The Attorney General of Texas
December 19, 1983
JIM MATTOX
Attorney General
Supreme Court Building Mr. Marlin W. Johnston Opinion No. JM-98
P. 0. 00x 12548 COUIOLiSSiOllSr
Austin, TX. 78711. 2540 Texas Department of Human Resources Scope of the exemption
5121475.2501
P. 0. Box 2960 $vided by section 42.041(b)
Telex 9101874-1367
Telecopier 512i475.0286 Austin, Texas 78769 (71, Human Resources Code
Dear Mr. Johnston:
714 Jackson, Suite 700
Dallas, TX. 75202-4508
2141742.8944
You have asked whether public schools which provide essentially
custodial day care after regular school hours, are exempt from the
licensure requirements of the Human Resources Code. Section 42.041
4024 Alberta Ave., Suite 160 thereof prohibits operation of a child-care facility without a
El Paso, TX. 79305-2793 license, subject to certain exceptions. Section 42.041(b)(7) states
9151533.3484
that the section
pOO1 Texas, Suite 700 does not apply to . . . an educational facility
Houston, TX. 77002~3111 accredited by the Central Education Agency . . .
7 13/223-588% that operates Primarily for educational purposes
in grades kindergarten and above. (Emphasis
added).
806 Broadway, Suite 312
Lubbock, TX. 794013479
8061747-5238 The plain language of this exception requires an affirmative answer to
your question, because the exemption is directed explicitly at the
educational facility and is not limited to particular activities
4309 N. Tenth, Suite B
McAllen, TX. 78501-1685
conducted by that facility. -See V.T.C.S. art. 5429b-2, 52.01.
5121682.4547
However, even were the clause “that operates primarily for
educational purposes . . .” not merely descriptive, but rather
200 Main Plaza, Suite 400
necessary to determine the scope of the exception in subdivision (7),
San Antonio, TX. 78205.2797
512/225-4191
it is clear that public schools which offer after school custodial
care are exempted from the licensing requirement of section 42.041(a).
There can really be no doubt that the primary purpose for which public
An Equal Opportunity/ schools are operated is the education of the children attending them.
Affirmative Action Employer
The time, resources, and personnel devoted to strictly educational
activities constitute the overwhelming proportion of those expended
by public schools. The after school custodial care is an
accommodation provided by a few schools for some parents and
unquestionably consumes only a small fraction of the time, resources,
and personnel of the public schools. Moreover, the restrictions in
subsection 8, 9 and 11 on the hours of “custodial care” that an
r educational facility can provide and still maf~ntain the exemption
p. 416
Mr. Marlin W. Johnston - Page 2 (JM-98)
indicate that such a restriction was not intended for educational
facilities covered by subsection 7. Accordingly, public schools which
provide custodial day care after school hours are exempt from
licensing by the Department of Human Resources. They are of course
subject to regulation by the Texas Education Agency.
SUMMARY
Section 42.041(b)(7) exempts public schools
which operate part-day child care prograns after
the close of the customary school day from
licensure required by section 42.041(a).
Jz&
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Colin Carl
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Co1111 Carl
Susan Garrison
Fernando Gomez
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 417