Honorable Raymond W. Vowel1

Commissioner State Department of Public Welfare John H. Reagan Building Austin, Texas 78701

Dear Commissioner Vowell: Opinion No. H- I04 Re: The scope of the Dept. of Public Welfare’s licensing authority under Article 695c, 58(a), Vernon’s Texas Civil Statutes You have written this office advising that “Recent events have prompted a complete review by the Department of Public Welfare of its policies and procedures related to the licensing of child-caring institutions” and making several inquiries concerning your licensing authority and policies under Article 695c, $8(a), V. T. C.S. Inyour inquiry, you state:

“Further, Article 695c, 68(a) 1defines six different types of child-caring facilities (in addition to child-placing facilities), including (a)Child-Caring Institution, (b) Commercial Child-Caring Institution, (c)Day Care Center, (d)Commercial Day Care Center, (c)Commercial Boarding Home and (h) Convalescent Children’s Boarding Home. Although there are differences among these facilities, they are generally described as places which ‘care for’ children. ” Your various questions can be categorized as follows:

(1)Whether bona fide educational facilities are exempt from licensing, and if so, what criterion you can reasonably fol,low to distinguish between bona fide educational facilities and child-caring facilities that would be subject toyour licensing authority;

p* 474, ,

The Honorable Raymond W. Vowell. page 2 (H-104)

(2) The scope ofthe exemption of state institutions set forth inArticle 695c, 08(a) (10); (3) The right of municipalities to license childcaring institutions and the effect of such municipal licenses uponyour authority; (4) Questions concerning the licensing of residential treatment facilities for emotionally disturbed children and what criteria you can reasonably follow to distinghish these facilities from child care facilities subject toyour licensing authority: (5) Various questions as to the age limitations of children within your licensing jurisdiction: (6) Questions concerning organizations or businesses which are not operated primarily as child caring institutions butwhich offer and provide some child care to patrons as a service incident to their primary function. By a supplemental letter, you have added the following inquiries: (7) The extent ofyour licensing authority over
“summer camps” and the effect ofHouse Bill 115,Acts of the 63rd Legislature, Regular Session, 1973, upon such authority, if any; and (8) The effect ofArticle 695c, 58(a)(2)(a) uponyour authority to change licensing standards or policies. We will attempt toanswer these questions in the same numerical order as indicated above. (1)Whether bona fide educational facilities are exempt from licensing, and if so, what criterion you csn reasonably follow to distinguish between bona fide educational facilities and child-caring facilities that would be subject to’your licensing authority.

p. 475

. . .The Honorable Raymond W. Vowell, page 3 (H-104)

Inyour inquiry you state thatyour department has long distinguished the facilities described in Article 695c, $8(a) (1)from bona fide educational facilities, as indicated in **Attorney** General Opinion No. V-327 (1947). The summary ofthe holding ofAttorney General Opinion No. V-327 is as follows:

“Private kindergartens established for the

purpose of pre-school education ofyoung children, at which such children attend only afew hours of each day, are not required to be licensed as places

‘for the care or custody of chi,ldren under fifteen years ofage’ within the meaning ofArticle 4442a, Vernon’s Civil Statutes [requiring the licensing of day nurseries by the State Board ofHealth].

“The purpose and functions ofeach institution must be individually considered, regardless of its being called a ‘kindergarten’ in order to determine whether or not a license is required. ” That opinion construed an earlier but similar statute and was confined to a considerati.on of kindergartens. However, we believe it is based upon sound reasoning and would apply to the broader subject matter ofyour inquiries. Moreover, your letter indicates that following this opinion your department has consistently adhered to an administrative policy of exempting bona fide educational facilities from your licensing authority. This longstanding departmental construction is entitled to great weight in resolving any ambiguities in the statute. State v.Houston&~T. C.Ry. CO..68 S.W. 777 (Tex. 1902). Therefore, you are advised that bona fide educational institutions do not require licensing byyour department even if some child care is incidental to their operation. This would apply to boarding schools, kindergartens, private day schools, and other similar institutions whose primary function

p. 476The Honorable Raymond W. Vowell, page 4 (H-104)

is education. Onthe other hand, as pointed out in Opinion V-327, the fact that education is an incident to the operation ofaninstitution whose primary function is child care would not exempt that institution from licensing. The determination is aquestion offact andthe decision is one which will have to be made byyour department in connection with each individual institution where the problem may exist. You will also undoubtedly find some institutions whose primary purpose is both education and child care, for instance, kindergartens whose function in the morning is education butfor the remainder ofthe day is purely child care. Such institutions would require licensing by your department. You have asked us to suggest legal criteria,for your determination. The basic criterion is whether the facility’s main purpose is education, in which event it requires no licensing, or child care, which circumstance would require a license. Many variations undoubtedly will be found. This office could not possibly anticipate all of them and cannot furnish specific criteria, a function ofthe expertise ofyour office. Article 695c, 58(a) (9) authorizes your department “to promulgate reasonable rules and regulations governing the granting of licenses to the institutions andfacilities coming within the purview ofthis act”, calling upori’you to exercise.the expertise ofyour office to establish criteria that will reasonably distinguish child-caring institutions,which are subject to your licensing authority, from other institutions. You have also asked us specifically about “halfway houses” and

“summer camps”

. We understand “halfway houses” tobe intermediate institutions, usually residential type facilities, designed to rehabilitate children between correctional institutions or mental (often drug-abuse) hospitals and the free social community. Again, we can only say that if your investigation results in afinding that a primary purpose ofthe institution is child care, a license would be required; whereas, if the primary purpose is therapeutic or rehabilitative, nolicense would be required even if child care is anincidental activity of theinstitution.

p. 477The Honorable Raymond W. Vowell, page 5 (H-104)

The question of summer camps is involved in Question 7below and will be discussed at that point of this opinion. Inyour letter you also inquire:

“What are the criteria for determining whether an institution is caring for ‘children in danger of becoming delinquent’ or ‘other children in need of group care’ as defined inArticle 695c, $8(a) (1)(a)?” This inquiry is undoubtedly derived from the **statutory** definition of

“Child-Caring Insti.tution” (and the similar definition of “Commertiial Child-Caring Institution”) appearing in Article 695c, 68(a) (1)(a) as follows:

“Child-Caring Institution. A child-caring institution is defined as any children’s home, orphanage, institution or other place maintained or conducted, without profit, byany person, public or private association, or corporation, engaged in receiving and caring for dependent, neglected, handicapped, or delinquent children, or children in danger of becoming delinquent, or other children in need of group care, andwhich gives twentyfour (24) hours a day care to more than six (6) children. ” These criteria are factual matters to be taken into consideration in Your rule-making Process. We think that inclusion of “children in danger of becoming delinquent” and “other children in need ofgroup care” were not intended by theLegislature tobroaden the limited objective ofyour licensing authority to institutions whose main purpose is caring for children. 12) The scope of the exemption of state institutions set forth in Article 695~ 59 Article 695c, $8(a) (10)provides:

“Child-caring and child-placing institutions and agencies, which are owned and operated by the State of Texas,are exempt from the licensing and regulatory provisions ofthis **Act; ”** 

p. 478The Honorable Raymond W. Vowell, page 6 (H-104)

Your question is whether this provision would exempt child-caring facilities operated by counties, independent school districts, local mental health-mental retardation units and other political subdivisions of the state. Ordinarily reference to the “State of Texas” is a reference to a state agency, department or board which has jurisdiction coextensive with the boundaries of the State andwhich is an element of one of the three constituent branches ofthe state government. 52 Tex. Jur. 2d 728, State of Texas, 514. Onthe other hand, this is not an exclusive or mandatory concept and the reference to the State of Texas might include political subdivisions of theState of Texas. It is probable that the Legislature was thinking in terms of the infeasibility of one governmental unit licensing another rather than in strictly geographical and political terms. You have indicated a long-standing departmental construction to the effect that strictly state institutions as well as institutions operated by political subdivisions of the state, such as counties and independent school districts, are exempt from licensing under Subsection 10. We believe your departmental construction correctly resolves this issue andtherefore you are advised that child-caring institutions or facilities owned and operated by counties, independent school districts, local mental health-mental retardation units or similar political subdivisions ofthe state are exempt from your licensing authority under Article 695c, 58 (a) (10). State v. Houston eYT. C. Ry. CL, 68S.W. 777 (Tex. 1902). A comparison of the wording ofArticle 5547-88, V.T. C.S.I to that in Article 695~ $8 (a)(2) is also persuasive ofthe legislative intent. Article 5547-88 states that “No person or political subdivision may operate a mental hospital unless licensed to do so by theDepartment. ” Article 695~ $8(a) (2) merely requires that “every person, association, institution, or corporation,

. . . shall obtain a license.

. . .‘I (3) The right ofmunicipalities to license child-caring institutions and the effect of such municipal licenses uponyour authority. Inyour letter you inquire as follows:

p. 479The Honorable Raymond W. Vowell, page 7 (H-104)

“Is Attorney General’s Opinion No. O-6508 still in effect insofar as it allows a municipality to issue licenses for the operation of child-caring facilities? If so, what are the relative responsibilities ofthe municipality and the State Department of Public Welfare in this regard? ” Attorney General Opiniona (1945) stated that a municipality, as an exercise ofits police power to safeguard thehealth, comfort and general welfare ofits citizens, may license child-caring facilities. That opinion did not state a municipal license would exempt the facility from the requirement that it obtain a license from the State Department of Public Welfare. We reaffirm this opinion and further advise that it does not change the mandatory requirements ofArticle 695c, 88(a). The responsibilities ofa municipality are determined by its local ordinances. The responsibilities ofthe Department are the same with respect to all such facilities, and a municipal license has no effect upon the Department’s responsibilities. 14) Questions concerning the licensing of residential treatment facilities for emotionally disturbed children and what criteria you can reasonably follow to distinguish these facilities from child care facilities subject to your licensing authority. The statutory definiti.on of a Convalescent Children’s Boarding Home is:

“A convalescent children’s boarding home is any place under public or private auspices which gives twenty-four (24) hour-a-day care to six (6) or Less children who are physically handicapped, under medical and/or social supervision, away from their own homes, and not within ahospital. ” Article 695~ $8(a) (1) (h) A “Convalescent Children’s Foster Group Home” is similarly defined except that it applies to “more than six (6) children”

. Article 695~ §8(a) (2)(i).

p, 480The Honorable Raymond W. Vowell, page 8 (H-104)

Article 5547-88 of the Mental Health Code provides that, “No person or political subdivision may operate a mental hospital unless licensed todo so by the Department [of Mental Health and Mental Retardation]“

. Your question concerns the licensing of “residential treatment facilities for emotionally disturbed or handicapped children”

. In our opinion a Convalescent Children’s Boarding Home is one whose concern is confined to “physically handicapped” children. An institution which is treating emotionally disturbed children or “those with drug problems” would not be subject to licensing byyour department. As in other instances, the establishment ofcriteria is primarily a qeustion offact and expertise. There will be institutions that care both for children who are physically handicapped and for children who are menta,lly handicapped, or both. **Your** basic guide should be theprimary purpose of the institution. If the institution has dual primary purposes, and one of them is the care of “physically handicapped” children, then it should be licensed byyour department. The determination is one offact as to each institution andyour basic criterion is whether the care for physically handicapped children is a primary purpose of the institution.. (5) Various questions as to the age limitations ofchildren withinLour -. licensing jurisdiction. Your first inquiry concerning the problems ofage limits is whether Senate Bill 123, Acts ofthe 63rd Legislature (1973) effectively changes the definition of “child” from persons under the age of 21years to persons under the age of 18years. Our answer to that is that it does. See Attorney General Opinion H-82 (1973). You also inquire as to whether Licenses are required for institutions that care only for children between 16and 18years ofage. You point out that Article 695a 59indicates that no charter shall be issued by the Secretary ofState to any organization having to dowith ”

. . . the care or custody of children under 16years ofage” without an investigation first having been

p. 481The Honorable Raymond W. Vowell, page 9 (H-104)

made byyour department and further that the definition ofa “commercial boarding home” inArticle 695c, 58(a)(l)(e) refers to “children under 16 years of age”

. Onthe other hand the definitions of child-caring institution, commercial child-caring institution, day care center, commercial day care center, convalescent children!8 boarding home and convalescent children’s foster group home contained in Article 695c, 58(a) refer only to “children”, which, as we have indicated above, implies anage limit of 18years. As a result ofa long-standing departmental construction ofthestatute, your department has never attempted to license institutions which are caring only for children ofage 16or older. We agree that the **statute** as a whole is anomalous and thatyour departmental construction creates apractical solution. However, we do not believe that there is any basic ambiguity in the definitions of child-caring institution, commercial child-caring institution, day care center, commercial day care center, convalescent children’s boarding home or convalescent children’s foster group home, and, accordingly, we hold that **your** licensing authority as to these specific institutions extends to those who care for children upto the age of 18. Your long-standing departmental construction, limiting your authority to institutions caring for children under age 16, cannot change the clear terms of the statute, which speaks only of children and which provides that:

“Every person, association, institution, or

corporation, whether operating for profit or without profit, who shall conduct or manage a child-caring institution, agency, or facility coming within the purview ofthis act shall obtain a license to operate from the State Department of Public Welfare.

. . .I’ Article 695~ 58 (a)(2)(a) See McCallum v. Associated Retail Credit Men ofAustin, 41S.W. 2d 45 (Tex. Comm. , 1931).

p. 482The Honorable Raymond W. Vowell, page 10 (H-104)

Therefore we believe that any child-caring institution, commercial child-caring institution, day care center, commercial day care center, convalescent children’s boarding home or convalescent children’s foster group home that cares for children under 18years ofage, and is not otherwise exempt, should be licensed byyour department, even though it has not previously been licensed due toyour departmental construction of the statute. j6) Questions concerning organizations or businesses which are not operated primarily as child-caring institutions butwhich offer and provide some child care to patrons as a service incident to their primary function.

You have made inquiry “concerning organizations or businesses which are not operated primarily as child-caring institutions butwhich offer and provide some child care to patrons as a service incident to their primary function. Examples ofthis include nurseries operated by churches for children whose parents are attending services, ‘Mother’s Day Out’ nurseries operated by churches and other groups, bowling ..alleys and shopping centers which operate nurseries for patrons, etc. ”

Because ofthe many varieties of these types offacilities, no strict rule can be established and again youwill probably want to adopt rules and regulations establishing criteria suchas whether the parents remain on the premises while the child is cared for, and the length of time of leaving the child and other matters you deem reasonable in determining whether a particular facility is in fact being operated only as a casual service incidental to its primary function, so as to bring such service outside the ambit ofa
“child-caring” institution as defined by the statute. (7) Your licensing authority’over “summer camps” and the effect ofHouse Bill 115,Acts ofthe 63rd Legislature, Regular Session, 1973, upon such authority, if any.

Your next inquiry concerns camps, particularly summer camps, and the effect of The Texas Youth Camp Safety and Health Act (Acts 1973, 63rd Legislature, Regular Session, ch. 142, p, 316)enacted as House Bill ,115 and to be codified as Article 4447e, V. T. C.S.

p. 483The Honorable Raymond W. Vowell, page 11 (H-104)

We are of the opinion that House Bill 115places total jurisdiction for supervision and licensing ofall youth camps in the State Board ofHealth.

Section 1.03 (6)of the Act defines “youth camp” as follows:

“[Y]outh ‘camp means any property or facilities having the general characteristics ofa day camp, resident camp or travel camp, as these terms are generally understood, used primarily or in part for ret reational, athletic, religious and/or educational activities and accommodating five (5) or more children under eighteen (18)years ofage who attend or temporarily reside at theyouth camp for a period of, **or** portions of, four (4) days or **more. ”**  Section 2.01 of the Act provides that, “[T]he State Department of Health is the principal authority in the state on matters relating to the condition of safety and health at youth camps in Texas.” And 8 2.02 provides in part as follows:

“Sec. 2.02. (a) The department [of Health] shall have authority to make and promulgate rules and regulations consistent with the policy and purpose of this Act andto amend any rule or regulation it makes. In developing such rules and regulations, the department shall consult with appropriate public and private officials and organizations, and parents and camp operators. It shall be the duty of the department to advise all existing youth camps in this state of this Act and any rules and regulations promulgated under this Act.

“(b) The department shall promulgate rules and regulations which establish standards for youth camp safety andhealth. Such safety andhealth standards may include consideration ofadequate and proper supervision at all times wherever camp

p. 484The Honorable Raymond W. Vowell. page 12 (H-104)

activities are conducted; sufficient andproperly qualified directors, supervisors and staff; proper safeguards for sanitation and public health; adequate medical services for personal health andfirst aid; proper procedures for food preparation, handling and mass feeding: healthful and sufficient water supply; proper waste disposal; proper water safety procedures for swimming pools, lakes and waterways, and safe boating equipment; proper maintenance and safe **use** of motor vehicles; safe buildings and physical facilities; proper fire precautions; safe and proper recreational and other equipment; and proper regard for density and use ofpremises.” Section 2.04 of the Act provides:

“Every person operating ayouth camp in Texas on the effective date ofthis Act shall apply for and obtain a license for each youth camp. Such application shall be ona form provided bythe department and shall be submitted in full not later than May 1, 1974. After submission such persons may continue operating until and unless the application is rejected by the department. ” These provisions form the basis for **our** opinion. The provisions of §2.02(b) are so broad andall-encompassing that noarea is left for your department’s concern which would not involve a duplication ofthe efforts of the State Department ofHealth. It is true that 52ofHouse Bill 115provides:

“This Act is cumulative ofall other laws and the requirements and responsibilities contained herein shall not affect requirements and responsibilities of other state agencies and political subdivisions in accord with existing statutes. ‘I

p. 485I

. The Honorable Raymond W. Vowell, page 13 (H-104)

However, we do not interpret this provision as establishing licensing jurisdiction over youth camps in your department. Summer camps are primarily recreational and would not be subject toyour jurisdiction in any event. Other youth camps mentioned in House Bill 115are also primarily recreational or educational or have primary functions other than child caring. Accordingly, even in the absence of House Bill 115,your jurisdiction over youth camps would arise only in isolated situations and we believe the Legislature has clearly manifested an intention to place the entire responsibility for the care of children in youth camps in the State Department of Health. Our opinion renders moot your inquiry concerning the criteria you would fo,llow in determining the extent ofyour licensing authority in connection with summer or youth camps. (8) The effect ofArticle 695c, 58(a)(2)(a) upon your authority to change licensing standards or policies. Your next inquiry is as follows: 11

. . . when this Department changes licensing standards or policies, does A,rticle 695c, $8(a)2(a) require that an old license remain in full force and effect even after appropriate notice of the changes has been provided to the facility in accordance with Article 695~~ 58(a)9? ” Article 695c, 58(a) (2)(a) provides that, **once** issued, a “license shall be in full force and effect until suspended or rescinded by the Department of Public Welfare as hereinafter provided. ” Section8(s)(7)(b)authorizesyour departm~ent“to suspend or revoke any license if it ascertains failure to comply with the law or with the reasonable rules and regulations provided for herein,” providing that certain procedures for notice and hearing are followed.

p. 486The Honorable Raymond W. Vowell, page 14 (H-104)

Section S(a)(91oftheactgives your department “the right and the authority topromulgate reasonable rules and regulations governing the granting of licenses to the institutions and facilities coming within the purview of this Act, and for the suspension or revocation of such license for the operation of such institutions and facilities named in thisAct.

. . .” We construe these provision to mean that you have the authority to require periodic reports from licensees and to make other reasonable rules and regulations necessary to the effectiveness ofyour supervision. The failure ofany licensee to comply with your reasonable rules and regulations can result in the revocation, rescission or suspension of such license. SUMMARY 1

. Bona fide educational facilities are exempt from licensing by the State Department of Public Welfare under Article 695c, Vernon’s Texas Civil Statutes. The criteria whichdistinguish whether such an institution should be licensed may be set **out** in whatever reasonable rules and regulations the State Department of Public Welfare may promulgate to determine whether the primary purpose of a particular institution is educational or child-caring, or both. 2. The exemption of institutions owned and operated by the State of Texas, provided inArticle 695c, $8(a)(lo), applies to child~-caring ‘facilities operated by counties, independent school districts, local mental health retardation units and other political subdivisions ofthe State of Texas. 3. Municipalities have the power to license child-caring institutions, butthe respective powers and responsibilities of municipalities and the State Department ofPublic Welfare are independent of one another.

p. 487. The Honorable Raymond W. Vowell, page 15 (H-104)

4. The licensing responsibilities ofthe State Department ofPublic Welfare concerning Convalescent Children’s Boarding Homes and Convalescent Children’s Foster Group Homes are confined to those facilities whose primary purpose is the treatment and care ofphysically handicapped children anddo not include facilities whose primary purpose is the treatment of emotionally disturbed or mentally ill dhildren.

5. All references to “child” inArticle 695~ refer to persons under the age of 18years byvirtue ofSenate Bill 123, Acts of the 63rd Legislature (1973), and wherever the definition of a facitity refers simply to “children” without specifying anage, such facilities caring for children under 18years of age are subject to Licensing by the State Department of Public Welfare.

6. Institutions which are not operated primarily for child-caring purposes butwhich offer and provide some child care to patrons or customers as a service incident to the primary function of the business are not normally subject to Licensing unless the primary purpose ofthe division involved is child care as determined by reasonable criteria established by rules and regulations promulgated by the State Department ofPublic Welfare.

7. The licensing of “summer camps” or “youth camps” is totally the concern ofthe State Board ofHealth by virtue of the provisions ofHouse Bill 115,Acts ofthe 63rd Legislature, 1973.

8. A license once granted by the Department of Public Welfare remains in force and effect until suspended or resckded by the Department butis subject

p. 408The Honorable Raymond W. Vowell, page 16 (H-104)

to reasonable rules and regulations promulgated by the Department including requirements, if any: to make periodic reports concerning the status of the licensee.

Attorney General of T&as

DAVID M. KENDALL, Chairman Opinion Committee

p. 489