### 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 bythe Texas Health and Safety Code (RQ-0403-GA)
Dear Senator Wentworth:
You askwhether “private schools, from preschool through secondary school,must accept for enrollment children who have received anexemption 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 inprivate schools.” Request Letter, supra note 1,at 1: Yourefer us to sections 161.004 and 81.023 ofthe Health and Safety Code and to section 38.901 ofthe Education Code? Our discussion will review the interplay among thesestatutes as well as rules adopted thereunder. Section 161.004 ofthe 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.CODEANN 342.043 (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. 542.041(a). That statute also provides that “[tlhis section does not apply to (7) an educational facility accredited by the Texas Education Agency orth” 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. 342.041(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& SAFETYCODEANN. 5 161.004 (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 ofJune 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& SAFETYCODEANN. 5 161.004(e) (Vernon Supp. 2005). Hospitals are responsible for “referring newborns for immunization” and for “administeringneeded vaccinations orreferring the child for immunization.” 

### Id.5 161.004(b)(l), (3). Physicians areresponsible for “reviewingthe immunization history ofevery child examined and administering any needed vaccinations orreferring the child for immunization.” 

### Id.5 161.004(c). Section 161.004 also provides that achild is“exempt from an immunization required bythis section” if: (1) a parent, managing conservator, or guardian states that the

immunization isbeing declined for reasons of conscience, including areligious belief; or ,(2) the immunization is medically contraindicated based on the opinion ofaphysician 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, itdoes not refer to immunization as arequirement for admission to a school of any kind, nor does itrefer to exemptions from immunization in the context of admission to a school. By contrast, section 38.00 1ofthe 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.CODEANN. (i38.001(a) (Vernon Supp. 2005). Subsection (c), however, declares that “[i]mmunization is

### notrequired for aperson’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. 538.001(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 ofthe Health and Safety Code. That provision requires the Department, 

### inferalia, to,“cooperate with the State Board ofEducation in formulating and implementing immunization requirements for students admitted to

### public or private primary or secondary schools.” TEX.HEALTH.&SAFETYCODEANN.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 languageThe 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 aprivate school that does not accept state tax funds is not required to accept for enrollment achild 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 areligious belief, and active duty with the armed forces ofthe United States. Children and students in these categories must submit evidence forexclusion 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 asthe statement inRule 97.62 that exemptions from immunization “are allowable.” Inour 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 aprivate school. The Department is not authorized to impose those requirements for mere applicants to a private school. Thus, the language ofsection 81.023(c) itself bolsters the rule’s distinction between “not required” and “allowable.” We conclude therefore that aprivate school that does not accept state tax funds isnot required to’accept for enrollment achild who has received an exemption from the immunizations required by ‘theTexas 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