                                 ATTORNEY             GENERALOF               TEXAS
                                               GREG         ABBOTT




                                                    April 6, 200~6



The Honorable Jeff Wentworth                                Opinion No. GA-0420
Chair, Committee on Jurisprudence
Texas State Senate                                          Re: Whether private schools must accept for
Post Office Box 12068                                       enrollment   children  who have received an
Austin, Texas 78711                                         exemption from the immunizations required by the
                                                            Texas Health and Safety Code (RQ-0403-GA)

Dear Senator Wentworth:

         You ask whether “private schools, from preschool through secondary school,must accept for
enrollment children who have received an exemption from immunizations required under the Texas
Health and Safety Code.“’ You state that “Texas law is unclearwhat child immunization laws,
specifically those establishing an exemption from immunization requirements, apply to children
enrolled or seeking enrollment in private schools.” Request Letter, supra note 1, at 1: You refer us to
sections 161.004 and 8 1.023 of the Health and Safety Code and to section 38.901 of the Education
Code? Our discussion will review the interplay among thesestatutes          as well as rules adopted
thereunder.

       Section 161.004 of the Health and Safety Code declares that “[elvery child in the state shah
be immunized against vaccine preventable diseases caused by infectious agents in accordance with


           ‘Letter from Honorable JeffWentworth, Chair, Committee on Jurisprudence, Texas State Senate, to Honorable
Greg Abbott, Attorney General of Texas (Oct. 11, 2005) (on tile with the Opinion Committee, also available at
http://~.oag.state.tx.us)     [hereinafier Request Letter].’

            ‘You also refer to section 42.043 ofthe Human Resources Code, which provides that the Department ofHuman
S&ices “shall make rules for the immunization         of children in facilities regulated under this chapter,” ie., certain
facilities, homes and agencies that provide child-care services. See TEX. HUM. RES. CODE ANN 3 42.043 (Vernon Supp.
2005). Section 42.041 declares that “[n]o person may operate a child-care facility or child-placing agency without a
license issued by the department.” Id. 5 42.041(a). That statute also provides that “[tlhis section does not apply to    (7)
an educational facility accredited by the Texas Education Agency or th” Southern Association ofcolleges &d Schools
that operates primarily for educational purposes in grades kindergarten and above, an after-school program operated
directly by an accredited educational facility, or an after-school program operated by another entity under contract with
the educational facility, ifthe Texas Education Agency or Southern Association of Colleges and Schools has approved
the curriculum content of the after-school program operated under the contract.” Id. 3 42.041(b). We assume for
purposes of this opinion that the “private schools” to which you refer are excepted horn licensing as a “child-care
facility” under subchapter C of chapter 42 of the Human Resources Code. Accordingly, we do not address the
applicability of section 42.043 of that code.
The Honorable Jeff Wentworth      - Page 2       (GA-0420)




the immunization schedule adopted by the board.” TEX. HEALTH & SAFETYCODE ANN. 5 16 1.004
(Vernon Supp. 2005). The “board” referred to in this statute is the former Texas Board of Health,
now the Texas Department of State Health Services (the “Department”). See Act of June 2,2003,
78th Leg., R.S., ch. 198, $5 1.09, 1.26,2003 Tex. Gen. Laws 611, 618-23, 641. “Child” is defined
in section 161.004 as “a person under 18 years of age.” TEX. HEALTH & SAFETY CODE ANN.
5 161.004(e) (Vernon Supp. 2005). Hospitals are responsible for “referring newborns for
immunization” and for “administeringneeded        vaccinations or referring the child for immunization.”
Id. 5 16 1.004(b)(l), (3). Physicians are responsible for “reviewingthe immunization history of every
child examined and administering any needed vaccinations or referring the child for immunization.”
Id. 5 161.004(c).

        Section 16 1.004 also provides that a child is “exempt from an immunization     required by this
section” if:

                (1) a parent, managing conservator, or guardian states that the
                immunization is being declined for reasons of conscience, including
                a religious belief; or

               ,(2) the immunization is medically contraindicated based on the
                opinion of a physician licensed by any state in the United States who
                has examined the child.

Id. 5 161.004(d). Although section 161.004(d) provides for exemptions from immunization,       it does
not refer to immunization as a requirement for admission to a school of any kind, nor does it refer
to exemptions from immunization in the context of admission to a school. By contrast, section
3 8.00 1 of the Education Code provides for immunization requirements and exemptions for students
admitted to public schools. Each student enrolled in a public school must be “fully immunized
against diphtheria, rubeola, rubella, mumps, tetanus, and poliomyelitis,         except as provided
by Subsection (c).” TEX. EDUC. CODE ANN. (i 38.001(a) (Vernon Supp. 2005). Subsection (c),
however, declares that “[i]mmunization is not required for a person’s admission to any elementary
or secondary school if,” inter alia, the person submits to the~admitting official one of two kinds
of affidavit.      Id. 5 38.001(c)-(c-l)‘(emphasis  added). Those affidavits must be based upon
circumstances similar to those specified in subsection 161.004(d) of the Health and Safety Code,
 i.e., (1) significant medical risk, or (2) reasons of conscience, including a religious belief. Id.
 5 38.001(c). Section38.001, like the entirety ofthe Education Code, specifically applies to children
 who attend public schools. See id § 1.001 (“This code applies to all educational institutions
 supported in whole or in part by state tax funds unless specifically excluded by this code?).

        The other statute about which you inquire is’section 81.023 of the Health and Safety Code.
That provision requires the Department, infer alia, to,“cooperate with the State Board of Education
in formulating and implementing immunization requirements for students admitted to public or
private primary or secondary schools.” TEX. HEALTH.& SAFETYCODE ANN. 5 81.023(c) (Vernon
Supp. 2005) (emphasis added). By virtue of this provision, the Department must formulate
immunization requirements for students admitted to both public and private schools. The language
The Honorable Jeff Wentworth      - Page 3            (GA-0420)




of the statute makes clear that the “immunization requirement” is not applicable to students who
merely apply for enrollment to a public or private school. Rather; it directs the Department to
formulate and impl,ement immunization requirements for those students who have already been
accepted for enrollment in a private school. Moreover, section 81;023 does not itself direct the
Department to formulate exemptions from immunization requirements. We conclude therefore that
a private school that does not accept state tax funds is not required to accept for enrollment a child
who has received an exemption from the immunizations required by the Health and Safety Code.

        Pursuant to sections 81.023(c) and 161.004 of the Health and Safety Code, discussed
previously, the Department has adopted Rule 97.62, which states:

               Exclusions from compliance [with immunization requirements] are
               ~allowable on an individual    basis for medical contraindications,
               reasons of conscience, including a religious belief, and active duty
               with the armed forces of the United States. Children and students in
               these categories must submit evidence for exclusion from compliance
               as specified in the Health and Safety Code [sections] 161.004(d)
               [and] 161.0041, Education Code, Chapter 38 [and] Chapter 51, and
               the Human Resources Code, Chapter 42.

25 TEX.ADMIN.CODE § 97.62 (2005) (emphasis added). Rule 97.62-m contrast to section 38.001
of the Education Code, which requires public .schools to recognize exemptions                     from
immunization-merely        states that such exemptions, for both public and private schools, “are
allowable.” Id. The question before us is ,thus whether the statement in section 38.001 of the
Education Code that immunizations are “not required” in certain circumstances has the same
meaning as the statement in Rule 97.62 that exemptions from immunization “are allowable.” In our
view, to declare that an exemption is “allowable” is not equivalent to declaring that an exemption
from immunization must be accepted by a school. We are supported in this conclusion by the
language of section 81.023(c), under which the Department is directed to formulate and implement
immunization requirements for only those students who have already been enrolled in a private
school. The Department is not authorized to impose those requirements for mere applicants to a
private school. Thus, the language of section 81.023(c) itself bolsters the rule’s distinction between
“not required” and “allowable.” We conclude therefore that a private school that does not accept
state tax funds is not required to’accept for enrollment a child who has received an exemption from
the immunizations required by ‘the Texas Health and Safety Code.
The Honorable Jeff Wentworth       - Page 4   (GA-0420)




                                        SUMMARY

                      A private school that does not accept state tax funds is not
              required to accept for enrollment a child who has received an
              exemption from the immunizations required by the Texas Health and
              Safety Code.




BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
