# TheAttorney General ofTexas December 19, 1983 JIMMATTOX Attorney General

Supreme Court Building P.0. 00x 12548 Austin, TX. 78711. 2540 5121475.2501 Telex 9101874-1367 Telecopier 512i475.0286

714Jackson, Suite700 Dallas, TX. 75202-4508 2141742.8944

4024Alberta Ave.,Suite 160 ElPaso,TX. 79305-2793 9151533.3484
pOO1 Texas, Suite 700 Houston, TX. 77002~3111 713/223-588%

806Broadway, Suite 312 Lubbock, TX. 794013479 8061747-5238

4309 N.Tenth, Suite B McAllen, TX. 78501-1685 5121682.4547

200Main Plaza, Suite 400 SanAntonio, TX. 78205.2797 512/225-4191

AnEqualOpportunity/ Affirmative Action Employer

r Mr.Marlin W.Johnston COUIOLiSSiOllSr Texas Department of HumanResources P. 0. Box2960 Austin, Texas 78769 Opinion No. JM-98 Scope of the exemption $vided by section 42.041(b) (71, HumanResources Code Dear Mr. Johnston: You have asked whether public schools which provide essentially custodial day care after regular school hours, are exempt from the licensure requirements of the HumanResources Code. Section 42.041 thereof prohibits operation of a child-care facility without a license, subject to certain exceptions. Section 42.041(b)(7) states that the section

does not apply to . . . an educational facility accredited by the Central Education Agency
. . . that operates Primarily for educational purposes in grades kindergarten and above. (Emphasis added). Theplain language of this exception requires anaffirmative answer to your question, because the exemption is directed explicitly at the educational facility and is not limited to particular activities conducted bythat facility. SeeV.T.C.S. art. 5429b-2, 52.01. - However, even were the clause “that operates primarily for educational purposes . . .” not merely descriptive, but rather necessary to determine the scope of the exception in subdivision (7), it is clear that public schools which offer after school custodial care are exempted from the licensing requirement of section 42.041(a). There can really benodoubt that the primary purpose for which public schools are operated is the education of the children attending them. The time, resources, and personnel devoted to strictly educational activities constitute the overwhelming proportion of those expended by public schools. The after school custodial care is an accommodation provided by a few schools for some parents and unquestionably consumes only asmall fraction of the time, resources, and personnel of the public schools. Moreover, the restrictions in subsection 8, 9 and 11 on the hours of “custodial care” that an educational facility can provide and still maf~ntain the exemption

p. 416Mr. Marlin W.Johnston - Page 2 (JM-98)

indicate that such a restriction was not intended for educational facilities covered bysubsection 7. Accordingly, public schools which provide custodial day care after school hours are exempt from licensing by the Department of HumanResources. They are of course subject to regulation by the Texas Education Agency. SUMMARY Section 42.041(b)(7) exempts public schools which operate part-day child care prograns after the close of the customary school day from licensure required by section 42.041(a). Jz&

JIM MATTOX Attorney General of Texas TOMGREEN First Assistant Attorney General DAVIDR. RICHARDS Executive Assistant Attorney General Prepared by Colin Carl Assistant Attorney General APPROVED: OPINIONCOMMITTEE Rick Gilpin, Chairman Jon Bible Co1111Carl Susan Garrison Fernando Gomez JimMoellinger NancySutton Bruce Youngblood

p. 417