                              ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                                July 28, 2008



The Honorable Will Hartnett                            Opinion No. GA-0649
Chair, Committee on Judiciary
Texas House of Representatives                         Re: Whether a rule of the Department of Family
Post Office Box 2910                                   and Protective Services conflicts with section
Austin, Texas 78768-2910                               42.041 (a), Human Resources Code, which requires
                                                       a license to operate a child-care facility
                                                       (RQ-0670-GA)

Dear Representative Hartnett:

         With certain exceptions, section 42.041 (a) ofthe Human Resources Code prohibits a person
from operating a child-care facility or child-placing agency without a license issued by the
Department of Family and Protective Services (the "Department"). TEX. HUM. REs. CODE ANN.
§ 42.041(a) (Vernon Supp. 2007) (defining "Department" as the "Department of Family and
Protective Services"); see also id. § 40.001 (3). Although the Department is authorized to adopt rules
to carry out chapter 42, section 42.041(b) expressly lists many statutory exceptions to subsection
(a)'s licensing requirement. See id. §§ 42.041(b) (listing sixteen exceptions), 42.042(a) (providing
authority to adopt rules). Concerned about a particular Department rule pertaining to programs
exempted from licensure, you ask the following questions:

                 Does Rule 745.117(4) conflict with Section 42.041(a) [ofthe] Human
                 Resources Code because the Rule allows school districts that are
                 unlicensed by the Department to operate short-term child-care
                 programs that are not after-school programs?

                 If Rule 745.117(4) conflicts with Section 42.041 (a), is it invalid?

                 If Rule 745.117(4) does not violate Section 42.041(a), what is the
                 applicable exemption under Section 42.041 (b)?1

        Rule 745.117 lists certain programs of limited duration that are exempt from the licensing
regulation. See 40 TEX. ADMIN. CODE § 745.117 (2008) (Tex. Dep't of Family & Protective Servs.,


         lLetter from Honorable Will Hartnett, Chair, Committee on Judiciary, Texas House of Representatives, to
Honorable Greg Abbott, Attorney General of Texas, at 1 (Jan. 30, 2008) (on file with the Opinion COlmnittee, also
available at http://www.texasattomeygeneral.gov) [hereinafter Request Letter].
The Honorable Will Hartnett - Page 2                  (GA-0649)




Licensing). Relevant to your question, Rule 745.117(4) exempts short-term programs described as
those that operate "no more than 11 weeks during the year," provide "care for children who are at
least five years and under 14 years," and are "not a part ofan operation subject to [the Department's]
regulation." Id. § 745.117(4).

        Your questions indicate a concern that Rule 745.117(4) conflicts with section 42.041(a)
because the rule "allows school districts that are unlicensed by the Department to operate short-term
child-care programs that are not after-school programs." Request Letter, supra note 1, at 1. You
provide no information regarding any particular school district or short-term child-care program.
See ide at 1-2. Thus, we have no facts by which to evaluate whether a specific facility or program
required by statute to be licensed is otherwise exempted. However, your concern about the validity
of Rule 745.117(4) presents a question of law that we can address. See Tex. Att'y Gen. Ope No.
GA-0439 (2006) at 3 (declining to resolve fact questions but addressing the legal question
presented); see also Request Letter, supra note 1, at 2 (arguing that the list of exemptions in section
42.041(b) is "extensive and specific" and does not include the "type of facility exempted by Rule
745.117(4)").

        A state administrative agency like the Department has only those powers expressly conferred
on it by the Legislature and those that are reasonably necessary to carry out the express
responsibilities mandated by the Legislature. State v. Pub. Utile Comm 'n, 883 S.W.2d 190, 194
(Tex. 1994). An agency may promulgate rules when a statute expressly authorizes it to do so or
when implied authority is necessary to accomplish the purpose of the statute. R.R. Comm 'n ofTex.
v. Lone Star Gas Co., 844 S.W.2d 679,685 (Tex. 1992). But an administrative agency may not
adopt a rule that is inconsistent with the statute. Id. The critical factor in determining whether an
administrative agency has exceeded its rulemaking authority is whether the rule is in harmony with
the general objectives ofthe statute involved. Id. In determining whether a rule is in harmony with
the statute, courts look to all applicable provisions of the relevant statute to ascertain the
Legislature's intent. Williams v. Tex. State Bd. ofOrthotics & Prosthetics, 150 S.W.3d 563,568
(Tex. App.-Austin 2004, no pet.). The plain language ofthe statute provides the clearest indication
of that intent. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002).

        With these legal principles as our guide, we consider Rule 745.117(4). The Department
adopted Rule 745.117(4) purportedly under its express authority to adopt rules granted in section
42.042(a), Human Resources Code. See 26 Tex. Reg. 7236,7297 (2001), adopted 27 Tex. Reg.
970 (2002) (codified at 40 TEX. ADMIN. CODE § 745.117(4)) (Tex. Dep't of Family & Protective
Servs.); TEX. HUM. REs. CODE ANN. § 42.042(a) (Vernon Supp. 2007) (authorizing the Department
to "make rules to carry out the provisions of this chapter"). The specified list of exemptions2 in


        2S ection 42.041 (b) provides that the licensing requirement does not apply to:

        ( 1) a state-operated facility:

        (2) an agency foster home or agency foster group horne;
                                                                                           (continued...)
The Honorable Will Hartnett - Page 3                 (GA-0649)




      2(... continued)
      (3) a facility that is operated in connection with a shopping center, business, religious organization,
      orestablishment where children are cared for during short periods while parents or persons responsible
      for the children are attending religious services, shopping, or engaging in other activities on or near
      the premises, including but not limited to retreats or classes for religious instruction;

      (4) a school or class for religious instruction that does not last longer than two weeks and is conducted
      by a religious organization during the summer months;

      (5) a youth camp licensed by the Department of State Health Services;

      (6) a facility licensed, operated, certified, or registered by another state agency;

      (7) subj ect to [specified pro~ision], an educational facility that is accredited by the Texas Education
      Agency, the Southern Association ofColleges and Schools, or an accreditation body that is a member
      of the Texas Private School Accreditation Commission and that operates primarily for educational
      purposes in grades kindergarten and above, an after-school program operated directly by an accredited
      educational facility, or an after-school program operated by another entity under contract with the
      educational facility, ifthe Texas Education Agency, the Southern Association ofColleges and Schools,
      or the other accreditation body, as applicable, has approved the curriculum content ofthe after-school
      program operated under the contract;

      (8) an educational facility that operates solely for educational purposes in grades kindergarten through
      at least grade two, that does not provide custodial care for more than one hour during the hours before
      or after the customary school day, and that is a member ofan organization that promulgates, publishes,
      and requires compliance with health, safety, fITe, and sanitation standards equal to standards required
      by the state, municipal, and county codes;

      (9) a kindergarten or preschool educational program that is operated as part of a public school or a
      private school accredited by the Texas Education Agency, that offers educational programs through
      grade six, and that does not provide custodial care during the hours before or after the customary
      school day;

      (10) a family home, whether registered or listed;

      (11) subject to Subsection (b-l), an educational facility that is integral to and inseparable from its
      sponsoring religious organization or an educational facility both ofwhich do not provide custodial care
      for more than two hours maximum per daY,and that offers educational programs for children age four
      and above in one or more of the following: preschool, kindergarten through at least grade three,
      elementary, or secondary grades;

      (12) an emergency shelter facility providing shelter to minor mothers who are the sole support oftheir
      natural children under Section 32.201, Family Code, unless the facility would otherwise require a
      license as a child-care facility under this section;

      (13) a juvenile detention facility certified under Section 51.12, Family Code, a juvenile correctional
      facility certified under Section 51.125, Family Code, a juvenile facility providing services solely for
      the Texas Youth Commission, or any other correctional facility for children operated or regulated by
      another state agency or by a political subdivision of the state;
                                                                                                        (continued...)
The Honorable Will Hartnett - Page 4                   (GA-0649)



section 42.041(b) does not expressly include an exemption for a short-duration program described
in Rule 745.117(4). See TEX. HUM. REs. CODE ANN. § 42.041(b) (Vernon Supp. 2007); 40 TEX.
ADMIN. CODE § 745.117(4) (2008) (Tex. Dep't of Family & Protective Servs., Licensing).

       In examining chapter 42 for the legislative intent in enacting the chapter, we see a broad
purpose to protect the children of the state in the care of child-care facilities. Chapter 42's stated
purpose is to

                 protect the health, safety, and well-being of the children of the state
                 who reside in child-care facilities by establishing statewide minimum
                 standards for their safety and protection and by regulating the
                 facilities through a licensing program. It is the policy of the state to
                 ensure the protection of all children under care in child-care facilities
                 and to encourage and assist in the improvement of child-care
                 programs.

TEX. HUM. REs. CODE ANN. § 42.001 (Vernon Supp. 2007). Chapter 42's licensing requirement
works to achieve that purpose. See ide § 42.041(a). And chapter 42 requires the establishment
of minimum standards to ensure the safety and protection of children in child-care facilities. Id.
§§ 42.001 (stating purpose ofprotecting children "by establishing statewide minimum standards"),
42.042(a) (granting authority to the Department to make rules), 42.042(f) (addressing the
Department's promulgation of minimum standards). Chapter 42 defines a child-care facility to
mean a

                 facility licensed, certified, or registered by the department to provide
                 assessment, care, training, education, custody, treatment, or


        2(... continued)
        (14) an elementary-age (ages 5-13) recreation program operated by a municipality provided the
        governing body of the municipality annually adopts standards of care by ordinance after a public
        hearing for such programs, that such standards are provided to the parents ofeach program participant,
        and that the ordinances shall include, at a minimum, staffmg ratios, minimum staff qualifications,
        minimum facility, health, and safety standards, and mechanisms for monitoring and enforcing the
        adopted local standards; and further provided that parents be informed that the program is not licensed
        by the state and the program may not be advertised as a child-care facility;

        (15) an annual youth camp held in a municipality with a population of more than 1.5 million that
        operates for not more than three months and that has been operated for at least 10 years by a nonprofit
        organization that provides care for the homeless; or

        (16) a food distribution program that:

               (A) serves an evening meal to children two years of age or older; and

               (B) is operated by a nonprofit food bank in a nonprofit, religious, or educational facility
               for not more than two hours a day on regular business days.

TEX. HUM.   REs. CODE ANN. § 42.041(b) (Vernon Supp. 2007).
The Honorable Will Hartnett - Page 5                    (GA-0649)



                  supervision for a child who is not related by blood, marriage, or
                  adoption to the owner or operator of the facility, for all or part of the
                  24-hour day, whether or not the facility is operated for profit or
                  charges for the services it offers.

Id. § 42.002(3). This definition indicates that chapter 42 is concerned with protecting all children
in facilities for whom someone other than a parent or relative provides "assessment, care, training,
education, custody, treatment, or supervision" for part or all of the day. Id Additionally, the
Legislature has provided that Human Resources Code, title 2, in which chapter 42 is contained, is
to be liberally construed in order that its purposes may be accomplished. See ide § 11.002(b)
(Vernon 2001).

         The list of exemptions in section 42.041 (b) is both extensive and specific. Id § 42.041 (b)
(Vernon Supp. 2007) (providing for sixteen exemptions); see supra note 2 (text of section
42.042(b)). Section 42.041(b) exempts specified educational facilities, certain state facilities,
programs of short-term care where parents are nearby, and municipal programs of short-term care
involving specified recreational activities. See ide §§ 42.041(b)(7)-(9), (11) (specified educational
facilities), 42.041 (b)(1), (5)-(6) (certain state facilities), 42.041 (b)(3) (programs of short-term care
where parents are nearby), 42.041(b)(14)-(15) (municipal programs of short-term care involving
specified recreational activities). Section 42.041 (b), which contains the list ofexemptions, does not
expressly provide that it is an exclusive list. See ide § 42.041(b). Neither, however, does it contain
language indicating that it is merely an illustrative list. See Leach V. State, 170 S.W.3d 669, 672-73
(Tex. App.-Fort Worth 2005, pet. ref d) (describing the term "including" as a term ofenlargement
and not of limitation or exclusive enumeration). Though the text of section 42.041 (b) does not
include an express statement on the legislative intent with respect to the inclusive or exclusive scope
of the list of exemptions, the nature of section 42.041 does. Section 42.041 precludes any person
from operating a child-care facility without a license. See TEX. HUM. REs. CODE ANN. § 42.041(a)
(Vernon Supp. 2007). Subsection (b) then lists specifically the exemptions to the broad prohibition.
See ide § 42.041 (b), supra note 2. It is a general principle of statutory construction that the mention
of one thing implies the exclusion of another. See Dallas Merchant's & Concessionaire's Ass 'n V.
City of Dallas, 852 S.W.2d 489,493 n.7 (Tex. 1993) (explaining statutory construction maxim
expressio unius est exclusio alterius); see also Johnson V. Second Injury Fund, 688 S.W.2d 107,
108-09 (Tex. 1985) (stating "it is a settled rule that the express mention or enumeration of one
person, thing, consequence or class is equivalent to an express exclusion ofall others"). "A statutory
exclusion is a 'thing' or 'class' for purposes of this maxim of construction." Gibbs V. State, 7
S.W.3d 175,181 (Tex. App.-Houston [1st Dist.] 1999, pet. refd) (O'Connor, J., dissenting).

         We believe the Legislature intended to exempt from the licensing requirement only those
facilities and programs that fall within the scope of the exception specifically listed in section
42.041(b).3 In addition, a limited set of exemptions subjects more child-care facilities to licensing



         3The Department has discretion, in the first instance, to determine whether a program or facility is encompassed
within the statutory exemptions. See cf Bd. ofIns. Comm'rs v. Adams, 286 S.W.2d 698, 702 (Tex. Civ. App.-Austin
                                                                                                              (continued...)
 The Honorable Will Hartnett - Page 6                  (GA-0649)



 and regulation and thus better serves chapter 42's purpose of protecting children. Accordingly, to
 the extent Rule 754.117(4) creates an exemption not included in section 42.041(b), it is not in
 harmony with the statute and is invalid.

         The Department asserts that its rule is valid and does not conflict with section 42.041(a).4
 The Department posits that the definition of a "child-care facility as one that is 'licensed, certified
 or registered by the department,' implicitly delegate[s] to the department the duty and discretion to
 determine ~hen a particular activity should be regulated." Department Brief, supra note 4, at 1-2.
 And the Department notes that it is given express authority to make rules to carry out the provisions
 of chapter 42. See id. at 2. It states that for "every set of facts not explicitly addressed by the
 statutory provisions of Chapter 42, the department must, of necessity, determine whether the
 particular set ofcircumstances constitutes the type of' assessment, care, training, education, custody,
 treatment, or supervision' that the legislature intended the department to regulate as child-care." Id.
 The Department describes the rule as an attempt to "strike an appropriate balance between the stated
 purpose of Chapter 42-to protect the health, safety, and well-being of children in care-and the
 considerable burdens placed on those who must comply with the regulatory scheme contemplated
 by Chapter 42." Id. at 3. Finally, the Department suggests that because the Legislature, since the
 enactment of Rule 745.117(4), has not amended chapter 42 in a manner inconsistent with the rule,
 the Legislature tacitly agrees with the balance struck by Rule 745.117(4). Id.

          In delegating ~uthority to an administrative agency, the Legislature is not expected to provide
  for every specific detail or anticipate every unforeseen circumstance. Tex. Workers' Compo Comm 'n
  V. Patient Advocates, 136 S.W.3d 643, 654 (Tex. 2004). And the administrative agency to which
  a power is delegated generally has implied authority to accomplish a delegated purpose. Tex. Dep't
  ofHumanServs. V. Christian Care Ctrs., Inc., 826 S.W.2d 715,719 (Tex. App.-Austin 1992, writ
  denied) (citing Sexton V. Mount Olivet Cemetery Ass'n, 720 S.W.2d 129, 137 (Tex. Civ.
  App.-Au·stin 1986, writrefd n.r.e.)). Moreover, an agency's interpretation of its enabling statute
  is afforded deference by the courts if the interpretation is reasonable and does not contradict the
  statute. Employees Ret. Sys. of Tex. V. Jones, 58 S.W.3d 148, 151 (Tex. App.-Austin 2001, no
  pet.). Yet, an agency may not adopt a rule that is contrary to or inconsistent with the statute. Id.
  Even assuming the Legislature did intend to provide the Department with discretion to determine
  the scope of a "child care facility" within the broad definition of the term, the Legislature
  nevertheless limited that discretion with a statutory licensing requirement that includes every person
. and, as we have concluded, contains an exclusive list of exemptions. See supra pp. 2 n.2, 5. See
  also TEX. HUM. REs. CODE ANN. § 42.041(a)-(b) (Vernon Supp. 2007). Thus, despite the
  Department's implied authority and deference to which it is accorded, we must conclude that to the
  extent Rule 745.117(4) expands the list of exemptions, it is contrary to the statute and invalid.


          3( ••• continued)

 1956, writ refd n.r.e.) (recognizing agency board is "an administrative body of a discretionary fact finding power ...
 and that matters of granting ... a license are addressed to the discretion of the Board").

         4See Brief from Gerry Williams, General Counsel, Texas Department of Family and Protective Services) to
 Nancy Fuller, Chair, Opinion Committee, Office of the Attorney General, at 3 (rec'd Mar. 24, 2008) (on file with the
 Opinion Committee) [hereinafter Department Brief].
The Honorable Will Hartnett - Page 7           (GA-0649)



        We cannot advise you regarding the reach of that extent: we cannot conclude that Rule
745.117(4) is valid for all purposes nor can we conclude that it is invalid as a matter of law. We can
imagine circumstances under which Rule 745.117(4) would purport to exempt a facility or program
that is not exempted by section 42.041(b). In such circumstances, we believe Rule 745.117(4)
invalidly creates an exemption the Legislature did not authorize.
The Honorable Will Hartnett - Page 8        (GA-0649)



                                     SUMMARY

                      Chapter 42 of the Human Resources Code requires persons
              who operate a child care facility to be licensed by the Texas
              Department ofFamily and Protective Services. Chapter 42 also exempts
              certain programs and facilities from the licensing requirement. The
              Department has express authority under chapter 42 to make rules
              concerning the regulation and licensing of child care facilities. To
              the extent a Department rule exempting a short-duration child-care
              program creates an exemption not included in chapter 42, the rule
              conflicts with the statute, and is therefore invalid.




                                            GRE         BBOTT
                                            Attorney General of Texas


KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
