                                ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT




                                                November 3,2008



Mr. Robert Scott                                          Opinion No. GA-0678
Commissioner of Education
Texas Education Agency                                    Re: Whether Spring Branch Independent School
1701 North Congress Avenue                                District's pre-kindergarten programs run in
Austin, Texas 78701-1494                                  collaboration with a Head Start agency are exempt
                                                          from licensing requirements for child-care facilities
                                                          (RQ-0709-GA)

Dear Commissioner Scott:

         On behalf of the Spring Branch Independent School District (the "District"), you ask us to
opine about "the implementation of certain administrative rules ofthe·Department of Family and
Protective Services, as applied to certain pre-[k]indergarten classes and associated activities of the
district."} In its letter to you, which you attached to your request, counsel for the District states that
it "is in a dispute with the local office of the Texas Department of Family and Protective Services
[the "Department"] regarding District pre-kindergarten educational classrooms and childcare
licensing requirements."2 The District thus "seeks an opinion ... confirming that the childcare
licensing requirements do not apply to the pre-kindergarten educational classrooms ofthe District."
District Letter, supra note 2, at 1. You expressly limit your question to the implementation of
"certain administrative rules," and the District's letter focuses solely on a Department rule codified
as section 745.119(1), title 40 of the Texas Administrative Code. Request Letter, supra note 1,
at 1. The District's letter also cites certain statements made in the Department's Licensing Policy
Handbook. See District Letter, supra note 2, at 2. We limit our response to the question asked. We
discuss statutes only to provide a context for the adoption of the Department's rule.

         Human Resources Code section 42.041 (a) prohibits any person from operating a child-care
facility "without a license issued by the [D]epartment." TEx. HUM. REs. CODE ANN. § 42.041(a)
(Vernon Supp. 2008); see also id § 40.001(3) (defining "department" to mean "the Department of



        lLetter from Robert Scott, Commissioner of Education, Texas Education Agency, to Honorable Greg Abbott,
Attorney General of Texas (Apr. 30, 2008) (on file with the Opinion Committee, also available at
www.texasattorneygeneral.gov) [hereinafter Request Letter].

         2Letter from Janet Little Horton, Bracewell & Giuliani, on behalfofthe District, to Robert Scott, Commissioner
of Education, Texas Education Agency (Apr. 14,2008) (attached to Request Letter, supra note 1) [hereinafter District
Letter].
Commissioner Robert Scott - Page 2                        (GA-0678)



Family and Protective Services"). Section 42.041(b) excepts certain facilities from this licensing
requirement, including:

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

                            (7) subject to Subsection (b-I) [pertaining to an educational
                   facility that operates in a county with a population of less than
                   25,0003], an educational facility that is accredited by the Texas
                   Education Agency, the Southern Association of Colleges 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 . . . .

Id § 42.042(b)(6)-(7) (footnote added).

         Section 745.119, title 40 of the Texas Administrative Code lists the types of educational
facilities that are exempt from the licensing requirement. See 40 TEX. ADMIN. CODE § 745.119
(2008) (Tex. Dep't of Family & Protective Servs., What educational facilities are exempt from
Licensing regulation?). Subsection (I), to which the Dis~rict particularly refers, exempts an
accredited educational facility4 for grades pre-kindergarten and above if the following criteria are
met:

                   (A) The educational facility operates primarily for educational
                   purposes;

                   (B) The educational facility operates the program;

                   (C) All children in the program are at least pre-kindergarten age;
                   and




          .3The District is located largely "inside the city limits ofHouston, [but] it also includes the incorporated villages

of Bunker Hill, Hedwig, Hilshire, Hunters Creek, Piney Point and Spring Valley." SPRING BRANCH INDEPENDENT
SCHOOL DISTRICT, DISTRICT INFORMATION, available at http://www.springbranchisd.comlschools/maps/mainmap.htm
(last visited Oct. 31, 2008). It does not operate in a county with a population less than 25,000. See UNITED STATES
DEPARTMENT OF COMMERCE, U.S. CENSUS BUREAU, 2000 CENSUS OF POPULATION, STATE & COUNTY QUIcKFACTS, at
http://qui,ckfacts.census.gov/qfd/states/48/4820 l.html (Harris County population: 3,400,578) (last visited Oct. 31,2008).

          4We presume for purposes ofthis opinion that both the District and Neighborhood Centers Inc. are educational
facilities under section 745.119(1), title 40 of the Texas Administrative Code. Cf TEX. HUM. REs. CODE ANN. §
42.002(3) (Vernon Supp. 2008) (defming "child-care facility" to mean "a facility licensed, certified, or registered by the
department to provide assessment, care, training, education, custody, treatment, or supervision for a child who is not
related by blood, marriage, or adoption to the owner or operator ofthe facility, for all or part of the 24-hour day"); id
§ 42.002(13) (defming "facilities" to include child-care facilities and child-placing agencies).
Commissioner Robert Scott - Page 3                       (GA-0678)



                   (D) The Texas Education Agency ... , the Southern Association of
                   Colleges . . . and Schools     , or the Texas Private School
                   Accreditation Commission   accredits the educational facility.

Id §745.119(1).

       In this case, the District and the Department disagree about whether the program is operated,
for purposes of section 745.119(1)(B), by the District or by a Head Start agency, Neighborhood
Centers Inc. 5 The District urges, for example, that it "operates the program" because the District

                   (1) is responsible for compensating, hiring, supervising, evaluating
                   and terminating the teachers, (2) employs the teachers who are solely
                   responsible for the children in the collaborative classrooms
                   [classrooms in which Neighborhood Centers Inc. collaborates with
                   the District to provide supplemental services to children who are
                   eligible for Head Start services], (3) provides the facilities where the
                   children are educated, and (4) is responsible for the curriculum that
                   the students are taught . . . .

District Letter, supra note 2, at 4. The Department counters that the District

                   is not the entity that operates the programs as Head Start facilities.
                   . . . [Rather, Neighborhood Centers Inc.'s] responsibilities include
                   ensuring that the facilities meet Head Start guidelines-including the
                   enrollment of children in the Head Start program, the hiring and
                   supervision ofHead Start staff, and the proper conduct ofbackground
                   checks on Head Start employees.

DepartmentBrief, supra note 5, at 2.

       With respect to the question you raise, neither the applicable statutes nor the rules define the
term "operate."6 See TEX. HUM. REs. CODE ANN. § 42.002 (Vernon Supp. 2008) ("Definitions");
40 TEX. ADMIN. CODE § 745.21 (2008) (Tex. Dep't of Family & Protective Servs., What do the


           5Compare District Letter, supra note 2, at 3-4 (summarizing its reasons for concluding that the District operates
the facility), with 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 2 (June 10, 2008) (summarizing its
reasons for concluding that the Head Start agency operates the facility) [hereinafter Department Briet].

          6Title 40, section 745.21 (27) ofthe Texas Administrative Code defmes the term "operation," but that defmition
is not helpful here. See 40 TEX. ADMIN. CODE § 745.21(27) (2008) (Dep't of Family & Protective Servs., What do the
following words and terms mean when used in this chapter?). Under that defmition, "[a]n operation includes the building
and grounds where the program is offered, any person involved in providing the program, and any equipment used in
providing the program. An operation [also] includes a child-care facility, child-placing agency, listed family home, or
maternity home." Id
Commissioner Robert Scott- Page 4               (GA-0678)



following words and terms mean when used in this chapter?). In the absence of a statutory or rule-
based definition, we define the term consistently with its common meaning. See TEx. GOV'T CODE
ANN. § 311.011(a) (Vernon 2005) ("Words ... shall be read in context and construed according to
the rules of grammar and common usage."). According to the San Antonio Court of Appeals, "in
normal usage, 'operate' means 'to perform a function, or operation, or produce an effect.'" Reddie
v. State, 736 S.W.2d 923,926 (Tex. App.-San Antonio 1987, pet. refd) (quoting BLACK'S LAW
DICTIONARY 984 (rev. 5th ed. 1979); citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY
1580-81 (G. & C. Merriam 1981) ("to cause to function usually by direct personal effort")).

         Whether it is the District or Neighborhood Centers Inc.-or both-that, by its effort, causes
the program in question to function-in other. words, that operates the program such that the facility
is exempt from or subject to the licensing requirement-is a question offact that cannot be resolved
in the opinion process. See Tex. Att'y Gen. Ope No. GA-0446 (2006) at 18 ("Questions of fact are
not appropriate to the opinion process."). Accordingly, we cannot answer your question. Rather,
it is the Department that has the authority to make rules to carry out the provisions of Human
Resources Code chapter 42 and to enforce those rules. TEX. HUM. REs. CODE ANN. § 42.042(a), (e)
(Vernon Supp. 2008) (requiring the Department to make rules to carry out chapter 42 and minimum
standards for licensed child-care facilities); id §§ 42.0705, .072(a) (authorizing the Department to
take disciplinary action against a licensee who violates chapter 42, a Department rule, or minimum
standards adopted by the Department); id § 42.078(a) (authorizing the Department to impose an
administrative penalty against a facility that violates chapter 42 or a rule or order adopted under this
chapter). Thus, the Department must determine the issue in the first instance. Cf Tex. Att'y Gen.
Ope No. H-104 (1973) at 4 (stating that determining whether a particular child-care provider is a
bona fide educational institution exempt from child-care facility licensing requirements is a question
of fact that must be determined by the State Department of Public Welfare (the Department's
predecessor)).
Commissioner Robert Scott - PageS            (GA-0678)



                                     SUMMARY

                      Whether the Spring Branch Independent School District or a
              Head Start agency, or both, "operates" a'particular program for the
              purposes of section 745.119(1), title 40 ofthe Texas Administrative
              Code is a question of fact for the Department of Family and
              Protective Services to determine in the first instance.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney G.eneral for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
