Did a Texas public school need a child-care license to provide custodial care after the regular school day?
Apply this to your situation
This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-98: Licensing for Public-School After-School Care
Plain-English summary
JM-98 concluded that section 42.041(b)(7) exempted accredited public schools from Department of Human Resources child-care licensing when they provided part-day custodial care after the regular school day.
"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)."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0098.pdf
The exemption applied to the educational facility itself, not only to particular activities conducted there.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0098.pdf
The schools remained subject to regulation by the Texas Education Agency even though the Department of Human Resources license was not required.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0098.pdf
Currency note
This opinion was issued in 1983. 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.
Common questions
What did section 42.041(b)(7) exempt?
The provision exempted an educational facility accredited by the Central Education Agency that operated primarily for educational purposes in kindergarten and higher grades.
"[Section 42.041] does not apply to . . . an educational facility accredited by the Central Education Agency . . . that operates primarily for educational purposes in grades kindergarten and above."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0098.pdf
Did offering custodial after-school care change a public school's primary purpose?
No. JM-98 said public schools primarily operated to educate children, with educational work consuming the overwhelming share of their time, resources, and personnel.
"There can really be no doubt that the primary purpose for which public schools are operated is the education of the children attending them."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0098.pdf"The time, resources, and personnel devoted to strictly educational activities constitute the overwhelming proportion of those expended by public schools."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0098.pdf
How did the opinion characterize the after-school program?
It described custodial care as an accommodation offered by a few schools for some parents and as using only a small fraction of school resources.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0098.pdf
Did the exemption remove all regulation of the program?
No. JM-98 distinguished the Department of Human Resources licensing exemption from oversight by the Texas Education Agency.
"They are of course subject to regulation by the Texas Education Agency."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0098.pdf
Background and legal framework
The Department of Human Resources asked whether public schools providing essentially custodial day care after normal school hours were exempt from the Human Resources Code's licensing requirements.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0098.pdf
Section 42.041 generally prohibited operating a child-care facility without a license but included specified exceptions.
"Section 42.041 thereof prohibits operation of a child-care facility without a license, subject to certain exceptions."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0098.pdf
JM-98 also reasoned that restrictions in other exemptions on hours of custodial care showed that the legislature did not intend the same restrictions for educational facilities covered by subsection (7).
"Moreover, the restrictions in subsections 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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0098.pdf
Holding
"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)."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0098.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0098
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0098.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
December 19, 1983
Mr. Marlin W. Johnston
Commissioner
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, §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 subsections 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.
SUMMARY
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).
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
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Fernando Gomez
Jim Moellinger
Nancy Sutton
Bruce Youngblood
Get today's answer for your situation
You just read a 1983 opinion on this question. Ezel checks the current Texas statutes and case law and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the law it relies on.