Untitled Texas Attorney General Opinion ( 1991 )

@ffice of the Igttorntp &nerat
%tatt of Qtxas
April 16.1991
DAN MORALES
ATTORNSY
0-L
Honorable Chet Brooks Opinion No. DM-16
chairman
Health and Human Services Committee Re: Whether certain registered installers
Texas State Senate of manufactured housing must obtain
P. 0. Box 12068 certificates of necessity and public con-
Austin, Texas 78711 venience from the Railroad Commission
pursuant to article 911b, V.T.C.S.
(RQ-2161)
Dear Senator Brooks:
You ask whether an installer of manufactured housing who possesses a valid
certificate of registration in accordance with the Texas Manufactured Housing
Standards Act, article 5221f, V.T.C.S., must obtain a certificate of necessity and
public convenience from the Railroad Commission pursuant to the Texas Motor
Carrier Act, article 911b, V.T.C.S.1
The motor carrier act authorizes the Railroad Commission to regulate the
transportation of property for compensation or hire, to prescribe or approve the
maximum and minimum rates of regulated carriers, and to adopt regulations
ensuring the safety of those carriers’ operations. V.T.C.S. art. 911b, $4(a).
Regulated carriers must obtain certificates of public convenience and necessity from
the Railroad Commission. Id. g$S (certificate requirements for common carriers),
5a (certificate requirements for specialized motor carriers). Section 23 of the motor
carrier act provides:
All laws and parts of laws in conflict herewith are hereby
expressly repealed. Provided, however, that nothing in this act
shall be construed as giving legislative sanction to any act that
‘We hereafter refer to the Texas ManufacturedHousing StandardsAct as ‘the housing act”
and the Texas Motor CarrierAct as “themotor carrieract.’
p. 72
Honorable Chet Brooks - Page 2 (DM-16)
would violate the provisions of the Anti-Trust laws of Texas
except as otherwise provided in this Act.
The housing act authorizes state regulation of the manufacture, sale, and
installation of manufactured housing. V.T.C.S. art. 5221f, 0 4 (authority for
adoption of state installation and construction requirements). A person may not
perform any installation functions on manufactured housing unless he possesses a
valid’certificate of registration. Id $7(d). Section 3(10) defines “installation” to
mean:
the transporting of manufactured homes or manufactured home
components to the place where they will be used by the
consumer, the construction of the foundation system, whether
temporary or permanent, and the placement and erection of a
manufactured home or manufactured home components on the
foundation system, and includes supporting, blocking, leveling,
securing, anchoring, and proper connection of multiple or
expandable sections or components, the installation of air
conditioning, and minor adjustments.
Section 18(f) of the housing act provides in pertinent part:
Notwithstanding any provisions of any other statute,
regulation, or ordinance to the contrary, a registered retailer or
installer is not required to secure any permit, certificate, or
license or pay any fee for the transportation of manufactured
housing to the place where it is to be installed, except as
required by the department [Texas Department of Licensing and
Regulation] or by the State Department of Highways and Public
Transportation.
In other words, section 18(f) creates an exception to certification requirements that
might otherwise be applicable to installers in certain circumstances. It has been
suggested that the section 18(f) exemption is not currently effective given section 23
of the motor carrier act. We disagree.
The motor carrier act was originally enacted in 1929. Acts 1929, 41st Leg.,
ch. 314, at 698. Section 23 was part of the original enactment. Id. 9 23 at 709. The
1929 version contained the language regarding repeal of conflicting laws. The
p. 73
Honorable Chet Brooks - Page 3 (DM-16)
phrase “except as otherwise provided in this Act” was added to section 23 in 1981.
Acts 1981,67th Leg., ch. 30,s 3, at 69.
Section 18(f) was added to the housing act in 1979. Acts 1979,66th Leg., ch.
625, 3 17. at 1416-17. As originally added, section 18(f) applied only to installers
and was not limited by its terms to registered installers. In 1985 the legislature
amended section 18(f) to apply to registered installers. Acts 1985, 69th Leg., ch.
846, 9 9, at 2937. Section 18(f) was subsequently and most recently amended in
1987 on passage of House Bill 855 to apply to both registered retailers and
installers. Acts 1987,7Oth Leg., ch. 1134.3 19, at 3888-89.
Thus, the substance of the housing act exemption was enacted after the
substance of the motor carrier act repealer. Further, the most recent re-enactment
of the housing act exemption followed the most recent re-enactment of the motor
carrier act repealer. Therefore, the housing act exception set out in section 18(f),
which applies “notwithstanding any provisions of any other statute,” prevails.* See
genera/& b State -of v. m, 550 S.W.2d 104, 106-07 (Tex. Civ.
App.--Tyler 1977, no writ) (act later in time prevails over earlier enactment insofar
as acts conflict); 67 Tex. Jur. 3d Srututes 3 66 (1989) (and authorities cited therein);
1A SIJTHERLAND STATUTORY CONSTRUCTION 9 23.28 at 406 (4th ed. 1985)
(re-enactment of statute repealed expressly or by implication invalidates previous
repeal and restores statute to effective operation); see&o &&ock v. Sta&, 668
S.W.2d 857 (Tex. App.--Austin 1984, writ refd n.r.e.) (court refused to consider for
the first time on appeal argument that 1979 enactment of section 18(f) of the
housing act was repealed by 1981 amendment.of section 23 of the motor carrier act).
Your specific question is whether the exception applies to a registered
installer who contracts to “pick up [a] used home at the sales lot, deliver it to the
homesite, and block and anchor the used home in accordance with state installation
standards.” Section 18(f)clearly applies to the situation you describe. We do not
address the issue of whether the section 18(f) exemption would apply to a registered
installer’s transportation of a manufactured home that he did not install.
%here is no indication in the legislalive history that the addition of the quotedlanguageto
section 23 in 1981 was intended to repeal or limit the scope of section 18(1) of the housing act. SW
House Research Organization,Doily Floor Repon at 2 (March 26, 1981); SECalso Senate Transp.
Comm. Bill Analysis, S.B. 530 at 1, 67th Leg. (1981) (bill concerns collective ratcmakingprocedures
and services).
p. 74
Honorable Chet Brooks - Page 4 (DM-16 )
Installers who possess valid certificates of registration as
required by the Texas Manufactured Housing Standards Act,
article 5221f, V.T.C.S., are exempt from the certificate
requirements of the Texas Motor Carrier Act, article 911b,
V.T.C.S., with regard to their transportation of manufactured
homes that they install at the consumers’homesites.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KBLLBR
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 75