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 of Article 

5221f. V. T. C. S., The 

Texas Mobile Homes 

Standards Act 

Each of you has requested an opinion involving several questions 

pertaining to the construction of Article 5221f, V. T. C. S., the Texas Mobile 

Homes Standards Act, hereinafter referred to as “the Act”. Due to the 

similar nature of your questions, we felt it appropriate to respond to them 

in a composite opinion. 

The Act creates the Performance Certification Board (hereafter “the 

Board”) independent, of the 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 to where the jurisdiction of one 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) of Article 5221f. V. C. S., to hear 

an appeal from an interested party regarding the application to such a party of a Mobile Home Gmtitruction 

Standard, and has interpreted the applicable language of 

the ANSI Code (currently adopted as the existing Texas 

Uniform Standards Code for Mobile Homes), does the 

p. 1914 
Page 2 (H-411) 

PCB have the authority, by statute or otherwise, to 

provide enforcement exemptions, exclusions, or variances (whether prospectively or retrospectively) - or 

in any 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 of mobile homes [Sec. 4(b)]. In 

both instances the standards are to be “reasonably consistent” with standards issued by the American National Standards Institute (ANSI) and it 

is made unlawful to sell a mobile home that does not comply. The standards and requirements of Section 4 comprise The Unifoti Standards 

Code for Mobile Homes (hereafter “the Code”). 

Section 5 of the Act entrusts enforcement of the Code to the Department 

[and see also Sec. 8, Sec. 10, Sec. 121, with the exception of tie-down 

standards which are to be established and enforced by the Board under 

Set, 14. 

Section 13 of the Act reads: 

(a)Ihe board shall hear appeals brought by any 

person or party regarding the application to such person or party of any rule, regulation or standard 

promulgated pursuant to this Act. 

(b)The board shall promulgate such rules and 

regulations as necessary to the conduct of hearings 

on appeals provided for in this 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 

of its power on appeal. Generally, an administrative agency has only 

such powers as are granted it expressly and by necessary implication 

by the Legislature. Railroad Commission V. Fort Worth & D. C. Ry. Co., 

p. 1915 
Page 3 (H-411) 

161 S. 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. ); 1 TEX. 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, it has no trouble saying so, as, 

for example, Sec. 3.21 of Article 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. But we are unable to find 

any express authorization for the Board to provide exemptions, exclusions or variances for manufacturers who do not meet the construction 

standards and requirements required by Sec. 4(b), and we 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 of Sections 4(a)(2), 5(a) and 6. making 

the manufacturing 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 and procedures binding on the Texas Department 

of Labor and Standards on mobile home matters not involving mobile home tie-down standards? 

This inquiry correctly assumes that the enforcement and administration 

of mobile home tie-down standards found in Sets. 14 - 17 of the Act are 

under the supervision of the Board. 

On the other hand, the statute provides that the Department, rather 

than the Board, has the power to make and enforce rules and regulations 

in regard to all other provisions of the Act not involving mobile home 

tie-down standards. Article 5221f. ‘Sec. 5(e). The Act further provides 

that the Department shall require manufacturers to submit systems for 

p. 1916 
Page 4 (H-411) 

quali,ty control and transportation, Sec. 5(b); the Departme@ shall issue 

- 

certification of acceptabil,ity, Sec. 5(b)(l); the Departmen) t shall have the 

power to approve modifications on mobile homes whit zh have been issued 

a Certificate of Acceptability, Sec. 5(c); the Department shall have the 

power to inspect manufacturing plants, Sec. 8(a); the Department shall 

hold hearings for alleged violations of the provisions of the Act by manufacturers, Sec. 12; and - - 

All fees shall be paid to the state treasury 

and placed in a special account for the use 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, it was stated that: 

The Performance Certification Board is an 

independent body appointed by the Governor with 

its functions and duties enumerated in the 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 of the Act set out above, it clearly indicates that the enforcement 

of all provisions other than tie-down standards has been delegated to the 

Department rather than to the Board. 

Commissioner St. Clai.r’s second question is, therefore, answered in 

the negative. The Board has no authority 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* 1917 
Page 5 (H-411) 

which changes or amendments have not been made 

by the American National Standards Institute? (I 

call particular attention to the language contained 

in Section 4(c). Article 5221f, V. C. S. ) 

Subsections 4(a) and 4(b) of the Act 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 to mobile 

homes. 

These standards and requirements constitute the Uniform Standards 

Code for Mobile Homes [Subsection 4(j)]. 

Subsection 4(c) reads: 

The board may adopt and promulgate any changes 

in and additions to the standards referred to in Subsections (a) and (b) of this section made by the 

American National Standards Institute. 

If the Board has the power to adopt standards of its own under 

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 the American National Standards Institute (ANSI) 

applicable to mobile homes. ” To read the statute otherwise would be to 

destroy the intent of the Legislature. 

p. 1918 
Page 6 (H-411) 

Hence, Commissioner St. Clair’s third question receives a qualified 

affirmative answer. The Board has authority under Subsection 4(c) of 

the Act 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 to protect the health and safety of the occupants 

and the public and such changes and amendments are reasonably consistent with the fundamental Ixinciples applicable to mobile homes as 

adopted, recommended and issued by the American National Standards 

Institute. 

Commissioner St. Clair’s final question asks: 

As a matter 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 of the Board, 

where the most recent 1974 ANSI Code was 

adopted. May the Mobile Home PCB, under 

Section 4 of Article 5221f, V. C. S., adopt standards and requirements not adopted by the 

American National Standards Institute, if those 

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 to the 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 on the Uniform Standards Code for Mobile Homes which has previously 

been adopted by the Board? 

a. Can such interpretive rulings be made retroactive to mobile homes manufactured prior 

to the effective date of the ruling? 

p. 1919 
Page 7 (H-411) 

b. Is the interpretive ruling of the Board 

binding on the Commissioner of the 

Department of Labor and Standards? 

In the light of the authority given the Board by Section 13 to hear appeals 

as to the applicability of the Act, it is our opinion that the Board must 

necessarily interpret and construe the standards, rules and regulations 

whose applicability is in question in order to determine if the 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 it has the power to issue interpretive 

rulings. 

When proceeding under Sec. 13 of the Act, the Performance Certification Board is acting in a quasi-judicial capacity, rather than exercising 

a legislative function. It is making an ad hoc 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, on the other hand, is in the 

nature of a legislative function. The authorities we have cited earlier 

make it clear the existence of such a power in the Board must be in the 

express language of the Legislature or must be necessarily implied. 

It is clear from a comparison of Section 14 of the Act with Section 5(e) 

that the Legislature has expressly conferred certain rule-making powers 

upon each of the two administrative bodies in aid of their 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 in the area 

of mobile home tie-down standards, the Board should have all rule-making 

power including the power to issue interpretive rulings. Wzrther are of 

the opinion that in all other areas covered under the Act, the Legislature 

intended that the Department of Labor 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 ad hoc interpretations 

of the Uniform Standards Code for Mobile Homes when entertaining appeals 

under Sec. 13 of the 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 interp r et i ve rulings upon that part of the Uniform Standards Code for Mobile 

Homes relating to mobile 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. 16 of the Texas Constitution prohibits retroactive laws. 

Whether an “i,nterpretive ruling ‘I falls within the prohibition would depend 

upon whether it is merely a statement of the meaning of an already 

existing rule or law or, on the other hand,it results in a substantive 

change. 1 Davis, 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. In fact, such a retroactive effect may be required 

in order for the Board to satisfy its statutory duty “to protect the health 

and safety of the occupants and the public.” 

However, when the Board attempts to issue an authorized rule or regulation which changes the already settled interpretation of the Uniform 

Standards Code for Mobile Homes, it must weigh more carefully the delicate balance of legal, equitable, and constitutional rights that might be 

disturbed by a retroactive effect. 

Thus, in answer to part (a) of Chairman 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 of the Uniform Standards Code for Mobile Homes, the Board 

ruling should normally operate prospectively so as not to invade legal, 

equitable, and constitutional rights that might be disturbed. by a retroactive effect. 

pe 1921 
Page 9 (H-411) 

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

Is the interpretive ruling of the Board 

binding on the Commissioner of the 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 of the Act 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 in this 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 and procedures binding on the 

Texas Department of Labor and Standards only with regard to mobile 

home tie-down standards. 

In response to part (,b) of Chairman Chrisner’s first question, we 

therefore, are of the opinion that only the interpretive rulings of the Board 

regarding mobile home tie-down standards under Sec. 14 of the Act are 

binding on the Commissioner of the Department of Labor 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 in the 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. 1922 
Page 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 the ANSI Standard A119. 1, provided 

that: 

(1) the changes or amendments are consistent with the Board’s 

statutory responsibility to protect the health and safety of the 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 to mobile homes as adopted, 

recommended, and issued by the American National Standards Institute. 

SUMMARY 

1. The Performance Certification Board has no 

authority or power to provide for enforcement 

exemptions, exclusions, variances, or grandfather clauses under Article 522lf, V. T. C. S., 

the Texas Mobile Home Standards Act, except 

in the rather limited area of mobile home tiedown standards as stated in Section 14 of that 

Act. 

2. The Performance Certification Board has no 

authority to establish enforcement policies or procedures binding on the Texas Department of Labor 

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) of the Act 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. 4 of 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 in the 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 

p. 1924