                                      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




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