ATTORNEY GENERAL OF TEXAS 

Eduardo J. Sanchez, M.D., M.P.H. 

Commissioner of Health 

Texas Department of Health 

1100 West 49th Street, M-75 1 

Austin, Texas 78756-3 199 

Ms. Shirley Neeley, Ed. D. 

Commissioner of Education 

Texas Education Agency 

1701 North Congress Avenue 

Austin, Texas 78701-9734 

GREG ABBOTT 

April 15,2004 

Opinion No. GA-0178 

Re: 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 8.00 1 (e), Education Code (RQ-0 124-GA) 

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 .OO 1, 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]. 
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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 
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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/. 
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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 .OO 1, 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 .OO 1 . . . 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. 
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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.” HOUSE COMM. 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 
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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 
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Ms. Shirley Neeley, Ed. D. 

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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 
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(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). 
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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