Office of the Attorney General
State of Texas


December 19, 1983

Mr. Marlin W. Johnston
Texas Department of Human Resources
P.O. Box 2960
Austin, Texas 78769

Opinion No. JM-98

Re: Scope of the exemption provided by section 42.041(b)(7), 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, s 2.01.

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 maintain the exemption 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.


Section 42.041(b)(7) exempts public schools which operate part-day child care programs after the close of the customary school day from licensure required by section 42.041(a).

      Very truly yours,

      Mattox signature

      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

Texas OAG home page | Opinions & Open Government