the vacated facility; and

 

(3)� is prohibited from requiring a rent payment from a displaced migrant agricultural worker that exceeds the rent charged for the vacated facility.

 

(e)� Provides that Subsection (d) does not apply to a migrant agricultural worker who is temporarily in the United States under an H2-A visa authorized under 8 U.S.C. Section 1101(a)(15)(H)(ii)(a).

 

Sec. 2306.937.� RETALIATION PROHIBITED.� Prohibits 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 from retaliating against a person for filing a complaint or providing information in good faith relating to a possible violation of this subchapter.

 

Sec. 2306.938.� ATTORNEY'S FEES.� Authorizes the court in a suit brought under this subchapter to award reasonable attorney's fees to the prevailing party.

 

Sec. 2306.939.� INTERAGENCY COOPERATION.� (a)� Requires TDHCA to identify other state agencies that are authorized to interact with occupants of migrant housing facilities to assist TDHCA in identifying and locating unlicensed migrant labor housing facilities.

 

(b)� Provides that information provided to TDHCA under this section:

 

(1)� is authorized to be used only for the purposes of identifying and locating unlicensed migrant labor housing facilities;

 

(2)� is required to be free of identification information relating to individual migrant agricultural workers; and

 

(3)� is confidential and not subject to disclosure under Chapter 552 (Public Information).

 

Sec. 2306.940.� OUTREACH AND EDUCATION.� (a)� Requires TDHCA to provide:

 

(1)� to migrant agricultural workers in different regions of the state, educational materials or programs that are presented in English, Spanish, and other languages as appropriate and that inform the workers of their rights and remedies under this subchapter; and

 

(2)� to persons who own, establish, maintain, operate, procure, make arrangements for, or otherwise provide migrant labor housing facilities, educational materials or programs that are presented in English, Spanish, and other languages as appropriate and that inform the persons of their obligations under this subchapter.

 

(b)� Requires TDHCA, to better provide the services described by Subsection (a), to:

 

(1)� ensure that, in each region of the state where migrant labor housing facilities are most common, there are persons capable of providing the information described by Subsection (a) in English, Spanish, and other languages as appropriate; and

 

(2)� conduct research, including by surveying migrant agricultural workers, concerning:

 

(A)� what types of migrant labor housing facilities are most common in different regions of the state; and

 

(B)� what regions of the state most need additional or improved migrant labor housing facilities.

 

SECTION 2.� Requires TDHCA to adopt the rules necessary to implement Subchapter LL, Chapter 2306, Government Code, as amended by this Act, not later than March 1, 2024

 

SECTION 3.� Makes application of the change in law made by this Act in amending Section 2306.933, Government Code, and adding Sections 2306.934, 2306.935, 2306.936, 2306.938, and 2306.939, Government Code, prospective.

 

SECTION 4. Effective date: September 1, 2023.