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ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 6, 2006
The Honorable Jeff Wentworth Opinion No. GA-0420
Chair, Committee on Jurisprudence
Texas State Senate Re: Whether private schools must accept for
Post Office Box 12068 enrollment children who have received an
Austin, Texas 78711 exemption from the immunizations required by the
Texas Health and Safety Code (RQ-0403-GA)
Dear Senator Wentworth:
You ask whether "private schools, from preschool through secondary school, must accept for
enrollment children who have received an exemption from immunizations required under the Texas
Health and Safety Code."' You state that "Texas law is unclear what child immunization laws,
specifically those establishing an exemption from immunization requirements, apply to children
enrolled or seeking enrollment in private schools." Request Letter, supra note 1, at 1. You refer us to
sections 161.004 and 81.023 of the Health and Safety Code and to section 38.001 of the Education
Code.2 Our discussion will review the interplay among these statutes as well as rules adopted
thereunder.
Section 161.004 of the Health and Safety Code declares that "[e]very child in the state shall
be immunized against vaccine preventable diseases caused by infectious agents in accordance with
'Letter from Honorable Jeff Wentworth, Chair, Committee on Jurisprudence, Texas State Senate, to Honorable
Greg Abbott, Attorney General of Texas (Oct. I1, 2005) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
2You also refer to section 42.043 of the Human Resources Code, which provides that the Department of Human
Services "shall make rules for the immunization of children in facilities regulated under this chapter," i.e., certain
facilities, homes and agencies that provide child-care services. See TEX. HUM(. RES. CODE ANN. 42.043 (Vemon Supp.
2005). Section 42.041 declares that "[njo person may operate a child-care facility or child-placing agency without a
license issued by the department." Id. 42.041(a). That statute also provides that "[t]his section does not apply to . . . (7)
an educational facility accredited by the Texas Education Agency or the Southern Association of Colleges and Schools
that operates primarily for educational purposes in grades kindergarten and above, an after-school program operated
directly by an accredited educational facility, or an after-school program operated by another entity under contract with
the educational facility, if the Texas Education Agency or Southern Association of Colleges and Schools has approved
the curriculum content of the after-school program operated under the contract." Id. 42.041(b). We assume for
purposes of this opinion that the "private schools" to which you refer are excepted from licensing as a "child-care
facility" under subchapter C of chapter 42 of the Human Resources Code. Accordingly, we do not address the
applicability of section 42.043 of that code.
