Does a registered manufactured-housing installer need a Railroad Commission certificate to haul the home?

Texas AG Opinion DM-0016: Registered Manufactured-Housing Installers Exempt From Motor Carrier Certificates

Plain-English summary

A state senator asked whether a person who installs manufactured housing, and who already holds a valid registration certificate under the Texas Manufactured Housing Standards Act, also has to get a certificate of public convenience and necessity from the Railroad Commission under the Texas Motor Carrier Act before hauling the home.

The Attorney General said no. The Motor Carrier Act gave the Railroad Commission authority over transporting property for hire and generally required regulated carriers to obtain certificates. But the housing act contained an exemption, section 18(f), saying that, "notwithstanding any provisions of any other statute," a registered retailer or installer does not need any permit, certificate, or license to transport manufactured housing to the place where it will be installed, except as required by the Department of Licensing and Regulation or the highway department. Someone argued the exemption had been knocked out by section 23 of the Motor Carrier Act, a repealer clause covering conflicting laws. The Attorney General disagreed, working through the legislative timeline. The housing-act exemption was added in 1979 and re-enacted in 1985 and 1987, all after the motor carrier act's 1929 repealer and even after a 1981 amendment to that repealer. Because the more specific exemption came later in time and applied "notwithstanding any other statute," it prevailed.

The senator's specific scenario was an installer who picks up a used home at the sales lot, delivers it to the homesite, and blocks and anchors it to state standards. The opinion held section 18(f) clearly covered that. It expressly declined to address whether the exemption would reach an installer hauling a home that the installer did not install.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Both the Motor Carrier Act and the Manufactured Housing Standards Act cited here have since been amended and recodified (manufactured-housing regulation now sits in the Occupations Code), and trucking regulation in Texas was substantially restructured after 1991. Verify current law before relying on any specific rule or citation mentioned here.

Common questions

Did a registered manufactured-housing installer need a Railroad Commission certificate to move the home?
Under this opinion, no, not for a home the installer installs at the homesite. Section 18(f) of the housing act exempted registered retailers and installers from those certificate requirements for that transportation.

What about the Motor Carrier Act's repealer clause?
The opinion concluded the repealer did not wipe out the exemption. Because the housing-act exemption was enacted and re-enacted after the repealer (and after its 1981 amendment), the later, more specific exemption controlled.

Did the opinion cover hauling a home the installer did not install?
No. The Attorney General expressly declined to address whether section 18(f) would apply to a registered installer transporting a manufactured home that the installer did not install.

Background and statutory framework

The Motor Carrier Act, article 911b, authorized the Railroad Commission to regulate transportation of property for compensation, set rates, and require certificates of public convenience and necessity from common and specialized motor carriers. Section 23 of that act, part of the original 1929 enactment, repealed conflicting laws, and a 1981 amendment added the phrase "except as otherwise provided in this Act." The Manufactured Housing Standards Act, article 5221f, regulated the manufacture, sale, and installation of manufactured housing, defined "installation" to include transporting the home to the site along with foundation work and anchoring (section 3(10)), and barred unregistered persons from performing installation functions (section 7(d)). Section 18(f), added in 1979 and amended in 1985 and 1987 (the 1987 change came through House Bill 855 to cover both registered retailers and installers), exempted registered installers from securing permits or certificates for transporting housing to the installation site. Applying the rule that a later, more specific enactment controls over an earlier conflicting one, and noting nothing in the 1981 amendment's legislative history showed an intent to repeal section 18(f), the opinion concluded the housing-act exemption prevailed for the installer scenario presented.

Citations

Statutory provisions:

• V.T.C.S. art. 911b, §§ 4(a), 5, 5a, 23 (Texas Motor Carrier Act; commission authority, certificate requirements, repealer clause)
• V.T.C.S. art. 5221f, §§ 3(10), 4, 7(d), 18(f) (Texas Manufactured Housing Standards Act; installation definition, registration, transportation exemption)

Legislative history referenced: Acts 1929, 41st Leg., ch. 314; Acts 1979, 66th Leg., ch. 625; Acts 1981, 67th Leg., ch. 30; Acts 1985, 69th Leg., ch. 846; Acts 1987, 70th Leg., ch. 1134 (House Bill 855).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0016
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0016.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

April 16, 1991

Honorable Chet Brooks
Chairman
Health and Human Services Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. DM-16

Re: Whether certain registered installers of manufactured housing must obtain certificates of necessity and public convenience from the Railroad Commission pursuant to article 911b, V.T.C.S. (RQ-2161)

Dear Senator Brooks:

You ask whether an installer of manufactured housing who possesses a valid certificate of registration in accordance with the Texas Manufactured Housing Standards Act, article 5221f, V.T.C.S., must obtain a certificate of necessity and public convenience from the Railroad Commission pursuant to the Texas Motor Carrier Act, article 911b, V.T.C.S.[1]

The motor carrier act authorizes the Railroad Commission to regulate the transportation of property for compensation or hire, to prescribe or approve the maximum and minimum rates of regulated carriers, and to adopt regulations ensuring the safety of those carriers' operations. V.T.C.S. art. 911b, § 4(a). Regulated carriers must obtain certificates of public convenience and necessity from the Railroad Commission. Id. §§ 5 (certificate requirements for common carriers), 5a (certificate requirements for specialized motor carriers). Section 23 of the motor carrier act provides:

All laws and parts of laws in conflict herewith are hereby expressly repealed. Provided, however, that nothing in this act shall be construed as giving legislative sanction to any act that would violate the provisions of the Anti-Trust laws of Texas except as otherwise provided in this Act.

The housing act authorizes state regulation of the manufacture, sale, and installation of manufactured housing. V.T.C.S. art. 5221f, § 4 (authority for adoption of state installation and construction requirements). A person may not perform any installation functions on manufactured housing unless he possesses a valid certificate of registration. Id. § 7(d). Section 3(10) defines "installation" to mean:

the transporting of manufactured homes or manufactured home components to the place where they will be used by the consumer, the construction of the foundation system, whether temporary or permanent, and the placement and erection of a manufactured home or manufactured home components on the foundation system, and includes supporting, blocking, leveling, securing, anchoring, and proper connection of multiple or expandable sections or components, the installation of air conditioning, and minor adjustments.

Section 18(f) of the housing act provides in pertinent part:

Notwithstanding any provisions of any other statute, regulation, or ordinance to the contrary, a registered retailer or installer is not required to secure any permit, certificate, or license or pay any fee for the transportation of manufactured housing to the place where it is to be installed, except as required by the department [Texas Department of Licensing and Regulation] or by the State Department of Highways and Public Transportation.

In other words, section 18(f) creates an exception to certification requirements that might otherwise be applicable to installers in certain circumstances. It has been suggested that the section 18(f) exemption is not currently effective given section 23 of the motor carrier act. We disagree.

The motor carrier act was originally enacted in 1929. Acts 1929, 41st Leg., ch. 314, at 698. Section 23 was part of the original enactment. Id. § 23 at 709. The 1929 version contained the language regarding repeal of conflicting laws. The phrase "except as otherwise provided in this Act" was added to section 23 in 1981. Acts 1981, 67th Leg., ch. 30, § 3, at 69.

Section 18(f) was added to the housing act in 1979. Acts 1979, 66th Leg., ch. 625, § 17, at 1416-17. As originally added, section 18(f) applied only to installers and was not limited by its terms to registered installers. In 1985 the legislature amended section 18(f) to apply to registered installers. Acts 1985, 69th Leg., ch. 846, § 9, at 2937. Section 18(f) was subsequently and most recently amended in 1987 on passage of House Bill 855 to apply to both registered retailers and installers. Acts 1987, 70th Leg., ch. 1134, § 19, at 3888-89.

Thus, the substance of the housing act exemption was enacted after the substance of the motor carrier act repealer. Further, the most recent re-enactment of the housing act exemption followed the most recent re-enactment of the motor carrier act repealer. Therefore, the housing act exception set out in section 18(f), which applies "notwithstanding any provisions of any other statute," prevails.[2] See generally State v. [name illegible in scan], 550 S.W.2d 104, 106-07 (Tex. Civ. App.—Tyler 1977, no writ) (act later in time prevails over earlier enactment insofar as acts conflict); 67 Tex. Jur. 3d Statutes § 66 (1989) (and authorities cited therein); 1A SUTHERLAND STATUTORY CONSTRUCTION § 23.28 at 406 (4th ed. 1985) (re-enactment of statute repealed expressly or by implication invalidates previous repeal and restores statute to effective operation); see also [name illegible in scan] v. State, 668 S.W.2d 857 (Tex. App.—Austin 1984, writ ref'd n.r.e.) (court refused to consider for the first time on appeal argument that 1979 enactment of section 18(f) of the housing act was repealed by 1981 amendment of section 23 of the motor carrier act).

Your specific question is whether the exception applies to a registered installer who contracts to "pick up [a] used home at the sales lot, deliver it to the homesite, and block and anchor the used home in accordance with state installation standards." Section 18(f) clearly applies to the situation you describe. We do not address the issue of whether the section 18(f) exemption would apply to a registered installer's transportation of a manufactured home that he did not install.

SUMMARY

Installers who possess valid certificates of registration as required by the Texas Manufactured Housing Standards Act, article 5221f, V.T.C.S., are exempt from the certificate requirements of the Texas Motor Carrier Act, article 911b, V.T.C.S., with regard to their transportation of manufactured homes that they install at the consumers' homesites.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

[1] We hereafter refer to the Texas Manufactured Housing Standards Act as "the housing act" and the Texas Motor Carrier Act as "the motor carrier act."

[2] There is no indication in the legislative history that the addition of the quoted language to section 23 in 1981 was intended to repeal or limit the scope of section 18(f) of the housing act. See House Research Organization, Daily Floor Report at 2 (March 26, 1981); see also Senate Transp. Comm. Bill Analysis, S.B. 530 at 1, 67th Leg. (1981) (bill concerns collective ratemaking procedures and services).