Hon. John K. Winters, ExecutiveDirector

State Department of PublicWelfare Austin, Texas OpinionNo. V-327
He: Licensing of private kindergartens

utldeer Article 4442a, Vernon's Civil Statutes.
Dear Mr. wintdrs:

Your letter of July 22 makes the following request for 99 opinion:

"We shall appreciate your opin,lon

with reference to the applicationof Article 4442a, Vernents Texqa Civil Ststtites, with rerrpect to prLvat& kindergartens. "Article 44420, VernonOsTexas Civil Statutes, provides for the inspeotlonand llcenslxlg of day nurseries for the care and custody of children. The responsibility for making the inspec~lonsaz@ approvingthe licenseswas originally placed upon the **atab** Boh~td of Health, but this responsibility was lster transferred to the &ate Departmentof PublicWelfare. "Article 2919 of VernonPsTexas Civil Statutes provides for the estab;lishment of free kindergartens in school districts to be conducted in connectionwith the public schools;however, so far as we have been able to det,ermfne "te statutesmake no provisionfor the establishment, maintenance,

management,and supervisionof prfvste kindergartens. "Up to this time the State Department of Public Welfare has not consideredit within the scope of Article 44420 to inspect and LicenseHon. John H. Winters, Page 2, V-327.

private kindergsrtess o We have unofficiailyaefined a kindergarten as a place mafntainedfor the purpose of trainingohfld$en of pre-school age. Since the childrenB;pe usually not rscpufred nor allowed to remain at the kfndergaetenfor longer than four hours, and since the teacher Is usuallyrequired to have a teacheros 83ex%fflcate, we have not class3fiedsuch places as dag nurseriesfor the care ar.d curto@ of children; tberefere, it has been the fnterpretatfon of the Departmentthat kindergartens did not come within the scope of thh9.s artfcle requiring inspection

### ana license

### by the $tsrtc D@partment of PublicWelfare.
"The questioehas been raised as to the reaponslbillty

of the State Department of Public Welfare in this connectfonon the bas1.s that the kindergartens come wuithen

the following provisionof Artfcle 44429r;

0 v 0 or other place for the caxe a& lustody af children us&r fifteenyears of age O D O8
"In gour opinion, is the State Department of PublieWelfare requiredby law to make enspectlonsand grant licenses to private kfndergartens in the state?" your awcfaet "unoffi.cfal" de%imitiom of & LPadergartem “88 l place ma&stained fox the purpose of trainis& children of pre-schoolage" cohk&3ek,With the conception of a kindergarten aa found fn the few reported cases cen8iderlngthe matter* From Words and Phrases,Velums 2%3s we quete a cited excerpt frem the case of Los Angeles Couptq ~‘1. Kirk, 83 P. 250, 251, 148 CeL.. 385, whXcQ ir typtw$ ef ad sgaolqyrous with other deiinitfwm thereio se% : “The term vkimdergad.ksnv Wa8 &svissd to apply to a q8tem elabePa8eld. f0re the fxstFuction of cbi3aTrea

ef very %smdosxeeza, w1hich bP guldLxg *sip l~cliaatforn ?&a pig 5&e ok",=, ganizedmefememt,aml favesW.ngthe* g-a with an ethical ad educatfonaivalue, teaches, besl.dos

physical exercises,habai%s of d.Xmcipline, self-control, hs.rmcn~ous

.act,fon an'd pu?+ pose, togethexwftb dome definite le~9sois oflion. John H. Winters, Page 3, V-327.

fact. It ir apparent that the work coetemplbted bar

such a system is pmely prelimimry to, end entirelydifferentfn characterfrom, the oMinary work of the common school, and Is in fact designed to fit very young cbildson, whore rinds a8d bodies are, solelybeculse of their tender 8ge, not yet capable of the instructioncontemplatedj.2 an ordfnary school, for such school worka" Asmning that the instftutfogsunder consideration 8re of the chuacter outlined, 8ad th8t their purpose and function is prlmzily the teachins of young chdldren for periods of a few hours daily, we will consider whether or not such an lnstltutfonis contemplated by the provisi@m of Article 44428, vernon'a Civil Statutes,Section 1, fro*1 whioh you have quoted and which reads In pert:

"pvery person, asaoclatPonOF corporation, whether operatingfor ohasfty or revenue* who shrll own, conduct or manage a dsy

1~ As you state, the fom&ofng statute original**Wity:** Ucsd llcenslagand aupervfsory respolgBibflltles the strka BoaPd ar Healthv But Bar varQOia$

snaatmnta, amil~

th@ est&li&mnt of the Child Welfare Dfvf**sion** ,of

the atate Deprtment of PublSo Welfexe, those ~eBpoarlbllltles now lie Mth the Department of Public Welf~e 6 While or$geginslly consideredaa related to IPatters af health other provisions of Article 4442~~ deal with matters o&r than health, and contempLatean exemlnatlon Into the **moral** rad ot&m itiluencesupon chfldren 

### 80 c6ima for. Of couxae, R %n&ergaHien" aa prbviouslydefined does have to some extent the e8re and curt&y 0f childrenplaoed therein for &upervision. But for that m8tt~po dsscing; rchools, schools of PUBIC, 8rt schools,wmy rnmber of l~nstftutfons a&so hs.ve

such llmlted 0-e & auntie&y of chLld.mn amleer

fifteen years of age. ObrlGurLy,the Laglsll&&u??e di,d not have all of these Institutionafat rdnd.
The aharacte&?

of t,au iaatftutfom specifloalbg. .

enumeratedwhich are required to be licensed indicates

the character of other institutionsor pLacea "for the care and custody of children”which were intendedby t~he Legislatureto be coveredby Article 4442&. Day nurm3riss are commonly understoodto be places where children,who are unable to aere for themselvesfn the ntxmal fun&ions of Infancy and early oblldhoi~d, e.re left with someonewho will see that thBsb'futict&ons ape ptioperly

pePformed, such as feeding9 bath%%+, ,I?$stp and o,t&efi

‘functions

requibed for the ~$oper?

~#~~@$;al

fMvis3Spment

or &Al&an of tender year*0 Such iast~tutraWL~ as well 8s children's~ board%ng home8 and child pI.~%n&'. fuP&ah care atid

cupcody -9 encies,O

are normallyprovided to nor ,ohil.dren

under circumstances

PFirate kindergartens establishedfor ‘the purpose of pre-so~obleducation **Of gOUng**  &ll&en, at which sufh children at~.end only

:.

.Hon. John B. Winters, Psge 5, V-327.

a few hours of each dT3 are not required to be licensed as places 'forthe care or custody of children under fifteen ears of age" within the meaning of Article 4142a, VernonUs Civil Statutes., The purpose and functions of each instftution must be &individually considered,regardlesa of Its being called a "kindergarten", in order to deter&z& whether or not a lfcense is r8qUfred.
Yours very truly

ATTOFUiEY

GBXiERAL

OF TEXAS