If a Texas psychologist is exempt from licensing but chooses to get licensed anyway, does the state board have authority over them?

Texas AG Opinion JM-1247: Does the Psychology Board Have Authority Over an Exempt Psychologist Who Gets Licensed Anyway?

Plain-English summary

The Texas State Board of Examiners of Psychologists asked a question about the reach of its own authority. Article 4512c, V.T.C.S., the Psychologists' Certification and Licensing Act, generally required a person to be certified and licensed before practicing as a psychologist. Section 22 carved out exemptions, and section 22(a) exempted psychologists employed by a governmental agency, a public school district, or a regionally accredited institution of higher education, so long as they performed their psychology duties within that employer and as part of the job. The exemption opened with sweeping language: "Nothing in this Act shall be construed to apply to" those people. The board wanted to know what happened when someone who qualified for that exemption went ahead and obtained certification or licensure anyway. Did "nothing in this Act shall apply" mean the board had no authority over that voluntarily-licensed person?

The Attorney General said the board does have authority over such a person. Read absolutely literally, the "nothing in this Act shall apply" language would make exempt people ineligible to be certified or licensed at all, which the opinion said was not the purpose of the exemption. The point of section 22(a) is to let certain people work as psychologists without needing a certificate or license. It is a permission not to be licensed, not a wall against being licensed. So when a person who could rely on the exemption chooses instead to seek certification or licensure, the opinion concluded that person "submit[s] to all of the act's provisions."

That has concrete consequences. A person who seeks certification or licensure is subject to the board's rules about activities, services, and training to the extent those rules set qualifications for the license. Once certified or licensed, the person is subject to the board's authority to cancel, revoke, suspend, or refuse to renew the license for any of the reasons the board could act on generally, and to the fees the act imposes. In short, once you hold the license, you are inside the regulatory system that goes with it, even if your job would have let you skip the license entirely.

Currency note

This opinion was issued in 1990. 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.

According to the Texas Attorney General's official opinion records, this opinion was later overruled by a subsequent Attorney General opinion, JC-0321. A reader should treat JM-1247 as historical and consult that later opinion and current law rather than relying on the holding here.

Who this opinion affected (as of 1990)

The Texas State Board of Examiners of Psychologists: The opinion told the board that its jurisdiction reached a person who had voluntarily obtained certification or licensure, even if that person's employment would have exempted them from the licensing requirement under section 22(a). The board could apply its qualification rules and could cancel, revoke, suspend, or refuse to renew such a person's license.

Psychologists employed by government agencies, school districts, and accredited colleges: These were the people section 22(a) exempted. Under the opinion, staying inside the exemption (working without a license) kept them out of the board's licensing jurisdiction, but choosing to get certified or licensed pulled them into the act's full set of rules, fees, and disciplinary authority.

People weighing whether to seek a psychology license they did not strictly need: The opinion meant that obtaining the credential was not a formality with no strings. It carried the board's ongoing regulatory authority, so the choice to become licensed also meant accepting the board's rules and discipline.

Common questions

If my job exempts me from needing a psychology license, can I still get one?
Yes. The opinion rejected the reading that would have made exempt people ineligible for a license. Section 22(a) lets a qualifying person work without a license; it does not stop them from obtaining one.

If I get licensed even though I was exempt, does the board have authority over me?
Yes. The opinion concluded that a person who voluntarily seeks certification or licensure submits to all of the act's provisions, including the board's rules, its fees, and its power to discipline the license.

What can the board do to a voluntarily-obtained license?
Under the opinion, once a person is certified or licensed, the board may cancel, revoke, suspend, or refuse to renew that certification or license for any of the reasons it could act on for licenses generally.

Does the exemption stop the board from writing rules about exempt people's work?
For a person who stays within the exemption and is not licensed, the act prohibited the board from enacting rules governing that person's "activities, services, or training." The board's rulemaking reach attached once the person sought or held a license.

Background and statutory framework

Article 4512c, V.T.C.S., the Psychologists' Certification and Licensing Act, set the framework. Section 20 provided that after December 31, 1970, no person could represent himself as a psychologist or psychological associate within the meaning of the act unless certified and registered under it. Section 21 provided for the licensure of persons who offer psychological services for compensation.

Section 22 listed exemptions, stating that "[n]othing in this Act shall be construed to apply to" the categories it described. Section 22(a) covered the activities, services, and use of official title by a person employed as a psychologist by a governmental agency, a public school district, or a regionally accredited institution of higher education, provided the employee performed those duties within and for that employer, with a proviso pulling back people who offer psychological services to the public for a fee over and above their regular compensation, or who are employed by organizations that sell psychological services to the public for a fee. Other subsections exempted students, interns, and residents (section 22(b)); other professionals, Christian Science practitioners, and religious practitioners (section 22(c)); and certain marriage and family counselors (section 22(d)). The opinion also noted the act barred the board from enacting rules governing the "activities, services, or training" of a person exempt under section 22, and cited Attorney General Opinion H-930 (1977) on whether a person contracting to provide services to a school district fell within the exemption.

The board's question was whether the "[n]othing in this Act shall apply" language stripped it of jurisdiction over a person who fit section 22(a) but had obtained certification or licensure anyway. The opinion reasoned that reading the phrase literally would make exempt people ineligible to be licensed, which was not the exemption's purpose. The purpose of section 22(a) was to let people work without a license, not to forbid them a license. So a person who chooses certification or licensure submits to all of the act's provisions. Such a person is subject to the board's rules on activities, services, and training to the extent they are qualifications for the license, and once certified or licensed is subject to the board's authority to cancel, revoke, suspend, or refuse to renew under V.T.C.S. art. 4512c, sections 23 and 24A, and to the fees imposed by section 16A of the act.

Citations

Statutory authorities:

• V.T.C.S. art. 4512c, the Psychologists' Certification and Licensing Act
• V.T.C.S. art. 4512c, § 20 (representation as a psychologist requires certification and registration)
• V.T.C.S. art. 4512c, § 21 (licensure of persons offering psychological services for compensation)
• V.T.C.S. art. 4512c, § 22 (exemptions, including § 22(a) for certain employed psychologists, and §§ 22(b)-(d))
• V.T.C.S. art. 4512c, §§ 23, 24A (grounds to cancel, revoke, suspend, or refuse to renew)
• V.T.C.S. art. 4512c, § 16A (fees)

Prior Attorney General opinion referenced:

• Attorney General Opinion H-930 (1977) (whether a person contracting to provide psychological services to a school district is within the exemption)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1247
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1247.pdf

Original opinion text

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

November 14, 1990

Patricia S. Bizzell, M.P.A.
Executive Director
Texas State Board of Examiners of Psychologists
9101 Burnet Road, Suite 212
Austin, Texas 78750

Opinion No. JM-1247

Re: Jurisdiction of the Texas State Board of Examiners of Psychologists over individuals who have voluntarily requested and been granted certification and licensure but whose employment makes them exempt (RQ-2077)

Dear Ms. Bizzell:

You ask about one of the exemptions from licensing and certification requirements under article 4512c, V.T.C.S., the Psychologists' Certification and Licensing Act.

Section 20 of the act provides:

    After December 31, 1970, no person shall represent himself as a psychologist or psychological associate within the meaning of this Act unless he is certified and registered under the provisions of this Act.

Section 21 provides for the licensure of persons who offer psychological services for compensation. Section 22 provides that "[n]othing in this Act shall be construed to apply to"

    (a) the activities, services and use of official title on the part of a person employed as a psychologist by any: (1) governmental agency, (2) public school district, or (3) regionally accredited institution of higher education provided such employee is performing those duties for which he is employed by such agency, district, or institution and within the confines of such agency, district, or institution insofar as such activities and services are a part of the duties of his office or position as a psychologist with such agency, district, or institution; except that persons employed as psychologists who offer or provide psychological services to the public (other than lecture services) for a fee, monetary or otherwise, over and above the compensation they receive for the performance of their regular duties, and/or persons employed as psychologists by organizations that sell psychological services to the public (other than lecture services) for a fee, monetary or otherwise must be licensed under the provisions of this Act.

See also V.T.C.S. art. 4512c, § 22(b) (exception for students, interns, and residents in psychology), (c) (exception for services of other professionals, Christian Science practitioners, and other religious practitioners), (d) (certain marriage and family counselors); see Attorney General Opinion H-930 (1977) (whether person contracting to provide psychological services to school district is within exemption). The Board of Examiners of Psychologists is prohibited from enacting rules that govern the "activities, services, or training" of a person who is exempt from the act's provisions under section 22.

Because section 22 states that "[n]othing in this Act" shall apply to the persons described, you ask whether the Board of Examiners of Psychologists has "legal jurisdiction over" persons who fit the description set out in section 22(a) but who have nonetheless obtained certification or licensure.

If the phrase "[n]othing in this Act shall be construed to apply" is taken absolutely literally, persons described in the exemptions set out in section 22 would be ineligible for certification or licensure under article 4512c. We do not think, however, that the purpose of section 22 is to make certain individuals ineligible for certification and licensure. Rather, we think that the plain purpose of the exemption set out in section 22(a) is to allow persons to engage in certain types of employment without a certificate or license issued under article 4512c. If such persons do, however, seek licensure or certification, we think they submit to all of the act's provisions. Consequently, we think it is clear that a person who chooses to seek certification or licensure, even if he would be exempt under section 22(a), would be subject to the board's rules regarding that person's activities, services, or training to the extent that they are qualifications for certification or licensure. Once a person is certified or licensed, we think it is within the authority of the Board of Examiners of Psychologists to cancel, revoke, suspend, or refuse to renew that certification or license for any of the reasons the board may take such action in regard to certificates and licenses generally. See V.T.C.S. art. 4512c, §§ 23, 24A. Similarly, we think any person who chooses to seek licensure or certification is subject to the fees imposed by section 16A of article 4512c.

                   SUMMARY

      A person who is certified or licensed under article 4512c is subject to the provisions of that act, even if that person holds employment that would exempt him or her from the licensing and certification requirements of the act.

                               JIM MATTOX
                               Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General