Can a kid under 14 be hired to sign up newspaper subscribers in Texas?

Plain-English summary

Small-town newspapers used to run a practice called "crewing": gathering young carriers on a Saturday morning, driving them around, and having them knock on doors to sign up new subscribers, with a bonus for each new subscription. A state representative, prompted by a Pecos publisher, asked whether a child under 14 could still be hired to do this after a 1999 law tightened the rules on minors soliciting.

The Attorney General concluded that, as a general matter, a child under 14 may not be employed to solicit newspaper subscriptions. The Labor Code flatly bars employing anyone under 14 except where a specific exemption applies, and the 1999 amendment (section 51.0145) classified soliciting, selling goods or services outside a retail store, as a hazardous occupation, with a consent-and-supervision regime available only for workers at least 14. Crewing is solicitation, so it falls outside the narrow newspaper-"delivery" exemption and is closed to children under 14. The opinion declined to stretch "delivery of newspapers to the consumer" to cover door-to-door subscription drives, especially on routes the child does not serve.

There is one carve-out. Following the Texas Workforce Commission's reading (which tracks U.S. Department of Labor policy under the Fair Labor Standards Act), the opinion accepted that a child can solicit subscribers on the child's own route as part of route maintenance, but only if the child concurrently tries to sell a current paper and the same child will actually deliver the new subscription. The agency's interpretation got deference because it was reasonable and harmonized with the statute. Finally, because that narrow activity counts as exempt delivery rather than solicitation, the Commission may not require its parental-consent solicitation forms (Rule 817.24) for children under 14 doing it.

Currency note

This opinion was issued in 2000. 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

Newspaper publishers and circulation managers (what the opinion held for them): The opinion held that crewing, taking minors out to solicit subscriptions, may not be performed by children under 14. The only way an under-14 child could lawfully solicit was the narrow route-maintenance exception (concurrent sale of a current paper plus the child delivering the new subscription).

The Texas Workforce Commission (what the opinion held for it): The opinion held the Commission's distinction between exempt delivery and barred solicitation was reasonable and entitled to deference, and that the Commission was authorized to require employers to submit parental-consent forms for solicitation by workers 14 and over. But it held the Commission may not apply Rule 817.24's consent-form requirement to under-14 activity that qualifies as exempt newspaper delivery.

Parents and young carriers (what the opinion held for them): The opinion held that an under-14 carrier can solicit subscribers only on the carrier's own route, only while also selling a current paper, and only where the carrier will deliver the new subscription. Outside those bounds, employment to solicit was not permitted for that age group.

Common questions

Can a 12- or 13-year-old be hired to go door to door selling newspaper subscriptions?
Under this opinion, generally no. Soliciting subscriptions was classified as a hazardous occupation, and the Labor Code bars employing children under 14 except under specific exemptions, which crewing does not meet.

Is there any way an under-14 carrier can sign up new subscribers?
Yes, narrowly. The opinion accepted the Commission's view that a carrier under 14 may solicit on the carrier's own route if the carrier also tries to sell a current paper at the same time and will be the one who delivers the new subscription.

Why does newspaper "delivery" get treated differently from "solicitation"?
Because the Labor Code exempts employment of a child engaged in delivering newspapers to the consumer, but the opinion read "delivery" narrowly and treated door-to-door subscription selling as solicitation, a separate, regulated, hazardous activity.

Does the Texas Workforce Commission's parental-consent form apply to these young carriers?
The opinion said no, not for under-14 activity that qualifies as exempt delivery. The consent-form rule governs solicitation by workers 14 and over, not the narrow route-maintenance work treated as delivery.

Background and statutory framework

Chapter 51 of the Labor Code regulates child labor. Under § 51.002(1), a "child" is anyone under 18, and section 51.011 makes it an offense to employ a child under 14 except as the chapter provides. Section 51.003(a)(2) exempts "employment of a child engaged in delivery of newspapers to the consumer." The opinion noted that elsewhere in section 51.003 the Legislature used broader phrasing for other exemptions, so it declined to read the specific "delivery" exemption as reaching solicitation, supported by the dictionary meaning of "delivery" and the plain-language canon in Government Code section 311.011(a).

The 1999 enactment, section 51.0145, defines "solicit" to include selling goods or services outside a retail establishment, declares employing a child to solicit a hazardous occupation, and sets a consent, route-map, supervision (one adult per three children), and time-limit regime, but only for children at least 14. Section 51.011's flat bar and section 51.023's prohibition on the Commission adopting rules permitting employment of children under 14 absent express authorization together foreclose under-14 solicitation. Because the state delivery exemption mirrors the federal child-labor exemption, the Commission looks to U.S. Department of Labor regulations (29 C.F.R. §§ 570.122, 570.124) and the Fair Labor Standards Act (29 U.S.C. § 213(d)), which narrowly construe the delivery exemption and limit it to carriers delivering to consumers.

On deference, the opinion relied on Quick v. City of Austin, State v. Public Util. Comm'n, and Berry v. State Farm Mut. Auto Ins. Co. for the rule that an enforcing agency's reasonable, harmonious reading of a statute gets great weight. Applying that, it upheld both the Commission's narrow solicitation/delivery line and its authority to require submission of parental-consent forms under Rule 817.24 (40 Tex. Admin. Code § 817.24) for solicitation by those 14 and older, while holding the rule inapplicable to under-14 exempt delivery.

Citations

Statutory and regulatory provisions:

• Tex. Lab. Code Ann. §§ 51.002(1), 51.003, 51.011, 51.023 (Vernon 1996)
• Tex. Lab. Code Ann. § 51.0145 (Vernon Supp. 2000)
• Tex. Gov't Code Ann. § 311.011(a) (Vernon 1998)
• 40 Tex. Admin. Code § 817.24 (2000)
• 29 C.F.R. §§ 570.122, 570.124 (2000)
• 29 U.S.C. § 213(d) (1994)

Cases:

• Quick v. City of Austin, 7 S.W.3d 278 (Tex. 1998)
• State v. Public Util. Comm'n, 883 S.W.2d 190 (Tex. 1994)
• Berry v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884 (Tex. App.—Austin 2000, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0309
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0309.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

November 20, 2000

The Honorable Gary L. Walker
Chair, Land and Resource Management Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JC-0309

Re: Whether a child under the age of 14 may solicit newspaper subscriptions, and related question (RQ-0253-JC)

Dear Representative Walker:

You have requested our opinion as to whether a child under the age of 14 years may be employed to solicit newspaper subscriptions. For the reasons indicated below, we conclude that a child may not be employed to do so except where two conditions are met: (1) the child concurrently attempts to sell a newspaper while soliciting the subscription; and (2) the same child will be the person delivering the newspaper based on the new subscription.

Chapter 51 of the Labor Code regulates the employment of children. A "child" is defined as "an individual under 18 years of age." TEX. LAB. CODE ANN. § 51.002(1) (Vernon 1996). Section 51.011 states that, "[e]xcept as provided by this chapter, a person commits an offense if the person employs a child under 14 years of age." Id. § 51.011. Section 51.003, however, exempts from the application of chapter 51 the "employment of a child engaged in delivery of newspapers to the consumer." Id. § 51.003(a)(2). You suggest that this exemption applies to "crewing." One of your constituents describes this practice:

Traditionally, circulation managers gather volunteer carriers on a Saturday and solicit new subscribers. In Pecos, we have traditionally done this about once a month. The kids and adult supervisors work from 9:00 a.m. till noon, and then lunch is on the paper at the Pizza Hut.

The carriers receive a bonus for new subscribers, and of course, their monthly pay increases with each new subscriber on their route. House Bill 160 has effectively ended this entrepreneurial enterprise for any minor under the age of 14. As a consequence, it is financially foolish for a newspaper to employ carriers under the age of 14 at all.[1]

The Texas Workforce Commission (the "Commission"), which administers the statute, also describes the practice, albeit in somewhat different terms:

Crewing occurs when an employer takes a group of minors to a certain location for the sole purpose of soliciting newspaper subscriptions. The minor who sells the subscription is not the same minor who will be delivering the newspaper to that same customer. [W]hen crewing, the primary occupation is solicitation, and the selling of a current newspaper becomes incidental to the minor's work.[2]

Your constituent contends, in effect, that "crewing" is an integral part of the "delivery of newspapers to the consumer." Arguably, this is a reasonable position with respect to a carrier's solicitation of subscribers on the route he services. But it makes little sense when applied to the solicitation of subscribers on routes outside the carrier's particular territory. Furthermore, even as to one's own potential customers, we are not convinced that "delivery" should be expanded to encompass solicitation. In other portions of section 51.003, the legislature has used broader language to describe the relevant exemptions: "This chapter does not apply to employment of a child . . . employed in a nonhazardous occupation"; "participating in a school-supervised and school-administered work-study program"; and "employed through a rehabilitation program supervised by a county judge." TEX. LAB. CODE ANN. § 51.003(a)(1)(A), (3), (5) (Vernon 1996). The exemption about which you inquire, by contrast, is considerably more specific: "engaged in delivery of newspapers to the consumer." Id. § 51.003(a)(2). In this context, "delivery" means "[t]he action of handing over, or conveying into the hands of another; esp. the action of a carrier in delivering letters or goods entrusted to him for conveyance to a person at a distance." IV OXFORD ENGLISH DICTIONARY 424 (2d ed. 1989). See also TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 1998) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage.").

In 1999, the legislature acted specifically to ban solicitation by minors except in narrowly delineated circumstances. Section 51.0145 provides, in relevant part:

(a) For purposes of this section:

. . .

(2) "Solicit" means an action of a person to:

(A) sell goods or services in a setting other than a retail establishment;

(B) request donations; or

(C) distribute items, information, or advertising.

(b) The employment of a child to solicit is a hazardous occupation for purposes of this chapter.

(c) A person may not employ a child to solicit unless the person:

(1) at least seven days before the date the child begins employment, obtains on a form approved by the commission the signed consent of a parent of the child or of a conservator, guardian, or other person who has possession of the child under a court order;

(2) provides to the individual who gives consent:

(A) a map of the route the child will follow during each solicitation trip; and

(B) the name of each individual who will be supervising each solicitation trip;

(3) provides at each location where children will be engaged to solicit at least one adult supervisor for every three children engaged in that solicitation trip; and

(4) limits each solicitation trip to:

(A) no later than 7 p.m. on a day when the child is legally required to attend school; and

(B) the hours between 10 a.m. and 7 p.m. on all other days.

(d) The commission may make additional requirements by rule for a person employing a child under this section to protect the safety, health, or well-being of the child.

. . .

(f) A person commits an offense if the person employs a child in violation of this section or a rule adopted under this section.

TEX. LAB. CODE ANN. § 51.0145 (Vernon Supp. 2000) (emphasis added).

Again, section 51.003 of the Labor Code exempts the "employment of a child engaged in the delivery of newspapers to the consumer." Id. § 51.003(a)(2) (Vernon 1996). "Crewing" clearly involves the "[selling of] goods or services in a setting other than a retail establishment," as defined in section 51.0145(a)(2)(A). And while the statute sets forth a mechanism for permitting solicitation by children who are at least 14 years of age, section 51.011 nevertheless absolutely prohibits the employment of persons under the age of 14 in a non-exempt occupation, including solicitation. Furthermore, section 51.023 bars the Commission from adopting "a rule permitting the employment of a child under 14 years of age unless expressly authorized by this chapter." Id. § 51.023. Thus, "crewing," as described both by your constituent and by the Commission, may not be performed by persons under the age of 14.

We must also consider whether a child under the age of 14 may solicit subscriptions from customers who live on his own service route. Because the language of the exemption for newspaper delivery is identical to the language of the federal child labor exemption, the Commission relies on regulations of the Department of Labor for guidance. See TWC Brief, supra note 2, at 2. Federal regulations provide that: "In [interpreting] these provisions, the Secretary [of Labor] will be guided by the principle that such exemptions [from the child labor laws] should be narrowly construed and their application limited to those employees who are plainly and unmistakably within their terms." See 29 C.F.R. § 570.122 (2000). Under the Fair Labor Standards Act, the Department of Labor has adopted the following policy regarding the delivery of newspapers:

[T]he Act provides an exemption from the child labor as well as the wage and hours provisions for employees engaged in the delivery of newspapers to the consumer. This provision applies to carriers engaged in making deliveries to the homes of subscribers or other consumers of newspapers (including shopping news). It also includes employees engaged in the street sale or delivery of newspapers to the consumer. However, employees engaged in hauling newspapers to drop stations, distributing centers, newsstands, etc., do not come within the exemption because they do not deliver to the consumer.

Id. § 570.124 (emphasis added); see also 29 U.S.C. § 213(d) (1994). In accordance with this position, the policy adopted by the Commission is as follows:

[I]f a minor is performing route maintenance which includes soliciting new subscribers, the solicitation work would fall within the exemption provided two conditions are met: 1) the minor attempted to sell a current newspaper concurrently with soliciting a subscription and 2) that same minor would be the one who in fact delivers the newspaper under the new subscription.

TWC Brief, supra note 2, at 3-4. The Commission justifies this position by noting that:

[W]hen the minor solicits subscriptions as part of route maintenance and the same minor is required to deliver the newspaper to the person who bought the subscription, the minor solicits in a familiar environment in close proximity to the minor's home because of limited transportation opportunities, thereby mitigating risks to the minor's health and safety. Additionally, because the minor is restricted to a designated route area, the parents have knowledge as to the location of the minor when the minor is soliciting subscriptions as part of route maintenance.

Id. at 5.

In our opinion, the Commission's view of the distinction between "delivery of newspapers" - which is entirely exempt from chapter 51 - and "solicitation" - which activity is barred to persons under the age of 14 - is reasonable. We believe the Commission, had it chosen to do so, could have read section 51.0145 even more narrowly, so as to prohibit absolutely the solicitation of newspaper subscriptions by persons under the age of 14. It has opted instead to carve out a very limited exception in circumstances where the child who is "soliciting" is the same child who will in fact deliver the newspaper, and where the child who is "soliciting" attempts to sell a current newspaper concurrently with the subscription.

"While not controlling, contemporaneous construction of a statute by the administrative agency charged with its enforcement is entitled to great weight." Quick v. City of Austin, 7 S.W.3d 278, 280 (Tex. 1998) (quoting State v. Public Util. Comm'n, 883 S.W.2d 190, 196 (Tex. 1994)). Furthermore, "[i]f a statute can be reasonably read as the agency has ruled, and that reading is in harmony with the rest of the statute, then [the court is] bound to accept that interpretation even if other reasonable interpretations exist." Berry v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App.-Austin 2000, no pet.). We conclude, therefore, that a child may solicit subscriptions from a person who lives on his own service route only if he simultaneously attempts to sell a current newspaper along with the new subscription, and he is the individual who will in fact subsequently deliver the newspaper.

You also question Commission Rule 817.24, which provides, in part:

(a) A person may not begin the employment of a child to solicit as defined in Texas Labor Code § 51.0145 and as described in § 817.4(b) of this Chapter (relating to Statement of Commission Intent), until the Commission's Labor Law Department has received:

(1) a copy of the signed Parental Consent Form approved by the Commission; and

(2) the information required by statute to be provided to the individual who gives consent.

40 TEX. ADMIN. CODE § 817.24 (2000). You suggest that the Commission is without authority to require that an employee send the requisite form to the Commission. Subsection (c) of section 51.0145 directs an employer to obtain "on a form approved by the commission the signed consent of a parent of the child [or other relevant person]." TEX. LAB. CODE ANN. § 51.0145(c) (Vernon Supp. 2000). As we have noted, subsection (d) authorizes the Commission to "make additional requirements by rule for a person employing a child under this section to protect the safety, health, or well-being of the child." Id. § 51.0145(d). The Commission provides the following justification of its requirement that parental consent form be submitted to the agency:

Ensuring completion and signature of the parental consent forms by requiring employers to submit the forms to the Agency is an essential function to carrying out the Agency's duties to enforce Texas Labor Code § 51.0145(c), especially in light of solicitation being classified as a hazardous occupation. Furthermore, minors hired to solicit are often taken to unfamiliar neighborhoods several miles away from their homes. In case of an emergency, the Agency would have the relevant information that could make the difference in locating a minor's whereabouts because the Agency retains the parental information and map of the minor's solicitation route.

TWC Brief, supra note 2, at 7.

Once again, we believe the Commission is authorized to impose this requirement. It is specifically empowered to regulate in this area, its justification for the rule is reasonable, and the Commission should not be second-guessed in an area over which it commands both jurisdiction and expertise. It is necessary, however, to be precise regarding what situations may be encompassed by Rule 817.24. The rule is a rule about solicitation the subject of section 51.0145 of the Labor Code. It may be applied to persons at least 14 years of age who are employed to solicit in an occupation not exempted under section 51.003, but it is not applicable to persons 14 and over who are employed for the "delivery of newspapers to the consumer." See TEX. LAB. CODE ANN. § 51.003 (Vernon 1996). It can have no application to persons under the age of 14, because, as we have noted, those individuals are not permitted to engage in solicitation at all, except in the certain narrow circumstances discussed which are not relevant to your inquiry. The "solicitation" of newspaper subscriptions by a child under 14 years of age that is permitted by the Commission and the Department of Labor is not the kind of solicitation contemplated by section 51.0145. Rather, it is part and parcel of the "delivery of newspapers to the consumer." As such, it is exempted from the operation of chapter 51 of the Labor Code. Consequently, the Commission may not apply Rule 817.24, including the requirement of parental consent forms for persons under the age of 14, to any activity that falls within the "delivery of newspapers to the consumer" as it has defined that practice.

SUMMARY

A child under the age of 14 years may not be employed to "solicit" newspaper subscriptions except where two conditions are met: (1) the child concurrently attempts to sell a newspaper while "soliciting" the subscription; and (2) the same child will be the person delivering the newspaper based on the new subscription. The Texas Workforce Commission may not require parental consent forms of persons engaged in an activity that meets these criteria.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee

[1] Letter from York M. "Smokey" Briggs, Editor/Publisher, Pecos Enterprise, to Honorable Gary L. Walker, State Representative at 1-2 (June 8, 2000) (on file with Opinion Committee).

[2] Brief from Ms. Cassie Carlson Reed, Executive Director, Texas Workforce Commission, to Opinion Committee, Office of the Attorney General at 4 (Aug. 8, 2000) (on file with Opinion Committee) [hereinafter TWC Brief].