Hon. John K. Winters, Executive Director
State Department of Public Welfare
Austin, Texas
                        Opinion No. V-327
                        He: Licensing of private
                            kindergartensutldeer
                            Article 4442a, Ver-
                            non's Civil Statutes.
Dear Mr. wintdrs:
          Your letter of July 22 makes the following re-
quest for 99 opinion:
         "We shall appreciateyour opin,lonwith
    reference to the application of Article 4442a,
    Vernents Texqa Civil Ststtites,with rerrpect
    to prLvat& kindergartens.
         "Article 44420, VernonOs Texas Civil Stat-
    utes, provides for the inspeotlon and llcenslxlg
    of day nurseries for the care and custody of
    children. The responsibilityfor making the in-
    spec~lons az@ approving the licenses was origi-
    nally placed upon the atab  Boh~tdof Health,
    but this responsibilitywas lster transferred
    to the &ate Department of Public Welfare.
         "Article 2919 of VernonPs Texas Civil Stat-
    utes provides for the estab;lishmentof free kin-
    dergartens in school districts to be conducted
    in connection with the public schools; however,
    so far as we have been able to det,ermfne"te
    statutes make no provision for the establishment,
    maintenance,management, and supervisionof prf-
    vste kindergartens.

          "Up to this time the State Department of
     Public Welfare has not considered it within the
     scope of Article 44420 to inspect and License
Hon. John H. Winters, Page 2, V-327.


         private kindergsrtess o We have unofficiailyae-
         fined a kindergartenas a place mafntained for
         the purpose of trainingohfld$en of pre-school
         age. Since the children B;peusually not rscpufr-
         ed nor allowed to remain at the kfndergaetenfor
         longer than four hours, and since the teacher
         Is usually required to have a teacheros 83ex%f-
         flcate, we have not class3fied such places as
         dag nurseries for the care ar.dcurto@ of child-
         ren; tberefere,  it has been the fnterpretatfon
         of the Department that kindergartensdid not
         come within the scope of thh9.sartfcle requiring
         inspectionana license by the $tsrtc D@partment
         of Public Welfare.
              "The questioe has been raised as to the
         reaponslbilltyof the State Department of Pub-
         lic Welfare in this connectfon on the bas1.s
         that the kindergartenscome wuithenthe follow-
         ing provision of Artfcle 44429r;
                      0v    0 or other place for the
                 caxe a& lustody af children us&r
                 fifteen years of age O D O8
              "In gour opinion, is the State Department
         of Publie Welfare required by law to make en-
         spectlonsand grant licenses to private kfnder-
         gartens in the state?"
            your awcfaet  "unoffi.cfal" de%imitiom of & LPa-
dergartem “88 l place ma&stained fox the purpose of train-
is& children of pre-school age" cohk&3ek, With the concep-
tion of a kindergartenaa found fn the few reported cases
cen8iderlngthe matter* From Words and Phrases, Velums 2%3s
we quete a cited excerpt frem the case of Los Angeles Coup-
tq ~‘1. Kirk,  83 P. 250, 251, 148 CeL.. 385, whXcQ ir typt-
w$       ef ad    sgaolqyrous with   other   deiinitfwm   thereio   se%
     :
              “The term vkimdergad.ksnv Wa8 &svissd to
         apply to a q8tem elabePa8eld. f0rethe fxstFuc-
         tion of cbi3aTreaef very %smdos xeeza, w1hich
         bP guldLxg *sip l~cliaatforn  ?&apig 5&e ok",=,
         ganized mefememt, aml favesW.ng the* g-a
         with an ethical ad educatfonaivalue, teaches,
         besl.dosphysical exercises,habai%sof d.Xmcip-
         line, self-control,hs.rmcn~ous.act,fon an'dpu?+
         pose, togethex wftb dome definite le~9soisof
lion.John H. Winters, Page 3, V-327.


     fact. It ir apparent that the work coetem-
     plbted barsuch a system is pmely prelimimry
     to, end entirely different fn character from,
     the oMinary work of the common school, and
     Is in fact designed to fit very young cbild-
     son, whore rinds a8d bodies are, solely be-
     culse of their tender 8ge, not yet capable
     of the instructioncontemplatedj.2an ordf-
     nary school, for such school worka"
          Asmning that the instftutfogsunder consid-
eration 8re of the chuacter outlined, 8ad th8t their
purpose and function is prlmzily the teachins of young
chdldren for periods of a few hours daily, we will con-
sider whether or not such an lnstltutfon is contemplat-
ed by the provisi@m of Article 44428, vernon'a Civil
Statutes, Section 1, fro*1whioh you have quoted and
which reads In pert:
          "pvery person, asaoclatPon OF corpora-
     tion, whether operating for ohasfty or reve-
     nue* who shrll own, conduct or manage a dsy




           As you state, the fom&ofng statute original-
1~ Ucsd llcenslag and aupervfsoryrespolgBibflltles
Wity: the strka BoaPd ar Healthv But BarvarQOia$snaat-
mnta, amil~ th@ est&li&mnt    of the Child Welfare Dfvf-
sion  ,ofthe atate Deprtment of PublSo Welfexe, those
~eBpoarlbllltlesnow lie Mth the Department of Public
Welf~e 6 While or$geginslly considered aa related to IPat-
ters af health other provisions of Article 4442~~ deal
with matters o&r than health, and contempLate an ex-
emlnatlon Into the moral rad ot&m itiluences upon chfld-
ren 80 c6ima for. Of couxae, R %n&ergaHien" aa prb-
viously defined does have to some extent the e8re and
curt&y 0f children plaoed therein for &upervision. But
for that m8tt~po  dsscing;rchools, schools of PUBIC, 8rt
schools, wmy     rnmber of l~nstftutfonsa&so hs.vesuch
llmlted 0-e &     auntie&yof chLld.mn amleerfifteen years
of age. ObrlGurLy, the Laglsll&&u??e di,dnot have all of
these Institutionafatrdnd.
          The aharacte&?of t,auiaatftutfom specifloalbg
.   .




         enumerated which are required to be licensed indicates
         the character of other institutionsor pLacea "for the
         care and custody of children” which were intended by t~he
         Legislature to be covered by Article 4442&. Day nurm3riss
         are commonly understood to be places where children, who
         are unable to aere for themselves fn the ntxmal fun&ions
         of Infancy and early oblldhoi~d,e.releft with someone who
         will see that thBsb'futict&onsape ptioperlypePformed, such
         as feeding9 bath%%+, ,I?$stp
                                    and o,t&efi
                                              ‘functionsrequibed
         for the ~$oper?~#~~@$;alfMvis3Spmentor &Al&an of tender
         year*0 Such iast~tutraWL~as well 8s children's~  board%ng
         home8 and child pI.~%n&'. encies,Oare normally provided to
         fuP&ah care atidcupcody-9nor,ohil.drenunder circumstances




                  PFirate kindergartensestablished for
             ‘thepurpose of pre-so~obleducation Of gOUng
             &ll&en, at which sufh children at~.endonly




    :.
         .
Hon. John B. Winters, Psge 5,   V-327.


     a few hours of each dT3 are not required to
     be licensed as places 'for the care or cus-
     tody of children under fifteen ears of age"
     within the meaning of Article 4142a, VernonUs
     Civil Statutes.,
          The purpose and functions of each instf-
     tution must be &individuallyconsidered,re-
     gardlesa of Its being called a "kindergarten",
     in order to deter&z& whether or not a lfcense
     is   r8qUfred.

                         Yours very truly
                      ATTOFUiEYGBXiERALOF TEXAS
