If a Texas social worker was first licensed without an exam and let the license lapse for years, do they have to take an exam to get licensed again?

Texas AG Opinion JC-0049: Relicensing a Social Worker Without an Examination

Plain-English summary

The Chair of the Texas State Board of Social Worker Examiners asked whether section 50.023(e) of the Human Resources Code let a person who had originally been licensed without an examination, and whose license had been expired for more than a year, reapply for a new license without taking an examination. The question grew out of a real case: a woman first certified in 1983 under a "grandfather" provision (which let qualified people be certified without an exam) had let her certification lapse in 1984 and, fourteen years later, applied again.

The Attorney General said yes. Section 50.023(e) tells a person whose license has lapsed for a year or more that they may obtain a new license "by submitting to reexamination, if an examination was originally required." Reading every word, the opinion concluded that the reexamination requirement is conditioned on an examination having been required the first time. If no exam was originally required, none is required to reapply. Because the statute's language was clear, the Board could not add an exam requirement the Legislature had not imposed.

The opinion then took the next step. The Board's rule said that after one year a person must reapply and meet "current requirements for the license including passing the licensure examination." To the extent that rule forced an applicant who had never been required to take an exam to take one, it imposed a burden the statute did not, and it read the conditional phrase out of the law. An agency's reading of its own statute gets serious consideration, but only if it is reasonable and does not contradict the plain text. The opinion concluded the rule, to that extent, was invalid.

Currency note

This opinion was issued in 1999. 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 social worker licensing statute and Board rules have likely been amended since 1999.

Common questions

What did section 50.023(e) require of a social worker whose license had lapsed for over a year?
The opinion read it to require reapplication, and reexamination only "if an examination was originally required." Someone first licensed without an exam did not have to take one to get a new license.

Why did the wording matter so much?
Because, as the opinion explained, courts give effect to every word of a statute. The phrase "if an examination was originally required" made the reexamination conditional. Reading it any other way would have erased that phrase from the law.

Could the Board enforce its own rule requiring everyone to pass the exam?
No, not to that extent. The opinion concluded that the Board's rule was invalid where it imposed an exam on a reapplicant who was never required to take one, because an agency rule cannot add burdens the statute does not contain.

Wasn't the Board's stricter rule defensible as protecting the public?
The opinion acknowledged the Board's reading might fit the Act's general goal of high standards, but held that goal could not override the plain language of section 50.023(e). The fix for a statute the agency thinks is too lenient is legislative, not an inconsistent rule.

Background and statutory framework

The Texas Professional Social Work Act, sections 50.001 through 50.034 of the Human Resources Code, created the Texas State Board of Social Worker Examiners and authorized it to license and regulate social workers. Before 1993, social workers were "certified" rather than "licensed," and for a period qualified applicants could be certified without an examination under grandfather provisions; the 1993 amendments deleted those provisions. An eligible applicant ordinarily had to pass a Board examination under section 50.014(a). Licenses could be renewed within a year of expiration by paying fees, but section 50.023(e) governed licenses expired for a year or longer, requiring reapplication and reexamination "if an examination was originally required."

The opinion applied standard interpretation rules under TEX. GOV'T CODE ANN. § 311.011(a) (words and phrases read in context and construed by common usage), and from cases holding that unambiguous statutory language controls (Monsanto, Agan, Eddins-Walcher) and that an agency rule may not impose conditions in excess of or inconsistent with its statute (Tarrant County Appraisal District v. Moore, ARCO, Hollywood Calling, Bloom, Murphy, and TEX. GOV'T CODE ANN. § 311.023(6)). Measured against those rules, the Board rule at 22 TEX. ADMIN. CODE § 781.504(g) was invalid to the extent it required an exam from a reapplicant first licensed without one.

Citations

Statutes and rules:

• TEX. HUM. RES. CODE ANN. §§ 50.001-50.034, including §§ 50.014(a) and 50.023(e) (Vernon Supp. 1999)
• TEX. GOV'T CODE ANN. §§ 311.011(a), 311.023(6) (Vernon 1998)
• 22 TEX. ADMIN. CODE § 781.504(g)

Cases:

• Eddins-Walcher Butane Co. v. Calvert, 298 S.W.2d 93, 96 (Tex. 1957)
• Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 80 (Tex. 1997)
• Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993)
• Tarrant County Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993)
• Railroad Comm'n of Tex. v. ARCO Oil & Gas Co., 876 S.W.2d 473, 481 (Tex. App.-Austin 1994, writ denied)
• Hollywood Calling v. Public Util. Comm'n of Tex., 805 S.W.2d 618, 620 (Tex. App.-Austin 1991, no writ)
• Bloom v. Texas State Bd. of Examiners of Psychologists, 492 S.W.2d 460, 462 (Tex. 1973)
• Murphy v. Mittelstadt, 199 S.W.2d 478, 481-82 (Tex. 1947)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0049
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0049.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL, STATE OF TEXAS
JOHN CORNYN

May 17, 1999

Ms. Deborah Hammond, LMSW-ACP
Chair, Texas State Board of Social Worker Examiners
1100 West 49th Street
Austin, Texas 78756-3183

Opinion No. JC-0049

Re: Whether section 50.023(e) of the Human Resources Code permits a person originally licensed without an examination, whose license has expired for more than a year, to reapply for a new license without an examination (RQ-1172)

Dear Ms. Hammond:

You ask about the licensing of a person as a social worker by the Texas State Board of Social Worker Examiners under section 50.023(e) of the Human Resources Code. Specifically, you ask whether section 50.023(e) permits a person originally licensed without an examination, whose license has expired for more than a year, to reapply for a new license without an examination. Because the plain language of the statute so provides, we conclude in the affirmative. Accordingly, we also conclude that the Board's rule on reapplication, to the extent it requires an applicant originally licensed without an examination to take an examination, is invalid.

You advise us of the following facts giving rise to your question. On April 24, 1998, an individual whose license expired more than fourteen years ago reapplied for a license contending that she is eligible to be licensed without an examination. You tell us this individual was originally certified on August 31, 1983, under a "grandfather" provision which allowed her to be certified without taking an examination. She did not renew the annual certification which expired on September 30, 1984. The applicant's request for licensing without an examination has prompted the Texas State Board of Social Worker Examiners in turn to request an opinion from this office as to whether section 50.023(e) of the Human Resources Code permits this.

[Footnote 1: Prior to 1993, social workers were "certified" rather than "licensed." See Act of May 25, 1993, 73d Leg., R.S., ch. 605, §§ 1, 12, 1993 Tex. Gen. Laws 2277, 2288.]

[Footnote 2: Prior to 1993, qualified persons could be granted social worker certification without examination. See Act of June 1, 1981, 67th Leg., R.S., ch. 776, § 1, 1981 Tex. Gen. Laws 2923, 2928 (authorizing certifications of persons meeting educational and other requirements of Act without examination until August 31, 1982), amended by Act of May 2, 1983, 68th Leg., R.S., ch. 87, § 8, 1983 Tex. Gen. Laws 417, 424 (authorizing certification without examination of persons meeting requirements of Act until December 31, 1985, and Act's work experience requirements after December 31, 1985) (eff. Sept. 1, 1983), amended by Act of May 25, 1993, 73d Leg., R.S., ch. 605, §§ 1, 21, 1993 Tex. Gen. Laws 2277, 2287-88 (deleting grandfather provision); see also Tex. Att'y Gen. LO-89-104 (discussing 1983 grandfather provision).]

The Texas Professional Social Work Act, sections 50.001-50.034 of the Human Resources Code (the "Act"), creates the Texas State Board of Social Worker Examiners (the "Board") and authorizes it to license and regulate social workers. See TEX. HUM. RES. CODE ANN. §§ 50.004(a), .006 (Vernon Supp. 1999). Unless licensed under the Act, a person may not hold himself or herself out as a social worker or use a title that implies licensure or certification in professional social work services. Id. § 50.010. To be eligible for licensure, a person must submit an application stating the person's education, experience and other information required by the Board; be at least eighteen years of age "and worthy of the public trust and confidence," id. § 50.013; and have the requisite educational degree. Id. §§ 50.015, .017. An eligible applicant must also take an examination administered by the Board. Id. § 50.014(a). Upon satisfactory completion of the examination, an applicant may be granted a license as a licensed master social worker, licensed social worker, or a social work associate. Id. § 50.014(b).

The licenses expire on staggered dates during the year and may be renewed before the expiration date or within one year of the expiration date simply by paying renewal and examination fees. Id. § 50.023(a)-(d). A different procedure must be followed if a license has expired for more than a year, however. Section 50.023(e), which you ask about, requires these licensees to reapply providing as follows:

If a person's license or certificate or order of recognition has been expired for one year or longer, the person may not renew the license or order of recognition. The person may obtain a new license or order of recognition by submitting to reexamination, if an examination was originally required, and complying with the requirements and procedures for obtaining an original license or certificate or order of recognition. However, the board may renew without reexamination an expired license or certificate or order of recognition of a person who was licensed in this state, moved to another state, and is currently licensed or certified and has been in practice in the other state for the two years preceding application. The person must pay to the department a fee that is equal to the examination fee for the license or order of recognition.

TEX. HUM. RES. CODE ANN. § 50.023(e) (emphasis added).

Section 50.023(e) by its plain terms requires a person whose license has expired for a year or longer applying for a new license to submit to an examination only if the person was originally required to take an examination. Like a court, we must give effect to each word and phrase in subsection (e). See Eddins-Walcher Butane Co. v. Calvert, 298 S.W.2d 93, 96 (Tex. 1957). Subsection (e) provides that an applicant may obtain a new license "by submitting to reexamination, if an examination was originally required . . ." The emphasized language is clear and unambiguous, and we must ascribe to that language its common everyday meaning. Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 80 (Tex. 1997); see also Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993) (where language in statute is unambiguous, court must seek legislative intent in plain and common meaning of words and terms used in statute); TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 1998) (words and phrases shall be read in context and construed according to rules of grammar and common usage). The ordinary meaning of "reexamination" is to retake or resubmit to an examination and the term necessarily presupposes the existence of a prior examination. Thus, only an applicant previously subject to an examination, by definition, may be subject to a reexamination. More importantly, the phrase providing that reexamination is required "if an examination was originally required" emphasizes that it is conditioned on a previously required examination. Accordingly, if an examination was not originally required, then a reexamination is not required. Additionally, we have found no indication in the Act or its legislative history that the legislature intended otherwise. Therefore, based on the legislative language, we conclude that section 50.023(e) permits a person originally licensed without an examination, whose license has expired for more than a year, to reapply for a new social work license without an examination.

You have advised us that the Board's "policy has been, if a person allows their license to expire for more than one year, then the person is required to reapply under the rules that are in effect at the time of reapplication" and that "[n]o person has ever been allowed to reapply and be licensed after allowing their license to lapse, to be relicensed without taking an examination which has been required since January 1, 1986." By policy, we understand you to refer to the Board's interpretation as embodied in the relevant Board rule. That rule provides as follows: "On or after one year from the expiration date, a person may no longer renew the license and must reapply by submitting a new application, paying the required fees, and meeting the current requirements for the license including passing the licensure examination." 22 TEX. ADMIN. CODE § 781.504(g). This interpretation is inconsistent with the plain language of the statute. See Monsanto, 865 S.W.2d at 939 (where language in statute is unambiguous, court must seek legislative intent in plain and common meaning of words and terms used in statute).

As the agency charged with executing the Act, the Board's construction of the statute is entitled to serious consideration, but only as long as such construction is reasonable and does not contradict the plain language of the statute. Tarrant County Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993); see also TEX. GOV'T CODE ANN. § 311.023(6) (Vernon 1998). As a general matter, a construction that imposes additional burdens, conditions, or restrictions in excess of or inconsistent with the statutory provisions cannot be upheld. See, e.g., Railroad Comm'n of Tex. v. ARCO Oil & Gas Co., 876 S.W.2d 473, 481 (Tex. App.-Austin 1994, writ denied) (agency rule may not impose additional burdens, conditions, or restrictions in excess of or inconsistent with statutory provisions); Hollywood Calling v. Public Util. Comm'n of Tex., 805 S.W.2d 618, 620 (Tex. App.-Austin 1991, no writ) (same). Specifically, a licensing agency for a business or profession cannot enforce standards that are more burdensome than those of the controlling statute, even though they may be reasonable and may be administered reasonably. Bloom v. Texas State Bd. of Examiners of Psychologists, 492 S.W.2d 460, 462 (Tex. 1973); Murphy v. Mittelstadt, 199 S.W.2d 478, 481-82 (Tex. 1947); Tex. Att'y Gen. Op. No. N-650 (1987) at 5. Notwithstanding that the Board's interpretation of section 50.023(e) may be consistent with the Act's general objective of setting high standards for social worker qualifications and protecting the public, it is inconsistent with the plain language of section 50.023(e). The Board's interpretation reads out of the statute the phrase "by submitting to reexamination, if an examination was originally required" and gives effect only to the remaining provision, i.e., the language requiring the applicant to comply with the procedures for a new license, including examination. This interpretation imposes the burden of taking an examination on an applicant reapplying for a license who was not originally required to take an examination when the statute plainly exempts such applicant from examination and, thus, is inconsistent with section 50.023(e). Accordingly, we also conclude that the Board's rule on reapplication, to the extent it requires an applicant originally licensed without an examination to take an examination, is invalid. See Bloom, 492 S.W.2d at 462; ARCO, 876 S.W.2d at 481.

[Footnote 3: See TEX. HUM. RES. CODE ANN. § 50.014(a) (Vernon Supp. 1999) ("At least once each calendar year the board shall prepare and administer an examination to determine the qualifications of applicants for licenses under this chapter."); Sunset Commission Recommendations to 68th Legislature (1982) at 19 (noting that the "state generally should only regulate a profession when the unregulated practice can clearly harm or endanger the public," describing tasks commonly performed by social workers, and concluding as follows: "From this description it can be seen that the social worker is often involved in areas in which professional judgment can have significant impact on the well-being of clients. Thus, substantial harm to the public could result from incompetent or unqualified social workers."); see also Letter from Helen Fisher, President, National Association of Social Workers, Texas, to Sarah J. Shirley, Chair, Opinion Committee (Aug. 25, 1998) (on file with Opinion Committee) (social workers licensed to protect credibility of profession and to establish safeguards for public; exempting applicant reapplying for license from examination detrimental for profession).]

SUMMARY

Section 50.023(e) of the Human Resources Code permits a person originally licensed without an examination whose license has expired for more than a year to reapply for a new social work license without an examination. The Texas State Board of Social Worker Examiners' rule on reapplication, to the extent it requires an applicant originally licensed without an examination to take an examination, is invalid.

Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Sheela Rai
Assistant Attorney General