Honorable Raymond W. Vowel1                          Opinion No. H- I04
Commissioner
State Department of Public Welfare                   Re:   The scope of the Dept.
John H. Reagan Building                                    of Public Welfare’s
Austin, Texas 78701                                        licensing authority
                                                           under Article   695c,
                                                           5 8(a), Vernon’s Texas
Dear Commissioner        Vowell:                           Civil Statutes

        You have written this office advising that “Recent events have
prompted a complete review by the Department of Public Welfare of
its policies and procedures   related to the licensing of child-caring
institutions” and making several inquiries concerning your licensing
authority and policies under Article 695c, $ 8(a), V. T. C. S.

      In your inquiry,     you state:

                    “Further,   Article      695c, 6 8(a) 1 defines six
            different types of child-caring         facilities   (in addition
            to child-placing    facilities),    including (a)Child-Caring
            Institution,   (b) Commercial        Child-Caring      Institution,
            (c)Day Care Center, (d)Commercial                Day Care Center,
            (c)Commercial      Boarding Home and (h) Convalescent
            Children’s Boarding Home. Although there are differ-
            ences among these facilities,          they are generally
            described as places which ‘care for’ children. ”

      Your various   questions     can be categorized      as follows:

                  (1) Whether bona fide educational facilities  are
            exempt from licensing,   and if so, what criterion you
            can reasonably fol,low to distinguish between bona fide
            educational facilities and child-caring facilities that
            would be subject to your licensing authority;




                                        p* 474
,     ,




    The Honorable   Raymond W. Vowell.       page 2   (H-104)




                       (2) The scope of the exemption       of state institutions
                set forth in Article 695c, 0 8(a) (10) ;

                       (3) The right of municipalities to license child-
                caring institutions and the effect of such municipal
                licenses upon your authority;

                          (4) Questions concerning the licensing of residential
                 treatment facilities   for emotionally disturbed children and
                 what criteria you can reasonably follow to distinghish these
                 facilities from child care facilities   subject to your licensing
                 authority:

                        (5) Various questions as to the age limitations         of
                 children within your licensing jurisdiction:

                        (6) Questions concerning organizations   or businesses
                 which are not operated primarily   as child caring institutions
                 but which offer and provide some child care to patrons as a
                 service incident to their primary function.

    By a supplemental    letter,   you have added the following    inquiries:

                       (7) The extent of your licensing authority over
                 “summer camps” and the effect of House Bill 115, Acts of
                 the 63rd Legislature,  Regular Session, 1973, upon such
                 authority, if any; and

                        (8) The effect of Article 695c, 5 8(a)(2)(a) upon your
                 authority to change licensing standards or policies.

           We will attempt to answer      these questions   in the same numerical    order
    as indicated above.

     (1) Whether bona fide educational facilities are exempt from licensing,      and if
     so, what criterion you csn reasonably follow to distinguish between bona fide
     educational facilities and child-caring   facilities that would be subject to’your
     licensing authority.




                                           p. 475

                                                                                       .   .   .
The Honorable   Raymond    W. Vowell,   page 3     (H-104)




         In your inquiry you state that your department has long distinguished
the facilities    described in Article 695c, $8(a) (1) from bona fide educational
facilities,    as indicated in Attorney General Opinion No. V-327 (1947).

       The summary    of the holding of Attorney   General   Opinion No. V-327
is as follows:

                    “Private kindergartens   established for the
             purpose of pre-school    education of young children,
             at which such children attend only a few hours of
             each day, are not required to be licensed as places
             ‘for the care or custody of chi,ldren under fifteen
             years of age’ within the meaning of Article 4442a,
             Vernon’s Civil Statutes [requiring     the licensing of
             day nurseries by the State Board of Health].

                   “The purpose and functions of each institution
             must be individually considered,   regardless  of its
             being called a ‘kindergarten’ in order to determine
             whether or not a license is required. ”

        That opinion construed an earlier but similar statute and was confined
to a considerati.on of kindergartens.    However, we believe it is based upon
sound reasoning and would apply to the broader subject matter of your in-
quiries.

       Moreover,  your letter indicates that following this opinion    your
department has consistently adhered to an administrative     policy    of exempt-
ing bona fide educational facilities from your licensing authority.       This long-
standing departmental construction is entitled to great weight in      resolving
any ambiguities in the statute. State v. Houston&~ T. C.Ry. CO. .68    S. W. 777
 (Tex. 1902).

       Therefore,   you are advised that bona fide educational institutions do
not require licensing by your department even if some child care is incidental
to their operation.   This would apply to boarding schools, kindergartens,
private day schools, and other similar institutions whose primary function




                                     p. 476
The Honorable   Raymond    W. Vowell,    page 4   (H-104)




is education.    On the other hand, as pointed out in Opinion V-327, the
fact that education is an incident to the operation of an institution whose
primary function is child care would not exempt that institution from
licensing.    The determination is a question of fact and the decision is
one which will have to be made by your department in connection with
each individual institution where the problem may exist.

      You will also undoubtedly find some institutions whose primary
purpose is both education and child care, for instance, kindergartens
whose function in the morning is education but for the remainder of the
day is purely child care. Such institutions would require licensing by
your department.

        You have asked us to suggest legal criteria,for   your determination.
The basic criterion is whether the facility’s   main purpose is education,
in which event it requires no licensing,    or child care, which circumstance
would require a license.     Many variations undoubtedly will be found. This
office could not possibly anticipate all of them and cannot furnish specific
criteria,  a function of the expertise of your office.

       Article 695c, 5 8(a) (9) authorizes your department “to promulgate
reasonable rules and regulations governing the granting of licenses to
the institutions and facilities   coming within the purview of this act”, calling
upori’you to exercise.the    expertise of your office to establish criteria that
will reasonably distinguish child-caring     institutions,which  are subject to
your licensing authority, from other institutions.

        You have also asked us specifically    about “halfway houses” and
“summer camps”.        We understand “halfway houses” to be intermediate
institutions,  usually residential type facilities,   designed to rehabilitate
children between correctional     institutions or mental (often drug-abuse)
hospitals and the free social community.        Again, we can only say that if
your investigation results in a finding that a primary purpose of the insti-
tution is child care, a license would be required; whereas, if the primary
purpose is therapeutic or rehabilitative, no license would be required even
if child care is an incidental activity of theinstitution.




                                     p. 477
The Honorable      Raymond     W. Vowell,     page 5   (H-104)




       The question of summer camps is involved            in Question    7 below and
will be discussed at that point of this opinion.

      In your letter you also inquire:

                       “What are the criteria for determining whether
                an institution is caring for ‘children in danger of
                becoming delinquent’ or ‘other children in need of
                group care’ as defined in Article 695c, $ 8(a) (1) (a) ? ”

       This inquiry is undoubtedly derived from the statutory definition of
“Child-Caring   Insti.tution” (and the similar definition of “Commertiial
Child-Caring   Institution”) appearing in Article 695c, 6 8(a) (1) (a) as follows:

                        “Child-Caring   Institution.  A child-caring
                institution is defined as any children’s home, orphanage,
                institution or other place maintained or conducted, with-
                out profit, by any person, public or private association,
                or corporation,     engaged in receiving and caring for
                dependent, neglected, handicapped, or delinquent children,
                or children in danger of becoming delinquent, or other
                children in need of group care, and which gives twenty-
                four (24) hours a day care to more than six (6) children. ”

      These criteria       are factual matters     to be taken into consideration     in
Your rule-making Process. We think that inclusion of “children in danger of
becoming delinquent” and “other children in need of group care” were not
intended by the Legislature  to broaden the limited objective of your licensing
authority to institutions whose main purpose is caring for children.

12) The scope of the exemption         of state institutions   set forth in Article   695~ 5 9

      Article     695c,   $ 8(a) (10) provides:

                       “Child-caring   and child-placing institutions
                and agencies,    which are owned and operated by the
                State of Texas,are exempt from the licensing and
                regulatory provisions    of this Act;”




                                          p. 478
The Honorable   Raymond W. Vowell,       page 6   (H-104)




         Your question is whether this provision would exempt child-caring
facilities    operated by counties, independent school districts,     local mental
health-mental       retardation units and other political subdivisions of the state.
Ordinarily      reference to the “State of Texas” is a reference to a state agency,
department or board which has jurisdiction         coextensive with the boundaries
of the State and which is an element of one of the three constituent branches
of the state government.        52 Tex. Jur. 2d 728, State of Texas, 5 14. On the
other hand, this is not an exclusive or mandatory concept and the reference
to the State of Texas might include political subdivisions of the State of
Texas.      It is probable that the Legislature   was thinking in terms of the
infeasibility     of one governmental unit licensing another rather than in strictly
geographical and political terms.

        You have indicated a long-standing departmental construction to the
effect that strictly state institutions as well as institutions operated by
political subdivisions of the state, such as counties and independent school
districts,  are exempt from licensing under Subsection 10. We believe your
departmental construction correctly        resolves this issue and therefore you
are advised that child-caring    institutions or facilities  owned and operated by
counties, independent school districts,       local mental health-mental retardation
units or similar political subdivisions of the state are exempt from your
licensing authority under Article      695c, 5 8 (a) (10). State v. Houston eY T. C.
Ry. CL, 68 S. W. 777 (Tex. 1902).

        A comparison of the wording of Article 5547-88, V. T. C. S. I to that
in Article 695~ $8 (a) (2) is also persuasive of the legislative   intent. Article
5547-88 states that “No person or political subdivision may operate a mental
hospital unless licensed to do so by the Department. ” Article 695~ $ 8(a) (2)
merely requires that “every person, association,      institution, or corporation,
. . . shall obtain a license.   . . .‘I

(3) The right of municipalities  to license child-caring    institutions   and the
effect of such municipal licenses upon your authority.

       In your letter you inquire   as follows:




                                      p. 479
The Honorable     Raymond W. Vowell,      page 7 (H-104)




                     “Is Attorney General’s   Opinion No. O-6508
            still in effect insofar as it allows a municipality
            to issue licenses for the operation of child-caring
            facilities?    If so, what are the relative responsibilities
            of the municipality and the State Department of Public
            Welfare in this regard? ”

       Attorney   General Opiniona           (1945) stated that a municipality,
as an exercise    of its police power to safeguard the health, comfort and
general welfare    of its citizens,  may license child-caring    facilities.  That
opinion did not   state a municipal license would exempt the facility from
the requirement     that it obtain a license from the State Department of
Public Welfare.      We reaffirm this opinion and further advise that it does
not change the    mandatory requirements       of Article 695c, 8 8(a).

       The responsibilities    of a municipality are determined by its local
ordinances.   The responsibilities     of the Department are the same with
respect to all such facilities,    and a municipal license has no effect upon
the Department’s   responsibilities.

14) Questions concerning the licensing of residential treatment facilities
for emotionally disturbed children and what criteria you can reasonably
follow to distinguish these facilities from child care facilities subject to
your licensing authority.

      The statutory definiti.on of a Convalescent       Children’s   Boarding   Home is:

                    “A convalescent children’s   boarding home is
             any place under public or private auspices which gives
             twenty-four (24) hour-a-day care to six (6) or Less
             children who are physically handicapped, under medical
             and/or social supervision,   away from their own homes,
             and not within a hospital. ” Article 695~ $8(a) (1) (h)

      A “Convalescent    Children’s Foster Group Home” is similarly  defined
except that it applies to “more than six (6) children”. Article 695~ § 8(a) (2) (i).




                                        p, 480
The Honorable    Raymond W. Vowell,       page 8      (H-104)




       Article 5547-88 of the Mental Health Code provides that, “No person
or political subdivision may operate a mental hospital unless licensed to do
so by the Department [of Mental Health and Mental Retardation]“.

         Your question concerns the licensing of “residential  treatment
facilities   for emotionally disturbed or handicapped children”.     In our opinion
a Convalescent Children’s Boarding Home is one whose concern is confined
to “physically handicapped” children.      An institution which is treating
emotionally disturbed children or “those with drug problems” would not
be subject to licensing by your department.

        As in other instances, the establishment of criteria is primarily      a
qeustion of fact and expertise.       There will be institutions that care both for
children who are physically handicapped and for children who are menta,lly
handicapped, or both. Your basic guide should be the primary purpose of
the institution.   If the institution has dual primary purposes,      and one of
them is the care of “physically handicapped” children, then it should be
licensed by your department.         The determination is one of fact as to each
institution and your basic criterion is whether the care for physically handi-
capped children is a primary purpose of the institution..

(5) Various questions     as to the age limitations    of children   withinLour
                                                                              -.
licensing jurisdiction.

        Your first inquiry concerning the problems of age limits is whether
Senate Bill 123, Acts of the 63rd Legislature   (1973) effectively changes the
definition of “child” from persons under the age of 21 years to persons
under the age of 18 years.

      Our answer to that is that it does.      See Attorney     General    Opinion
H-82 (1973).

       You also inquire as to whether Licenses are required for institutions
that care only for children between 16 and 18 years of age. You point out
that Article 695a 5 9 indicates that no charter shall be issued by the Secretary
of State to any organization having to do with ” . . . the care or custody of
children under 16 years of age” without an investigation first having been




                                      p. 481
 The Honorable    Raymond    W. Vowell,    page 9      (H-104)




 made by your department and further that the definition of a “commercial
 boarding home” in Article 695c, 5 8(a)(l)(e)     refers to “children under 16
 years of age”.     On the other hand the definitions of child-caring    institution,
 commercial     child-caring  institution, day care center, commercial       day
 care center, convalescent children!8 boarding home and convalescent
 children’s foster group home contained in Article       695c, 5 8(a) refer only
 to “children”,   which, as we have indicated above, implies an age limit of
 18 years.

        As a result of a long-standing departmental construction of the statute,
 your department has never attempted to license institutions which are caring
 only for children of age 16 or older.

        We agree that the statute as a whole is anomalous and that your depart-
 mental construction creates a practical solution.     However, we do not believe
 that there is any basic ambiguity in the definitions of child-caring    institution,
 commercial    child-caring  institution, day care center, commercial      day care
 center, convalescent children’s boarding home or convalescent children’s
 foster group home, and, accordingly,      we hold that your licensing authority
 as to these specific institutions extends to those who care for children up to
 the age of 18. Your long-standing departmental construction,       limiting your
 authority to institutions caring for children under age 16, cannot change the
 clear terms of the statute, which speaks only of children and which provides
 that:

                      “Every person, association,   institution, or
              corporation,   whether operating for profit or without
              profit, who shall conduct or manage a child-caring
              institution, agency, or facility coming within the
              purview of this act shall obtain a license to operate
              from the State Department of Public Welfare.       . . .I’
              Article 695~ 5 8 (a) (2) (a)

        See McCallum v. Associated        Retail   Credit   Men of Austin,   41 S. W. 2d
45 (Tex. Comm. , 1931).




                                       p. 482
The Honorable   Raymond W. Vowell,     page 10   (H-104)




         Therefore    we believe that any child-caring institution,  commercial
child-caring   institution, day care center, commercial      day care center,
convalescent children’s boarding home or convalescent children’s foster
group home that cares for children under 18 years of age, and is not other-
wise exempt, should be licensed by your department, even though it has
not previously been licensed due to your departmental construction of the
statute.

j6) Questions concerning organizations    or businesses which are not operated
primarily   as child-caring institutions but which offer and provide some child
 care to patrons as a service incident to their primary function.

         You have made inquiry “concerning organizations     or businesses which
are not operated primarily   as child-caring  institutions but which offer and
provide some child care to patrons as a service incident to their primary
function.   Examples of this include nurseries operated by churches for children
whose parents are attending services, ‘Mother’s Day Out’ nurseries operated
by churches and other groups, bowling ..alleys and shopping centers which
operate nurseries for patrons, etc. ”

         Because of the many varieties of these types of facilities,  no strict
rule can be established and again you will probably want to adopt rules and
regulations establishing criteria     such as whether the parents remain on the
premises while the child is cared for, and the length of time of leaving the
child and other matters you deem reasonable in determining whether a
particular facility is in fact being operated only as a casual service incidental
to its primary function, so as to bring such service outside the ambit of a
“child-caring”    institution as defined by the statute.

(7) Your licensing authority’over   “summer camps” and the effect of House
Bill 115, Acts of the 63rd Legislature,  Regular Session, 1973, upon such
authority, if any.

         Your next inquiry concerns camps, particularly  summer camps, and
the effect of The Texas Youth Camp Safety and Health Act (Acts 1973, 63rd
Legislature,   Regular Session, ch. 142, p, 316) enacted as House Bill ,115and
to be codified as Article 4447e, V. T. C. S.




                                     p. 483
The Honorable    Raymond W. Vowell,      page 11 (H-104)




        We are of the opinion that House Bill 115 places total jurisdiction
for supervision and licensing of all youth camps in the State Board of Health.

       Section 1.03 (6) of the Act defines    “youth camp” as follows:

                        “[Y]outh ‘camp means any property or facilities
                having the general characteristics    of a day camp,
                resident camp or travel camp, as these terms are
                generally understood, used primarily      or in part for
                ret r e ational, athletic, religious and/or educational
                activities and accommodating five (5) or more children
                under eighteen (18) years of age who attend or tempo-
                rarily reside at the youth camp for a period of, or
                portions of, four (4) days or more.”

        Section 2.01 of the Act provides that, “[T]he State Department of
 Health is the principal authority in the state on matters relating to the
 condition of safety and health at youth camps in Texas.”    And 8 2.02
 provides in part as follows:

                       “Sec. 2.02. (a) The department [of Health]
                shall have authority to make and promulgate rules
                and regulations consistent with the policy and purpose
                of this Act and to amend any rule or regulation it
                makes.    In developing such rules and regulations,
                the department shall consult with appropriate public
                and private officials and organizations,   and parents
                and camp operators.     It shall be the duty of the depart-
                ment to advise all existing youth camps in this state of
                this Act and any rules and regulations promulgated
                under this Act.

                      “(b) The department shall promulgate rules
                and regulations which establish standards for youth
                camp safety and health. Such safety and health stan-
                dards may include consideration  of adequate and
                proper supervision at all times wherever camp




                                       p. 484
The Honorable   Raymond W. Vowell.        page 12   (H-104)




            activities are conducted; sufficient and properly
            qualified directors,    supervisors  and staff; proper
            safeguards for sanitation and public health; adequate
            medical services for personal health and first aid;
            proper procedures for food preparation,       handling
            and mass feeding: healthful and sufficient water
            supply; proper waste disposal; proper water safety
            procedures for swimming pools, lakes and water-
            ways, and safe boating equipment; proper mainte-
            nance and safe use of motor vehicles; safe buildings
            and physical facilities;   proper fire precautions; safe
            and proper recreational     and other equipment; and
            proper regard for density and use of premises.”

      Section 2.04 of the Act provides:

                   “Every person operating a youth camp in
            Texas on the effective date of this Act shall apply
            for and obtain a license for each youth camp. Such
            application shall be on a form provided by the depart-
            ment and shall be submitted in full not later than May
            1, 1974. After submission such persons may continue
            operating until and unless the application is rejected
            by the department. ”

       These provisions form the basis for our opinion.    The provisions
of § 2.02(b) are so broad and all-encompassing  that no area is left for your
department’s   concern which would not involve a duplication of the efforts of
the State Department of Health.

      It is true that 5 2 of House Bill 115 provides:

                   “This Act is cumulative of all other laws and
            the requirements and responsibilities    contained herein
            shall not affect requirements   and responsibilities of
            other state agencies and political subdivisions in
            accord with existing statutes. ‘I




                                    p. 485
     I




.


    The Honorable    Raymond W. Vowell,       page 13   (H-104)




            However,     we do not interpret this provision as establishing licensing
    jurisdiction    over youth camps in your department.       Summer camps are
    primarily     recreational    and would not be subject to your jurisdiction in any
    event.     Other youth camps mentioned in House Bill 115are also primarily
    recreational     or educational or have primary functions other than child
    caring.     Accordingly,     even in the absence of House Bill 115, your juris-
    diction over youth camps would arise only in isolated situations and we
    believe the Legislature has clearly manifested an intention to place the
    entire responsibility      for the care of children in youth camps in the State
    Department of Health.

           Our opinion renders moot your inquiry concerning the criteria you
    would fo,llow in determining the extent of your licensing authority in con-
    nection with summer or youth camps.

    (8) The effect of Article 695c, 5 8(a)(2)(a)   upon your authority   to change
    licensing standards or policies.

           Your next inquiry is as follows:

                 11. . . when this Department changes licensing
                 standards or policies,   does A,rticle 695c, $ 8(a)2(a)
                 require that an old license remain in full force and
                 effect even after appropriate notice of the changes
                 has been provided to the facility in accordance
                 with Article 695~~ 5 8(a)9? ”

           Article  695c, 5 8(a) (2) (a) provides that, once issued, a “license shall
    be in full force and effect until suspended or rescinded by the Department
    of Public Welfare as hereinafter       provided. ”

           Section8(s)(7)(b) authorizesyour departm~ent “to suspend or revoke any
    license if it ascertains failure to comply with the law or with the reason-
    able rules and regulations provided for herein,” providing that certain
    procedures for notice and hearing are followed.




                                         p. 486
The Honorable   Raymond    W. Vowell,    page 14    (H-104)




       Section S(a) (91oftheactgives your department “the right and the autho-
rity to promulgate reasonable rules and regulations governing the granting
of licenses to the institutions and facilities   coming within the purview of
this Act, and for the suspension or revocation of such license for the
operation of such institutions and facilities    named in this Act. . . . ”

       We construe these provision to mean that you have the authority
to require periodic reports from licensees and to make other reasonable
rules and regulations necessary to the effectiveness of your supervision.
The failure of any licensee to comply with your reasonable rules and
regulations can result in the revocation, rescission or suspension of such
license.

                            SUMMARY

                   1. Bona fide educational facilities are exempt
            from licensing by the State Department of Public
            Welfare under Article    695c, Vernon’s Texas Civil
            Statutes.  The criteria whichdistinguish   whether
            such an institution should be licensed may be set
            out in whatever reasonable    rules and regulations
            the State Department of Public Welfare may promul-
            gate to determine whether the primary purpose of a
            particular institution is educational or child-caring,
            or both.

                     2. The exemption of institutions owned and
             operated by the State of Texas, provided in Article
             695c, $ 8(a) (lo), applies to child~-caring ‘facilities
             operated by counties, independent school districts,
             local mental health retardation units and other
             political subdivisions of the State of Texas.

                    3. Municipalities    have the power to license
             child-caring  institutions,  but the respective powers
             and responsibilities    of municipalities and the State
             Department of Public Welfare are independent of one
             another.




                                     p. 487
.



    The Honorable   Raymond W. Vowell,    page 15 (H-104)




                        4. The licensing responsibilities of the State
              Department of Public Welfare concerning Conval-
              escent Children’s    Boarding Homes and Convalescent
              Children’s Foster Group Homes are confined to those
              facilities whose primary purpose is the treatment and
              care of physically handicapped children and do not
              include facilities  whose primary purpose is the treat-
              ment of emotionally disturbed or mentally ill dhildren.

                      5. All references   to “child” in Article 695~ refer
              to persons under the age of 18 years by virtue of Senate
              Bill 123, Acts of the 63rd Legislature    (1973), and wher-
              ever the definition of a facitity refers simply to “children”
              without specifying an age, such facilities    caring for
              children under 18 years of age are subject to Licensing by
              the State Department of Public Welfare.

                       6. Institutions which are not operated primarily
              for child-caring    purposes but which offer and provide
              some child care to patrons or customers as a service
              incident to the primary function of the business are not
              normally subject to Licensing unless the primary purpose
              of the division involved is child care as determined by
              reasonable criteria established by rules and regulations
              promulgated by the State Department of Public Welfare.

                      7. The licensing of “summer camps” or “youth
              camps” is totally the concern of the State Board of Health
              by virtue of the provisions of House Bill 115, Acts of the
              63rd Legislature,   1973.

                     8. A license once granted by the Department of
              Public Welfare remains in force and effect until sus-
              pended or resckded  by the Department but is subject




                                      p. 408
The Honorable   Raymond    W. Vowell,   page 16   (H-104)




           to reasonable rules and regulations promulgated
           by the Department including requirements,   if any:
           to make periodic reports concerning the status of
           the licensee.




                                     Attorney   General   of T&as




DAVID M. KENDALL,         Chairman
Opinion Committee




                                     p. 489
