Can a Texas state agency rule exempt a child-care program from licensing if the statute doesn't list that exemption?

TX AG Opinion GA-0649: Can an agency rule create a child-care licensing exemption the statute leaves out?

Plain-English summary

Representative Will Hartnett, chair of the House Judiciary Committee, asked whether a Department of Family and Protective Services rule conflicted with the Human Resources Code. Section 42.041(a) of that code bars a person from operating a child-care facility or child-placing agency without a license from the Department. Subsection (b) then lists sixteen specific exemptions from that licensing requirement. The Department's Rule 745.117(4) exempts short-term programs that run no more than 11 weeks a year and care for children at least five and under 14, where the program is not already part of a regulated operation. Representative Hartnett's concern was that this rule lets unlicensed school districts run short-term programs that are not after-school programs, even though the statute's exemption list does not name that kind of program.

The opinion laid out the governing rule for agency rulemaking. An agency has only the powers the Legislature gives it, plus what is reasonably necessary to carry those out, and it may not adopt a rule inconsistent with the statute. The test is whether the rule is in harmony with the general objectives of the statute. Chapter 42's stated purpose is to protect the health, safety, and well-being of children in child-care facilities by setting statewide minimum standards and regulating facilities through a licensing program.

The opinion then read section 42.041(b)'s list of exemptions as exclusive. The statute does not say the list is exclusive, but it also does not signal that it is merely illustrative. Applying the construction maxim that mentioning one thing implies the exclusion of others (expressio unius est exclusio alterius), and noting that a narrow set of exemptions serves the child-protection purpose by keeping more facilities under licensing, the opinion concluded the Legislature meant to exempt only the facilities and programs specifically listed. To the extent Rule 745.117(4) creates an exemption that section 42.041(b) does not, it is out of harmony with the statute and invalid.

The opinion was careful about its own limits. It did not declare the rule invalid for all purposes, and it did not declare it valid either. Whether a specific program is actually covered by one of the statutory exemptions is a fact question the Department resolves in the first instance. The opinion held only that where the rule purports to exempt a facility or program that section 42.041(b) does not, the rule invalidly creates an exemption the Legislature did not authorize.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Chapter 42 of the Human Resources Code and the Department's licensing rules in title 40 of the Administrative Code may have been amended since 2008, and the Department was reorganized in later years. Confirm current law and current rules before relying on this analysis.

Who this opinion affected (as of 2008)

The Department of Family and Protective Services: The opinion concluded the Department could not use its rulemaking authority under Chapter 42 to add an exemption the Legislature left out of section 42.041(b). It still had discretion to decide, in the first instance, whether a given program fell within a listed exemption.

School districts and short-term program operators: The opinion meant they could not rely on Rule 745.117(4) to operate outside licensing if their program was not covered by one of the sixteen statutory exemptions. The opinion did not resolve whether any particular program qualified.

Parents and children: The opinion read Chapter 42's exemption list narrowly, which kept more child-care programs under the statute's licensing and minimum-standards regime.

Common questions

What did the opinion actually decide about the rule?
That to the extent Rule 745.117(4) exempts a short-duration child-care program not exempted by section 42.041(b), the rule conflicts with the statute and is invalid. It did not strike the rule down for every situation.

Why did the AG treat the statutory exemption list as exclusive?
Section 42.041(a) broadly bars operating a facility without a license, and subsection (b) then lists specific exemptions. The opinion applied the maxim that listing specific exemptions implies the exclusion of others, and reasoned that a narrow list better serves Chapter 42's purpose of protecting children.

Could the Department still decide whether a program is exempt?
Yes. The opinion said the Department has discretion in the first instance to determine whether a particular program or facility is encompassed within the statutory exemptions. What it cannot do is invent a new exemption by rule.

Did the opinion say school districts can never run short-term programs without a license?
No. The opinion declined to resolve any specific factual situation. It addressed only the legal question of whether a rule may add an exemption beyond the statute.

Background and statutory framework

Section 42.041(a) of the Human Resources Code prohibits operating a child-care facility or child-placing agency without a license from the Department of Family and Protective Services, and subsection (b) lists sixteen exemptions; section 42.042(a) authorizes the Department to make rules to carry out Chapter 42 (Tex. Hum. Res. Code Ann. §§ 42.041(a)-(b), 42.042(a) (Vernon Supp. 2007); see id. § 40.001(3) (defining "Department")). An agency has only the powers expressly conferred plus those reasonably necessary, and may not adopt a rule inconsistent with its statute; the critical question is whether the rule is in harmony with the general objectives of the statute (State v. Pub. Util. Comm'n, 883 S.W.2d 190, 194 (Tex. 1994); R.R. Comm'n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992); Williams v. Tex. State Bd. of Orthotics & Prosthetics, 150 S.W.3d 563, 568 (Tex. App.-Austin 2004, no pet.); Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002)). Chapter 42's purpose is to protect the health, safety, and well-being of children in child-care facilities through statewide minimum standards and a licensing program, and the title is to be liberally construed to accomplish its purposes (Tex. Hum. Res. Code Ann. §§ 42.001, 42.002(3), 42.042(f) (Vernon Supp. 2007); id. § 11.002(b) (Vernon 2001)). The exemption list does not state it is exclusive, but neither does it use language of enlargement, and the maxim expressio unius est exclusio alterius supports reading it as exclusive (Leach v. State, 170 S.W.3d 669, 672-73 (Tex. App.-Fort Worth 2005, pet. ref'd); Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 493 n.7 (Tex. 1993); Johnson v. Second Injury Fund, 688 S.W.2d 107, 108-09 (Tex. 1985)). Even where the Legislature delegates discretion to an agency, it may also limit that discretion, here through an exclusive list of exemptions (Tex. Workers' Comp. Comm'n v. Patient Advocates, 136 S.W.3d 643, 654 (Tex. 2004); 40 Tex. Admin. Code § 745.117(4) (2008)).

Citations

Statutes:

• Tex. Hum. Res. Code Ann. §§ 42.001, 42.002(3), 42.041(a)-(b), 42.042(a), (f), 40.001(3) (Vernon Supp. 2007)
• Tex. Hum. Res. Code Ann. § 11.002(b) (Vernon 2001)
• 40 Tex. Admin. Code § 745.117(4) (2008)

Cases:

• State v. Pub. Util. Comm'n, 883 S.W.2d 190, 194 (Tex. 1994)
• R.R. Comm'n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992)
• Williams v. Tex. State Bd. of Orthotics & Prosthetics, 150 S.W.3d 563, 568 (Tex. App.-Austin 2004, no pet.)
• Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002)
• Leach v. State, 170 S.W.3d 669, 672-73 (Tex. App.-Fort Worth 2005, pet. ref'd)
• Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 493 n.7 (Tex. 1993)
• Johnson v. Second Injury Fund, 688 S.W.2d 107, 108-09 (Tex. 1985)
• Tex. Workers' Comp. Comm'n v. Patient Advocates, 136 S.W.3d 643, 654 (Tex. 2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0649
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0649.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

July 28, 2008

The Honorable Will Hartnett
Chair, Committee on Judiciary
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0649

Re: Whether a rule of the Department of Family and Protective Services conflicts with section 42.041(a), Human Resources Code, which requires a license to operate a child-care facility (RQ-0670-GA)

Dear Representative Hartnett:

With certain exceptions, section 42.041(a) of the Human Resources Code prohibits a person from operating a child-care facility or child-placing agency without a license issued by the Department of Family and Protective Services (the "Department"). TEX. HUM. RES. CODE ANN. § 42.041(a) (Vernon Supp. 2007) (defining "Department" as the "Department of Family and Protective Services"); see also id. § 40.001(3). Although the Department is authorized to adopt rules to carry out chapter 42, section 42.041(b) expressly lists many statutory exceptions to subsection (a)'s licensing requirement. See id. §§ 42.041(b) (listing sixteen exceptions), 42.042(a) (providing authority to adopt rules). Concerned about a particular Department rule pertaining to programs exempted from licensure, you ask the following questions:

Does Rule 745.117(4) conflict with Section 42.041(a) [of the] Human Resources Code because the Rule allows school districts that are unlicensed by the Department to operate short-term child-care programs that are not after-school programs?

If Rule 745.117(4) conflicts with Section 42.041(a), is it invalid?

If Rule 745.117(4) does not violate Section 42.041(a), what is the applicable exemption under Section 42.041(b)?[1]

Rule 745.117 lists certain programs of limited duration that are exempt from the licensing regulation. See 40 TEX. ADMIN. CODE § 745.117 (2008) (Tex. Dep't of Family & Protective Servs., Licensing). Relevant to your question, Rule 745.117(4) exempts short-term programs described as those that operate "no more than 11 weeks during the year," provide "care for children who are at least five years and under 14 years," and are "not a part of an operation subject to [the Department's] regulation." Id. § 745.117(4).

Your questions indicate a concern that Rule 745.117(4) conflicts with section 42.041(a) because the rule "allows school districts that are unlicensed by the Department to operate short-term child-care programs that are not after-school programs." Request Letter, supra note 1, at 1. You provide no information regarding any particular school district or short-term child-care program. See id. at 1-2. Thus, we have no facts by which to evaluate whether a specific facility or program required by statute to be licensed is otherwise exempted. However, your concern about the validity of Rule 745.117(4) presents a question of law that we can address. See Tex. Att'y Gen. Op. No. GA-0439 (2006) at 3 (declining to resolve fact questions but addressing the legal question presented); see also Request Letter, supra note 1, at 2 (arguing that the list of exemptions in section 42.041(b) is "extensive and specific" and does not include the "type of facility exempted by Rule 745.117(4)").

A state administrative agency like the Department has only those powers expressly conferred on it by the Legislature and those that are reasonably necessary to carry out the express responsibilities mandated by the Legislature. State v. Pub. Util. Comm'n, 883 S.W.2d 190, 194 (Tex. 1994). An agency may promulgate rules when a statute expressly authorizes it to do so or when implied authority is necessary to accomplish the purpose of the statute. R.R. Comm'n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992). But an administrative agency may not adopt a rule that is inconsistent with the statute. Id. The critical factor in determining whether an administrative agency has exceeded its rulemaking authority is whether the rule is in harmony with the general objectives of the statute involved. Id. In determining whether a rule is in harmony with the statute, courts look to all applicable provisions of the relevant statute to ascertain the Legislature's intent. Williams v. Tex. State Bd. of Orthotics & Prosthetics, 150 S.W.3d 563, 568 (Tex. App.-Austin 2004, no pet.). The plain language of the statute provides the clearest indication of that intent. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002).

With these legal principles as our guide, we consider Rule 745.117(4). The Department adopted Rule 745.117(4) purportedly under its express authority to adopt rules granted in section 42.042(a), Human Resources Code. See 26 Tex. Reg. 7236, 7297 (2001), adopted 27 Tex. Reg. 970 (2002) (codified at 40 TEX. ADMIN. CODE § 745.117(4)) (Tex. Dep't of Family & Protective Servs.); TEX. HUM. RES. CODE ANN. § 42.042(a) (Vernon Supp. 2007) (authorizing the Department to "make rules to carry out the provisions of this chapter"). The specified list of exemptions[2] in section 42.041(b) does not expressly include an exemption for a short-duration program described in Rule 745.117(4). See TEX. HUM. RES. CODE ANN. § 42.041(b) (Vernon Supp. 2007); 40 TEX. ADMIN. CODE § 745.117(4) (2008) (Tex. Dep't of Family & Protective Servs., Licensing).

In examining chapter 42 for the legislative intent in enacting the chapter, we see a broad purpose to protect the children of the state in the care of child-care facilities. Chapter 42's stated purpose is to

protect the health, safety, and well-being of the children of the state who reside in child-care facilities by establishing statewide minimum standards for their safety and protection and by regulating the facilities through a licensing program. It is the policy of the state to ensure the protection of all children under care in child-care facilities and to encourage and assist in the improvement of child-care programs.

TEX. HUM. RES. CODE ANN. § 42.001 (Vernon Supp. 2007). Chapter 42's licensing requirement works to achieve that purpose. See id. § 42.041(a). And chapter 42 requires the establishment of minimum standards to ensure the safety and protection of children in child-care facilities. Id. §§ 42.001 (stating purpose of protecting children "by establishing statewide minimum standards"), 42.042(a) (granting authority to the Department to make rules), 42.042(f) (addressing the Department's promulgation of minimum standards). Chapter 42 defines a child-care facility to mean a

facility licensed, certified, or registered by the department to provide assessment, care, training, education, custody, treatment, or supervision for a child who is not related by blood, marriage, or adoption to the owner or operator of the facility, for all or part of the 24-hour day, whether or not the facility is operated for profit or charges for the services it offers.

Id. § 42.002(3). This definition indicates that chapter 42 is concerned with protecting all children in facilities for whom someone other than a parent or relative provides "assessment, care, training, education, custody, treatment, or supervision" for part or all of the day. Id. Additionally, the Legislature has provided that Human Resources Code, title 2, in which chapter 42 is contained, is to be liberally construed in order that its purposes may be accomplished. See id. § 11.002(b) (Vernon 2001).

The list of exemptions in section 42.041(b) is both extensive and specific. Id. § 42.041(b) (Vernon Supp. 2007) (providing for sixteen exemptions); see supra note 2 (text of section 42.041(b)). Section 42.041(b) exempts specified educational facilities, certain state facilities, programs of short-term care where parents are nearby, and municipal programs of short-term care involving specified recreational activities. See id. §§ 42.041(b)(7)-(9), (11) (specified educational facilities), 42.041(b)(1), (5)-(6) (certain state facilities), 42.041(b)(3) (programs of short-term care where parents are nearby), 42.041(b)(14)-(15) (municipal programs of short-term care involving specified recreational activities). Section 42.041(b), which contains the list of exemptions, does not expressly provide that it is an exclusive list. See id. § 42.041(b). Neither, however, does it contain language indicating that it is merely an illustrative list. See Leach v. State, 170 S.W.3d 669, 672-73 (Tex. App.-Fort Worth 2005, pet. ref'd) (describing the term "including" as a term of enlargement and not of limitation or exclusive enumeration). Though the text of section 42.041(b) does not include an express statement on the legislative intent with respect to the inclusive or exclusive scope of the list of exemptions, the nature of section 42.041 does. Section 42.041 precludes any person from operating a child-care facility without a license. See TEX. HUM. RES. CODE ANN. § 42.041(a) (Vernon Supp. 2007). Subsection (b) then lists specifically the exemptions to the broad prohibition. See id. § 42.041(b), supra note 2. It is a general principle of statutory construction that the mention of one thing implies the exclusion of another. See Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 493 n.7 (Tex. 1993) (explaining statutory construction maxim expressio unius est exclusio alterius); see also Johnson v. Second Injury Fund, 688 S.W.2d 107, 108-09 (Tex. 1985) (stating "it is a settled rule that the express mention or enumeration of one person, thing, consequence or class is equivalent to an express exclusion of all others"). "A statutory exclusion is a 'thing' or 'class' for purposes of this maxim of construction." Gibbs v. State, 7 S.W.3d 175, 181 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (O'Connor, J., dissenting).

We believe the Legislature intended to exempt from the licensing requirement only those facilities and programs that fall within the scope of the exception specifically listed in section 42.041(b).[3] In addition, a limited set of exemptions subjects more child-care facilities to licensing and regulation and thus better serves chapter 42's purpose of protecting children. Accordingly, to the extent Rule 745.117(4) creates an exemption not included in section 42.041(b), it is not in harmony with the statute and is invalid.

The Department asserts that its rule is valid and does not conflict with section 42.041(a).[4] The Department posits that the definition of a "child-care facility" as one that is "licensed, certified or registered by the department," implicitly delegate[s] to the department the duty and discretion to determine when a particular activity should be regulated." Department Brief, supra note 4, at 1-2. And the Department notes that it is given express authority to make rules to carry out the provisions of chapter 42. See id. at 2. It states that for "every set of facts not explicitly addressed by the statutory provisions of Chapter 42, the department must, of necessity, determine whether the particular set of circumstances constitutes the type of 'assessment, care, training, education, custody, treatment, or supervision' that the legislature intended the department to regulate as child-care." Id. The Department describes the rule as an attempt to "strike an appropriate balance between the stated purpose of Chapter 42-to protect the health, safety, and well-being of children in care-and the considerable burdens placed on those who must comply with the regulatory scheme contemplated by Chapter 42." Id. at 3. Finally, the Department suggests that because the Legislature, since the enactment of Rule 745.117(4), has not amended chapter 42 in a manner inconsistent with the rule, the Legislature tacitly agrees with the balance struck by Rule 745.117(4). Id.

In delegating authority to an administrative agency, the Legislature is not expected to provide for every specific detail or anticipate every unforeseen circumstance. Tex. Workers' Comp. Comm'n v. Patient Advocates, 136 S.W.3d 643, 654 (Tex. 2004). And the administrative agency to which a power is delegated generally has implied authority to accomplish a delegated purpose. Tex. Dep't of Human Servs. v. Christian Care Ctrs., Inc., 826 S.W.2d 715, 719 (Tex. App.-Austin 1992, writ denied) (citing Sexton v. Mount Olivet Cemetery Ass'n, 720 S.W.2d 129, 137 (Tex. Civ. App.-Austin 1986, writ ref'd n.r.e.)). Moreover, an agency's interpretation of its enabling statute is afforded deference by the courts if the interpretation is reasonable and does not contradict the statute. Employees Ret. Sys. of Tex. v. Jones, 58 S.W.3d 148, 151 (Tex. App.-Austin 2001, no pet.). Yet, an agency may not adopt a rule that is contrary to or inconsistent with the statute. Id. Even assuming the Legislature did intend to provide the Department with discretion to determine the scope of a "child care facility" within the broad definition of the term, the Legislature nevertheless limited that discretion with a statutory licensing requirement that includes every person and, as we have concluded, contains an exclusive list of exemptions. See supra pp. 2 n.2, 5. See also TEX. HUM. RES. CODE ANN. § 42.041(a)-(b) (Vernon Supp. 2007). Thus, despite the Department's implied authority and deference to which it is accorded, we must conclude that to the extent Rule 745.117(4) expands the list of exemptions, it is contrary to the statute and invalid.

We cannot advise you regarding the reach of that extent: we cannot conclude that Rule 745.117(4) is valid for all purposes nor can we conclude that it is invalid as a matter of law. We can imagine circumstances under which Rule 745.117(4) would purport to exempt a facility or program that is not exempted by section 42.041(b). In such circumstances, we believe Rule 745.117(4) invalidly creates an exemption the Legislature did not authorize.

SUMMARY

Chapter 42 of the Human Resources Code requires persons who operate a child care facility to be licensed by the Texas Department of Family and Protective Services. Chapter 42 also exempts certain programs and facilities from the licensing requirement. The Department has express authority under chapter 42 to make rules concerning the regulation and licensing of child care facilities. To the extent a Department rule exempting a short-duration child-care program creates an exemption not included in chapter 42, the rule conflicts with the statute, and is therefore invalid.

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee