The Honorable Betty Cleland                        Opinion   No.   H-   735
Executive Secretary
~Texas State Board of Examiners                    Re: Definition of governmental
  of Psychologists                                 agency for purpose of the
108 W. 15th Street                                 Psychologists’   Certification  and
Austin,  Texas    78701                            Licensing   Act, article 4512c,
                                                   V. T. C. S.

Dear Mrs.   Cleland:

      You have requested our opinion concerning      the scope and effect of
section 22 of the Psychologists   ’ Certification and Licensing  Act, article 4512c,
V. T. C. S. Section 22 establishes    various exemptions   from the application oi
article 4512c,  providing in part:

                   Nothing 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,  . . . (3) . . . or
                   any hospital licensed by the Texas State Department
                   of Health, including medical clinics associated         with
                   such hospitals and are organized       as an unincorporated
                   association.    . . .

     Your questions    are:

                   Are MH/MR     centers which contract with the Department
                   of Mental Health and Mental Retardation,     some of which
                   are private corporations,    some of which are multiply-
                   funded, governmental    agencies?    Are community agencies
                   such as child welfare clinics,    which are multiply-funded,
                   “governmental   agencies”?

                   If a patient in an MH/MR     center which is not administratively
                   part of the Department    of MHIMR is damanged by some
                   action of an unlicensed person      offering psychological    services.
                   to whom does that patient turn for redress      in the case of a
                   county MH/MR      Center?   In the case of a private corporatm,,
                   center?    In the case of a multiply-funded   center,   subsisting
                   on grants?




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The Honorable    Betty   Cleland   - page two      (H-735)




      Article 5547-202,    V. T. C. S., provides for contracts between the De-
partment of Mental Health and Mental Retardation           and various public and
private entities.   Article 5547-203,     V. T. C. S., authorizes    the creation of
community centers for mental health and mental retardation             services.
These centers may be formed only by local governmental             units and are sub-
ject to control by those units.     The character     of these centers as governmental
agencies or political subdivisions      has varied depending on the context.      In
Attorney General Opinion H-29~1( 1974)v.e noted that:

                    Community centers have been held to be political
                     subdivisions under statutes concerning     social
                     security coverage,   Attorney General Opinion M-149
                    (1967) and .unemployment     compensation   coverage,
                    Attorney General Opinion M-1033(1971).         But they
                    were determined to be neither “departments         of the
                     state government ” for the purposes of Board of Con-
                    trol purchasing   requirements,    Attorney General
                    Opinion M-316( 1968), nor “units of government”         for
                    the purposes of the Texas Tort Claims Act, Attorney
                    General Opinion M-538( 1969).      The latter opinion
                    held that community centers were merely component
                    parta of units of government.     Attorney General
                    Opinion M-1266(1972)     held that community centers
                    are agencies of the state, although not state agencies.

In Attorney General Opinion H-291, community centers were held to be political
subdivisions   for purposes of workmen’s       compensation.    And in Attorney General
Opinion H-104( 1973) these centers were held to be exempt from the child care
licensing provisions     of article 695c, section 8(a), V. T. C. S. In light of the fore-
going, in our opinion a community center created under the provisions            of article
5547-203,    V. T. C. S., is a “governmental     agency” within the meaning of sect ion
22 of article 4512c,     V. T. C. S. See also Board    Adjustment   of City of Fort
Worth v. Stovall,     216 S. W. 2d 1’71(TSup.       1949).   However,   a private corpo-
ration does not become a governmental         agency by contracting   to render services
to the government.       Davis v. Smith, 28 S. E. 2d 148 (Ga. 1943).     Accordingly,     in
our opinion a private corporation      contracting with the Department      of Mental
Health and Mental Retardation as a general matter is not a governmental             agency
under article 4512~.      section 22.

     Your second group of questions concern a patient’s    remedy when damaged
by an unlicensed person offering psychological   services.  Under our resolution
of your first question, a person working as a psychologist   for a community cen-
ter need not be licensed in that capacity.  Thus there would be no special liability




                                       p.   3129
The Honorable    Betty Cleland    - page three      (H-735)



for failure to obtain a license.     However,     under the Texas Torts Claims Act,
article 6252-19,   V. T. C. S., torts committed by an employee of such a center
may be the responsibility     of the creating governmental       units.   Attorney General
Opinion M-538( 1969).     Of course,    if a patient is injured,   any recovery to which
he is entitled would depend on the facts of the particular           situation.   The identity
of any defendent,   the relief sought, and the theory of recovery          advanced would
depend on the facts of the case and undoubtedly would be determined by the patirnt
and his private attorney.

                                   SUMMARY

                       A community center created under article
                    5547-203   is a governmental  agency within the
                    meaning of section 22 of article 4512~.   A
                    private corporation   does not become a govern-
                    mental agency by virtue of a contract to provide
                    services  to the Department   of Mental Health and
                    Mental Retardation.

                       Torts committed by an employee of a community
                    center created under article 5547-203        are the re-
                    sponsibility  of the governmental    units creating the
                    center.    The liability of a private corporation    and
                    the recourse   of a person damaged thereby depend
                    upon the facts of the particular    situation.

                                            Very   truly yours,




                                            Attorney   General    of Texas




Opinion Committee

jad:




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