ATTORNEY GENERALOF TEXAS 

GREG ABBOTT 

April 6, 200~6 

The Honorable Jeff Wentworth 

Chair, Committee on Jurisprudence 

Texas State Senate 

Post Office Box 12068 

Austin, Texas 78711 

Opinion No. GA-0420 

Re: Whether private schools must accept for 

enrollment children who have received an 

exemption from the immunizations required by the 

Texas Health and Safety Code (RQ-0403-GA) 

Dear Senator Wentworth: 

You ask whether “private schools, from preschool through secondary school,must accept for 

enrollment children who have received an exemption from immunizations required under the Texas 

Health and Safety Code.“’ You state that “Texas law is unclearwhat child immunization laws, 

specifically those establishing an exemption from immunization requirements, apply to children 

enrolled or seeking enrollment in private schools.” Request Letter, supra note 1, at 1: You refer us to 

sections 161.004 and 8 1.023 of the Health and Safety Code and to section 38.901 of the Education 

Code? Our discussion will review the interplay among thesestatutes as well as rules adopted 

thereunder. 

Section 161.004 of the Health and Safety Code declares that “[elvery child in the state shah 

be immunized against vaccine preventable diseases caused by infectious agents in accordance with 

‘Letter from Honorable JeffWentworth, Chair, Committee on Jurisprudence, Texas State Senate, to Honorable 

Greg Abbott, Attorney General of Texas (Oct. 11, 2005) (on tile with the Opinion Committee, also available at 

http://~.oag.state.tx.us) [hereinafier Request Letter].’ 

‘You also refer to section 42.043 ofthe Human Resources Code, which provides that the Department ofHuman 

S&ices “shall make rules for the immunization of children in facilities regulated under this chapter,” ie., certain 

facilities, homes and agencies that provide child-care services. See TEX. HUM. RES. CODE ANN 3 42.043 (Vernon Supp. 

2005). Section 42.041 declares that “[n]o person may operate a child-care facility or child-placing agency without a 

license issued by the department.” Id. 5 42.041(a). That statute also provides that “[tlhis section does not apply to (7) 

an educational facility accredited by the Texas Education Agency or th” Southern Association ofcolleges &d Schools 

that operates primarily for educational purposes in grades kindergarten and above, an after-school program operated 

directly by an accredited educational facility, or an after-school program operated by another entity under contract with 

the educational facility, ifthe Texas Education Agency or Southern Association of Colleges and Schools has approved 

the curriculum content of the after-school program operated under the contract.” Id. 3 42.041(b). We assume for 

purposes of this opinion that the “private schools” to which you refer are excepted horn licensing as a “child-care 

facility” under subchapter C of chapter 42 of the Human Resources Code. Accordingly, we do not address the 

applicability of section 42.043 of that code. 
The Honorable Jeff Wentworth - Page 2 (GA-0420) 

the immunization schedule adopted by the board.” TEX. HEALTH & SAFETY CODE ANN. 5 16 1.004 

(Vernon Supp. 2005). The “board” referred to in this statute is the former Texas Board of Health, 

now the Texas Department of State Health Services (the “Department”). See Act of June 2,2003, 

78th Leg., R.S., ch. 198, $5 1.09, 1.26,2003 Tex. Gen. Laws 611, 618-23, 641. “Child” is defined 

in section 161.004 as “a person under 18 years of age.” TEX. HEALTH & SAFETY CODE ANN. 

5 161.004(e) (Vernon Supp. 2005). Hospitals are responsible for “referring newborns for 

immunization” and for “administeringneeded vaccinations or referring the child for immunization.” 

Id. 5 16 1.004(b)(l), (3). Physicians are responsible for “reviewingthe immunization history of every 

child examined and administering any needed vaccinations or referring the child for immunization.” 

Id. 5 161.004(c). 

Section 16 1.004 also provides that a child is “exempt from an immunization required by this 

section” if: 

(1) a parent, managing conservator, or guardian states that the 

immunization is being declined for reasons of conscience, including 

a religious belief; or 

,(2) the immunization is medically contraindicated based on the 

opinion of a physician licensed by any state in the United States who 

has examined the child. 

Id. 5 161.004(d). Although section 161.004(d) provides for exemptions from immunization, it does 

not refer to immunization as a requirement for admission to a school of any kind, nor does it refer 

to exemptions from immunization in the context of admission to a school. By contrast, section 

3 8.00 1 of the Education Code provides for immunization requirements and exemptions for students 

admitted to public schools. Each student enrolled in a public school must be “fully immunized 

against diphtheria, rubeola, rubella, mumps, tetanus, and poliomyelitis, except as provided 

by Subsection (c).” TEX. EDUC. CODE ANN. (i 38.001(a) (Vernon Supp. 2005). Subsection (c), 

however, declares that “[i]mmunization is not required for a person’s admission to any elementary 

or secondary school if,” inter alia, the person submits to the~admitting official one of two kinds 

of affidavit. Id. 5 38.001(c)-(c-l)‘(emphasis added). Those affidavits must be based upon 

circumstances similar to those specified in subsection 161.004(d) of the Health and Safety Code, 

i.e., (1) significant medical risk, or (2) reasons of conscience, including a religious belief. Id. 

5 38.001(c). Section38.001, like the entirety ofthe Education Code, specifically applies to children 

who attend public schools. See id § 1.001 (“This code applies to all educational institutions 

supported in whole or in part by state tax funds unless specifically excluded by this code?). 

The other statute about which you inquire is’section 81.023 of the Health and Safety Code. 

That provision requires the Department, infer alia, to,“cooperate with the State Board of Education 

in formulating and implementing immunization requirements for students admitted to public or 

private primary or secondary schools.” TEX. HEALTH.& SAFETY CODE ANN. 5 81.023(c) (Vernon 

Supp. 2005) (emphasis added). By virtue of this provision, the Department must formulate 

immunization requirements for students admitted to both public and private schools. The language 
The Honorable Jeff Wentworth - Page 3 (GA-0420) 

of the statute makes clear that the “immunization requirement” is not applicable to students who 

merely apply for enrollment to a public or private school. Rather; it directs the Department to 

formulate and impl,ement immunization requirements for those students who have already been 

accepted for enrollment in a private school. Moreover, section 81;023 does not itself direct the 

Department to formulate exemptions from immunization requirements. We conclude therefore that 

a private school that does not accept state tax funds is not required to accept for enrollment a child 

who has received an exemption from the immunizations required by the Health and Safety Code. 

Pursuant to sections 81.023(c) and 161.004 of the Health and Safety Code, discussed 

previously, the Department has adopted Rule 97.62, which states: 

Exclusions from compliance [with immunization requirements] are 

~allowable on an individual basis for medical contraindications, 

reasons of conscience, including a religious belief, and active duty 

with the armed forces of the United States. Children and students in 

these categories must submit evidence for exclusion from compliance 

as specified in the Health and Safety Code [sections] 161.004(d) 

[and] 161.0041, Education Code, Chapter 38 [and] Chapter 51, and 

the Human Resources Code, Chapter 42. 

25 TEX. ADMIN. CODE § 97.62 (2005) (emphasis added). Rule 97.62-m contrast to section 38.001 

of the Education Code, which requires public .schools to recognize exemptions from 

immunization-merely states that such exemptions, for both public and private schools, “are 

allowable.” Id. The question before us is ,thus whether the statement in section 38.001 of the 

Education Code that immunizations are “not required” in certain circumstances has the same 

meaning as the statement in Rule 97.62 that exemptions from immunization “are allowable.” In our 

view, to declare that an exemption is “allowable” is not equivalent to declaring that an exemption 

from immunization must be accepted by a school. We are supported in this conclusion by the 

language of section 81.023(c), under which the Department is directed to formulate and implement 

immunization requirements for only those students who have already been enrolled in a private 

school. The Department is not authorized to impose those requirements for mere applicants to a 

private school. Thus, the language of section 81.023(c) itself bolsters the rule’s distinction between 

“not required” and “allowable.” We conclude therefore that a private school that does not accept 

state tax funds is not required to’accept for enrollment a child who has received an exemption from 

the immunizations required by ‘the Texas Health and Safety Code. 
The Honorable Jeff Wentworth - Page 4 (GA-0420) 

SUMMARY 

A private school that does not accept state tax funds is not 

required to accept for enrollment a child who has received an 

exemption from the immunizations required by the Texas Health and 

Safety Code. 

BARRY R. MCBEE 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Rick Gilpin 

Assistant Attorney General, Opinion Committee