                              ATTORNEYGENERAL OF TEXAS
                                           GREG       ABBOTT




                                                April 15,2004



Eduardo J. Sanchez, M.D., M.P.H.                    Opinion No. GA-0178
Commissioner of Health
Texas Department of Health                          Re: Whether, under sections 25 .OOl and 25.002 of the
1100 West 49th Street, M-75 1                       Education Code, a child who is newly enrolled in a
Austin, Texas 78756-3 199                           public school may be prohibited from attending the
                                                    school during the thirty-day period allowed to produce
Ms. Shirley Neeley, Ed. D.                          (1) immunization records; (2) proof that the child is
Commissioner of Education                           not required to be immunized; or (3) proof that the
Texas Education Agency                              child may be provisionally admitted under section
1701 North Congress Avenue                          3 8.00 1(e), Education Code (RQ-0 124-GA)
Austin, Texas 78701-9734

Dear Commissioners:

         Your agencies, the Texas Department of Health (the “TDH”) and the Texas Education
Agency (the “TEA”), jointly ask whether, under sections 25 .OOl and 25.002 of the Education Code,
a child who is newly enrolled in a public school may be prohibited from attending the school during
the thirty-day period allowed to produce (1) immunization records; (2) proof that the child is not
required to be immunized; or (3) proof that the child may be provisionally admitted under section
3 8 .OO1, Education Code. ’ You stipulate that federal law requires a school to admit a homeless child,
see 42 U.S.C.A. 0 11302 (West 1995 & Supp. 2003) (defining the term “homeless”), “without regard
to the availability of immunization records.” Request Letter, supra note 1, at 1; see 42 U.S.C.A.
8 11432(g)(3)(C)(i) (West Supp. 2003). Accordingly, this opinion does not pertain to homeless
children.

I.      Amlicable Law

        A.       Sections 25.001 and 25.002, Education Code

                 Section 25.001 provides for a child’s admission into the public schools: “A person
who is at least five years of age and under 21 years of age on the first day of September of any school


           ‘See Letter from Eduardo J. Sanchez, M.D., M.P.H., Commissioner of Health, Texas Department of Health,
and Robert Scott, Chief Deputy Commissioner of Education, Texas Education Agency, to Honorable Greg Abbott, Texas
Attorney General (Oct. 28, 2003) (on file with Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
Eduardo J. Sanchez, M.D., M.P.H.         - Page 2          (GA-0178)
Ms. Shirley Neeley, Ed. D.




year is entitled to the benefits of the available school fund for that year.” TEx. EDUC. CODE ANN.
tj 25.001(a) (V emon Supp. 2004). Section 25.001 further requires a school district to “admit into
[its] public schools” any school-aged child who satisfies the statutory residency requirements or is
a foreign exchange student. Id. 0 25.001(b). Section 25.002 establishes enrollment requirements:

                (a) Not later than the 30th day after the day a parent or other person with legal
       control of a child under a court order enrolls the child in a public school, the parent
       or other person or the school district in which the child most recently attended school
       shall furnish to the school district:

                           (1) the child’s birth certificate or [other] proof of the child’s
               identity;

                       (2) a copy of the child’s records from the school the child
               most recently attended if the child has been previously enrolled in a
               school in this state or another state; and

                        (3) a record showing that the child has the immunizations as
               required under Section 38.001, in the case of a child required under
               that section to be immunized, proof as required by that section
               showing that the child is not required to be immunized, or proof that
               the child is entitled to provisional admission under that section and
               under the rules adopted under that section.




                (c) If the information required by Subsection (a) is not furnished to the district
       within the period provided by that subsection, the district shall notify the police
       department of the municipality or sheriffs department of the county in which the
       district is located and request a determination of whether the child has been reported
       as missing.

               (d) When accepting a child for enrollment, the school district shall inform the
       parent or other person enrolling the child that presenting a false document or false
       records under this section is an offense under Section 37.10, Penal Code, and that
       enrollment of the child under false documents subjects the person to liability for
       tuition or costs under Section 25.001(h).




               (g) A school district shall accept a child for enrollment in a public school
       without the documentation required by Subsection (a) if the Department of Protective
       and Regulatory Services has taken possession of the child under Chapter 262, Family
Eduardo J. Sanchez, M.D., M.P.H.            - Page 3             (GA-0178)
Ms. Shirley Neeley, Ed. D.




         Code. The Department of Protective and Regulatory Services* shall ensure that the
         documentation required by Subsection (a) is furnished to the school district not later
         than the 30th day after the date the child is enrolled in the school.

Id. 0 25.002 (footnote added).


         B.        Section 38.001, Education Code, and TDH Rules

                 The Board of Health is required by statute to “develop immunization requirements
for children.” TEX. HEALTH & SAFETY CODE ANN. 0 81.023(a) (Vernon Supp. 2004). Section
3 8.00 1 of the Education Code requires that each student be “fully immunized against diphtheria,
rebeola, rubella, mumps, tetanus, and poliomyelitis,” and other diseases as the Texas Board ofHealth
directs, except in limited cases. TEX. EDUC. CODE ANN. 5 38.001(a)-(b) (Vernon Supp. 2004).
Immunization is not required for admission if the person applying for admission

                   (1) submits . . . :

                           (A) an affidavit or a certificate signed by a physician . . . in
                   which it is stated that, in the physician’s opinion, the immunization
                   required poses a significant risk to the health and well-being of the
                   applicant or any member of the applicant’s family or household; or

                           (B) an affidavit signed by the applicant or, if ,a minor, by the
                   applicant’s parent or guardian stating that the applicant declines
                   immunization for reasons of conscience, including a religious belief;
                   or

                   (2) is a member of the armed forces of the United States and is on active duty.

Id. 0 38.001(c).    Section 38.001(e) provides for provisional            admission:

                 A person may be provisionally admitted to an elementary or secondary school
         if the person has begun the required immunizations and if the person continues to
         receive the necessary immunizations as rapidly as is medically feasible. The Texas
         Department of Health shall adopt rules relating to the provisional admission of
         persons to an elementary or secondary school.

Id. 6 38.001(e). Each public school must keep an individual immunization record for each student
attending school there and must cooperate in transferring a student’s immunization records when the
student transfers to another school. See id. § 38.002(a)-(b) (Vernon 1996).



         “‘As ofFebruary lst, the Texas Department ofprotective andRegulatory Services is now called the Department
of Family and Protective Services.” Texas Department ofFamily and Protective Services, at http://www.tdprs.state.tx.us/.
Eduardo J. Sanchez, M.D., M.P.H.      - Page 4         (GA-0178)
Ms. Shirley Neeley, Ed. D.




         The TDH’s rules setting out immunization requirements are located in title 25, chapter 97,
subchapter B of the Texas Administrative Code. See 25 TEX. ADMIN. CODE ch. 97, subch. B (2003)
(Texas Dep’t of Health). Section 97.63 sets out required immunizations;        section 97.62 permits
exclusions “on an individual basis for medical contraindications, religious conflicts, and active duty
with the armed forces of the United States.” Id. $4 97.62, .63; see also id. 9 97.61 (stating that all
children within the state must receive the required immunizations, unless excepted). Section 97.71
regulates provisional admission:

                The law requires that students be fully immunized against the specified
       diseases.   A student may, however, be admitted provisionally if he or she has
       begun the required immunizations and if he or she continues to receive necessary
       immunizations as rapidly as is medically feasible. The school granting provisional
       enrollment must ensure that the required immunizations are received on schedule


Id. 9 97.71; see also id. 0 97.74 (providing for transfer of records when a student transfers from one
school or district to another).

II.     Relationshir, Between Sections 25.002 and 38.001

         The TDH and the TEA disagree on how sections 25.002 and 38.001 fit together. See Request
Letter, supra note 1, at l-2. The TDH construes the statutes to permit provisional admission only
when a child “has begun the required immunizations and . . . continues to receive the necessary
immunizations as rapidly as is medically feasible,” in accordance with section 3 8 .OO1, and does not
construe section 25.002 to establish an additional circumstance in which a child may be provisionally
admitted. TEX. EDUC. CODE ANN. 4 38.001 (e) (V emon Supp. 2004); 25 TEX. ADMIN. CODE 9 97.71
(2003) (Texas Dep’t of Health, Provisional Enrollment); see Request Letter, supra note 1, at l-2.
Thus, according to the TDH, a child who has not begun the imrnunization process may not attend
school (unless the child can produce an affidavit either from a physician stating that the
immunizations are contraindicated or from a parent or guardian stating that the immunizations have
been declined for reasons of conscience, or is on active military duty). See Request Letter, supra
note. 1, at l-3. The TEA, on the other hand, believes that section 25.002 creates an additional
circumstance    in which an applicant for admission who has not been immunized must be
provisionally admitted to a school. See id. at 5. Under the TEA’s construction, in accordance with
sections 25 .OOl and 25.002, an applicant for admission must be admitted to a public school for thirty
days, regardless of immunization      status, “as a means of enabling the parent to either begin
irnmunizations or secure the necessary records.” Id.

         You therefore ask two questions. You ask first whether the TDH has “exclusive authority
to adopt rules relating to the provisional admission of students . . . based upon their immunization
status.” Id. at 1. You ask second whether a TDH rule that relates to provisional admission may
“preclude admission” of a child “who is otherwise entitled to enroll under section 25 .OO1 . . . during
the [thirty]-day period for providing records under” section 25,002(a)(3). Id. Neither of these
questions can be answered without construing sections 25.002 and 38.001 as they relate to each
other.
Eduardo J. Sanchez, M.D., M.P.H.        - Page 5            (GA-0178)
Ms. Shirley Neeley, Ed. D.




         The plain language of sections 25.002 and 38.001 indicates that each statute relates to a
different issue; in this way, they do not conflict. See TEX. GOV’T CODE ANN. $0 3 11.025, .026
(Vernon 1998) (providing for harmonizing irreconcilable statutes and general provisions that conflict
with special provisions). Like a court, we construe statutes in accordance with their plain language.
See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486,493 (Tex. 2001); see also TEX. GOV’TCODEANN.
0 3 11.023 (Vernon 1998) (“Statute Construction Aids”). “The Legislature is presumed to intend the
plain language of its legislative enactments, and we must give effect to the legislative intent.” Drilex
Sys., Inc. v. F/ores, 1 S.W.3d 112, 123 (Tex. 1999).

        Section 25.002 pertains to enrollment in public school and to the documentation that must
be provided within thirty days of enrollment.    Subsection (a) in particular requires a parent or
guardian to produce three documents:

                (1) the child’s birth certificate . . . ;

                (2) a copy of the child’s records from the school the child most recently
        attended if the child has been previously enrolled . . . ; and

                (3) [the child’s immunization      records].

TEX. EDUC. CODE ANN. 0 25.002(a) (V emon Supp. 2004). The remainder           of section 25.002 directs
a school district’s actions should a parent or guardian provide false or incomplete documentation,
see id. fj 25.002(b)-(c), (g); creates criminal offenses for the production of false documents, see id.
0 25.002(d)-(e); and limits the class of adults who may enroll a child, see id. tj 25.002(f).

         Section 25.002 purports neither to govern the immunization          status of applicants for
admission to a public school, nor to authorize the TEA to adopt rules addressing this issue. Section
25.002’s predecessor, section 21.03 13 of the Education Code, was originally adopted in 1989
primarily as a “framework” under which a school could report suspected kidnappings, but it was also
intended to “promote consistency in the enrolling of children in school.” HOUSECOMM. ON PUBLIC
EDUCATION,BILLANALYSIS, Tex. H.B. 1440,71st Leg., R.S. (1989); see Act ofMay26,1989,71st
Leg., R.S., ch. 1224, 0 1, sec. 21.03 13, 1989 Tex. Gen. Laws 4944,4944-45.           The substance of
section 25.002(a)(3) was not in the original statute, but was added in 1995 as part of a major
reenactment and revision of titles 1 and 2 of the Education Code. See Act of May 27, 1995,74th
Leg., R.S., ch. 260, 9 1, sec. 25.002, 1995 Tex. Gen. Laws 2207, 2288. Although we found no
express statement of intent motivating the insertion of section 25.002(a)(3), it is compatible with the
1989 statement of intent to promote consistency in school districts’ enrollment procedures.

        Section 38.001, on the other hand, establishes immunization requirements necessary to
protect students’ health. TEX. EDUC. CODE ANN. 0 38.001 (Vernon Supp. 2004). Subsection (a)
requires a student to be “fully immunized” against various diseases before he or she may be admitted
to school, although subsection (b) authorizes the Board of Health to modify the list of diseases
against which a child must be immunized. See id. $ 38.001(a)-(b). The section also provides for
Eduardo J. Sanchez, M.D., M.P.H.     - Page 6          (GA-0178)
Ms. Shirley Neeley, Ed. D.




exceptions to the required immunizations, see id. 8 38.001(c); provides for provisional admission
of children who have begun the required immunizations, see id. 8 38.001 (e); requires the TDH to
provide the required immunizations in certain areas, id. 9 38.001 (d); and provides that a child who
has not been immunized for reasons of conscience may be excluded Tom school in an emergency
or an epidemic, id. $38.001 (f). Courts have stated that substantially similar compulsory vaccination
statutes “‘promote the usefulness and efficiency of the schools by caring for the health of the
scholars,“’ City of New Braunfels v. Waldschmidt, 207 S.W. 303,305 (Tex. 1918) (quoting Bissell
v. Davison, 32 A. 348,349 (Corm. 1894)), and “to lessen the spread of communicable diseases,” Itz
v. Penick, 493 S.W.2d 506,509 (Tex. 1973); see also Zucht v. King, 225 S.W. 267,272 (Tex. Civ.
App.-San Antonio 1920, writ ref d) (describing a compulsory vaccination law as protecting school
children and society against disease), cert. dism ‘d, 257 U.S. 650 (1921) and 260 U.S. ‘174 (1922);
McSween v. Bd. ofSch. Trustees ofFort Worth, 129 S.W. 206,208 (Tex. Civ. App. 1910, writ ret? d)
(same).

         Given that sections 25.002 and 38.001 serve entirely different purposes, they do not conflict.
Under section 38.001, a child who has not received any immunizations (and is not excepted from
the requirements) may not be admitted to school. See TEX. EDUC. CODE ANN. 8 38.001(a), (e)
(Vernon Supp. 2004). Section 25.002, on the other hand, complements the statutory requirement
that a public school retain each student’s immunization records and cooperate in transferring them
to a student’s new school. See id. $3 25.002,38.002(a)-(b)     (Vernon 1999).

         Our interpretation of the statutes does not unconstitutionally burden a child’s interest in a
public school education.     Assuming, for the moment, that sections 25.001 and 25.002 create an
entitlement to school admission, as the TEA argues, see Request Letter, supra note 1, at 4, this
entitlement can be limited in the proper exercise of the government’s police power. A statute
requiring students to be immunized is a “proper exercise[] of the police power for the protection of
the health and safety of the citizenry.” Itz, 493 S.W.2d at 509; see Zucht v. King, 260 U.S. 174,175
(1922) (stating that it is within a state’s police power to provide for compulsory vaccination);
Waldschmidt, 207 S.W. at 308 (stating that, if there can be said to be a child’s property right to
attend school, it is “subject to a valid exercise of the [state’s] police power”); Abney v. Fox, 250
SW. 210, 213-14 (Tex. Civ. App.-Austin          1923, writ refd) (noting that numerous courts have
concluded that a compulsory vaccination law does not offend the Constitution); McSween, 129 S.W.
at 208 (holding that an order requiring vaccinations “was the exercise of police power for the
protection of the health of the pupils and therefore” was not unconstitutional);   see also Johnson v.
City of Dallas, 291 SW. 972,973 (Tex. Civ. App.-Dallas 1927, writ dism’d w.o.j.) (summarizing
other cases to state that school boards are authorized “to require the vaccination of pupils as a
condition precedent to their attendance”). In particular, in Zucht v. King, a 192 1 case, the Court of
Civil Appeals overruled an argument that an ordinance requiring children attending schools to be
vaccinated violated “the right” of

               all persons between the ages of 7 and 2 1 years. . . to attend the public
               free schools in said district and receive instruction therein, and are
               entitled to all the benefits of the free school fund furnished by the
Eduardo J. Sanchez, M.D., M.P.H.      - Page 7          (GA-0178)
Ms. Shirley Neeley, Ed. D.




                state and the public derived from taxation in said district for free
                school purposes.

Zucht, 225 S.W. at 268. The court characterized the ordinance as “a police regulation affecting the
schools, school children, for their good and the good of society, against the possible spread of
[smallpox,] one of the most filthy and dangerous diseases. ” Id. at 272. The court said that the statute
did not create an illegal special class, and thereby violate constitutional equal protection guarantees,
nor did it deny rights and privileges to any pupil without due course of law. See id. at 272-73; see
also Staffed v. San Antonio Sch. Bd., 201 S.W. 413,415 (Tex. Civ. App.-San Antonio 1918, writ
ref d) (stating that a school board’s resolution denying unvaccinated children permission to attend
school does not conflict with the compulsory education law).

III.    TDH’s Authoritv to RePulate Provisional Admission

         Having construed sections 25.002 and 38.001 in this way, we resolve your questions. In
response to your first question, we conclude that the TDH has exclusive authority to regulate a
child’s provisional admission to school with respect to immunization status. A state agency has only
those powers that are explicitly or implicitly delegated to it. See Pub. Util. Comm ‘n v. City Pub.
Serv. Bd., 53 S.W.3d 310,315 (Tex. 2001); R.R. Comm’n v. Lone Star Gas Co., 844 S.W.2d 679,
685 (Tex. 1992); Tex. Att’y Gen. Op. No. GA-0022 (2003) at 3. Section 38.001 authorizes onlythe
TDH to “adopt rules relating to . . . provisional admission.” TEX. EDUC. CODE ANN. 6 38.001(e)
(Vernon Supp. 2004). On the other hand, the rule-making authority of the TEA and the State Board
of Education is limited to specific subject matter, which does not include provisional admission. See
id. $5 7.021,7.102(c); see also TEX. CONST. art. VII, 5 8 (requiring the legislature to provide for a
State Board of Education, which “shall perform such duties as may be prescribed by law”). The
TEA itself has no general, express rule-making authority. See TEX. EDUC. CODE ANN. $7.021(b)
(Vernon Supp. 2004). While the State Board of Education has rule-making authority, we do not find
general authority to adopt rules regarding provisional admission or immunization.      See id. 9 7.102;
see also 40 TEX.ADMIN. CODE $5 715.203(b), 715.303(b) (2003) (Dep’t ofprotective & Regulatory
Servs., Enrollment) (requiring schools to “obtain enrollment information for each child before
admission” and prescribing information that a school must collect and retain). In addition, neither
section 25.001 nor section 25.002 authorizes the TEA or the State Board of Education to regulate
the circumstances under which a child may be provisionally admitted to school with respect to the
child’s immunization status.

        We conclude, in response to your second question, that a TDH rule may preclude provisional
admission to a child who has not begun receiving the required immunizations (and who is not
excepted from compliance under section 38.001 (c)), even during the thirty-day period allowed for
providing records. Section 38.001 requires all students, unless excepted, to be immunized in
accordance with TDH rules and provides for provisional admission only if the child “has begun the
required immunizations and . . . continues to receive the necessary immunizations.”    TEX. EDUC.
CODE ANN. $ 38.001(a)-(c), (e) (V emon Supp. 2004).          An agency may adopt rules that are
“‘authorized by and consistent with its statutory authority.“’ R.R. Comm’n, 844 S.W.2d at 685
Eduardo J. Sanchez, M.D., M.P.H.     - Page 8          (GA-0178)
Ms. Shirley Neeley, Ed. D.




(quoting State Bd. of Ins. v. Deffebach, 631 S.W.2d 794,798 (Tex. App.-Austin 1982, writ ref d
n.r.e.)). A rule “‘must be in harmony with the general objectives of the Act involved.“’ Id. (quoting
Gerst v. Oak Cl&!? av. & Loan Ass iz, 432 S.W.2d 702,706 (Tex. 1968); Deffebach, 63 1 S.W.2d
at 798). The TDH rule may preclude admission to a child until records are produced showing (1)
that the child has been immunized; (2) that the child is not required to be immunized; or (3) that the
child is entitled to provisional admission. The TDH’s current rule is consistent with section 38.001
by precluding admission to children who do not qualify under the statute’s plain language.

        Nevertheless, a TDH rule may not restrict the right of a parent or guardian, whose child is
fully immunized or has begun the required innnunizations, to have thirty days to produce the
required immunization documentation before the school district must report the child’s name to the
local law enforcement agency under section 25.002(c). See TEX. EDUC. CODE ANN. $ 25.002(c)
(Vernon Supp. 2004).
Eduardo J. Sanchez, M.D., M.P.H.    - Page 9        (GA-0178)
Ms. Shirley Neeley, Ed. D.




                                      SUMMARY

                       Section 25.002 of the Education Code pertains only to the
               documents that a school must require when a child enrolls. It does
               not govern the immunization status of applicants for admission to a
               public school, nor does it authorize the Texas Education Agency to
               adopt rules regarding this issue. Section 38.001 of the same code
               requires all children, unless they are excepted, to receive certain
               immunizations before they may be admitted to school, although a
               child may be provisionally admitted if he or she has begun the
               required immunizations and continues to do so.

                        Only the Texas Department of Health, and not the Texas
               Education Agency, may adopt rules relating to provisional admission
               based upon a child’s immunization status. A Department of Health
               rule may prohibit a child who is newly enrolled in a public school
               from attending the school during the thirty-day period allowed to
               produce (1) immunization records; (2) proof that the child is not
               required to be immunized; or (3) proof that the child may be
               provisionally admitted under section 3 8.00 1(e).




                                            Attor&&eneral       of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
