               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
