Do Texas manufactured-home dealers and installers need a license to buy refrigerants?

Plain-English summary

Texas regulates air conditioning and refrigeration contractors under article 8861, the Air Conditioning and Refrigeration Contractor License Law. One part of that law, section 10, says a person generally cannot buy refrigerants or refrigerant-containing equipment unless they hold a contractor license or a registration certificate. A separate part, section 6(f), exempts businesses that make, sell, rebuild, or install manufactured homes when they are regulated under the Texas Manufactured Housing Standards Act and work exclusively on manufactured homes. The head of the Texas Department of Licensing and Regulation asked whether the section 6(f) exemption frees those manufactured-home businesses from section 10's refrigerant-purchase rule, or whether section 10's own list of exceptions overrides the broader exemption.

The Attorney General concluded that the section 6(f) exemption covers all of article 8861, including section 10. The text of section 6(f) says "This article does not apply" to the listed manufactured-home businesses, which is sweeping language covering the whole article. By contrast, section 6(a) exempts certain other persons only "[e]xcept as provided by Section 10," and that carve-out is exactly why section 10 separately spells out exceptions for some section 6(a) groups. Nothing in section 10 says the section 6(f) exemption does not apply, and the existence of section 10's own exceptions does not mean every exception has to be written into section 10. So a qualifying manufactured-home business does not need a license or registration to purchase refrigerants. The exemption has one limit: it does not reach installation of the air conditioning components at the site where the home will be occupied, which must be done by a person licensed under the Act.

Because the answer was clear from the text and sections 6 and 10 did not conflict, the opinion did not examine legislative history. It noted that a February 1998 letter opinion on the same sections had been withdrawn, and that the Legislature significantly amended sections 6 and 10 in 1999, so the answer rests on the current statute. The opinion also flagged that section 10(b) still requires anyone who buys, sells, or uses refrigerant to comply with the federal Clean Air Act and its rules, and said it is up to the Legislature to amend article 8861 if the section 6(f) exemption is broader than intended or than federal law allows.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Manufactured-home manufacturers, retailers, rebuilders, and installers (what the opinion held for them): The opinion held that a business regulated under the Texas Manufactured Housing Standards Act that works exclusively on manufactured homes is exempt from all of article 8861, including section 10, and so did not need a license or registration to purchase refrigerants. It held the exemption did not extend to on-site installation of the air conditioning components where the home will be occupied.

The Texas Department of Licensing and Regulation (what the opinion held for it): The opinion held that section 6(f)'s "this article does not apply" language controls over section 10's purchase restriction, and reminded the Department that section 10(b) still requires compliance with the federal Clean Air Act, which the Department must regulate consistent with federal requirements.

The Legislature (what the opinion held for it): The opinion held that if the section 6(f) exemption is broader than intended or than federal law permits, the remedy lies with the Legislature to amend article 8861.

Common questions

Does a Texas manufactured-home dealer need an HVAC license to buy refrigerants?
Under this opinion, no, as long as the business is regulated under the Texas Manufactured Housing Standards Act and works exclusively on manufactured homes. Section 6(f) exempts it from the whole license law, including the refrigerant-purchase rule in section 10.

Why doesn't section 10's list of exceptions control?
Because section 6(f) says "this article does not apply" to the manufactured-home businesses, which covers section 10. Section 10 spells out exceptions only for the section 6(a) groups, whose exemption was expressly made subject to section 10. The opinion read the existence of those section 10 exceptions as not requiring every exemption to be listed there.

Is there any AC work on a manufactured home that still needs a licensed contractor?
Yes. The exemption does not cover installing the air conditioning components at the site where the home will be occupied; that must be performed by a person licensed under the Act.

Do these businesses still have to follow federal refrigerant rules?
Yes. The opinion pointed out that section 10(b) requires every person who purchases, sells, or uses refrigerant in Texas to comply with the federal Clean Air Act and its administrative rules.

Background and statutory framework

Article 8861 gives the Texas Department of Licensing and Regulation authority to license air conditioning and refrigeration contractors and enforce the Act (§§ 3, 4). "Air conditioning and refrigeration contracting" is defined in § 2(9), and a person generally may not perform it without a license unless excepted under section 6 (§§ 3B, 6). Section 6(f) exempts a person or firm licensed as a manufactured-home manufacturer, retailer, rebuilder, or installer and regulated under the Texas Manufactured Housing Standards Act (article 5221f), provided the entity engages exclusively in air conditioning and refrigeration contracting for manufactured homes and the on-site installation of air conditioning components is done by someone licensed under the Act.

Section 10 bars purchasing refrigerants or refrigerant-containing equipment without a license, a municipal-ordinance license, or a Department registration certificate, and contains its own exceptions tied to certain section 6(a) groups (§ 10(g), (i)). The opinion contrasted section 6(f)'s flat "this article does not apply" with section 6(a)'s exemption "[e]xcept as provided by Section 10," concluding the manufactured-home exemption reaches section 10. Finding the text clear, it declined to consult legislative history, citing Saint Luke's Episcopal Hospital v. Agbor for the rule that an unambiguous statute is given its common meaning without resort to construction aids. It noted the withdrawal of a February 1998 letter opinion (Letter Opinion No. 98-010) on the same sections and the 1999 amendments to sections 6 and 10, and pointed to section 10(b)'s federal Clean Air Act compliance requirement.

Citations

Statutory provisions:

• Tex. Rev. Civ. Stat. Ann. art. 8861, §§ 2(9), 3, 3B, 4, 6, 6(a), 6(f), 10, 10(b), 10(g), 10(i) (Vernon Supp. 2000)
• Tex. Rev. Civ. Stat. Ann. art. 5221f (Texas Manufactured Housing Standards Act)

Cases:

• Saint Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503 (Tex. 1997)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0303
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0303.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

November 2, 2000

Mr. William H. Kuntz, Jr.
Commissioner/Executive Director
Texas Department of Licensing and Regulation
P.O. Box 12157
Austin, Texas 78711

Opinion No. JC-0303

Re: Whether, under section 10 of the Air Conditioning and Refrigeration Contractor License Law, TEX. REV. CIV. STAT. ANN. art. 8861 (Vernon Supp. 2000), a manufacturer, retailer, rebuilder, or installer of manufactured homes must be licensed or registered in order to purchase refrigerants (RQ-0252-JC)

Dear Commissioner Kuntz:

You ask whether, under section 10 of the Air Conditioning and Refrigeration Contractor License Law, TEX. REV. CIV. STAT. ANN. art. 8861 (Vernon Supp. 2000) ("article 8861" or the "Act"), a manufacturer, retailer, rebuilder, or installer of manufactured homes must be licensed or registered in order to purchase refrigerants. We conclude that section 6(f) of article 8861 exempts manufacturers, retailers, rebuilders, and installers of manufactured homes from all of article 8861, including section 10.

Article 8861 vests the Texas Department of Licensing and Regulation (the "Department") with the authority to adopt rules for the practice of air conditioning and refrigeration contracting, to license air conditioning and refrigeration contractors, and to enforce both its rules and the Act. See id. §§ 3, 4. "Air conditioning and refrigeration contracting" is defined in article 8861 to mean "to perform or offer to perform the design, installation, construction, maintenance, service, repair, alteration, or modification of a product or of equipment in environmental air conditioning, commercial refrigeration, or process cooling or heating systems." Id. § 2(9). Under the Act, a person may not perform air conditioning and refrigeration contracting without a license, unless the person is excepted under section 6, which contains numerous exemptions. See id. §§ 3B, 6. Subsection (f) of section 6 exempts manufacturers, retailers, rebuilders, or installers of manufactured homes. See id. § 6(f).

Your question concerns the relationship between the exemption provided in subsection (f) of section 6 for manufacturers, retailers, rebuilders, or installers of manufactured homes and section 10. Section 6(f) provides as follows:

This article does not apply to a person or firm that is licensed as a manufacturer, retailer, rebuilder, or installer and regulated pursuant to the Texas Manufactured Housing Standards Act (Article 5221f, Vernon's Texas Civil Statutes) and that engages exclusively in air conditioning and refrigeration contracting for manufactured homes provided that the installation of air conditioning components at the site where the home will be occupied is performed by a person licensed under this Act.

Id. § 6(f). Section 10 of the Act provides that a person may not purchase refrigerants or equipment containing refrigerants unless the person is licensed under the Act or a municipal ordinance or holds a certificate of registration with the Department. See id. § 10(a)-(f). Section 10 contains two exemptions. First, a purchaser may purchase refrigerants "if that person's use is exempt under Section 6(a)(1), (3), (5), (6), or (7) of this Act if the person is authorized to do so under other state or federal law and is not required to provide to a seller evidence of the exemption." Id. § 10(g). In addition, section 10 does not apply to persons exempt under section 6(a)(3), (5), or (7). See id. § 10(i).

You ask whether section 6(f) exempts manufacturers, retailers, rebuilders, or installers of manufactured homes from all of article 8861, including section 10, or whether the language in section 10 specifically excepting certain persons from its scope preempts the general language in section 6(f).[1] We believe that the former construction of sections 6 and 10 is correct.

Sections 6 and 10 are both part of article 8861. On its face, subsection (f) of section 6 exempts manufacturers, retailers, rebuilders, or installers of manufactured homes from article 8861 in its entirety: "This article does not apply to . . . ." TEX. REV. CIV. STAT. ANN. art. 8861, § 6(f) (Vernon Supp. 2000) (emphasis added). This is in contrast to section 6(a), which exempts certain persons from the Act, "[e]xcept as provided by Section 10 of this Act." Id. § 6(a) (emphasis added).

Furthermore, no provision in section 10 indicates that the section 6(f) exemption is not applicable to the restrictions regarding the purchase of refrigerants. Although section 10 does provide certain exemptions for persons who fall within section 6(a), that is because, as we have seen, section 6(a) specifically provides an exemption to the Act, "[e]xcept as provided by Section 10." Id. These exemptions in section 10 do not suggest that all exceptions from section 10 must be specifically spelled out in section 10 and may not be found elsewhere in article 8861.

In sum, we conclude that manufacturers, retailers, rebuilders, and installers of manufactured homes who are exempted from article 8861 by section 6(f) are not subject to section 10 of article 8861. The section 6(f) exemption is limited to a person or firm that is licensed as a manufacturer, retailer, rebuilder, or installer and regulated pursuant to the Texas Manufactured Housing Standards Act and engages exclusively in air conditioning and refrigeration contracting for manufactured homes. See id. § 6(f). Furthermore, the exemption does not apply to the installation of air conditioning components at the site where the home will be occupied. See id.

Because we believe that the answer to your question is plain from the face of article 8861 and that sections 6 and 10 are not in conflict, we need not examine the statute's legislative history or resort to rules of statutory construction for reconciling conflicting provisions. See Saint Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997) ("When a statute is clear and unambiguous, courts need not resort to rules of construction or extrinsic aids to construe it, but should give the statute its common meaning. The Legislature's intent is determined from the plain and common meaning of the words used.") (citations omitted). Moreover, the 1998 letter opinion you mention in your query addressing sections 6 and 10 is not relevant. This office issued that letter in February 1998 and later withdrew it.[2] Sections 6 and 10 were significantly amended by the Seventy-Sixth Legislature in 1999.[3] We address your question in light of article 8861 as it is presently written.

Finally, we note that section 10(b) provides that "[e]ach person who purchases, sells, or uses a refrigerant in this state shall comply with the requirements of the federal Clean Air Act and the federal administrative rules adopted under that Act," TEX. REV. CIV. STAT. ANN. art. 8861, § 10(b) (Vernon Supp. 2000) and requires the Department to regulate the use and sale of refrigerants consistent with those requirements, see id. It is for the legislature to amend article 8861 if the section 6(f) exemption is broader than that body intended or federal law permits.

SUMMARY

A person or firm that is licensed as a manufacturer, retailer, rebuilder, or installer and regulated pursuant to the Texas Manufactured Housing Standards Act and engages exclusively in air conditioning and refrigeration contracting for manufactured homes is not subject to section 10 of the Air Conditioning and Refrigeration Contractor License Law. See TEX. REV. CIV. STAT. ANN. art. 8861, §§ 6(f), 10 (Vernon Supp. 2000). This exemption does not apply to the installation of air conditioning components at the site where the home will be occupied. See id. § 6(f).

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee

[1] See Letter from Mr. William H. Kuntz, Jr., Commissioner/Executive Director, Texas Department of Licensing and Regulation, to Honorable John Cornyn, Texas Attorney General at 2 (June 29, 2000) (on file with Opinion Committee).

[2] See Letter from Sarah J. Shirley, Chair, Opinion Committee, to Honorable Carlos Truan, Chair, Committee on International Relations, Trade and Technology, Texas State Senate (June 10, 1998) (withdrawing Letter Opinion No. 98-010) (on file with Opinion Committee).

[3] Act of May 26, 1999, 76th Leg., R.S., ch. 763, 1999 Tex. Gen. Laws 3346; Act of May 21, 1999, 76th Leg., R.S., ch. 849, 1999 Tex. Gen. Laws 3515; Act of May 30, 1999, 76th Leg., R.S., ch. 1407, 1999 Tex. Gen. Laws 4755.