Mr. Joe A. Garcia 

Executive Director 

Manufactured Housing Division 

Texas Department of Housing and 

Community Affairs 

Post Office Box 12489 

Austin, Texas 78711-2489 

Dear Mr. Garcia: 

KEN PAXTON 

ATTORNEY GENERAL OF TEXAS 

May 16, 2018 

Opinion No. KP-0199 

Re: Whether the authority granted by section 

1201.461 of the Occupations Code to a 

manufactured home retailer to remove the label 

of a salvaged manufactured home is preempted 

by federal law (RQ-0194-KP) 

Regulations promulgated by the United States Department of Housing and Urban 

Development ("federal agency"), pu:rsuant to the National Manufactured Housing Construction 

and Safety Standards Act of 1974 ("Act"), require that a manufactured home for sale or lease in 

the United States bear a label certifying its compliance with federal construction and safety 

standards. 24 C.F.R. § 3280.11 (describing certification label); see generally 42 U.S.C. §§ 5401-

5426. You tell us that Hurricane Harvey damaged many retail manufactured homes within the 

State, and in the storm's aftermath, the Texas Department of Housing and Community Affairs 

Manufactured Housing Division ("state agency") issued an industry bulletin based on section 

1201.461 of the Occupations Code directing retailers to remove certification labels from 

irreparably damaged homes. 1 See Attachments at 1 (Industry Bulletin No. 2017-002) ("For home~ 

that cannot be repaired the Retailer should remove the ... labels and send them to the [ state agency] 

along with an Application for Statement of ownership electing the home as SALVAGE."); see 

also TEX. 0cc. CODE § 1201.461(c) (providing that if a new manufactured home is scrapped, 

dismantled, or destroyed,· or if an insurance company pays the full insured value of the home, the 

"retailer shall remove the label and surrender [it] ... to the director for issuance of a statement of 

ownership that indicates that the home is salvaged"). Shortly after the bulletin's issuance, you tell 

us the federal agency advised that this procedure conflicts with federal procedures requiring thirdparty inspectors, known as Production Inspection Primary Inspection Agencies ("inspection 

agencies"), to "remove all ... Labels from manufactured homes." Request Letter at 2. After 

reviewing the authorities cited by the federal agency as preempting Texas.law, however, you tell 

us you "could not identify a conflict between our statute and the federal regulations" and that on 

1

Letter and Attachments from Mr. Joe A. Garcia, Exec. Dir., Tex. Dep't of Hous. & Cmty. Affairs, Mfd. 

Hous. Div., to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Nov. 27, 2017), https://www.texasattomeygeneral.gov/ 

opinion/requests-for-opinion-rqs ("Request Letter" and "Attachments," respectively) (Attachments on file with the 

Op. Comm.). 
Mr. Joe A. Garcia - Page 2 (KP-0199) 

its own website, the federal agency "provided different "methods of how to handle salvaged 

manufactured homes." Id. You further tell us that in later communications, the federal agency 

advised that it reversed its ·position and was no longer asserting preemption.2 Given these 

inconsistencies, you seek clarification as to whether federal law preempts the authority given to 

retailers under Texas law to remove certification labels. Id. at 1-2. 

Passed by Congress to improve the quality of manufactured homes, the Act sets minimum 

construction and safety standards for manufactured homes. 42 U.S.C. § 5401. Congress expressly 

defined the preemptive reach of the Act, stating: 

Whenever a Federal manufactured home construction and safety 

standard established under this chapter is in effect, no State ... shall 

have any authority either to establish, or to continue in effect, with 

respect to any manufactured home covered, any standard regarding 

the construction or safety applicable to the same aspect of 

performance of such manufactured home which is not identical to 

the Federal manufactured home construction and safety standard. 

Federal preemption under this subsection shall be broadly and 

liberally construed to ensure that disparate State or local 

requirements or standards do not affect the uniformity and 

comprehensiveness of the standards promulgated under this section 

nor the Federal superintendence of the manufactured housing 

industry as established by this chapter. 

42 U.S.C. § 5403(d); see also Cipollone v. Liggett Grp., Inc., 505 U.S. 504,517 (1992) ("Congress' 

enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond 

that reach are not pre-empted."). Federal regulations passed pursuant to the Act additionally 

contain express preemption provisions, providing in part: 

No State or locality may establish or enforce any rule or regulation 

or take any action that stands as an obstacle to the accomplishment 

and execution of the full purposes and objectives of Congress. The 

test of whether a State rule or action is valid or must give way is 

whether the State rule can be enforced or the action taken without 

impairing the Federal superintendence of the manufactured home 

industry as established by the Act. 

24 C.F.R. § 3282.1 l(d) (emphasis added). 

We must therefore determine whether the authorization given to retailers under Texas law 

to remove certification labels from irreparably damaged homes impairs the federal 

superintendence of the manufactured home industry. See id. The Act provides that, upon delivery 

of a manufactured home, a manufacturer must provide a retailer with a label that is to be 

2Telephone Conference with Amy Morehouse, Gen. Counsel, Tex. Dep't of Hous. & Cmty. Affairs, Mfd. 

Hous. Div. (Dec. 6, 2017). · 
Mr. Joe A. Garcia- Page 3 (KP-0199) 

"permanently affixed to each manufactured home" certifying that it "conforms to all applicable 

Federal construction and safety standards." 42 U.S.C. § 5415. The Act does not address the 

removal of a label from a manufactured home that no longer conforms to federal standards. See 

id. §§ 5401-5426. In your correspondence with the federal agency, however, it identified two 

provisions as preempting the Texas law. See Attachments at 24-26. Foremost, the federal agency 

asserted that its regulations, under 24 C.F.R. § 3282.362, require that only the inspection agencies 

remove a certification label from a damaged manufactured home. Id.; see 24 C.F .R. 

§ 3282.362( c )(2)(i), (ii). These regulations contain numerous specifications for the certification 

label, including requiring that the "label shall be provided to the manufacturer only by the 

[inspection agencies]." 24 C.F.R. § 3282.362(c)(2)(i)(F) (emphasis added). The regulations do 

not, however, address the removal of a certification label from an irreparably damaged 

manufactured home. See id. § 3282.362( c )(2)(i), (ii). 

The federal agency additionally asserted preemption under an informational bulletin it 

issued discussing procedures for the labeling of manufactured homes damaged in transit: 

If an [inspection agency] has no knowledge that a mobile home is 

damaged in transit, as will often be the case, the [inspection agency J 

has no responsibility. Further, there is no requirement to inform the 

[inspection agency J that a home has been so damaged, except when 

the manufacturer wants [inspection agency] approval of the repair 

or wants to replace the damaged unit. When an [inspection agency] 

knows that a home bearing its label has been damaged, it shall, at its 

discretion ... red-tag the unit in question, or if the mobile home is 

going to be junked or destroyed rather than repaired, the [inspection 

agency] shall remove and destroy the label. 

See Attachments at 15 (Informational Bulletin 2-77) ( emphases added). Contrary to the federal 

agency's initial assertions, the plain language of the bulletin provides that when a manufactured 

home is damaged the inspection agencies will generally have no knowledge of the event nor 

responsibility, and "there is no requirement to inform [them]." See Attachments at 15. Rather, the 

federal bulletin requires only that a manufacturer contact the inspection agencies regarding a 

damaged manufactured home if it intends to repair or replace the damaged unit. Id. If contacted, 

the inspection agencies then at their discretion may either begin the process for approving repairs 

or destroy the certification label if the home cannot be repaired. See id.; see also 24 C.F.R. 

§ 3282.362( c )(2)(i)(G) ( describing process for inspection agencies to red-tag manufactured homes 

during repairs). 3 

Collectively, neither the Act nor these federal publications require a retailer to contact the 

inspection agencies to remove a certification label from an irreparably damaged home that no 

longer conforms to federal standards. Nor do these federal authorities vest the inspection agencies 

with the sole authority to remove such certifications. "The test of whether a State rule ... is valid 

or must give way is whether the State rule can be enforced ... without impairing the Federal 

3 As the federal bulletin does not conflict with Texas procedures, we need not address whether it has the 

potential to preempt state law. 
Mr. Joe A. Garcia - Page 4 (KP-0199) 

superintendence of the manufactured home industry." 24 C.F.R. § 3282.1 l(d). As a retailer may 

remove a certification label from an irreparably damaged home under the authority granted by 

Texas law without impairing the federal superintendence of the manufactured home industry, the 

Act therefore does not preempt the authority given to retailers. 
Mr. Joe A. Garcia - Page 5 (KP-0199) 

SUMMARY 

The National Manufactured Housing Construction and 

Safety Standards Act of 1974 does not preempt the authority 

provided to retailers of manufactured homes under Texas 

Occupations Code section 1201.461 to remove labels certifying 

compliance with federal standards from irreparably damaged 

manufactured homes. 

JEFFREY C. MATEER 

First Assistant Attorney General 

BRANTLEY STARR 

Deputy First Assistant Attorney General 

VIRGINIA K. HOELSCHER 

Chair, Opinion Committee 

ASHLEY FRANKLIN 

Very truly yours, 

KEN PAXTON 

Attorney General of Texas 

Assistant Attorney General, Opinion Committee