Does a school district pre-K class run with a Head Start agency need a Texas child-care license?

TX AG Opinion GA-0678: Does a school district's Head Start pre-K class need a child-care license?

Plain-English summary

On behalf of Spring Branch Independent School District, the Commissioner of Education asked whether the District's pre-kindergarten classes, run in collaboration with a Head Start agency, are exempt from the child-care facility licensing rules. The District was in a dispute with the local office of the Department of Family and Protective Services and wanted confirmation that the licensing requirements did not apply to its pre-kindergarten educational classrooms.

Human Resources Code section 42.041(a) bars operating a child-care facility without a license, but section 42.041(b) and the Department's rule (40 Texas Administrative Code section 745.119(1)) exempt an accredited educational facility that operates a pre-kindergarten-and-above program primarily for educational purposes. The catch was a single element of the rule: the educational facility must "operate the program."

The District and the Department disagreed about who operates the collaborative classrooms. The District pointed out that it hires, pays, supervises, and terminates the teachers, provides the facilities, and sets the curriculum. The Department countered that the Head Start agency, Neighborhood Centers Inc., ensures the facilities meet Head Start guidelines, enrolls the children, hires and supervises Head Start staff, and runs background checks.

Neither the statute nor the rule defines "operate." Reading it by its common meaning, "to cause to function," the opinion concluded that whether the District, the Head Start agency, or both causes the program to function is a question of fact. Questions of fact cannot be resolved in the opinion process, so the Attorney General could not answer. The Department, which makes and enforces the rules under chapter 42, must determine the issue in the first instance.

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.

The Human Resources Code child-care licensing provisions and the Department's title 40 rules have been amended since 2008. Confirm the current text before relying on this analysis.

Who this opinion affected (as of 2008)

Spring Branch ISD and its dispute with the Department: The opinion declined to confirm the District's view that its collaborative pre-K classrooms were exempt, leaving the operate-the-program question to the Department.

School districts running collaborative Head Start pre-K programs: The opinion identified the exemption's "operates the program" element as the pivot and treated who satisfies it as a fact-specific call.

The Department of Family and Protective Services: The opinion placed the decision with the Department, which has authority to make and enforce the chapter 42 rules and to discipline or penalize facilities that violate them.

Common questions

Did the Attorney General say the school district's pre-K was exempt?
No. The opinion declined to answer, holding that whether the District or the Head Start agency "operates" the program is a question of fact outside the opinion process.

What makes a pre-K program exempt from child-care licensing?
Under the Department's rule, an accredited educational facility is exempt if it operates primarily for educational purposes, operates the program, serves children at least pre-kindergarten age, and is accredited by TEA, the Southern Association of Colleges and Schools, or the Texas Private School Accreditation Commission.

Why did "who operates the program" matter so much?
Because the exemption requires the educational facility itself to operate the program. The District and the Department disagreed over whether the District or the Head Start agency, Neighborhood Centers Inc., actually did so.

Who decides the question the opinion left open?
The Department of Family and Protective Services, which makes rules to carry out Human Resources Code chapter 42 and enforces them, must determine the issue in the first instance.

Background and statutory framework

Human Resources Code section 42.041(a) prohibits operating a child-care facility without a license from the Department (defined at section 40.001(3) as the Department of Family and Protective Services), while section 42.042(b) excepts certain facilities, including an accredited educational facility operating primarily for educational purposes in grades kindergarten and above (Tex. Hum. Res. Code Ann. §§ 42.041(a)-(b), 42.042(b)(6)-(7) (Vernon Supp. 2008)). The Department's rule lists exempt educational facilities and, in subsection (1), exempts an accredited pre-kindergarten-and-above facility that operates primarily for educational purposes, operates the program, and serves children at least pre-kindergarten age (40 Tex. Admin. Code § 745.119(1) (2008)). Neither the statutes nor the rule defines "operate" in the pertinent sense (id. § 745.21(27) gives an unhelpful definition of "operation"; Tex. Hum. Res. Code Ann. § 42.002), so the term is given its common meaning, "to perform a function ... or produce an effect" (Reddie v. State, 736 S.W.2d 923, 926 (Tex. App.-San Antonio 1987, pet. ref'd); Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005)). Whether the District or the Head Start agency causes the program to function is a question of fact not appropriate to the opinion process (Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18), and the Department has authority to make and enforce the chapter 42 rules and decide the matter in the first instance (Tex. Hum. Res. Code Ann. § 42.042(a), (e); see Tex. Att'y Gen. Op. No. H-104 (1973) at 4).

Citations

Statutes and rules:

• Tex. Hum. Res. Code Ann. § 42.041(a)-(b) (Vernon Supp. 2008)
• Tex. Hum. Res. Code Ann. § 42.042(b)(6)-(7), § 42.042(a), (e)
• Tex. Hum. Res. Code Ann. § 42.002; § 40.001(3)
• Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005)
• 40 Tex. Admin. Code § 745.119(1) (2008); § 745.21(27) (2008)

Cases and opinions:

• Reddie v. State, 736 S.W.2d 923, 926 (Tex. App.-San Antonio 1987, pet. ref'd)
• Tex. Att'y Gen. Op. No. GA-0446 (2006)
• Tex. Att'y Gen. Op. No. H-104 (1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0678
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0678.pdf

Original opinion text

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

November 3, 2008

Mr. Robert Scott
Commissioner of Education
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494

Opinion No. GA-0678

Re: Whether Spring Branch Independent School District's pre-kindergarten programs run in collaboration with a Head Start agency are exempt from licensing requirements for child-care facilities (RQ-0709-GA)

Dear Commissioner Scott:

On behalf of the Spring Branch Independent School District (the "District"), you ask us to opine about "the implementation of certain administrative rules of the Department of Family and Protective Services, as applied to certain pre-[k]indergarten classes and associated activities of the district." In its letter to you, which you attached to your request, counsel for the District states that it "is in a dispute with the local office of the Texas Department of Family and Protective Services [the "Department"] regarding District pre-kindergarten educational classrooms and childcare licensing requirements." The District thus "seeks an opinion ... confirming that the childcare licensing requirements do not apply to the pre-kindergarten educational classrooms of the District." District Letter, supra note 2, at 1. You expressly limit your question to the implementation of "certain administrative rules," and the District's letter focuses solely on a Department rule codified as section 745.119(1), title 40 of the Texas Administrative Code. Request Letter, supra note 1, at 1. The District's letter also cites certain statements made in the Department's Licensing Policy Handbook. See District Letter, supra note 2, at 2. We limit our response to the question asked. We discuss statutes only to provide a context for the adoption of the Department's rule.

Human Resources Code section 42.041(a) prohibits any person from operating a child-care facility "without a license issued by the [D]epartment." TEX. HUM. RES. CODE ANN. § 42.041(a) (Vernon Supp. 2008); see also id. § 40.001(3) (defining "department" to mean "the Department of Family and Protective Services"). Section 42.041(b) excepts certain facilities from this licensing requirement, including:

(6) a facility licensed, operated, certified, or registered by another state agency;

(7) subject to Subsection (b-1) [pertaining to an educational facility that operates in a county with a population of less than 25,000], an educational facility that is accredited by the Texas Education Agency, the Southern Association of Colleges and Schools, or an accreditation body that is a member of the Texas Private School Accreditation Commission and that operates primarily for educational purposes in grades kindergarten and above ....

Id. § 42.042(b)(6)-(7) (footnote added).

Section 745.119, title 40 of the Texas Administrative Code lists the types of educational facilities that are exempt from the licensing requirement. See 40 TEX. ADMIN. CODE § 745.119 (2008) (Tex. Dep't of Family & Protective Servs., What educational facilities are exempt from Licensing regulation?). Subsection (1), to which the District particularly refers, exempts an accredited educational facility for grades pre-kindergarten and above if the following criteria are met:

(A) The educational facility operates primarily for educational purposes;

(B) The educational facility operates the program;

(C) All children in the program are at least pre-kindergarten age; and

(D) The Texas Education Agency ..., the Southern Association of Colleges ... and Schools ..., or the Texas Private School Accreditation Commission accredits the educational facility.

Id. § 745.119(1).

In this case, the District and the Department disagree about whether the program is operated, for purposes of section 745.119(1)(B), by the District or by a Head Start agency, Neighborhood Centers Inc. The District urges, for example, that it "operates the program" because the District

(1) is responsible for compensating, hiring, supervising, evaluating and terminating the teachers, (2) employs the teachers who are solely responsible for the children in the collaborative classrooms [classrooms in which Neighborhood Centers Inc. collaborates with the District to provide supplemental services to children who are eligible for Head Start services], (3) provides the facilities where the children are educated, and (4) is responsible for the curriculum that the students are taught ....

District Letter, supra note 2, at 4. The Department counters that the District

is not the entity that operates the programs as Head Start facilities. ... [Rather, Neighborhood Centers Inc.'s] responsibilities include ensuring that the facilities meet Head Start guidelines-including the enrollment of children in the Head Start program, the hiring and supervision of Head Start staff, and the proper conduct of background checks on Head Start employees.

Department Brief, supra note 5, at 2.

With respect to the question you raise, neither the applicable statutes nor the rules define the term "operate." See TEX. HUM. RES. CODE ANN. § 42.002 (Vernon Supp. 2008) ("Definitions"); 40 TEX. ADMIN. CODE § 745.21 (2008) (Tex. Dep't of Family & Protective Servs., What do the following words and terms mean when used in this chapter?). In the absence of a statutory or rule-based definition, we define the term consistently with its common meaning. See TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 2005) ("Words ... shall be read in context and construed according to the rules of grammar and common usage."). According to the San Antonio Court of Appeals, "in normal usage, 'operate' means 'to perform a function, or operation, or produce an effect.'" Reddie v. State, 736 S.W.2d 923, 926 (Tex. App.-San Antonio 1987, pet. ref'd) (quoting BLACK'S LAW DICTIONARY 984 (rev. 5th ed. 1979); citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1580-81 (G. & C. Merriam 1981) ("to cause to function usually by direct personal effort")).

Whether it is the District or Neighborhood Centers Inc.-or both-that, by its effort, causes the program in question to function-in other words, that operates the program such that the facility is exempt from or subject to the licensing requirement-is a question of fact that cannot be resolved in the opinion process. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process."). Accordingly, we cannot answer your question. Rather, it is the Department that has the authority to make rules to carry out the provisions of Human Resources Code chapter 42 and to enforce those rules. TEX. HUM. RES. CODE ANN. § 42.042(a), (e) (Vernon Supp. 2008) (requiring the Department to make rules to carry out chapter 42 and minimum standards for licensed child-care facilities); id. §§ 42.0705, .072(a) (authorizing the Department to take disciplinary action against a licensee who violates chapter 42, a Department rule, or minimum standards adopted by the Department); id. § 42.078(a) (authorizing the Department to impose an administrative penalty against a facility that violates chapter 42 or a rule or order adopted under this chapter). Thus, the Department must determine the issue in the first instance. Cf. Tex. Att'y Gen. Op. No. H-104 (1973) at 4 (stating that determining whether a particular child-care provider is a bona fide educational institution exempt from child-care facility licensing requirements is a question of fact that must be determined by the State Department of Public Welfare (the Department's predecessor)).

SUMMARY

Whether the Spring Branch Independent School District or a Head Start agency, or both, "operates" a particular program for the purposes of section 745.119(1), title 40 of the Texas Administrative Code is a question of fact for the Department of Family and Protective Services to determine in the first instance.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee