The opinion
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 Opinion No. H- 411
Austin, Texas
Re: Construction of Article
The Honorable W. D. “Chris” Chrisner 5221f. V. T. C. S., The
Chairman Texas Mobile Homes
P&formance Certification Board Standards Act
Department of Labor and Standards
Sam Houston State Office Building
Austin, Texas
Gentlemen:
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 appli-
cation 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 vari-
ances (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 stan-
dards issued by the American National Standards Institute (ANSI) and it
is made unlawful to sell a mobile home that does not comply. The stan-
dards 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 per-
son 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 tomgrant exemptions with
reference to tie-down standards. Section 14. But we are unable to find
any express authorization for the Board to provide exemptions, exclu-
sions 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 invol-
ving 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 whitzh 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 manu-
facturers, 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 en-
forcement 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. (Em-
phasis added).
We reaffirm that conclusion and believe that coupled with the pro-
visions 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 sub-
section 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 Sub-
sections (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 prin-
ciples 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, pro-
vided 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 con-
sistent 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 stan-
dards 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 Certi-
fication Board the power and authority to interpret
and issue interpretive rulings on the Uniform Stan-
dards Code for Mobile Homes which has previously
been adopted by the Board?
a. Can such interpretive rulings be made retro-
active 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 Certifi-
cation Board is acting in a quasi-judicial capacity, rather than exercising
a legislative function. It is making an ad hoc interpretation and deter-
mination 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 inter-
p 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 regu-
lation which changes the already settled interpretation of the Uniform
Standards Code for Mobile Homes, it must weigh more carefully the deli-
cate 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 inter-
pretation 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 retro-
active 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 Depart-
ment 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. Rule-
making 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 tie-
down 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 amend-
ments 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 grand-
father clauses under Article 522lf, V. T. C. S.,
the Texas Mobile Home Standards Act, except
in the rather limited area of mobile home tie-
down standards as stated in Section 14 of that
Act.
2. The Performance Certification Board has no
authority to establish enforcement policies or pro-
cedures binding on the Texas Department of Labor
and Standards concerning any mobile home pro-
visions under the Act other than mobile home tie-
down 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 stan-
dards and requirements not adopted by the
American National Standards Institute, provided
that such standards and requiiements are respon-
sible and “reasonably consistent with the funda-
mental 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 amend-
ments are not specifically contained in the ANSI
Standard A119. 1; provided, however, that such
amendments are responsible and reasotiably con-
sistent 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