Untitled Texas Attorney General Opinion ( 2010 )

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, l "must include": (1) eight hours of initial
training for day-care center employees who have no previous training or experience; (2) fifteen hours
of armual training for day-care center or group day-care home employees, excluding directors; and
(3) twenty hours of armual training for directors of day-care centers or group day-care homes. /d.
§ 42.0421(a) (emphasis added). You ask whether the Department may, by rule, increase the number
oftraining hours set out in section 42.0421 (a) for an employee ofaday-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 armual 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
IThe tenns day-care center and group day-care home are defmed in section 42.002. See TEx. HUM. REs. CODE
ANN. § 42.002(7}-(8) (West Supp. 20 I 0). The Department's duty under section 42.042(p) is to adopt minimum training
standards for employees of a "regulated child-care facility," a tenn that you say encompasses not only day-care litcilities
but also "residential-care facilities." Request Letter at 3 (available at http://www.texasattomeygeneral.gov); see also
TEX. HUM. REs. CODE ANN. § 42.002(19) (West Supp. 20 I 0) (defming "residential child-care facility").
Commissioner Anne Heiligenstein - Page 2 (GA-0815)
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, tum 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 thatthe 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 ofthe 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 ofa day-care center or group day-care home is within
the Department's rule-making authority.
Commissioner Anne Heiligenstein - Page 3 (GA-0815)
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 1. Garrison
Assistant Attorney General, Opinion Committee