# TWEATIWRNEYGENERAL OF TEXAS
AUSTIN. T-s 78711

September 25, 1974

The Honorable Jackie W. St. Clair Commissioner Department of Labor and Standards Sam Houston State Office Building Austin, Texas The Honorable W. D. “Chris” Chrisner Chairman P&formance Certification Board Department of Labor and Standards Sam Houston State Office Building Austin, Texas Gentlemen: Opinion No. H- 411 Re: Construction ofArticle 5221f. V. T. C.S., The Texas Mobile Homes Standards Act

Each ofyou has requested an opinion involving several questions pertaining to the construction ofArticle 5221f, V. T. C.S., the Texas Mobile Homes Standards Act, hereinafter referred to as “the Act”

. Due to the similar nature ofyour questions, we felt it appropriate to respond tothem in a composite opinion. The Act creates the Performance Certification Board (hereafter “the Board”) independent, ofthe Department of Labor and Standards (hereafter

“the Department”). Article 5221f. Sec. 3; Art. 5145, Art. 5151a, V. T.C.S. To each it assigns certain responsibilities and, apparently, there is uncertainty as towhere thejurisdiction ofone ends and the other begins. Commissioner St. Clair’s first question asks:

Once the Mobile Home PCB [the Board] has acted, under Section 13(a) ofArticle 5221f. V. C.S., tohear anappeal from aninterested party regarding the application to such aparty ofaMobile Home Gmtitruction Standard, andhas interpreted the applicable language of the ANSI Code (currently adopted as the existing Texas Uniform Standards Code for Mobile Homes), does the p. 1914Page 2 (H-411)

PCB have the authority, by statute or otherwise, to provide enforcement exemptions, exclusions, or variances (whether prospectively or retrospectively) - or inany other manner provide for a ‘grandfather clause’

- for mobile home units manufactured which do not meet the construction standards and requirements, as adopted and interpreted by the PCB? The Act directs the Board to adopt standards and requirements for the plumbing, heating and electrical systems [Sec. 4(a)]; and for the body and frame design and the construction ofmobile homes [Sec. 4(b)]. In both instances the standards are tobe “reasonably consistent” with standards issued by the American National Standards Institute (ANSI) andit is made unlawful to sell amobile home that does not comply. The standards and requirements of Section 4 comprise The Unifoti Standards Code for Mobile Homes (hereafter “the Code”). Section 5ofthe Act entrusts enforcement ofthe Code tothe Department [and see also Sec. 8, Sec. 10, Sec. 121, with the exception oftie-down standards which are to be established and enforced by the Board under Set, 14. Section 13ofthe Act reads: (a)Ihe board shall hear appeals brought by any person or party regarding the application to such person or party ofany rule, regulation or standard promulgated pursuant to this Act. (b)The board shall promulgate such rules and regulations as necessary to the conduct ofhearings onappeals 

### providedfor inthis Section. Clearly, the language authorizes the Board to determine whether a particular rule, regulation, or standard applies to the appealing party under the specific facts involved. But, that~would seem to be the extent ofits power onappeal. Generally, anadministrative agency has only such powers as are granted it expressly andby necessary implication by the Legislature. Railroad Commission V. Fort Worth &D.C. Ry. Co., p. 1915Page 3 (H-411)

161S.W. 2d 560 (Tex. Civ. App., Austin 1942, err. ref’d., W.o.m. ); Kelly v. Industrial Accident Board, 358 S.W. 2d 874 (Tex. Civ. App., Austin 1962, err. ref’d. ); 1TEX. JUR. 2d, Administrative Law and Procedure, Sec. 6; Attorney General Opinion M-609 (1970). Where the Legislature has determined to allow a regulatory body to provide exemptions from enforcement, ithas notrouble saying so, as, for example, Sec. 3.21 ofArticle 4477-5, V. T.C.S., The Texas Clean Air Act; State zoning laws, Article lOllg, V. T.C.S. The Act does give the Board authority tom grant exemptions with reference to tie-down standards. Section 14. Butwe are unable to find any express authorization for the Board to provide exemptions, exclusions or variances for manufacturers who donot meet the construction standards and requirements required by Sec. 4(b), andwe cannot find any basis to imply such authority. Any attempt by the Board to grant such an enforcement exception, exclusion, or variance would directly conflict with the provisions ofSections 4(a)(2), 5(a) and 6. making themanufacturing and sale of non-complying mobile homes illegal. Therefore, we answer Commissioner St. Clair’s first question in the negative. His second question asks:

Does the Mobile Home PCB [the Board] have authority by statute or otherwise, to establish specific enforcement policies andprocedures binding onthe Texas Department of Labor and Standards onmobile home matters notinvolving mobile home tie-down standards? This inquiry correctly assumes that the enforcement and administration ofmobile home tie-down standards found in Sets. 14- 17ofthe Act are under the supervision ofthe Board. Onthe other hand, the statute provides that the Department, rather than the Board, has the power tomake and enforce rules and regulations in regard to all other provisions ofthe Act notinvolving mobile home tie-down standards. Article 5221f. ‘Sec. 5(e). The Act further provides that the Department shall require manufacturers to submit systems for

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quali,ty control and transportation, Sec. 5(b); the Departme@ shall issue - certification ofacceptabil,ity, Sec. 5(b)(l); the Departmen) tshall have the power to approve modifications onmobile homes whitzhhave been issued a Certificate ofAcceptability, Sec. 5(c); the Department shall have the power to inspect manufacturing plants, Sec. 8(a); the Department shall hold hearings for alleged violations ofthe provisions ofthe Act by manufacturers, Sec. 12; and - -

All fees shall be paid to the state treasury and placed in a special account for theuse of the department in the administration and enforcement of this Act. Sec. 11(d). (Emphasis added). In Attorney General Opinion H-248 (1974), involving construction of the Texas Mobile Home Standards Act, itwas stated that:

The Performance Certification Board is an independent body appointed by the Governor with its functions and duties enumerated inthe Act

. . . The Act contemplates that the Board will set the standards and requirements for the industry and that the Department will enforce them. (Emphasis added). We reaffirm that conclusion and believe that coupled with the provisions ofthe Act set outabove, it clearly indicates that the enforcement ofall provisions other than tie-down standards has been delegated tothe Department rather than to the Board. Commissioner St. Clai.r’s second question is, therefore, answered in the negative. The Board has noauthority to establish enforcement policies or procedures bi,nding on the Department of Labor and Standards concerning any mobile home prov-isions under the Act other than mobile home tie-down standards. Commissioner St. Clair’s third question asks:

Doesthe Mobile Home PCB [the Board] have the authority, by statute or otherwise, to adopt changes or amendments to the previously adopted Texas Uniform Standards Code for Mobile Homes, p* 1917Page 5 (H-411)

which changes or amendments have notbeen made by the American National Standards Institute? (I call particular attention to the language contained inSection 4(c). Article 5221f, V. C.S.) Subsections 4(a) and 4(b) oftheAct respectively require the Board to adopt standards and requirements (a) for plumbing, heating and electrical systems and (b)for body and frame design and construction. Each subsection contains a subdivision (1)substantially reading:

Said standards and requirements shall be reasonably consistent with the fundamental principles adopted, recommended, or issued as ANSI Standard A119.1 and as amended from time to time by the American National Standards Institute (ANSI) applicable tomobile homes. These standards and requirements constitute the Uniform Standards Code for Mobile Homes [Subsection 4(j)]. Subsection 4(c) reads:

The board may adopt andpromulgate any changes inand additions to the standards referred toin Subsections (a) and (b) of this section made by the American National Standards Institute. Ifthe Board has the power toadopt standards ofits ownunder Subsections 4(a) and (b), then it must necessarily have the power to make changes in those standards according to Subsection 4(c) regardless of whether such changes have been recommended by the American National Standards Institute. However, in reading these three Subsections together, it is clear that the standards and requirements and any changes and amendments to them must always “be reasonably consistent with the fundamental principles adopted

. . . by theAmerican National Standards Institute (ANSI) applicable tomobile homes. ” To read the statute otherwise would be to destroy the intent of the Legislature.p. 1918Page 6 (H-411)

Hence, Commissioner St. Clair’s third question receives aqualified affirmative answer. The Board has authority under Subsection 4(c) of theAct to adopt changes or amendments to the previously adopted Texas Uniform Standards Code for Mobile Homes, which changes or amendments have not been made by the American National Standards Institute, provided that the changes or amendments are consistent with the Board’s statutdiy responsibility toprotect thehealth and safety ofthe occupants and the public and such changes and amendments are reasonably consistent with the fundamental Ixinciples applicable tomobile homes as adopted, recommended andissued by the American National Standards Institute. Commissioner St. Clair’s final question asks:

As amatter of routine, the [Board] has acted to adopt the ‘new’ ANSI Standard for Mobile Homes annually; the most recent example being at the June 24, 1974 meeting ofthe Board, where the most recent 1974 ANSI Code was adopted. May the Mobile Home PCB, under Section 4 ofArticle 5221f, V. C.S., adopt standards and requirements not adopted by the American National Standards Institute, ifthose standards and requirements are ‘reasonably consistent with the fundamental principles adopted, recommended, or issued as ANSI Standard Al 19. l’? We believe this question is answered by our answer tothe Commissioner’s third question, supra. C,hairman Chrisner’s first question asks:

Does Article 5221f give the Performance Certification Board the power and authority to interpret and issue interpretive rulings onthe Uniform Standards Code for Mobile Homes which has previously been adopted by the Board?

a. Can such interpretive rulings be made retroactive tomobile homes manufactured prior to the effective date ofthe ruling? p. 1919Page 7 (H-411)

b. Is the interpretive ruling ofthe Board binding onthe Commissioner ofthe Department of Labor and Standards? Inthe light ofthe authority given the Board by Section 13tohear appeals as to the applicability ofthe Act, it is our opinion that the Board must necessarily interpret and construe the standards, rules and regulations whose applicability is inquestion in order to determine ifthe person or party appealing is subject thereto. However, the fact that the Board has authority to interpret the Uniform Standards Code for Mobile Homes when its applicability is being appealed does not necessarily imply that ithas thepower to issue interpretive rulings. When proceeding under Sec. 13 ofthe Act, the Performance Certification Board is acting ina quasi-judicial capacity, rather than exercising alegislative function. Itis making anadhoc interpretation and determination concerning the particular standard, rule or regulation whose applicability is being challenged, and deciding whether the appealing party is subject thereto. The power to issue interpretive rulings, onthe other hand, is inthe nature ofa legislative function. The authorities we have cited earlier make it clear the existence of such apower inthe Board must be in the express language ofthe Legislature or must be necessarily implied. Itis clear from a comparison ofSection 14 ofthe Act with Section 5(e) that the Legislature has expressly conferred certain rule-making powers upon each ofthe two administrative bodies in aid oftheir respective statutory duties. Since the rule-making powers are expressly stated in the Act, there is no need to necessarily imply such powers from the other duties expressly imposed. We, therefore, believe that the Legislature intended that inthe area ofmobile home tie-down standards, the Board should have all rule-making power including the power toissue interpretive rulings. Wzrther are of the opinion that in all other areas covered under the Act, the Legislature intended that the Department ofLabor and Standards should exercise all - rule-making power, including the power to issue interpretive rulings. p. 1920.

Page 8 (H-411)

We believe, therefore,that Chairman Chrisner’s first question should be answered that the Board does have power to render adhoc interpretations ofthe Uniform Standards Code for Mobile Homes when entertaining appeals under Sec. 13ofthe Act, limited, however, to the particular standard whose applicability is being challenged and to the particular party bringing the appeal. Furthermore, the Board does have the power to issue interpretive rulings upon that part ofthe Uniform Standards Code for Mobile Homes relating tomobile home tie-down standards under Sec. 14 of the Act. The Board does not, however, have the power to issue interpretive rulings concerning any other area covered by the Code since such broad rule-making power has been expressly conferred by statute upon the Department of Labor and Standards. Article 1. Sec. 16ofthe Texas Constitution prohibits retroactive laws. Whether an “i,nterpretive ruling‘Ifalls within the prohibition would depend upon whether it is merely a statement ofthe meaning ofan already existing rule or law or, onthe other hand,it results in a substantive change. 1Davis, Administrative Law Sec.- 5.09 (1958); see Securities and Exchange Commission v. Chenery Corp., 332 U.S. 194 (1947). When the Board issues an authorized rule or regulation interpreting the Uniform Standards Code for the first time, such ruling will ordinarily have a retroactive effect. Infact, such a retroactive effect may be required in order for the Board to satisfy its statutory duty “to protect the health and safety ofthe occupants and the public.” However, when the Board attempts to issue an authorized rule or regulation which changes the already settled interpretation ofthe Uniform Standards Code for Mobile Homes, itmust weigh more carefully the delicate balance oflegal, equitable, and constitutional rights that might be disturbed by a retroactive effect. Thus, in answer to part (a) ofChairman Chrisner’s first question, we believe only the following general statements are appropriate. When issuing an authorized ruling or decision which interprets the Uniform Standards Code for Mobile Homes in the first instance, the Board ruling may have a retroactive effect, and in some situations, must be retroactive in order for the Board to comply with its statutory duties. When issuing an authorized ruling or decision which changes the already settled interpretation ofthe Uniform Standards Code for Mobile Homes, the Board ruling should normally operate prospectively so as not toinvade legal, equitable, and constitutional rights that might be disturbed. by a retroactive effect. pe1921Page 9 (H-411)

Part (b,) ofChairman Chrisner’s first question asks:

Is the interpretive ruling ofthe Board binding onthe Commissioner ofthe Department of Labor and Standards? Referring to our previous statement, the Board only has rule-making power, including the power to issue interpretive rulings, in the area of mobile home tie-down standards. Article 5221f, Sec. 14. V.T. C.S. Rulemaking power concerning all other provisions oftheAct is expressly delegated to the Department of Labor and Standards by Article 5221f. Sec. 5(e), V. T.C.S. Furthermore, in response to Commissioner St. Clair’s second question set out earlier inthis opinion, we stated that the Board has been delegated the authority to enforce mobile home tiedown standards: that the Board has access to staff assistance provided for it by the Department of Labor and Standards; and that the Board may establish specific enforcement policies andprocedures binding onthe Texas Department of Labor and Standards only with regard to mobile home tie-down standards. In response to part (,b) ofChairman Chrisner’s first question, we therefore, are ofthe opinion that only the interpretive rulings ofthe Board regarding mobile home tie-down standards under Sec. 14ofthe Act are binding onthe Commissioner ofthe Department ofLabor and Standards. Chairman Chrisner’s final question asks:

Under Article 5221f, does the Performance Certification Board have the authority to adopt amendments to the Uniform Standards Code for Mobile Homes setting standards which are not specifically contained inthe ANSI Standard A119.1 provided, however, that such amendments are responsible and consistent with the fundamental principles adopted, recommended and issued by the American National Standards Institute? We reply to this question in the affirmative relying on our previous answer in response to Commissioner St. Clair’s third question. The Board has authority under Sec. 4(c), Article 5221f. V. T.C.S., to adopt p. 1922Page 10 (H-411)

changes or amendments to the previously adopted Texas Uniform Standards Code for Mobile Homes, which changes or amendments are not specifically contained in theANSI Standard A119. 1, provided that:(1) the changes or amendments are consistent with the Board’s statutory responsibility toprotect the health and safety ofthe occupants and the public; and (2) the changes and amendments to the Uniform Standards Code for Mobile Homes adopted by the Board are reasonably consistent with the fundamental principles applicable tomobile homes as adopted, recommended, and issued by the American National Standards Institute. SUMMARY 1. The Performance Certification Board has no authority or power toprovide for enforcement exemptions, exclusions, variances, or grandfather clauses under Article 522lf, V. T. C.S., the Texas Mobile Home Standards Act, except inthe rather limited area ofmobile home tiedown standards as stated in Section 14 ofthat Act. 2. The Performance Certification Board has no authority to establish enforcement policies or procedures binding onthe Texas Department ofLabor and Standards concerning any mobile home provisions under the Act other than mobile home tiedown standards. 3. The Performance Certification Board has authority under Sec. 4(c) oftheAct to adopt changes or amendments to the previously adopted Texas Uniform Standards Code for Mobile Homes, which changes or amendments have not been made by the American National Standards Institute.

p. 1923. . ”

Page 11 (H-411)

4. The Performance Certification Board has the authority under Sec. 4of the Act to adopt standards and requirements not adopted by the American National Standards Institute, provided that such standards and requiiements are responsible and “reasonably consistent with the fundamental principles adopted, recommended, or issued as ANSI Standard A119. 1” 5. The Performance Certification Board has the authority to adopt amendments to the Uniform Standards Code for Mobile Homes, which amendments are not specifically contained inthe ANSI Standard A119. 1; provided, however, that such amendments are responsible and reasotiably consistent with the fundamental principals adopted, recommended and issued by the American National Standards Institute. Very truly yours,

APPRQVED:

DAVID M. KENDALL. Chairman Opinion Committee

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