DANMORALES

ATTORNSY 0-L 

### @ffice of the Igttorntp &nerat %tatt ofQtxas April 16.1991

Honorable Chet Brooks chairman Opinion No. DM-16 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 conAustin, 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 ofmanufactured 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, $4(a). Regulated carriers must obtain certificates ofpublic convenience and necessity from the Railroad Commission. Id. g$S (certificate requirements for common carriers), 5a (certificate requirements for specialized motor carriers). Section 23 ofthe 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All laws and parts of laws in conflict herewith are hereby expressly repealed.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 hereafterreferto the Texas Manufactured HousingStandardsAct as ‘the housingact” andtheTexasMotorCarrier Actas“themotorcarrier act.’

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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, 04 (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)ofthe 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 [TexasDepartment ofLicensing and Regulation] or by the State Department ofHighways 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 ofthe motor carrier act. We disagree. The motor carrier act was originally enacted in 1929. Acts 1929,41st Leg., ch. 314, at 698. Section 23was part of the original enactment. Id. 923at 709. The 1929 version contained the language regarding repeal of conflicting laws. The

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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, 99, 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 1987,7OthLeg.,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, 550S.W.2d 104, 106-07(Tex. Civ. App.--Tyler 1977,no writ) (act later in time prevails over earlier enactment insofar as acts conflict); 67Tex. Jur. 3d Srututes 366 (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 actwas repealed by 1981amendment.of section 23 ofthe motor carrier act). Your specific question is whether the exception applies to a registered installer who contracts to “pickup [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 ofwhether the section 18(f) exemption would apply to a registered installer’s transportation ofa manufactured home that he did not install.

%here is no indicationin the legislalivehistorythatthe additionof the quoted language to section23 in 1981was intendedto repealor limitthe scope ofsection 18(1)of the housingact. SW House ResearchOrganization,DoilyFloor Repon at 2 (March26, 1981);SEC also Senate Transp. Comm.BillAnalysis,S.B.530at 1, 67thLeg.(1981)(bill concernscollectiveratcmaking procedures andservices).

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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 ofTexas 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

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