Untitled Texas Attorney General Opinion ( 1974 )

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February 28, 1974
The Honorable Jackie W. St. Clair Opinion No. H- 248
Commissioner
Bureau of Labor Statistics Re: Construction of H. B.
Sam Houston Building . 956, 62nd Leg., amending
Austin, Tewa Art. 5221f, ,V. T. C. S., and
H.B. 1193, 63rd Leg., both
relating to regulation of
mobile home8
Dear Mr. St. Clair:
Your request for an opinion involves numerous questions pertaining
to the construction of Article 5221f, V. T. C. S., The Texas Mobile Homer
Standards Act, hereinafter called “t’he Act. ”
Your first question asks:
“Does H. B. 956, passed in 1971,
amend in its entirety S. B. 153, otherwiee
known as the Uniform Standards Act for
mobile homes?”
It was decided in Attorney General Opinion M-961 (1971) that H. B.
956 completely revised and extended the scope of S. B. 153.~ The opinion
stated:
11. . In addition to providing standaids for
the installation of plumbing, heating, and
electrical systems in mobile homes, the
Article as amended alsb provides for uniform
standards in requirements for the body and
frame design and construction of mobile homes.
Instead of requiring that dealers and manu-
facturera of mobile )omesbe licensed, the
... p. 1141
/
The Honorable Jackie W. St. Clair, page 2 (H-248)
Article now provides for a system whereby
manufacturers will be issued a certificate
of acceptability upon certification that
mobile homes will be manufactured in
compliance with the established standards.
Each mobile home manufactured and sold
within the State must also bear a seal issued
by the department which indicates that the
mobile brne was manufactured in compliance
with uniform standards. The Article as
amended further makes it unlawful to msnu-
facture or sell a mobile home within the
State except in compliance with the standards
established pursuant to the Article.
11 . . Although House Bill 956, does not
contain a repealing clause, we are compelled
to the conclusion that Article 5221(f) as
amended is quite clearly intended to embrace
the entire body of law on the subject of the
regulation of the manufacture and sale of
mobile homes. It is a complete substitute
for the prior law on this subject and repeals
the prior Act even though House Bill 956
contains no repealing clause. Commercial
Code Co. v. American Manufacturing Co. ,
155 S.W.2d 834 (Tex. Civ. App. 1941, error
ref. ); Luse v. The City of Dallas, 131 S.W.
2d 1074 (Tex. Civ. App. 1939, error ref. ). ‘I
We reaffirm that opinion.
Your second question asks:
“Under Section 3 part (f) of the above
referred bill; is a board member entitled to
$25. 00 per day plus all expenses incurred
p. 1142
. . .
The Honorable Jackie W. St. Clair. page 3 (H-248)
including travel, lodging, meals and all
incidental expenses while on authoriaed
business of the board without submitting
receipts for his expenses?”
Article 5221f, 5 3(f), provides as follows:
“A member of the board is not entitled
to salary for duties periormed as a member
of the board, but he shall be entitled to $25
each day he is in attendance at meetings or
hearings or on authorized business of the
board, including time spent in traveling to and
from the place of the meeting, hearing or other
authorized business. Each member of the
board shall also be entitled to reimbursement
for travel and other necessary expenses incurred
in performing official duties. ”
We believe that under the plain meaning of this statute the reimbursement
for travel expenses is in addition to the $25. 00 per diem allowance.
Concerning the rate and manner of payment, we believe that your board
members come under the exceptions provided in s 15a of Article V of the current
Appropriations Act which provides as follows:
“Judicial officers authorized by law
and executive heads of State agencies, including
the Executive Director of the Legislative
Council, shall be reimbursed for their actual
meals, lodging and airport parking fees
0 (exclusive of expenses related to personally
owned automobiles and commercial transpor-
tation which shall be paid as provided under
other sections of this Article) when traveling
on official business either in or out of the
State. ”
p. 1143
. .
The Honorable Jackie W. St. Clair, page 4 (H-248)
Section 12(b)(l) of Article V of the Appropriation Act requires that
expenses for public transportation be evidenced by receipts “excluding
receipts for bus, taxi or limousine fares. ”
There is no requirement for receipts of any other expenditures.
Summing up, we believe that your board members are entitled to a
$25 per diem allowance while on authorized business of the board plus
actual expenses of travel (except that they are entitled to only 12$. per mila
for use of private automobiles) and that receipts for expenses are required
only for public transportation with the exceptions stated above.~
Your third question asks:
“Does the Performance Certification
Board have the authority under Section (3)
Paragraph (h) to recommend to the Com-
missioner of the Bureau of Labor Statistics
what positions they will require and how many
people will be in each position to carry out the
functions and duties assigned to it in this Act?”
Section 3(h) provides:
“All staff assistance deemed necessary
by the board to carry out the functions and
duties assigned to it in this Act shall be provided
by the department and shall functioI’1under the
supervision of the administrative head of the
department.” (emphasis added)
The Performance Certification Board is an independe I& ody appointed by
the Governor with its functions and duties enumerated in the Act. However, it
was not independently funded by the current Appropriation Act, (Acts 1973, 63rd
Leg., ch. 659, pp. 1786, 1989). Instead, the funds necessary to carry out the
Mobile Home Standards Act were placed in the budget of the Bureau of Labor
Statistics.
p. 1144
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The Honorable Jackie W. St. Clair, page 5 (H-248)
The Act contemplates that the Board will set the standards and
requirements for the industry and that the,Department will enforce them.
The Board functions within the structure of the Department. It is there-
fore our opinion that the legislature intended by the statute that while the
Board may recommend to the Commissioner of the Bureau of Labor
Statistics what personnel requirements it deems necessary, overall finan-
cial responsibilityfor the Department rests with the Commissioner, and
there is nothing in the Act that would require him to follow such recommez-
dations.
Your fourth question asks:
“Since H. B. 956 does not define
‘person’, our question is: Does sub-
paragraph (2) of Section (4) prohibit the
sale of a mobile home in the State of Texas
by anyone (citizen or consumer, dealer
or manufacturer) unless that mobile home
meets the plumbing, heating. and electrical
code adopted by the Board? ”
Section 4(a)(2) states:
I
“It is unlawful for any person to
sell or offer for sale within this State any
mobile home manufactured after the effec-
tive date of this Act unless such mobile
home meets the plumbing, heating and
electrical installation r.equirements adopted
by the board pursuant to this Act. ”
The term “person” is not defined in this Act. However, “person” was
defined in Art. 5221f 5 2(g) prior to its amendment as including all pereocs,
partnerships and companies, corporations or associations engaged in maxu-
facturing or selling mobile homes. The Code Construction Act, Art. 5429b-2
I
§ 1. 04 (2), V. T. C. S., states:
-
p. 1145
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The Honorable Jackie W. St. Clair. page 6 (H-248)
‘I ‘person’ includes corporation, orga-
nization, government or governmental sub-
division or agency, business trust, estate,
trust, partnership, association, and any other
legal entity. ”
It is our opinion that Article 522lf, $ 4(a)(2) prohibits the sale by any
consumer, dealer or manufacturer of any mobile home manufactured
after the effective date of the adoption of standards and requirements of
installation of plumbing, heating and electrical systems unless the mobile
home meets these requirements.
Your fifth question is:
“In the event a person sells a mobile home
that does not meet the code requirements, what
legal action can this division (mobile home
division) take against the alleged offender?”
Provided the mobile home in question is otherwise subject to the Act,
this question is answered by the provisions of $ 12(c) and (d) which state:
“(c) The department may obtain injunctive
relief from any court of competent jurisdiction
to enjoin the sale or delivery of any mobile
home in this state upon an affidavit of the depart-
ment specifying the manner in which such mobile
home does not conform to the requirements of this
Act or to the rules and regulations issued by the
department pursuant hereto.
“(d) Any person who manufacturel r] s, sells,
or offers for sale a mobile home in this state in
violation of the provisions of this Act shall be
guilty of a misdemeanor and upon conviction thereof
shall be punishable by a fine not exceeding Two
Hundred Dollars ($200) per day or by confinement
not exceeding 30 days, or both. ”
p. 1146
V V
The Honorable Jackie W. St. Clair, page 7 (H-248)
The Department may obtain an in.junction to enjoin the sale of a
mobile home that does not conform to the requirements set forth in the
Act or to the rules and regulations issued by the Department. A person
who se118 a mobilehome in violation of the Act may be subject to a fine
not exceeding $200 and/or confinement not exceeding 30 days.
Your sixth question asks:
“Under Section (5) Paragraph (a) can
a manufacturer in Texas ship mobile homes
to other states without a certificate or State
seal affixed to same? ”
The applicable provisions of the Act are § $ 5(a) and 7(a) which must be
read together. Section 5(a) provides:
“It is unlawful for any manufacturer
to manufacture mobile homes in this State
more than twelve months after the formal
adoption and promulgation of standards and
requirements for the body and frame design
and construction of mobile homes unless
such manufacturer has been issued a certificate
of acceptability for such mobile homes from
the department. This provision shall not,
however, apply to mobile homes manufactured
in this state and designated for delivery to and
sale in a state that has a code that is inconsis-
tent with this Act. I’ (emphasis added)
Section 7(a) states:
“No manufacturer who has received
a certificate of acceptability from the depart-
ment may sell or offer for sale in this State
mobile homes unless such mobile homes bear
the seal of approval issued by and purchased
from the department. ” (emphasis added)
p. 1147
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The Honorable Jackie W. St. Clair, page 8 (H-248)
Section Z-106(1) of the Uniform Commercial Code defines sale as
follows:
“A ‘sale’ consists in the passing of title from
the seller to the buyer for price (Section 2. 401). ”
These provisions allow a Texas manufacturer to ship mobile homes to other
states without a certificate or State seal if the homes are not sold or offered
for sale in Texas.
Your seventh question states:
“Under Section (5) Paragraph (c) can a
dealer change or alter the construction of a
mobile home prior to delivering of same such
as cutting holes in the sidewalls for a room air’
conditioner or removing water heaters? ”
Section 5(c) &ate*:
“No mobile home for which a certificate
of acceptability had been issued shall be modified
in any way prior to installation without prior
written approval of the department. I’
Under the provisions of this Section, a dealer may not make any changes
or modifications in the body or frame design or construction or in the plumbing,
heating or electrical systems of any, mobile home prior to installation without
approval of the Department. Of course, this provision applies to mobile homes
manufactured after the effective date of the Act or the standards adopted by the
Board.
Your questions 8 and 9 are related and therefore will be answered together
They are as follows:
“8. Under Section (6) can the department
post a prohibited sales notice on a mobile home
p. 1148
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The Honorable Jackie W. St. Clair, page 9 (H-248)
at a dealers location when the unit does
not comply with the State Code or does not
meet the requirements of this Act?
“9. If the dealer sells a unit posted
with a prohibited sales notice and delivers
it while the prohibited sales notice is still
in effect, what legal action can the depart-
ment take against the dealer under Section
(6) of this Act 7 ”
Section 6 states:
“It is unlawful for any dealer within
or without this State to sell or offer for sale
to dealers or to the public of this State any
mobile home manufactured more than twelve
months after the adoption or promulgation of
the Code unless said mobile home complies
with the Code, bears a seal of approval issued
bye the department, and is the manufactured
product of a manufacturer possessing a current
certificate of acceptability issued by the
department. ”
Section 6 requires a seal on any mobile home manufactured more than 12
months after the adoption of promulgation of standards and requirements by
the Board that is offered for sale within this State.
Subsection (e) of § 5 of the Act authorizes the Department to “make
and enforce rules and regulations reasonably required to effectuate the
provisions of this Act. . ” We believe that if rules and regulations are
properly promulgated under this provision contemplating the posting of a
prohibited sales notice on a mobile home at a dealer’s location when the unit
does not comply with the state code or meet the requirements of the Act,
then such posting or tagging would be authorized.
p. 1149
The Honorable Jackie W. St. Clair, page 10 (H-248)
Sections 12 (c) and (d), quoted above, provide the remedies available
to the department if a dealer sells a unit posted with a prohibited sales
notice and delivers it while the prohibited sales notice is still in effect.
Your tenth question asks:
“Under Section (7) Paragraph (b) if a
dealer acquires a used mobile home built
prior to any code being adopted in Texas, is
that dealer required to make modifications in
order to meet the code in effect at the time he
seals it and sells it?”
Section 3 of Chapter 896, 62nd Legislature, amendingArticle 5221(f)
provides, “No mobile home manufactured or sold prior to the time limitation
included in this Act shall be effected by its provisions. ” (p. 2771) Section
7(b) of the amended Act states that, “Any dealer who has acquired a used
mobile home without a seal may apply to the department for a seal along with
an affidavit that the unit has been brought up or meets the Code. ” (emphasis
added) “May” ordinarily connotes discretion or permission, and it will not
be treated as a word of command unless there is something in the context or
subject matter of the act to indicate that it was used in that sense. 53 Tex.
Jur. 2d Statutes, § lb. Section 3 exempts any mobile home manufactured prior
to the effective date of this Act and Section 7(b) of the amended Act is merely
permissive. It allows but does not require the dealer to bring an exempted
mobile home up the standards set by the Board and to thereby qualify the
unit for a seal of approval issued by the Department.
Your eleventh question asks:
“Under Section (12) Paragraph (d)
again we have the question of the definition
of ‘person’ referred to therein and whether
thi,s applies to a consumer or owner of a
used mobile home?”
p. 1150
. . *
The Honorable Jackie W. St. Clair. page 11 (H-248)
Section 12(d) provides in part:
“Any person who manufacture[ r] s, sells,
or offers for sale a mobile home in this state in
violation of the provisions of this Act shall be
guilty of a misdemeanor. . , ”
Article 5221f does not define the term “person, ” but as we pointed
out in answer to your question number 4, the term “person” is construed
to include a consumer or owner of a mobile home. Section 12(d) and $ 4(a)(2)
and (b)(2) make no distinction between the sale of new mobile homes and the
sale of used mobile homes. If the mobile home, new or used, falls within
a provision of this Act in being manufactured within the time limitations set
out, it must meet the requirements.
Your twelfth question asks:
“Under Section (12) Paragraph (a) who has
authority to hold a hearing for alleged violations
under this Act?”
Section 12(a) states:
“Any manufacturer who violates or fails
to comply with this Act shall be notified in
writing setting forth facts describing the alleged
violation and instructed to correct the violation
within 60 days. Should the manufacturer fail
to make the necessary correction(s) within the
specified time, the department may, after notice
and hearing, suspend or revoke any certificate
of acceptability if it finds that:
“(1) the manufacturer has failed to pay
the fees authorized by this Act: or that
“(2) the manufacturer, either knowingly
or without the exercise of due care to prevent
p. 1151
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The Honorable Jackie W St. Clair, page 12 (H-248)
the same, has violated any provision of
this Act or any regulation or order lawfully
made pursuant to and within the authority
of this Act.
‘l(b) The hearing shall be held upon
15 days’ notice in writing setting forth the
time and place thereof and a concise state-
ment of the facts alleged to sustain the
suspension or revocation and its effective
date shall be set forth in a written order
accompanied by findings of fact and a copy
thereof shall be forthwith delivered to the
manufacturer. Such order, findings, and
the evidence considered by the department
shall be filed with the public records of the
department. ” (emphasis added)
In accordance with $12(a) and (b), it is clear that the department must
hold the hearing for alleged violations under the Act. As seen earlier the
Board sets the standards and requirements while the Department enforces
them. I
Your thirteenth question asks:
“Can the Performance Certification
Board revoke or amend a rule promulgated
by the Bureau of Labor Statistics under
authority given the Bureau or Department in
Section (5) Paragraph (e)?”
Section 5 (e) states:
“The department shall make and
enforce rules and regulations reasonably
required to effectuate the provisions of
this Act and may amend or revoke any
rule it makes. ”
p. 1152
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The Honorable Jackie W. St. Clair, page 13 (H-248)
Section 4 gives the Board the same rule making authority in setting
standards and requirements necessary to protect the public. As long as
the Department’s rules do not encroach upon the area reserved to the Board
under $4, only the Department may amend or revoke its rules.
The next three questions that you ask concern House Bill 1193 which
amends Article 5221f by adding 5 5 14 through 17. (H. B. 1193, Acts 1973,
63rd Legislature, Ch. bob, p. 1673). The Act establishes standards for
the anchoring, tying down, or securing of mobile homes. The first two
questions are related and thYefore will be answered together. They are as
follows:
14. “Do owners of existing mobile
homes located in a mobile home park have
to anchor their homes in accordance with
the standards adopted on the effective date
of this Act?”
15. “If, after the effective date,
an owner who has not met the requirements
of the tie-down standards, later moves his
mobile home, would he be required to meet
the standards then in effect? ”
The first part of 5 14 requires the Performance Certification Board
to establish minimum standards for the blocking, anchoring and securing
of mobile homes. Section 14 further states:
“From and after one hundred eighty (180)
days following the effective date of the
minimum standards established and promul-
gated by the Board, or any subsequent
changes or modifications :hereof, no person
shall occupy or inhabit any mobile home
purchased after the effective date of such
standards and which is situated or located
within three hundred (300) feet of any other
p. 1153
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The Honorable Jackie W. St. Clair, page 14 (H-248)
mobile home, residence, building or
structure which is occupied or inhabited
unless such mobile home is blocked,
anchored or secured in accordance with
such minimum standards. ” (emphasis
added)
The provisions of this act are expressly made applicable only to mobile
homes purchased after the effective date of any rules and standards adopted
by the Board; and therefore, the act would not be applicable to a mobile
home existing at the time the Act goes into effect. The fact that an owner
or occupant of a mobile home not covered by this Act moves or relocates
his home after the effective date of the rules, does not effect the answer.
The act only applies to mobile homes purchased after the effective date of
the rules and standards.
Your last question states:
“Under Section (lb) of H. B. 1193,
which states the fee will be paid to the
Board or the local governmental sub-
division making the inspection, will this
fee be paid to the department in a special
fund to pay for the enforcement of this
Act? This question is asked because the
Board employs no personnel of its own
and use[s] the department’s personnel
to make the inspections? I’
Section lb of the Act authorizes the Board to set a fee, not to exceed
$10, for the inspection of mobile home tie down and anchoring devices. It
further provides that the fee shall be paid by the owner of the mobile home
to the Board or to the local governmental subdivision making the actual
inspections. There is no express provision in 5 lb designating what fund
these fees are to be deposited to or who is to control them.
As noted earlier, H. B. 1193 amended Article 5221f by adding 5 $14
p. 1154
The Honorable Jackie W. St. Clair. page 15 (H-248)
through 17. These sections are. therefore, a part of the Mobile Homes
Standards Act and must be read together with the Act.
Section 11 provides in part:
“(a) The board with the advice of
the department shall establish a schedule
of fees to pay the cost incurred by the
department for the work relating to the
administration and enforcement of this Act.
‘l(b). . ..
“(c) . . .
l’(d) All fees shall be paid to the state
treasury and placed in a special account
for the use of the department in the admin-
istration and enforcement of this Act. ”
Section 11(d) provides that the funds deposited into the Special Fund
are to cover the cost of the administration and enforcement of the Act. The
cost of tie-down equipment inspections would certainly bea proper part d
this cost. Section 11(d) further provides that the Special Fund is for the sse
of the Department. This coupled with the fact that the funds appropriate&
to this Act are given to the Department and not the Board indicates that Pe
Department has the use and control of these funds. It should be noted tbrt
the Department may not expend unappropriated money raised by fees set
by the Board. It is limited to the amount appropriated by the Legislaturr.
H-154 (1973).
SUMMARY
1. Article 5221f, V. T. C. S., The Texas Mobile
Homes Standards Act, (H. B. 956 and H. B. 1193) amends
in its entirety S. B. 153, Acts 1969. 61st Leg., ch. 656,
p. 1954.
p. 1155
V V . .
The Honorable Jackie W. St. Clair, page 16 (H-248)
2. Under 5 3(f). a board member is entitled
to $25. 00 per day plus a reimbursement for travel
and other necessary expenses incurred in performing.
official duties. In accordance with the Appropriationa
Act, H.B. 139, 1973. 63rd Leg., V-39, receipts for
public transportation must be submitted.
3. The Performance Certification Board has
the authority under $ 3(h) to recommend to the
Commissioner of the Bureau of Labor Statistics
what personnel requirements it deems necessary,
but the Commissioner is not required to follow such
recommendations.
4. Section 4(2) prohibits the sale of a mobile
home by a consumer, dealer, or manufacturer unless
that mobile home meets the plumbing, heating and
electrical code adopted by the Board.
5. In the event a person sells a mobile home
that does not meet the code req