By Stephanie Gharakhanian
Assistant District Attorney in Travis County
On Saturday, October 23, 2021, two employees of D Guerra Construction LLC were working at the bottom of a 13-foot trench to complete a water line connection when one of the trench’s walls collapsed. One of the employees was partially buried by the fallen dirt and debris, but his coworkers soon rescued him. The other employee, Juan José Galvan Batalla, was buried completely. He remained trapped underground for 20 minutes before first responders were able to extricate him from the trench.
Galvan Batalla was transported by helicopter to a local hospital and diagnosed with multiple crush-related injuries, including anoxic brain injury, a condition associated with the prolonged deprivation of oxygen to the brain. He succumbed to these injuries a week later, dying at the hospital on October 30. He was 24 years old.
The following Monday—two days after the incident—officials at the Occupational Safety and Health Administration (OSHA) learned of the trench collapse and commenced an investigation. Trench safety has long been an enforcement priority for the federal agency. Trenching and excavation are some of the most fatal operations associated with the construction industry. A cubic yard of soil can weigh up to 3,000 pounds and, as the agency likes to warn the public, “an unprotected trench can be an early grave.”[1]
Although cave-ins can and too often do result in worker deaths, they are also preventable. For this reason, OSHA has established excavation standards intended to mitigate cave-in hazards and avert trench-related fatalities. Trenches deeper than 5 feet must have an “adequate protective system”—usually shoring or a “trench box”—so that employees inside of the trench are protected in the event of a cave-in.[2] Competent persons with specialized training must be on-site to supervise the work and conduct regular inspections of the trench and its protective system.[3] If the competent person identifies a hazard that could result in a possible cave-in or identifies a defect with the protective system, he or she is required to stop work and evacuate employees from the trench until the hazard is abated.[4]
In its investigation of the death of Galvan Batalla, OSHA determined that the 13-foot trench he was working in did not have a protective system in place. Moreover, OSHA learned that a wall of the same trench had collapsed earlier in the day. D Guerra Construction LLC had allowed employees to continue to work inside the trench anyway, even though the trench remained unprotected. In April 2022, OSHA cited the company for numerous willful violations and issued an initial penalty of $243,406, which is an unusually high penalty for the agency.[5] A few months later, OSHA referred the case to our office to be reviewed for criminal prosecution.
The Economic Justice Enforcement Initiative
On Labor Day in 2021, about seven weeks before the fatal trench collapse that killed Galvan Batalla, Travis County District Attorney José Garza launched the Economic Justice Enforcement Initiative. This new effort seeks to prosecute crimes related to wage theft and serious workplace health or safety violations. It is part of a national movement amongst district attorneys and state attorneys general to reclaim the criminal justice system as an arena in which employers can and should be held accountable for egregious labor violations.[6]
Soon after launching the initiative, our office began connecting with state and local prosecutors from other parts of the country who also have units dedicated to the prosecution of work-related crimes. We formed relationships with local organizations that help workers advocate for their rights and various government agencies charged with enforcing worker protection laws. We identified criminal statutes in Texas law that were appropriate for the criminal conduct commonly seen in labor-related prosecutions and trained community allies and enforcement partners on these provisions. Because law enforcement agencies and prosecutors’ offices had historically rejected work-related cases as “civil matters,” we wanted community stakeholders to know that our office was committed to holding bad actors who commit criminal conduct accountable, regardless of whether their conduct occurred on the streets, in a home, or at a worksite. We asked stakeholders to refer cases to our office if they might fall under the purview of our jurisdiction, and we made sure they knew the appropriate points of contact inside of our office for labor-related prosecutions.
When OSHA reached out to us about the death of Mr. Galvan Batalla, we were prepared to review the case for potential criminal prosecution.
The history of workplace safety prosecutions
As we began our legal research, we could not find any recent examples of trench-related fatalities being prosecuted in Texas. However, we did uncover a series of such prosecutions in Travis County in the 1980s and early 1990s by then-Travis County Attorney Ken Oden.
Mr. Oden was the first Texas prosecutor to file criminal charges against a private corporation when he prosecuted Sabine Consolidated LLC in 1985.[7] On September 10, 1985, Juan Rodriguez and Benjamin Eatmon were buried in a 27-foot trench at a sewer installation site in East Austin. Their employer, Sabine Consolidated LLC, and the company’s president, Joseph Tantillo, were convicted of criminally negligent homicide in 1987.[8] The State alleged that the defendants’ failure to properly slope and shore the trench caused these employees’ deaths. The defendants argued that the federal Occupational Health and Safety Act of 1970 preempted states from prosecuting worker fatality cases.[9] The Court of Criminal Appeals rejected the defendants’ assertions of federal preemption in an opinion published in 1991.[10]
At the time, prosecutors in other parts of the country also began to prosecute corporations in worker fatality cases. Like Sabine Consolidated, these corporate defendants also raised preemption arguments on appeal. In those cases, appellate courts reached similar conclusions as the CCA: A state’s criminal statutes were not preempted by OSHA and ought to apply to employers in the same way that they apply to anyone else.[11] As summarized in a 1989 opinion from the Supreme Court of Michigan:
While OSHA is concerned with protecting employees as “workers” from specific safety and health hazards connected with their occupations, the state is concerned with protecting employees as “citizens” from criminal conduct. Whether the conduct occurs in public or in private, in the home or in the workplace, the state’s interest in preventing it, and punishing it, is indeed both legitimate and substantial.[12]
During this era, some appellate courts went even further, acknowledging that the defendants’ claims that OSHA shields America’s employers from the application of state criminal laws was both absurd and dangerous.[13] The Supreme Court of Illinois remarked in a 1989 opinion that “[t]o adopt the defendants’ interpretation of OSHA would, in effect, convert the statute, which was enacted to create a safe work environment for the nation’s workers, into a grant of immunity for employers responsible for serious injuries or deaths of employees.”[14]
After the Sabine Consolidated case, Oden prosecuted at least two other employers for criminally negligent homicide related to another fatal trench collapse in Austin in 1985 and a third fatal trench collapse in 1987.[15] In a 1987 interview with The New York Times about these prosecutions, Oden opined that OSHA lacked the resources and the teeth to tackle the troubling frequency of trench-related fatalities on its own. Employers in his community continued to commit safety violations after numerous OSHA citations, he believed, because these employers regarded OSHA’s fines as a “minor inconvenience.”[16] The prosecution of worker fatality cases was therefore imperative. He told The Times, “The facts speak for themselves: We are killing people in my state at an epidemic rate.”[17]
Forty years later, these prosecutions remain just as relevant and important as they were during the era of Sabine Consolidated. Labor enforcement agencies still have limited enforcement resources and inadequate authority to prevent worker abuse. In 2023, there were only 88 OSHA inspectors in Texas, a state that has over 13 million employees,[18] and the average total OSHA penalty imposed following a worker fatality investigation was only $25,832. Employees today face increased barriers to seek justice through civil courts,[19] and preventable worker fatalities continue. Texas consistently ranks as the state with the highest number of worker fatalities each year.[20]
In 2022, federal labor authorities cautioned that they were seeing an “alarming rise in trench-related fatalities.”[21] At least 20 workers in Texas have died in trench collapses in the last decade, but as far as we can tell, no Texas employer had been prosecuted for these workers’ deaths until our office began its prosecution related to the death of Juan José Galvan Batalla.[22]
Charging a corporation
A Travis County grand jury returned indictments for criminally negligent homicide against Galvan Batalla’s superintendent, Carlos Alejandro Guerrero, and his employer, D Guerra Construction LLC, in September 2024.
Texas law allows for a corporation to be held criminally responsible for a felony in certain circumstances, including instances in which the commission of the offense is “authorized, requested, commanded, performed, or recklessly tolerated by … a high managerial agent acting in behalf of the corporation … and within the scope of the agent’s office or employment.”[23] A high managerial agent is defined as a partner or officer of a business entity or an agent of the company “who has duties of such responsibility that the agent’s conduct reasonably may be assumed to represent the policy of the corporation, association, limited liability company, or other business entity.”[24]
If a corporation is convicted under Texas law, no representative of the company can be arrested,[25] and the company cannot be sentenced to probation.[26] But the corporation can be fined substantially. One lesser-known fact about Ken Oden’s legacy in the field of corporate prosecutions was his efforts to pass legislation increasing the financial penalties for corporate defendants under §12.51 of the Penal Code.[27] As a result of Oden’s advocacy, when a corporation is convicted of a Class A misdemeanor or felony offense resulting in a serious bodily injury or death, the court may fine the defendant $50,000 or “double the amount gained or caused by the corporation or association to be lost or damaged, whichever is greater.”[28] (To all the criminal practitioners reading this who are now scratching your heads wondering how on earth a court could quantify the amount that a corporation caused “to be lost” in a case involving a person’s death, I offer the friendly reminder that these calculations happen in the civil context all the time.)
Apart from resulting in steep financial penalties, prosecutions of a corporate entity can also cause less measurable, but perhaps more significant, consequences for the defendant, such as negative publicity for its business and reputational harm to its brand. In some instances, a record of a corporate conviction may prevent the business from accessing certain contracting opportunities or qualifying for certain insurance products in the future. Moreover, the criminal prosecution of corporate entities can send a powerful message to other actors in the industry that similar conduct will not be tolerated. A 2020 study found that OSHA’s publicity of its enforcement actions incentivized other employers to substantially improve their compliance with workplace safety and health regulations.[29] Corporate prosecutions, particularly those that garner media attention, are likely to have a similar deterrent effect.
Prosecution of corporate entities also offers the State a unique opportunity to address what is often the root causes a company’s criminal conduct: its culture. Prosecutors have unique discretion to craft plea conditions tailored to prevent the corporation from committing similar violations in the future. For example, a plea agreement could require the company to implement new policies and procedures, undergo regular auditing or monitoring by an independent entity, or complete relevant training or certifications.
The Travis County case
When we began our work on the case relating to Juan José Galvan Batalla’s death and had the chance to meet with his family, they said their greatest hope was that our prosecution would protect the safety of other workers in the future. Their wish guided our strategy in the prosecution of those responsible for Galvan Batalla’s death.
On July 31 of last year, Daniel Guerra, the president and owner of D Guerra Construction LLC, appeared in open court on behalf of the company and pled guilty to assault causing bodily injury. The State and defense agreed to postpone D Guerra Construction LLC’s sentencing for 15 months while the company implemented a series of “pre-sentencing conditions.” These include requirements that all company employees on Travis County worksites receive basic safety training related to construction work and excavation safety; the company hire and retain qualified safety personnel; the company adopt additional safety policies and procedures to allow workers to report safety violations anonymously and without fear of retaliation; and the company contract with an independent third-party monitor for one year to conduct weekly safety inspections on Travis County worksites and prepare monthly reports for our office to track the company’s compliance with the terms of the plea agreement.
If D Guerra Construction LLC successfully completes the pre-sentencing conditions detailed in the plea agreement, the State has agreed not to pursue any of the fines authorized by Texas Penal Code §12.51 during punishment. If the company does not comply with the plea agreement’s pre-sentencing conditions, the State intends to advocate that the maximum fines allowed by §12.51 be assessed against the company at sentencing and plans to introduce expert testimony and other evidence during a punishment trial about the value of Juan José Galvan Batalla’s life, to quantify the enormity of the loss caused by the company’s criminal conduct. Relying on what we know from workers’ compensation payments and other records obtained during the investigation, we believe that the application of the doubling provision in §12.51(c) to this case could result in fines against the defendant that total more than $1 million.
After the plea, Galvan Batalla’s mother wrote to us: “Dios los puso para que saliera la verdad y poder hacer cambios para proteger a más personas.” She believed that God put us here so that she (and the world) would learn the truth about her son’s death and so that we could make changes that would protect other workers in the future. Though she will always grieve her son’s loss, she told a reporter that the plea agreement did provide her with a sense of justice. “It did comfort me a little that the company said, ‘Yes, I’m guilty,’ because they were guilty—for me—and now they’re guilty before the law.”[30]
We return to court for D Guerra Construction LLC’s sentencing hearing in November 2026.
[1] U.S. Dep’t of Lab., Occupational Safety and Health Admin., OSHA 2226-10R, Trenching and Excavation Safety 1 (2015), www.osha.gov/sites/default/files/ publications/osha2226.pdf.
[2] 29 C.F.R. §1926.652.
[3] 29 C.F.R. §1926.651(k)(1).
[4] 29 C.F.R. § 1926.651(k)(2).
[5] Press Release, U.S. Dep’t of Lab., Occupational Health and Safety Admin., US Department of Labor Workplace Fatality Investigation Finds Contractor Sent 2 Workers Back Into Austin Trench After Partial Collapse (Apr. 21, 2022), www.osha.gov/news/newsreleases/region6/04212022.
[6] See e.g., Terri Gerstein, How District Attorneys and State Attorneys General are Fighting Workplace Abuses, Econ. Policy Inst., 3-5 (May 17, 2021), https://files.epi.org/uploads/224957.pdf.
[7] Michael King & Jordan Smith, Naked City: Ken Oden Says Adieu, Austin Chron., (Feb. 21, 2003), www .austinchronicle.com/news/naked-city-11714983.
[8] Jim Phillips, Court: Firms Can Be Charged in Work Deaths, Austin American-Statesman, Feb. 14, 1991, at B1.
[9] Sabine Consol., Inc. v. State, 756 S.W.2d 865, 866 (Tex. App.—Austin 1988), rev’d, 806 S.W.2d 553 (Tex. Crim. App. 1991).
[10] Sabine Consol., Inc. v. State, 806 S.W.2d 553 (Tex. Crim. App. 1991).
[11] Id. at 558 (stating, “The purpose of state criminal laws and criminally negligent homicide in particular … is to punish one for an illegal act as defined by the penal code, whether that act be done in the workplace or elsewhere”); Id. at 559-60 (citing cases where other states’ courts have also held that OSHA does not preempt state criminal laws).
[12] People v. Hegedus, 443 N.W.2d 127, 134 (Mich. 1989).
[13] E.g. Sabine Consol., 806 S.W.2d. at 559 (arguing that, if implied preemption applied to federal workplace safety laws, “an employer who caused the death of an employee by providing unsafe working conditions would be able to escape state criminal prosecution and suffer only the comparatively minor punishment provided by OSHA”).
[14] People v. Chicago Magnet Wire Corp., 534 N.E.2d 962, 969 (Ill. 1989).
[15] Phillips, supra note 8; Associated Press, Employer Indicted in Death, Dallas Morning News, July 29, 1987, at 22A.
[16] William Glaberson, Is OSHA Falling Down on the Job?, New York Times, (Aug. 2, 1987), www.nytimes .com/1987/08/02/business/is-osha-falling-down-on-the-job.html.
[17] Id.
[18] Rebecca L. Reindel, et al., Death on the Job: The Toll of Neglect, AFL-CIO, 132 (Apr. 23, 2025), https://aflcio.org/reports/dotj-2025.
[19] Id. at 198.
[20] Reindel, supra note 18, at 38-40 (Texas had 564 worker fatalities in 2023, followed by California (439), Florida (306), and New York (246)).
[21] Press Release, U.S. Dep’t of Lab., Occupational Health and Safety Admin., Alarming Rise in Trench-Related Fatalities Spurs US Department of Labor to Announce Enhanced Nationwide Enforcement, Additional Oversight (July 14, 2022), https://content.govdelivery .com/accounts/USDOL/bulletins/3213baa.
[22] Josh Peck, What’s Being Done to Help Protect Workers from Trench Collapses, Morning Edition, NPR, Aug. 29, 2024, www.npr.org/2024/08/29/nx-s1-5074657/whats-being-done-to-help-protect-workers- from-trench-collapses.
[23] Tex. Penal Code §7.22(b)(2).
[24] Tex. Penal Code §7.21(2).
[25] Tex. Code Crim. Proc. Art. 17A.03(b).
[26] Tex. Code Crim. Proc. Art. 17A.08.
[27] E.g. H. Comm. on Crim. Juris., S.B. 1277 H. Comm. R., 70th R.S., (May 15, 1987) (noting Travis County Attorney Ken Oden testified in favor of the bill).
[28] Tex. Penal Code. §§12.51(b)(4)–(c).
[29] Mathew S. Johnson, Regulation by Shaming: Deterrence Effects of Publicizing Violations of Workplace Safety and Health Laws, 110 Am. Econ. Rev. 1866, 1883-93 (June 2020), www.aeaweb.org/articles? id=10.1257/aer.20180501.
[30] Josh Peck, Texas Company Pleads Guilty to 2021 Construction Worker Trench Death, NPR, (Aug. 26, 2025), www.npr.org/2025/08/26/g-s1-85388/texas-company-pleads-guilty-to-2021-construction-worker-trench-death.