The Attorney General of Texas 

December 19, 1983 

JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. 00x 12548 

Austin, TX. 78711. 2540 

5121475.2501 

Telex 9101874-1367 

Telecopier 512i475.0286 

714 Jackson, Suite 700 

Dallas, TX. 75202-4508 

2141742.8944 

4024 Alberta Ave., Suite 160 

El Paso, TX. 79305-2793 

9151533.3484 

pOO1 Texas, Suite 700 

Houston, TX. 77002~3111 

7 13/223-588% 

806 Broadway, Suite 312 

Lubbock, TX. 794013479 

8061747-5238 

4309 N. Tenth, Suite B 

McAllen, TX. 78501-1685 

5121682.4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 78205.2797 

512/225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

r 

Mr. Marlin W. Johnston 

COUIOLiSSiOllSr 

Texas Department of Human Resources 

P. 0. Box 2960 

Austin, Texas 78769 

Opinion No. JM-98 

Scope of the exemption 

$vided by section 42.041(b) 

(71, Human Resources 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 Human Resources 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). 

The plain language of this exception requires an affirmative answer to 

your question, because the exemption is directed explicitly at the 

educational facility and is not limited to particular activities 

conducted by that facility. See V.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 be no doubt 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 a small 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. 416 
Mr. Marlin W. Johnston - Page 2 (JM-98) 

indicate that such a restriction was not intended for educational 

facilities covered by subsection 7. Accordingly, public schools which 

provide custodial day care after school hours are exempt from 

licensing by the Department of Human Resources. 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 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Colin Carl 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Jon Bible 

Co1111 Carl 

Susan Garrison 

Fernando Gomez 

Jim Moellinger 

Nancy Sutton 

Bruce Youngblood 

p. 417