DAN MORALES ATTORNSY 0-L 

@ffice of the Igttorntp &nerat 

%tatt of Qtxas 

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 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expressly repealed.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 Manufactured Housing Standards Act as ‘the housing act” 

and the Texas Motor Carrier Act as “the motor carrier act.’ 

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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 

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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 quoted language to 

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); SEC also Senate Transp. 

Comm. Bill Analysis, S.B. 530 at 1, 67th Leg. (1981) (bill concerns collective ratcmaking procedures 

and services). 

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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 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 

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