Untitled Texas Attorney General Opinion ( 1973 )

Honorable Raymond W. Vowel1 Opinion No. H- I04
Commissioner
State Department of Public Welfare Re: The scope of the Dept.
John H. Reagan Building of Public Welfare’s
Austin, Texas 78701 licensing authority
under Article 695c,
5 8(a), Vernon’s Texas
Dear Commissioner Vowell: 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 differ-
ences 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 child-
caring 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 in-
quiries.
Moreover, your letter indicates that following this opinion your
department has consistently adhered to an administrative policy of exempt-
ing bona fide educational facilities from your licensing authority. This long-
standing 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 insti-
tution 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, with-
out 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 twenty-
four (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 handi-
capped 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 depart-
mental 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 other-
wise 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 ,115and
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 tempo-
rarily 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 depart-
ment 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 stan-
dards 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 water-
ways, and safe boating equipment; proper mainte-
nance 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 depart-
ment 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 115are also primarily
recreational or educational or have primary functions other than child
caring. Accordingly, even in the absence of House Bill 115, your juris-
diction 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 con-
nection 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. ”
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 reason-
able 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 autho-
rity 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 promul-
gate 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 Conval-
escent 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 treat-
ment 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 wher-
ever 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 sus-
pended 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