    OFPlCE OF THE ATTORNEY   GENERAL.   STATE OF TEXAI

    JOHN CORNYN




                                               November 20,200O



The Honorable Gary L. Walker                              Opinion No. JC-0309
Chair, Land and Resource
 Management Committee                                     Re: Whether a child under the age of 14 may
Texas House of Representatives                            solicit newspaper subscriptions, and related
P.O. Box 2910                                             question (RQ-0253-JC)
Austin, Texas 78768-2910

Dear Representative    Walker:

        You have requested our opinion as to whether a child under the age of 14 years may be
employed to solicit newspaper subscriptions. For the reasons indicated below, we conclude that a
child may not be employed to do so except where two conditions are met: (1) the child concurrently
attempts to sell a newspaper while soliciting the subscription; and (2) the same child will be the
person delivering the newspaper based on the new subscription.

         Chapter 5 1 of the Labor Code regulates the employment of children. A “child” is defined
as “an individual under 18 years ofage.” TEX.LAB.CODEANN.§ 5 1.002( 1) (Vernon 1996). Section
5 1,011 states that, “[elxcept as provided by this chapter, a person commits an offense if the person
employs a child under 14 years of age.” Id. 5 5 1,011. Section 5 1.003, however, exempts from the
application of chapter 51 the “employment of a child        engaged in delivery of newspapers to the
consumer.” Id. 5 5 1.003(a)(2). You suggest that this exemption applies to “crewing.” One of your
constituents describes this practice:

                Traditionally, circulation managers gather volunteer carriers on a
                Saturday and solicit new subscribers. In Pecos, we have traditionally
                done this about once a month. The kids and adult supervisors work
                from 9:00 a.m. till noon, and then lunch is on the paper at the Pizza
                Hut.

                The caniers receive a bonus for new subscribers, and of course, their
                monthly pay increases with each new subscriber on their route.
                House Bill 160 has effectively ended this entrepreneurial enterprise
                for any minor under the age of 14. As a consequence, it is financially
                foolish for a newspaper to employ carriers under the age of 14 at all.’



                                                         Pecos Ente?+se, to HonorableGaryL. Walker,
       ‘Letterfrom York M. “Smokey”Briggs,Editor/Publisher,
                                                                                       (continued...)
The Honorable Gary L. Walker - Page 2             (JC-0309)




The Texas Workforce Commission (the “Commission”),             which administers     the statute,   also
describes the practice, albeit in somewhat different terms:

                Crewing occurs when an employer takes a group of minors to a
                certain location for the sole purpose of soliciting newspaper
                subscriptions.   The minor who sells the subscription is not the
                same minor who will be delivering the newspaper to that same
                customer.      [W]hen crewing, the primary occupation is’solicitation,
                and the selling of a current newspaper becomes incidental to the
                minor’s work.z

          Your constituent contends, in effect, that “crewing” is an integral part of the “delivery of
newspapers to the consumer.” Arguably, this is a reasonable position with respect to a carrier’s
solicitation of subscribers on the route he services. But it makes little sense when applied to the
solicitation of subscribers on routes outside the carrier’s particular territory. Furthermore, even as
to one’s own potential customers, we are not convinced that “delivery” should be expanded to
encompass solicitation.      In other portions of section 51.003, the legislature has used broader
language to describe the relevant exemptions: “This chapter does not apply to employment of a
child      .employed in a      nonhazardous occupation”; “participating in a school-supervised     and
school-administered     work-study program”; and “employed through a rehabilitation program
supervised by a county judge.” TEX. LAB. CODEANN. 5 51.003(a)(l)(A), (3) (5) (Vernon 1996).
The exemption about which you inquire, by contrast, is considerably more specific: “engaged in
delivery of newspapers to the consumer.” Id. 5 5 1,003(a)(2). In this context, “delivery” means
“[t]he action of handing over, or conveying into the hands of another; esp. the action of a carrier in
delivering letters or goods entrusted to him for conveyance to a person at a distance.” IV OXFORD
ENGLISHDICTIONARY         424 (2d ed. 1989). See also TEX. GOV’TCODEANN. 5 3 11.Ol l(a) (Vernon
1998) (“Words and phrases shall be read in context and construed according to the rules ofgrammar
and common usage.“).

         In 1999, the legislature acted specifically to ban solicitation by minors except in narrowly
delineated circumstances.     Section 5 1.0145 provides, in relevant part:

                   (a) For purposes of this section:




       ‘(-continued)
StateRepresentativeat 1-2(June8,200O)(on file withOpinionCommittee)

        ‘Brief from Ms. Cassie Carlson Reed, ExecutiveDirector,Texas WorkforceCommission,to Opinion
Committee,Officeof the AttorneyGeneralat 4 (Aug.8, 2000)(on file with OpinionCommittee)[hereinafterTWC
Brief].
The Honorable   Gary L. Walker     - Page 3        (X-0309)




                        (2) “Solicit” means an action of a person to:

                            (A) sell goods or services in a setting other than a retail
                establishment;

                            (B) request donations; or

                            (C) distribute items, information,   or advertising.

                 (b) The employment of a child to solicit is a hazardous occupation for
      purposes of this chapter.

                    (c) A person may not employ a child to solicit unless the person:

                        (1) at least seven days before the date the child begins
                employment, obtains on a form approved by the commission the
                signed consent of a parent of the child or of a conservator, guardian,
                or other person who has possession of the child under a court order;

                        (2) provides to the individual who gives consent:

                             (A) a map of the route the child will follow during each
                solicitation trip; and

                             (B) the name of each individual who will be supervising
                each solicitation trip;

                        (3) provides at each location where children will be engaged
                to solicit at least one adult supervisor for every three children
                engaged in that solicitation trip; and

                        (4) limits each solicitation trip to:

                            (A) no later than 7 p.m. on a day when the child is legally
                required to attend school; and

                            (B) the hours between 10 a.m. and 7 p.m. on all other
                days.

                     (d) The commission may make additional requirements by rule
                for aperson employing a child under this section to protect the safety,
                health, or well-being of the child.
The Honorable    Gary L. Walker    - Page 4        (JC-0309)




                     (f) A person commits an offense if the person employs a child in
                violation of this section or a rule adopted under this section.

TEX. LAB. CODE ANN. 3 5 1.0145 (Vernon Supp. 2000) (emphasis           added).

          Again, section 5 1.003 of the Labor Code exempts the “employment of a child            engaged
in the delivery of newspapers to the consumer.” Id. 3 5 1.003(a)(2) (Vernon 1996). “Crewing”
clearly involves the “[selling of] goods or services in a setting other than a retail establishment,” as
defined in section 5 1,0145(a)(2)(A). And while the statute sets forth a mechanism for permitting
solicitation by children who are at least 14 years of age, section 5 1,011 nevertheless absolutely
prohibits the employment of persons under the age of 14 in a non-exempt occupation, including
solicitation. Furthermore, section 51.023 bars the Commission from adopting “arulepetmitting          the
employment of a child under 14 years of age unless expressly authorized by this chapter.” Id.
5 51.023. Thus, “crewing,” as described both by your constituent and by the Commission, may not
be performed by persons under the age of 14.

         We must also consider whether a child under the age of 14 may solicit subscriptions from
customers who live on his own service route. Because the language of the exemption for newspaper
delivery is identical to the language of the federal child labor exemption, the Commission relies on
regulations of the Department of Labor for guidance. See TWC Brief, supra note 2, at 2. Federal
regulations provide that: “In [interpreting] these provisions, the Secretary [ofLabor] will be guided
by the principle that such exemptions [from the child labor laws] should be narrowly construed and
their application limited to those employees who are plainly and unmistakably within their terms.”
See 29 C.F.R. 5 570.122 (2000). Under the Fair Labor Standards Act, the Department of Labor has
adopted the following policy regarding the delivery of newspapers:

                    [T]he Act provides an exemption from the child labor as well as
                the wage and hours provisions for employees engaged in the delivery
                of newspapers to the consumer. This provision applies to carriers
                engaged in making deliveries to the homes of subscribers or other
                consumers ofnewspapers (including shopping news). It also includes
                employees engaged in the street sale or delivery ofnewspapers to the
                consumer. However, employees engaged in hauling newspapers to
                drop stations, distributing centers, newsstands, etc., do not come
                within the exemption because they do not deliver to the consumer.

Id. 4 570.124 (emphasis added.); see also 29 USC. 5 213(d) (1994).               In accordance   with this
position, the policy adopted by the Commission is as follows:

                [I]f a minor is ‘performing route maintenance which includes
                soliciting new subscribers, the solicitation work would fall within the
                exemption provided two conditions are met: 1) the minor attempted
                to sell a current newspaper concurrently with soliciting a subscription
The Honorable   Gary L. Walker - Page 5           (K-0309)




                and 2) that same minor would be the one who in fact delivers the
                newspaper under the new subscription.

TWC Brief, supra note 2, at 3-4. The Commission       justifies this position by noting that:

                [W]hen the minor solicits subscriptions as part ofroute maintenance
                and the same minor is required to deliver the newspaper to the person
                who bought the subscription, the minor solicits in a familiar
                environment in close proximity to the minor’s home because of
                limited transportation opportunities, thereby mitigating risks to the
                minor’s health and safety.      Additionally, because the minor is
                restricted to a designated route area, the parents have knowledge as
                to the location ofthe minor when the minor is soliciting subscriptions
                as part of route maintenance.

Id. at 5.

         In our opinion, the Commission’s view ofthe distinction between “delivery ofnewspapers”
~ which is entirely exempt from chapter 5 1 ~ and “solicitation” - which activity is barred to persons
under the age of 14 -is reasonable. We believe the Commission, had it chosen to do so, could have
read section 5 1.0145 even more narrowly, so as to prohibit absolutely the solicitation of newspaper
subscriptions by persons under the age of 14. It has opted instead to carve out a very limited
exception in circumstances where the child who is “soliciting” is the same child who will in fact
deliver the newspaper, and where the child who is “soliciting” attempts to sell a current newspaper
concurrently with the subscription.

        “While not controlling, contemporaneous     construction of a statute by the administrative
agency charged with its enforcement is entitled to great weight.” Quick v. City ofrlustin, 7 S.W.3d
278, 280 (Tex. 1998) (quoting State v. Public Util. Comm’n, 883 S.W.2d 190, 196 (Tex. 1994)).
Furthermore, “[i]f a statute can be reasonably read as the agency has ruled, and that reading is in
harmony with the rest of the statute, then [the court is] bound to accept that interpretation even if
other reasonable interpretations exist.” Bemy v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893
(Tex. App.-Austin 2000, no pet.). We conclude, therefore, that a child may solicit subscriptions
from a person who lives on his own service route only ifhe simultaneously attempts to sell a current
newspaper along with the new subscription, and he is the individual who will in fact subsequently
deliver the newspaper.

        You also question Commission     Rule 817.24, which provides, in part:

                     (a) A person may not begin the employment of a child to solicit
                as defined in Texas Labor Code 5 51.0145 and as described in
                3 817.4(b) of this Chapter (relating to Statement of Commission
                Intent), until the Commission’s Labor Law Department has received:
The Honorable   Gary L. Walker    - Page 6        (JC-0303)




                       (1) a copy of the signed Parental Consent Form approved by
                the Commission: and

                         (2) the information required by statute to be provided to the
                individual who gives consent.

40 TEX. ADMIN. CODE § 817.24 (2000). You suggest that the Commission is without authority to
require that an employee send the requisite form to the Commission.       Subsection (c) of section
51.0145 directs an employer to obtain “on a form approved by the commission the signed consent
of a parent of the child [or other relevant person].” TEX. LAB. CODE ANN. 5 51.0145(c) (Vernon
Supp. 2000). As we have noted, subsection (d) authorizes the Commission to “make additional
requirements by rule for a person employing a child under this section to protect the safety, health,
or well-being of the child.” Id. 9 5 1.0145(d). The Commission provides the following justification
of its requirement that parental consent form be submitted to the agency:

                Ensuring completion and signature of the parental consent forms by
                requiring employers to submit the forms to the Agency is an essential
                function to carrying out the Agency’s duties to enforce Texas Labor
                Code 5 51.0145(c), especially in light of solicitation being classified
                as a hazardous occupation. Furthermore, minors hired to solicit are
                often taken to unfamiliar neighborhoods several miles away from
                their homes. In case of an emergency, the Agency would have the
                relevant information that could make the difference in locating a
                minor’s whereabouts because the Agency retains the parental
                information and map of the minor’s solicitation route.

TWC Brief, supra note 2, at 7.

         Once again, we believe the Commission is authorized to impose this requirement.          It is
specifically empowered to regulate in this area, its justification for the rule is reasonable, and the
Commission should not be second-guessed in an area over which it commands both jurisdiction and
expertise. It is necessary, however, to be precise regarding what situations may be encompassed by
Rule 8 17.24. The rule is a rule about solicitation  the subject of section 5 1.0145 ofthe Labor Code.
It may be applied to persons at least 14 years of age who are employed to solicit in an occupation
not exempted under section 5 1.003, but it is not applicable to persons 14 and over who are employed
for the “delivery of newspapers to the consumer.” See TEX. LAB. CODE ANN. 5 5 1.003 (Vernon
1996). It can have no application to persons under the age of 14, because, as we have noted, those
individuals are not permitted to engage in solicitation at all, except in the certain narrow
circumstances discussed which are not relevant to your inquiry. The “solicitation” of newspaper
subscriptions by a child under 14 years of age that is permitted by the Commission and the
Department of Labor is nor the kind of solicitation contemplated by section 5 1.0145. Rather, it is
part and parcel of the “delivery of newspapers to the consumer.” As such, it is exempted from the
operation of chapter 51 of the Labor Code. Consequently, the Commission may not apply Rule
The Honorable    Gary L. Walker    - Page 7       (JC-0309)




8 17.24, including the requirement of parental consent forms for persons under the age of 14, to any
activity that falls within the “delivery ofnewspapers to the consumer” as it has defined that practice.



                                         SUMMARY

                          A child under the age of 14 years may not be employed to
                “solicit” newspaper subscriptions except where two conditions are
                met: (1) the child concurrently attempts to sell a newspaper while
                “soliciting” the subscription; and (2) the same child will be the person
                delivering the newspaper based on the new subscription. The Texas
                Workforce Commission may not require parental consent forms of
                persons engaged in an activity that meets these criteria.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
