Hon. John K. Winters, Executive Director 

State Department of Public Welfare 

Austin, Texas 

Opinion No. 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 application of Article 4442a, 

Vernents Texqa Civil Ststtites, with rerrpect 

to prLvat& kindergartens. 

"Article 44420, VernonOs Texas Civil Statutes, provides for the inspeotlon and llcenslxlg 

of day nurseries for the care and custody of 

children. The responsibility for making the inspec~lons az@ approving the licenses was originally placed upon the atab Boh~td of Health, 

but this responsibility was lster transferred 

to the &ate Department of Public Welfare. 

"Article 2919 of VernonPs Texas Civil Statutes provides for the estab;lishment of free kindergartens in school districts to be conducted 

in connection with the public schools; however, 

so far as we have been able to det,ermfne "te 

statutes make no provision for the establishment, 

maintenance, management, and supervision of prfvste kindergartens. 

"Up to this time the State Department of 

Public Welfare has not considered it within the 

scope of Article 44420 to inspect and License 
Hon. John H. Winters, Page 2, V-327. 

private kindergsrtess o We have unofficiaily aefined a kindergarten as a place mafntained for 

the purpose of training ohfld$en of pre-school 

age. Since the children B;pe usually not rscpufred nor allowed to remain at the kfndergaeten for 

longer than four hours, and since the teacher 

Is usually required to have a teacheros 83ex%fflcate, we have not class3fied such places as 

dag nurseries for the care ar.d curto@ of children; tberefere, it has been the fnterpretatfon 

of the Department that kindergartens did not 

come within the scope of thh9.s artfcle requiring 

inspection ana license by the $tsrtc D@partment 

of Public Welfare. 

"The questioe has been raised as to the 

reaponslbillty of the State Department of Public Welfare in this connectfon on the bas1.s 

that the kindergartens come wuithen the following provision of Artfcle 44429r; 

0 v 0 or other place for the 

caxe a& lustody af children us&r 

fifteen years of age O D O8 

"In gour opinion, is the State Department 

of Publie Welfare required by law to make enspectlons and 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-school age" cohk&3ek, With the conception of a kindergarten aa found fn the few reported cases 

cen8iderlng the 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 %smdos xeeza, w1hich 

bP guldLxg *sip l~cliaatforn ?&a pig 5&e ok",=, 

ganized mefememt, aml favesW.ng the* g-a 

with an ethical ad educatfonai value, teaches, 

besl.dos physical exercises, habai%s of d.Xmcipline, self-control, hs.rmcn~ous .act,fon an'd pu?+ 

pose, togethex wftb dome definite le~9sois of 
lion. John H. Winters, Page 3, V-327. 

fact. It ir apparent that the work coetemplbted bar such a system is pmely prelimimry 

to, end entirely different fn character from, 

the oMinary work of the common school, and 

Is in fact designed to fit very young cbildson, whore rinds a8d bodies are, solely beculse of their tender 8ge, not yet capable 

of the instruction contemplated j.2 an ordfnary school, for such school worka" 

Asmning that the instftutfogs under 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 lnstltutfon is 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, asaoclatPon OF corporation, whether operating for ohasfty or revenue* who shrll own, conduct or manage a dsy 

1~ 

As you state, the fom&ofng statute originalWity: 

Ucsd llcenslag and aupervfsory respolgBibflltles 

the strka BoaPd ar Healthv But Bar varQOia$ snaatmnta, amil~ th@ est&li&mnt of the Child Welfare Dfvfsion ,of the atate Deprtment of PublSo Welfexe, those 

~eBpoarlbllltles now lie Mth the Department of Public 

Welf~e 6 While or$geginslly considered aa related to IPatters af health other provisions of Article 4442~~ deal 

with matters o&r than health, and contempLate an exemlnatlon Into the moral rad ot&m itiluences upon chfldren 80 c6ima for. Of couxae, R %n&ergaHien" aa prbviously defined does have to some extent the e8re and 

curt&y 0f children plaoed 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 Institutiona fat rdnd. 

The aharacte&? of t,au iaatftutfom specifloalbg 
. . 

enumerated which are required to be licensed indicates 

the character of other institutions or pLacea "for the 

care and custody of children” which were intended by t~he 

Legislature to be covered by Article 4442&. Day nurm3riss 

are commonly understood to be places where children, who 

are unable to aere for themselves fn the ntxmal fun&ions 

of Infancy and early oblldhoi~d, e.re left with someone who 

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 normally provided to 

nor ,ohil.dren under circumstances 

PFirate kindergartens established for 

‘the purpose of pre-so~obl education 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 'for the care or custody of children under fifteen ears of age" 

within the meaning of Article 4 1 42a, 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