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, 

5 8(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. 

In your inquiry, you state: 

“Further, Article 695c, 6 8(a) 1 defines 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 to your licensing authority; 

p* 474 
, , 

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

(2) The scope of the exemption of state institutions 

set forth in Article 695c, 0 8(a) (10) ; 

(3) The right of municipalities to license childcaring institutions and the effect of such municipal 

licenses upon your 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 to your 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 

but which 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 of your licensing authority over 

“summer camps” and the effect of House Bill 115, Acts of 

the 63rd Legislature, Regular Session, 1973, upon such 

authority, if any; and 

(8) The effect of Article 695c, 5 8(a)(2)(a) upon your 

authority to change licensing standards or policies. 

We will attempt to answer 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) 

In your inquiry you state that your 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 of the holding of Attorney General Opinion No. V-327 

is as follows: 

“Private kindergartens established for the 

purpose of pre-school education of young children, 

at which such children attend only a few hours of 

each day, are not required to be licensed as places 

‘for the care or custody of chi,ldren under fifteen 

years of age’ within the meaning of Article 4442a, 

Vernon’s Civil Statutes [requiring the licensing of 

day nurseries by the State Board of Health]. 

“The purpose and functions of each 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 of your 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 by your 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. 476 
The Honorable Raymond W. Vowell, page 4 (H-104) 

is education. On the other hand, as pointed out in Opinion V-327, the 

fact that education is an incident to the operation of an institution whose 

primary function is child care would not exempt that institution from 

licensing. The determination is a question of fact and the decision is 

one which will have to be made by your 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 but for the remainder of the 

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 of the expertise of your office. 

Article 695c, 5 8(a) (9) authorizes your department “to promulgate 

reasonable rules and regulations governing the granting of licenses to 

the institutions and facilities coming within the purview of this act”, calling 

upori’you to exercise.the expertise of your 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” to be 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 a finding that a primary purpose of the institution is child care, a license would be required; whereas, if the primary 

purpose is therapeutic or rehabilitative, no license would be required even 

if child care is an incidental activity of theinstitution. 

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

The question of summer camps is involved in Question 7 below and 

will be discussed at that point of this opinion. 

In your 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 in Article 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, 6 8(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, by any 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, and which 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 of group care” were not 

intended by the Legislature to broaden the limited objective of your 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~ 5 9 

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 of this Act;” 

p. 478 
The 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 and which is an element of one of the three constituent branches 

of the state government. 52 Tex. Jur. 2d 728, State of Texas, 5 14. On the 

other hand, this is not an exclusive or mandatory concept and the reference 

to the State of Texas might include political subdivisions of the State 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 and therefore 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 of the state are exempt from your 

licensing authority under Article 695c, 5 8 (a) (10). State v. Houston eY T. C. 

Ry. CL, 68 S. W. 777 (Tex. 1902). 

A comparison of the wording of Article 5547-88, V. T. C. S. I to that 

in Article 695~ $8 (a) (2) is also persuasive of the legislative intent. Article 

5547-88 states that “No person or political subdivision may operate a mental 

hospital unless licensed to do so by the Department. ” Article 695~ $ 8(a) (2) 

merely requires that “every person, association, institution, or corporation, 

. . . shall obtain a license. . . .‘I 

(3) The right of municipalities to license child-caring institutions and the 

effect of such municipal licenses upon your authority. 

In your letter you inquire as follows: 

p. 479 
The 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 

of the municipality and the State Department of Public 

Welfare in this regard? ” 

Attorney General Opiniona (1945) stated that a municipality, 

as an exercise of its police power to safeguard the health, comfort and 

general welfare of its 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 of Article 695c, 8 8(a). 

The responsibilities of a municipality are determined by its local 

ordinances. The responsibilities of the 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 a hospital. ” 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, 480 
The 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 to do 

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 by your department. 

As in other instances, the establishment of criteria is primarily a 

qeustion of fact 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 the primary 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 by your department. The determination is one of fact as to each 

institution and your 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 of children withinLour 

-. 

licensing jurisdiction. 

Your first inquiry concerning the problems of age limits is whether 

Senate Bill 123, Acts of the 63rd Legislature (1973) effectively changes the 

definition of “child” from persons under the age of 21 years to persons 

under the age of 18 years. 

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 16 and 18 years of age. You point out 

that Article 695a 5 9 indicates that no charter shall be issued by the Secretary 

of State to any organization having to do with ” . . . the care or custody of 

children under 16 years of age” without an investigation first having been 

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

made by your department and further that the definition of a “commercial 

boarding home” in Article 695c, 5 8(a)(l)(e) refers to “children under 16 

years of age”. On the 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, 5 8(a) refer only 

to “children”, which, as we have indicated above, implies an age limit of 

18 years. 

As a result of a long-standing departmental construction of the statute, 

your department has never attempted to license institutions which are caring 

only for children of age 16 or older. 

We agree that the statute as a whole is anomalous and that your departmental construction creates a practical 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 up to 

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 of this act shall obtain a license to operate 

from the State Department of Public Welfare. . . .I’ 

Article 695~ 5 8 (a) (2) (a) 

See McCallum v. Associated Retail Credit Men of Austin, 41 S. W. 2d 

45 (Tex. Comm. , 1931). 

p. 482 
The 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 18 years of age, and is not otherwise exempt, should be licensed by your department, even though it has 

not previously been licensed due to your departmental construction of the 

statute. 

j6) Questions concerning organizations or businesses which are not operated 

primarily as child-caring institutions but which 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 but which offer and 

provide some child care to patrons as a service incident to their primary 

function. Examples of this 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 of the many varieties of these types of facilities, no strict 

rule can be established and again you will probably want to adopt rules and 

regulations establishing criteria such as 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 of a 

“child-caring” institution as defined by the statute. 

(7) Your licensing authority’over “summer camps” and the effect of House 

Bill 115, Acts of the 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. 483 
The Honorable Raymond W. Vowell, page 11 (H-104) 

We are of the opinion that House Bill 115 places total jurisdiction 

for supervision and licensing of all youth camps in the State Board of Health. 

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

“[Y]outh ‘camp means any property or facilities 

having the general characteristics of a day camp, 

resident camp or travel camp, as these terms are 

generally understood, used primarily or in part for 

ret r e ational, athletic, religious and/or educational 

activities and accommodating five (5) or more children 

under eighteen (18) years of age who attend or temporarily reside at the youth 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 and to 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 and health. Such safety and health standards may include consideration of adequate and 

proper supervision at all times wherever camp 

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

activities are conducted; sufficient and properly 

qualified directors, supervisors and staff; proper 

safeguards for sanitation and public health; adequate 

medical services for personal health and first 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 of premises.” 

Section 2.04 of the Act provides: 

“Every person operating a youth camp in 

Texas on the effective date of this Act shall apply 

for and obtain a license for each youth camp. Such 

application shall be on a form provided by the 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 and all-encompassing that no area is left for your 

department’s concern which would not involve a duplication of the efforts of 

the State Department of Health. 

It is true that 5 2 of House Bill 115 provides: 

“This Act is cumulative of all 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. 485 
I 

. 

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 to your jurisdiction in any 

event. Other youth camps mentioned in House Bill 115 are 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 of your licensing authority in connection with summer or youth camps. 

(8) The effect of Article 695c, 5 8(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~~ 5 8(a)9? ” 

Article 695c, 5 8(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. ” 

Section 8(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. 486 
The Honorable Raymond W. Vowell, page 14 (H-104) 

Section S(a) (91oftheactgives your department “the right and the authority to promulgate 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 this Act. . . . ” 

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 of your supervision. 

The failure of any 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 in Article 

695c, $ 8(a) (lo), applies to child~-caring ‘facilities 

operated by counties, independent school districts, 

local mental health retardation units and other 

political subdivisions of the State of Texas. 

3. Municipalities have the power to license 

child-caring institutions, but the respective powers 

and responsibilities of municipalities and the State 

Department of Public Welfare are independent of one 

another. 

p. 487 
. 

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

4. The licensing responsibilities of the State 

Department of Public 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 of physically handicapped children and do not 

include facilities whose primary purpose is the treatment of emotionally disturbed or mentally ill dhildren. 

5. All references to “child” in Article 695~ refer 

to persons under the age of 18 years by virtue of Senate 

Bill 123, Acts of the 63rd Legislature (1973), and wherever the definition of a facitity refers simply to “children” 

without specifying an age, such facilities caring for 

children under 18 years of age are subject to Licensing by 

the State Department of Public Welfare. 

6. Institutions which are not operated primarily 

for child-caring purposes but which 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 

of the division involved is child care as determined by 

reasonable criteria established by rules and regulations 

promulgated by the State Department of Public Welfare. 

7. The licensing of “summer camps” or “youth 

camps” is totally the concern of the State Board of Health 

by virtue of the provisions of House Bill 115, Acts of the 

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 but is subject 

p. 408 
The 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