Case Information

*1 The Attorney General of Texas December 19, 1983 JIM MATTOX

Attorney General Mr. Marlin W. Johnston Opinion No. JM-98

Supreme Court Building P. 0. 00x 12548 COUIOLiSSiOllSr Austin, TX. 78711. 2540 Texas Department of Human Resources Scope of the exemption 5121475.2501 $vided by section 42.041(b) P. 0. Box 2960 Telex 9101874-1367 (71, Human Resources Code Austin, Texas 78769 Telecopier 512i475.0286 Dear Mr. Johnston: 714 Jackson, Suite 700 Dallas, TX. 75202-4508

You have asked whether public schools which provide essentially 2141742.8944 custodial day care after regular school hours, are exempt from the

licensure requirements of the Human Resources Code. Section 42.041 thereof prohibits operation of a child-care facility without a 4024 Alberta Ave., Suite 160 El Paso, TX. 79305-2793 license, subject to certain exceptions. Section 42.041(b)(7) states 9151533.3484 that the section does not apply to . . . an educational facility pOO1 Texas, Suite 700 accredited by the Central Education Agency . . . Houston, TX. 77002~3111 7 13/223-588% that operates Primarily for educational purposes

in grades kindergarten and above. (Emphasis added). 806 Broadway, Suite 312 Lubbock, TX. 794013479 The plain language of this exception requires an affirmative answer to 8061747-5238 your question, because the exemption is directed explicitly at the educational facility and is not limited to particular activities 4309 N. Tenth, Suite B conducted by that facility. See V.T.C.S. art. 5429b-2, 52.01. - McAllen, TX. 78501-1685 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 it is clear that public schools which offer after school custodial 512/225-4191 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 care is an custodial 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 educational facility can provide and still maf~ntain the exemption r

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Mr. Marlin W. Johnston - Page 2 (JM-98)

indicate that such a restriction was not intended for educational 7. Accordingly, public schools which facilities covered by subsection provide custodial day care after school hours are exempt from They are of course licensing by the Department of Human Resources. 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 school day from the close of the customary 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