    OFFlCE OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

    JOHN    CORNYN




                                                 August 29,200O



Ms. Daisy A. Stiner                                      Opinion No. JC-0272
Executive Director
Texas Department of Housing                              Re: Whether section 6A of article 5221 f, Revised
  and Community Affairs                                  Civil Statutes, authorizes the Texas Department of
P.O. Box 13941                                           Housing and Community          Affairs to regulate
Austin, Texas 78711-3941                                 unlicensed real estate brokers (RQ-0208-JC)

Dear Ms. Stiner:

        You have asked this office whether the addition of section 6A to the Manufactured Housing
Standards Act, article 5221f, Revised Civil Statutes, by House Bill 1193,76th Legislature, grants
new regulatory authority to the Texas Department of Housing and Community Affairs (the
“Department”) over unlicensed real estate brokers. In our view, it does not.

        Article 5221f governs the regulation of the manufactured housing industry in Texas.
Pursuant to section 9 of the act, rule-making authority under it is given to the executive director of
the Department, who is empowered to “adopt rules and regulations, promulgate administra-
tive orders, and take all action necessary to assure compliance with the intent and purpose of this
Act.     and of the Texas Manufactured Housing Standards Code.” TEX. REV. CIV. STAT. ANN. art.
5221f, § 9(b) (Vernon Supp. 2000). The director is further authorized and instructed by the statute
to “establish rules and regulations for the protection of the interests of consumers who occupy or
desire to purchase or install manufactured housing and for the business conduct of those persons
required to be licensed under this Act.” Id. 5 9(m). Persons required to be licensed include retailers,
who are defined by the statute as “person[s] engaged in the business ofbuying for resale, selling, or
exchanging manufactured        homes or offering such for sale, exchange, or lease-purchase to
consumers.” Id. 8 3(19).

         Real estate transactions, on the other hand, are governed by the Real Estate License Act,
article 6573a of the Revised Civil Statutes. Pursuant to that act, the Texas Real Estate Commission
has general regulatory oversight over licensed real estate brokers in the state. According to article
6573a, $1(b), “It is unlawful for a person to act in the capacity of, engage in the business of, or
advertise or hold that person out as engaging in or conducting the business of a real estate broker or
a real estate salesperson within this state without first obtaining a real estate license from the Texas
Real Estate Commission.” Id. art. 6573a, $ l(b).
Ms. Daisy A. Stiner - Page 2                        (JC-0272)




        The Manufactured Housing Standards Act, article 522 1f, has been amended by House Bill
1193,’ enacted by the 76th Legislature, which infer ah added section 6A to the act. Section 6A@),
which appears to have prompted your question, reads as follows:

                The retailer is prohibited from selling, or representing for sale, or
                offering for sale any real estate in conjunction with the sale of a
                manufactured home except as may be authorized by the department
                consistent with the provisions of The Real Estate License Act (Article
                6573a, Vernon’s Texas Civil Statutes).

Id. art. 522lf, 3 6A.

         You inform us that “[i]t has been suggested that Section 6A grants the Department new
regulatory authority over unlicensed real estate brokers if the broker is a retailer and the unlicensed
brokerage is in conjunction with the sale of a manufactured home.” Request Letter at l.* We do not
agree.

         Section 6A concerns what are called “land-home transactions,” in which, as we understand
it, both real estate and a manufactured home are being purchased together. Nothing in the statutory
language explicitly vests the Department with authority over unlicensed real estate brokering, which
is part of the regulatory sphere of the Real Estate Commission, as we have previously noted. Nor
does the statute grant such authority to the Department by necessary implication. See State v. Public
Utility Comm ‘n, 883 S.W.2d 190,194 (Tex. 1994) (administrative agency, as creation oflegislature,
has only those powers expressly conferred and those necessary to accomplish duties). Rather, the
statute forbids retailers, who are already subject to regulation by the Department, from engaging in
certain practices without the Department’s assent, and conditions the Department’s ability to give
that assent on another settled body of law.

         Our conclusion that the Department has not been granted new regulatory authority over
unlicensed real estate brokers is, we note, also consistent with both House and Senate bill analyses
of House Bill 1193, according to both of which the statute does not grant additional regulatory
authority. See HOUSECOMM. ONURBAN AFFAIRS, BILL ANALYSIS, Tex. H.B. 1193,76th Leg., R.S.
(1999); SENATE COMM. ON ADMINISTRATION, BILL ANALYSIS, Tex. H.B. 1193, 76th Leg., R.S.
(1999). The general purpose of the section was explained by Senator Chris Harris in his discussion
of the amendment when introducing it at the public hearing of the Senate Committee on
Administration on April 15, 1999. The senator said, “There is a real problem that I perceive, or
potential problem in this industry, where there are representations made to buyers of manufactured
homes and this mainly happens in rural areas.      [with] land-home purchases.” After laying out the



         ‘Act of May 30, 1999,76th Leg., R.S., ch. 1369,§ 4, 1999 Tex. Gen. Laws 4628,4629-30

       2Letter from Daisy Stiner, Executive Director, Texas Department of Housing and Community Affairs, to
Honorable John Comyn, Attorney General of Texas (Mar. 22,200O) (on tile with Opinion Committee).
Ms. Daisy A. Stiner - Page 3                      UC-0272)




statutory language, the senator said of such land-home transactions, “And more or less I want to get
truth in lending into it if it’s packaged.” Hearings on Tex. H.B. 1193 Before the Senate Comm. on
Administration, 76th Leg., R.S. (Apr. 15, 1999) (statement of Senator Chris Harris) (tape available
from Senate Staff Services Office).

         To that end, the statute forbids the sale, offer, or representation for sale of real estate in
conjunction with the sale of manufactured housing by a retailer of manufactured housing “except
as may be authorized by the [Department of Housing and Community Affairs].” However, the
Department’s power to authorize such sales is itself circumscribed.         Such authorization must be
“consistent with the provisions of The Real Estate License Act.” That is, the retailer may not be
permitted to sell, represent for sale, or offer for sale real estate in conjunction with the sale of a
manufactured home if such acts would violate the Real Estate License Act. The general regulation
of real estate brokering is and remains the province of the Texas Real Estate Commission.

        Because your second question presupposes      an affirmative   answer to your first, we do not
consider it.
Ms. Daisy A. Stiner - Page 4                     (X-0272)




                                      SUMMARY

                       Section 6A of article   5221f, Texas Revised Civil Statutes,
               added to the statute by House   Bill 1193, 76th Legislature, does not
               grant to the Texas Department    of Housing and Community Affairs
               new regulatory authority over   unlicensed real estate brokers.




                                               JOH’N    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

James E. Tourtelott
Assistant Attorney General - Opinion Committee
