Can the Texas Behavioral Health Executive Council repeal or change a rule about counselor or therapist licensing on its own, or does the examining board have to act first?

Plain-English summary

In 2019 the Legislature created the Texas Behavioral Health Executive Council as an umbrella licensing agency for four professions: marriage and family therapists, professional counselors, social workers, and psychologists. The idea was to handle licensing, investigations, and enforcement in one place, but the Legislature kept each profession's examining board and left those boards responsible for originating the rules on standards of care and practice. The Council's executive director asked how to square that structure with two competing rules: Occupations Code subsection 507.153(a), which says the Council may not adopt certain rules unless the profession's examining board proposes them first, and the Administrative Procedure Act, which requires every state agency to review each of its rules every four years and then readopt, readopt with amendments, or repeal them.

Subsection 507.153(a) lists the protected subjects: the qualifications to get a license (including criminal-history eligibility), the scope of practice and standards of care and ethics, continuing education requirements, and the schedule of sanctions for violations. On any of those, the examining board must propose the rule before the Council can act. The director worried that if a board refuses to amend a rule the Council thinks needs changing, the Council might be stuck with no option but repealing the entire rule, which could have serious consequences, and asked whether the Council could at least repeal part of such a rule on its own.

The AG said no. An agency has only the powers a statute gives it. Chapter 507 does not define "rule," but the Government Code's APA defines a "rule" to include the amendment or repeal of a prior rule. Because the Legislature used "rule" that way in the same subject area, the AG concluded the limit in subsection 507.153(a) reaches any amendment or repeal, not just the first adoption. So without a board's proposal, the Council cannot readopt, modify, or repeal a covered rule, including repealing only part of it. The AG noted the boards have their own statutory duty to propose rules to the Council, reflecting a cooperative, shared-responsibility framework. And to the extent subsection 507.153(a) conflicts with the four-year review duty in Government Code section 2001.039, the more specific and later-enacted statute (the 2019 subsection 507.153(a)) prevails over the more general, earlier one.

What this means for you

If you work with or sit on the Council

Based on this opinion, on the core subjects listed in subsection 507.153(a) you cannot adopt, readopt, amend, or repeal a rule, even partially, unless the relevant examining board proposes the change first. The four-year APA review still happens, but for these rules the Council's hands are tied without a board proposal.

If you sit on one of the four examining boards

The AG read each board as holding both the power and a statutory duty to propose rules to the Council on its profession's standards (sections 501.1515, 502.1515, 503.2015, 505.2015). If a rule on your profession's standards needs to change or be repealed, the proposal has to start with your board.

If you are a licensed therapist, counselor, social worker, or psychologist

The rules that govern your license qualifications, scope of practice, standards of care, ethics, continuing education, and sanctions can be changed only when your profession's examining board proposes it. The umbrella Council cannot unilaterally repeal or rewrite those rules.

Common questions

Q: Can the Council repeal a counseling or therapy rule on its own?
A: No. The AG concluded the Council may not readopt, modify, or repeal a rule on a subject listed in subsection 507.153(a) unless the profession's examining board first proposes the change, and that includes repealing only part of a rule.

Q: What subjects are covered by this limit?
A: License qualifications (including criminal-history eligibility), scope of practice, standards of care and ethical practice, continuing education requirements, and the schedule of sanctions for violations.

Q: Doesn't the APA require the Council to review and update its own rules?
A: It requires a review every four years, but the AG read subsection 507.153(a) to control where the two conflict, because it is the more specific and more recently enacted statute.

Q: What if an examining board refuses to make a change the Council wants?
A: The AG did not give the Council a workaround. The boards have their own duty to propose rules, and the framework depends on the Council and boards cooperating; the Council cannot act alone on these subjects.

Background and statutory framework

The Legislature created the Behavioral Health Executive Council in 2019 (Occupations Code chapter 507) as an umbrella agency over four professions while keeping each profession's examining board responsible for originating standards of practice. The Council has general rulemaking authority (section 507.152), but subsection 507.153(a), titled "Limitation Regarding Certain Rules," bars the Council from adopting rules on listed subjects unless the applicable examining board proposes them first. Other provisions let the Council adopt rules on different subjects without that limit (sections 507.156, 507.204). Government Code section 2001.039 separately requires every agency to review each rule every four years and then readopt, readopt with amendments, or repeal it, but chapter 2001 does not itself grant rulemaking authority; it presumes the authority comes from other law (sections 2001.024(a)(3), 2001.033(a)(2)).

An agency has only the powers expressly granted or necessarily implied (Tex. Student Hous. Auth. v. Brazos Cnty. App. Dist.). Chapter 507 does not define "rule," but the APA defines it to include the "amendment or repeal of a prior rule" (section 2001.003(6)(B)), and the same word used by the Legislature in the same subject area ordinarily carries the same meaning (Bush v. Lone Oak Club, LLC; section 311.011(b); 22 Texas Administrative Code section 881.20(a)). So the limit reaches amendments and repeals. The examining boards each have a duty to propose rules to the Council (sections 501.1515, 502.1515, 503.2015, 505.2015). Where subsection 507.153(a) conflicts with section 2001.039, the specific and later statute prevails (sections 311.025(a), 311.026(b)), and subsection 507.153(a), enacted in 2019, is both.

Citations and references

Statutes:

• Tex. Occ. Code § 507.153 — limitation requiring an examining board to propose certain Council rules first
• Tex. Gov't Code § 2001.039 — agency duty to review and readopt, amend, or repeal rules every four years
• Tex. Gov't Code § 2001.003 — defines "rule" to include the amendment or repeal of a prior rule

Key cases:

• Tex. Student Hous. Auth. v. Brazos Cnty. App. Dist., 460 S.W.3d 137 (Tex. 2015) — an agency has only the powers expressly granted or necessarily implied
• Bush v. Lone Oak Club, LLC, 601 S.W.3d 639 (Tex. 2020) — a word used in one sense ordinarily keeps that meaning in later legislation on the same subject

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0426
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2023/kp-0426.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 7, 2023

Mr. Darrel D. Spinks
Executive Director
Texas Behavioral Health Executive Council
333 Guadalupe, Suite 3-900
Austin, Texas 78701

Opinion No. KP-0426

Re: Authority of the Behavioral Health Executive Council to repeal rules under Occupations Code subsection 507.153(a) (RQ-0445-KP)

Dear Mr. Spinks:

You ask about the authority of the Texas Behavioral Health Executive Council ("Council") to repeal rules under Occupations Code subsection 507.153(a).¹

Background

In 2019, the Legislature created the Council to consolidate the regulation and administration of four behavioral health professions: the Marriage and Family Therapists, Professional Counselors, Social Worker Examiners, and Psychologists. See generally Act of May 22, 2019, 86th Leg., R.S., ch. 768, §§ 1.001–4.008, 2019 Tex. Gen. Laws 2125, 2125–188 (codified at TEX. OCC. CODE chapter 507). The Legislature created the Council as an "umbrella licensing agency [to] handle licensing, investigative, and enforcement matters for the behavioral health occupations in a more efficient, functional approach." Senate Comm. on Health & Human Servs., Bill Analysis, Tex. C.S.H.B. 1501, 86th Leg., R.S. (2019) at 1. Yet, the Legislature maintained the examining boards of the respective professions, leaving with each the "responsibility to establish all standards relating to licensing and regulating its profession, including originating all rules related to standards of care and practice." Id.

You tell us that while the Council possesses general rulemaking authority regarding the four professions, Occupations Code subsection 507.153(a) limits its authority. See Request Letter at 2. Subsection 507.153(a) requires an examining board for one of the professions to propose certain rules before the Council may adopt them. TEX. OCC. CODE § 507.153(a); see also id. § 507.152 (authorizing the Council to "adopt rules as necessary to perform its duties and implement" chapter 507). You ask how to reconcile the limitations on the Council's rulemaking authority in subsection 507.153(a) with its authority as a state agency to "review and consider for readoption" its rules every four years under the Administrative Procedure Act. See Request Letter at 1–2; see also TEX. GOV'T CODE § 2001.039.

You describe a scenario where the Council determines it may not legally readopt a rule when the rule relates to one of the subjects requiring proposal by one of the examining boards. See Request Letter at 2. You assert that the Council can recommend changes to a particular examining board, but if the board chooses not to amend the rule, the "Council [is] left with no other option but repealing the entire rule[.]" Id. You explain that a "complete repeal of a rule may have severe consequences" and question whether the Council may repeal parts of a rule on its own proposal and still comply with Occupations Code section 507.153. Id.

The Relevant Provisions from the Occupations Code and the Government Code

Occupations Code subsection 507.153(a) provides:

(a) Unless the rule has been proposed by the applicable board for the profession, the executive council may not adopt under this chapter or Chapter 501, 502, 503, or 505:

(1) a rule regarding:

(A) the qualifications necessary to obtain a license, including limiting an applicant's eligibility for a license based on the applicant's criminal history;

(B) the scope of practice of and standards of care and ethical practice for the profession; or

(C) continuing education requirements for license holders; or

(2) a schedule of sanctions for violations of the laws and rules applicable to the profession.

TEX. OCC. CODE § 507.153(a). By its terms, subsection 507.153(a) limits the Council's authority to adopt a rule that relates to one of the subjects listed therein unless an examining board proposes the rule first. See id. (titled "Limitation Regarding Certain Rules"). At the same time, under Government Code section 2001.039 the council must "review and consider for readoption each of its rules" every four years. TEX. GOV'T CODE § 2001.039(a), (b). Section 2001.039 provides that the state agency's review must include "an assessment of whether the reasons for initially adopting the rule continue to exist." Id. § 2001.039(e). As a result of the review, the state agency "shall readopt, readopt with amendments, or repeal a rule . . . ." Id. § 2001.039(c).

Analysis

An administrative agency such as the Council possesses only those powers expressly granted by statute or necessarily implied therefrom. See Tex. Student Hous. Auth. v. Brazos Cnty. App. Dist., 460 S.W.3d 137, 143 (Tex. 2015). While the Occupations Code gives the Council specific authority to adopt certain types of rules, subsection 507.153(a) prohibits the Council from adopting a rule on its own proposal if the rule concerns one of the listed subject matters. Compare TEX. OCC. CODE § 507.153(a) (authorizing the Council to adopt rules contingent on proposal by one of the examining boards), with id. §§ 507.156 (authorizing the Council to adopt rules on the consequences of a criminal conviction), 507.204 (authorizing the Council to adopt rules concerning the investigation of complaints). And Government Code chapter 2001 does not generally grant additional authority to any agency to adopt rules, but instead presumes the respective state agency's rulemaking authority arises from other law. See generally TEX. GOV'T CODE §§ 2001.024(a)(3) (requiring agency's notice of proposed rule to demonstrate its authority to adopt the rule), 2001.033(a)(2) (requiring agency's order adopting the rule to demonstrate its authority to adopt the rule). Accordingly, if the rule under review pursuant to Government Code section 2001.039 relates to one of the subjects listed in Occupations Code subsection 507.153(a), the Council lacks authority to act unless one of the examining boards first proposes action. See TEX. OCC. CODE § 507.153(a).

You ask whether the Council could repeal parts of rules that are subject to subsection 507.153(a) on its own proposal as part of its rule review under Government Code section 2001.039. See Request Letter at 2. Although Occupations Code subsection 507.153(a) uses the term "adopt," it applies to more than the initial adoption of a rule by virtue of what constitutes a "rule." Chapter 507 does not define "rule," but Government Code chapter 2001 defines the term to include the "amendment or repeal of a prior rule." Compare TEX. OCC. CODE § 507.001 ("Definitions"), with TEX. GOV'T CODE § 2001.003(6)(B). When the "legislature has used a word in a statute in one sense and with one meaning, and subsequently uses the same word in legislating on the same subject-matter, its meaning in the subsequent statute will ordinarily be the same." Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 647 (Tex. 2020) (quotation mark omitted); see also TEX. GOV'T CODE § 311.011(b) (providing that "[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly"); 22 TEX. ADMIN. CODE § 881.20(a) (Tex. Behav. Health Exec. Council, Rulemaking by the Executive Council) ("When carrying out its rulemaking functions, the Council shall abide by the requirements of the Administrative Procedure Act found in Chapter 2001 of the Government Code."). Accordingly, a court would likely conclude the limitation in Occupations Code subsection 507.153(a) applies to any amendment or repeal of a prior rule. Absent a proposal from an examining board, subsection 507.153(a) deprives the Council of authority to repeal a rule described therein on the Council's own proposal.

You express concern about the possibility that an examining board could choose not to amend its rules, contrary to the Council's wishes. See Request Letter at 2. Yet each examining board has its own duty to propose rules to the Council on the subject matters listed in Occupations Code subsection 507.153(a). See TEX. OCC. CODE §§ 501.1515 (requiring the examining board for psychologists to propose rules to the Council), 502.1515 (requiring the examining board for marriage and family therapists to propose rules to the Council), 503.2015 (requiring the examining board for licensed professional counselors to propose rules to the Council), 505.2015 (requiring the examining board for social workers to propose rules to the Council). This statutory framework reflects the Legislature's intent that the Council and the examining boards cooperate and share responsibility to provide for standards of practice for the professions. See generally id. §§ 507.001–.404.

Moreover, to the extent Occupations Code subsection 507.153(a) conflicts with Government Code section 2001.039, subsection 507.153(a) prevails under the legal principles for resolving conflicts in statutes. The Government Code resolves conflicting statutes by favoring a specific statute over a general one and a more recent enacted statute over an earlier enacted one. See generally TEX. GOV'T CODE §§ 311.025(a) (providing that the latest-enacted statute ordinarily prevails), 311.026(b) (providing method for resolution of conflict between a general provision and a special provision). Occupations Code subsection 507.153(a) is both the more specific provision and the later-enacted provision. See Act of May 22, 2019, 86th Leg., R.S., ch. 768, § 1.001, 2019 Tex. Gen. Laws 2125, 2129 (codified at TEX. OCC. CODE § 507.153); Act of May 25, 1999, 76th Leg., R.S., ch. 1499, § 1.11(a), 1999 Tex. Gen. Laws 5164, 5166 (codified at TEX. GOV'T CODE § 2001.039).

Conclusion

For these reasons, a court would likely conclude that the Council may not readopt, modify, or repeal a rule that concerns one of the subjects in Occupations Code subsection 507.153(a) unless the examining board for the profession first proposes readoption, modification, or repeal. Accordingly, the Council may not repeal part of a rule that concerns one of the subjects in Occupations Code subsection 507.153(a) on its own proposal.

S U M M A R Y

Occupations Code chapter 507 creates the Texas Behavioral Health Executive Council to consolidate regulation and administration of four behavioral health professions. Subsection 507.153(a) authorizes the Council to adopt rules on certain subjects related to the practice for the four professions but only if the rule is first proposed by the examining board for the particular profession. To the extent subsection 507.153(a) may conflict with the Council's responsibility as a state agency to review and adopt, readopt, or modify its rules under Government Code section 2001.039, subsection 507.153(a) prevails. A court would likely conclude that the Council may not repeal part of a rule that concerns one of the subjects in Occupations Code subsection 507.153(a) on its own proposal.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee