OFFlCE OF THE ATTORNEY GENERAL. STATE OF TEXM
JOHN CORNYN
November 22000
Mr. William H. Kuntz, Jr. Opinion No. JC-0303
Commissioner/Executive Director
Texas Department of Licensing and Regulation Re: Whether, under section 10 of the Air
P.O. Box 12157 Conditioning and Refrigeration Contractor
Austin, Texas 78711 LicenseLaw, TEX.REV.CIV.STAT.ANN.~~.
8861 (Vernon Supp. 2000), a manufacturer,
retailer, rebuilder, or installer of
manufactured homes must be licensed or
registered in order to purchase refrigerants
(RQ-0252X)
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. $5 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. 5 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. §tj 3B, 6.
Subsection(f) of section 6 exemptsmanufacturers, retailers, rebuilders, orinstallers ofmanufactured
homes. See id. 5 6(f).
Your question concerns the relationship between the exemption provided in subsection (f)
of section 6 for manufacturers, retailers, rebuilders, or installers ofmanufactured 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
Mr. William H. Kuntz, Jr. - Page 2 (JC-0303)
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. 5 6(f). Section 10 of the Act provides that a person may not purchase retiigerants 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. 9 lo(a)-(f). Section 10 contains two
exemptions. First, a purchaser may purchase refrigerants “if that person’s use is exempt under
Section 6(a)(l), (3), (5), (6),~or (7) of this Act ifthe 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. 5 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(t).’ 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 ofmanufactured homes from article 8861
in its entirety: “This article does not apply to . .” TEX.REV.CIV.STAT.ANN. art. 8861, 5 6(f)
(Vernon Supp. 2000) (emphasis added). This is in contrast to section 6(a), which exempts certain
persons from the Act, “[elxcept as provided by Section 10 of this Act.” Id. 5 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, “[elxcept 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
ISee Letter from Mr. William H. Kuntz, Jr., Commissioner/Executive Director, Texas Department of Licensing
and Regulation, to Honorable John Comyn, Texas Attorney General at 2 (June 29, 2000) (on tile with Opinion
Committee).
Mr. William H. Kuntz, Jr. - Page 3 (JC-0303)
homes. See id. 3 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.’ Sections 6 and 10 were significantly amended by the
Seventy-Sixth Legislature in 1999.’ We address your question in light of article 8861 as it is
presently written.
Finally, we note that section 1O(b) provides that “[elach 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, 5 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.
2See Letter from Sarah J. Shirley, Chair, Opinion Committee, to Honorable Carlos Truan, Chair, Committee
on International Relations, Trade and Technology, Texas State Senate (June 10,199s) (withdrawing Letter Opinion No.
98.010) (on tile with Opinion Committee).
‘Act ofMay 26,1999,76th Leg., R.S., ch. 7636,1999 Tex. Gen. Laws 3346; Act ofMay 21,1999,76th Leg.,
R.S., ch. 849, 1999 Tex. Gen. Laws 3515; Act ofMay 30, 1999,76th Leg., R.S., ch. 1407, 1999 Tex. Gen. Laws 4755.
Mr. William H. Kuntz, Jr. - Page 4 (X-0303)
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 refrigerationcontracting 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,
$5 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. fj 6(f).
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
Untitled Texas Attorney General Opinion
Combined Opinion