Can Texas require day-care workers to take more training hours than the statute's minimum?

Plain-English summary

Texas law sets minimum training for the people who work in licensed day-care centers and group day-care homes. Human Resources Code section 42.0421(a) says those standards "must include" eight hours of initial training for new day-care center employees with no prior training, fifteen hours of annual training for most employees, and twenty hours of annual training for directors. The Department of Family and Protective Services wanted to know whether those numbers are the most it can require, or whether it can adopt rules requiring more.

The Attorney General concluded a court would likely say the Department can require more. The reasoning was mostly about one word. An agency can adopt only rules consistent with its statutory authority and in harmony with the statute's objectives. Here, the statute uses "must include," and "include" is generally a term of enlargement, not limitation. Nothing in the surrounding statutes signaled that "must include" was meant to cap the training. So the listed hours read as a minimum the Department can build on, and additional requirements can take the form of additional training hours.

The opinion also pointed to the purpose of the law. Chapter 42 is to be liberally construed to protect the health, safety, and well-being of children in child-care facilities, and one purpose of the minimum standards is to ensure children are supervised by capable, qualified personnel. Accepting the Department's premise that more training correlates with better care, reading the statute to allow more training furthers those goals. The bottom line: it is likely within the Department's rule-making authority to increase the training hours above the statutory floor.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Department of Family and Protective Services (what the opinion held): The opinion concluded a court would likely find that the Department may, by rule, set training requirements above the minimums in section 42.0421(a), reading "must include" as a floor rather than a ceiling.

Day-care centers and group day-care homes (what the opinion described): The opinion described the statutory minimums (eight, fifteen, and twenty hours for the listed categories) as a baseline that Department rules could exceed, with additional requirements permitted to take the form of more training hours.

Children and families relying on these facilities (what the opinion noted): The opinion noted that chapter 42 is to be liberally construed to protect children's health, safety, and well-being, and that additional training furthers the goal of supervision by capable, qualified personnel.

Common questions

Are the training hours in section 42.0421(a) a maximum or a minimum?
The opinion read them as a minimum. Because "must include" is a term of enlargement, the Department can likely require more than the listed hours.

Can Texas require day-care directors to take more than twenty annual training hours?
The opinion concluded it is likely within the Department's rule-making authority to increase the training hours for the listed categories, which include directors.

Why does the word "include" matter so much here?
The opinion explained that "include" is generally used to enlarge, not limit, so "must include" signals a baseline the Department can add to, absent context showing otherwise.

Did this opinion guarantee any specific new training rule is valid?
No. The opinion concluded only that increasing the hours is likely within the Department's authority; any specific rule would still have to be consistent with the statute and its purposes.

Background and statutory framework

Section 42.042(p) directs the Department to prescribe by rule minimum training standards for employees of regulated child-care facilities, and section 42.0421(a) provides that those standards "must include" eight hours of initial training for untrained day-care center employees, fifteen hours of annual training for most employees, and twenty hours of annual training for directors. Tex. Hum. Res. Code Ann. § 42.042(p) (West Supp. 2010); id. § 42.0421(a). The terms day-care center and group day-care home are defined in section 42.002. Id. § 42.002(7)-(8); id. § 42.002(19).

An agency may adopt only rules authorized by and consistent with its statutory authority, and the test for whether it exceeds that authority is whether the rule is in harmony with the statute's general objectives, a question of statutory construction. Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008); Lambright v. Tex. Parks & Wildlife Dep't, 157 S.W.3d 499, 510 (Tex. App.-Austin 2005, no pet.). Title 2 of the Human Resources Code, which includes chapter 42, is to be liberally construed, and chapter 42's purpose is to protect children in child-care facilities, with the minimum standards aimed at ensuring capable, qualified personnel. Tex. Hum. Res. Code Ann. § 11.002(b) (West 2001); id. § 42.001; id. § 42.042(e)(3); Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010).

Reading section 42.0421(a), the opinion noted that "include" is generally a term of enlargement, so "must include" enlarges rather than limits unless context shows otherwise. Tex. Gov't Code Ann. § 311.005(13) (West 2005); Badouh v. Hale, 22 S.W.3d 392, 395 (Tex. 2000). Finding nothing to indicate a limiting intent, the opinion concluded section 42.0421(a) authorizes the Department to adopt minimum training standards with requirements beyond those listed, including additional training hours, and that this reading furthers chapter 42's purposes. It therefore concluded a court would likely find a rule increasing the training hours within the Department's rule-making authority.

Citations

Statutes:

• Tex. Hum. Res. Code Ann. § 42.042(p) (West Supp. 2010)
• Tex. Hum. Res. Code Ann. § 42.0421(a) (West Supp. 2010)
• Tex. Hum. Res. Code Ann. § 42.002(7)-(8) (West Supp. 2010)
• Tex. Hum. Res. Code Ann. § 42.002(19) (West Supp. 2010)
• Tex. Hum. Res. Code Ann. § 11.002(b) (West 2001)
• Tex. Hum. Res. Code Ann. § 42.001 (West Supp. 2010)
• Tex. Hum. Res. Code Ann. § 42.042(e)(3)
• Tex. Gov't Code Ann. § 311.005(13) (West 2005)

Cases:

• Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008)
• Lambright v. Tex. Parks & Wildlife Dep't, 157 S.W.3d 499, 510 (Tex. App.-Austin 2005, no pet.)
• Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010)
• Badouh v. Hale, 22 S.W.3d 392, 395 (Tex. 2000)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0815
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0815.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 4, 2010

Ms. Anne Heiligenstein, Commissioner Opinion No. GA-0815
Texas Department of Family and
Protective Services Re: Whether, under chapter 42, Human Resources
Post Office Box 149030 Code, the Texas Department of Family and
Austin, Texas 78714-9030 Protective Services has rule-making authority to
increase the number of training hours required for
an employee of a day-care center or group day-care
home (RQ-0868-GA)

Dear Commissioner Heiligenstein:

Section 42.042(p) of the Human Resources Code provides, in relevant part, that the Texas Department of Family and Protective Services (the "Department") "by rule shall prescribe minimum training standards for an employee of a regulated child-care facility." TEX. HUM. RES. CODE ANN. § 42.042(p) (West Supp. 2010). Section 42.0421(a) directs that the minimum training standards for employees of a day-care center or group day-care home,[1] "must include": (1) eight hours of initial training for day-care center employees who have no previous training or experience; (2) fifteen hours of annual training for day-care center or group day-care home employees, excluding directors; and (3) twenty hours of annual training for directors of day-care centers or group day-care homes. Id. § 42.0421(a) (emphasis added). You ask whether the Department may, by rule, increase the number of training hours set out in section 42.0421(a) for an employee of a day-care center or group day-care home. Request Letter at 2-3 ("The question the department is posing is whether the legislature intended the total number of initial and annual training hours in paragraphs (1)-(3) of Subsection 42.0421(a) ... to be the least number of hours that the department may establish ..., or whether the legislature intended the total number of hours reflected in the statute to be the precise number of hours which the department may require in its minimum training standards - no more, no less.").

An administrative "agency may adopt only such rules as are authorized by and consistent with its statutory authority." Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008). The determinative factor as to whether an agency exceeds its rule-making authority is whether the regulation is in harmony with the general objectives of the statute. Id. Whether a rule is "in harmony" with the general objectives of the relevant statute is determined through statutory construction. Lambright v. Tex. Parks & Wildlife Dep't, 157 S.W.3d 499, 510 (Tex. App.-Austin 2005, no pet.). We, therefore, turn to chapter 42 in determining the scope of the Department's rule-making authority.

The Legislature directs that title 2 of the Human Resources Code, which includes chapter 42, is to be liberally construed to accomplish its purposes. TEX. HUM. RES. CODE ANN. § 11.002(b) (West 2001). One purpose of chapter 42 is to protect the children of the state in the care of child-care facilities. See id. § 42.001 (West Supp. 2010) (explaining that the purpose of chapter 42 is to protect the health, safety and well-being of children in child-care facilities and that it is the policy of the state to aid in improving child-care programs). One purpose of the minimum standards applicable to licensed child-care facilities is to "ensure adequate supervision of children by capable, qualified, and healthy personnel." Id. § 42.042(e)(3). With this information in mind, we consider the language of section 42.0421(a). See Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010) ("In construing statutes, we ascertain and give effect to the Legislature's intent as expressed by the statute's language.").

As set out above, section 42.0421(a) provides that the Department "must include" a certain number of hours of training for various categories of employees of a day-care center or group day-care home. TEX. HUM. RES. CODE ANN. § 42.0421(a) (West Supp. 2010). The term "include" is generally a term of enlargement. TEX. GOV'T CODE ANN. § 311.005(13) (West 2005). Therefore, the phrase "must include" is also one of enlargement, unless the context provides otherwise. Cf. Badouh v. Hale, 22 S.W.3d 392, 395 (Tex. 2000) (referring to the well-settled rule that "shall include" is generally used as a term of enlargement not limitation or restriction). We find nothing in the context of the relevant statutes that indicates that the phrase "must include" in section 42.0421(a) is intended to operate as a limitation. Thus, by its terms section 42.0421(a) authorizes the Department to adopt, by rule, minimum training standards that contain requirements in addition to those set out in section 42.0421(a). Nothing in chapter 42 precludes these additional requirements from being training hours.

Moreover, accepting as true your assertion that there is "a positive correlation between the amount of training provided to child-care workers and the quality of child-care services provided," our construction of section 42.0421(a) furthers the purposes of both chapter 42 and the minimum standards and comports with the legislative directive to liberally construe the statute in a manner that accomplishes those purposes. Request Letter at 1; see TEX. HUM. RES. CODE ANN. §§ 42.001 (West Supp. 2010) (explaining that the purpose of chapter 42 is to protect the health, safety and well-being of children in child-care facilities and that it is the policy of the state to aid in improving child-care programs), 42.042(e)(3) (providing that one purpose of the minimum standards is to ensure that personnel are capable and qualified).

In sum, we think a court would likely find that a rule increasing the number of training hours set out in section 42.0421(a) for an employee of a day-care center or group day-care home is within the Department's rule-making authority.

SUMMARY

It is likely that a court would find that a Texas Department of Family and Protective Services ("Department") rule increasing the number of training hours set out in Human Resources Code section 42.0421(a) for an employee of a day-care center or group day-care home is within the Department's rule-making authority.

DANIEL T. HODGE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

[1] The terms day-care center and group day-care home are defined in section 42.002. See TEX. HUM. RES. CODE ANN. § 42.002(7)-(8) (West Supp. 2010). The Department's duty under section 42.042(p) is to adopt minimum training standards for employees of a "regulated child-care facility," a term that you say encompasses not only day-care facilities but also "residential-care facilities." Request Letter at 3 (available at http://www.texasattorneygeneral.gov); see also TEX. HUM. RES. CODE ANN. § 42.002(19) (West Supp. 2010) (defining "residential child-care facility").