                            ATTORNEY GENERAL OF TEXAS
                                        GREG       ABBOTT




                                            November 22, 2013



Tim F. Branaman, Ph.D.                               Opinion No. GA-1025
Chair, Texas State Board of Examiners
   of Psychologists                                  Re: Whether an individual licensed as a
333 Guadalupe, Suite 2-450                           specialist in school psychology who is
Austin, Texas 78701                                  employed by a university in that capacity is
                                                     exempt from the Psychologists' Licensing
                                                     Act (RQ-1126-GA)

Dear Dr. Branaman:

       You ask two questions on behalf of the State Board of Examiners of Psychologists (the
"Board") about licensed specialists in school psychology and whether they may be exempt from
the Psychologists' Licensing Act ("the Act") in specific circumstances. 1

        The Act, Occupations Code chapter 501, governs the practice of psychology. TEX. Occ.
CODE ANN. §§ 501.001-.505 (West 2012 & Supp. 2013). Within the Act, the Legislature has
authorized the Board to issue four separate licenses: (1) psychologist; (2) provisional license
holder; (3) psychological associate; and (4) licensed specialist in school psychology ("LSSP").
!d. §§ 501.252, .253, .259, .260 (West 2012). "A person may not engage in or represent that the
person is engaged in the practice of psychology unless the person is licensed under [the Act] or
exempt under Section 501.004." !d. § 501.251. Section 501.004 states in relevant part:

                 This chapter does not apply to . . . the activity or service of a
                 person, or the use of an official title by the person, who is
                 employed as a psychologist or psychological associate by a
                 regionally accredited institution of higher education if the person
                 performs duties the person is employed by the institution to
                 perform within the confines of the institution ....

!d. § 501.004(a) (West Supp. 2013). 2

        1
         See Letter from Tim F. Branaman, Ph.D., Chair, State Bd. ofExam'rs of Psychologists, to Honorable Greg
Abbott, Tex, Att'y Gen. at 1 (May 21, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
Tim F. Branaman, Ph.D. - Page 2                       (GA-1025)




         You ask whether a university must use the official title of psychologist or psychological
associate when describing employees in order for those employees' activity and service to be
exempt from the Act under section 501.004. Request Letter at 1. Section 501.004 exempts both
"the activity or service of a person" and "use of an official title by the person" when employed as
a psychologist or psychological associate by an entity subject to that provision. TEx. Occ. CODE
ANN. § 501.004(a)(l) (West Supp. 2013). Nothing in the language of the statute requires that an
official title of "psychologist" or "psychological associate" be used in order for the exemption to
apply. Rather than conclude that an employee's job title is dispositive of whether the section
501.004 exemption applies, a court would likely conclude that '"the function of the position at
issue'" determines whether the individual is employed as a psychologist or a psychological
associate. Cf Patton v. Jones, 212 S.W.3d 541, 549 (Tex. App.-Austin 2006, pet. denied)
(applying the same analysis for purposes of the ministerial exception under the Free Exercise
Clause of the First Amendment) (citation omitted).

         Furthermore, whether an individual is employed as a psychologist or psychological
associate is a question to be determined in the first instance by the employing entity. See Tex.
Att'y Gen. Op. No. JC-0321 (2001) at 7 (explaining that whether a particular activity or service
is beyond the scope of a licensee's employment is a question for the regionally accredited
institution of higher education in the first instance). "It is, after all, the employing [entity] that
has established any particular employee's scope of employment." Id. Thus, section 501.004
does not require a university to use the official title of "psychologist" or "psychological
associate" when describing employees in order for those employees' activity or service to be
exempt from the Act under section 501.004.

        You also ask whether, pursuant to section 501.004, "an individual licensed as a specialist
in school psychology (LSSP) who is employed by a regionally accredited institution of higher
education (University) as an LSSP, is exempt from" the Act. Request Letter at 1. You explain
that your question arises because while section 501.004 expressly exempts "the activity or ·
service of individuals employed as psychologists or psychological associates by a University, the
Act contains no such exemption for LSSPs." Id. at 2.

       Although you phrase your question in terms of w~ether an individual is exempt,
subsection 501.004(a) does not provide a blanket exemption for an individual. See TEX. Occ.
CODE ANN. § 501.004(a) (West Supp. 2013). Instead, it exempts the activity or service that an
individual performs as a psychologist or psychological associate employee of a specified entity.
Jd.; Tex. Att'y Gen. Op. No. JC-0321 (2001) at 6. · And as discussed above, it is not the
employee's title that is relevant, but the activity or service that determines the capacity in which
a university employs a person as a psychologist or a psychological associate.

        2
         The Act does not define "regionally accredited institution of higher education." The Board has defined the
term as "an educational institution which satisfies the standards of the accrediting association" for the region in
which the institution is located. 22 TEX. ADMfN. CODE§ 463.6 (2013).
Tim F. Branaman, Ph.D. - Page 3              (GA-1025)




        The Act authorizes psychologists to "engage in the practice of psychology." TEX. Occ.
CODE ANN. § 501.002(5) (West 2012); see id. § 501.003(b) (explaining what it means to be
"engaged in the practice of psychology"). Thus, a university to which section 501.004 applies
could employ an individual with an LSSP license-or an unlicensed individual-to engage in the
practice of psychology, and all activity or service performed within the scope of that
employment would be exempt. See Tex. Att'y Gen. Op. No. JC-0321 (2001) at 6 ("Whether or
not the employee ... is licensed is irrelevant."). As this office noted in a prior opinion, by
exempting from the Act's application the activity or service of an employee of a regionally
accredited institution of higher education, where the activity or service is within the scope of
employment, the Legislature has indicated that generally "the Board is not to interfere in the
workings of' those entities. Id. at 7.
Tim F. Branaman, Ph.D. - Page 4             (GA-1025)



                                    SUMMARY

                     A university is not required to use the official title of
              "psychologist" or "psychological associate" when describing
              employees in order for those employees' activity or service to be
              exempt from the Psychologists' Licensing Act under Occupations
              Code section 501.004.

                     A university subject to section 501.004 could employ a
              licensed specialist in school psychology as a psychologist or
              psychological associate, and that individual's activity or service
              performed within the scope of the employment would be exempt
              from the Psychologists' Licensing Act.




                                            Attorney General ofTexas


DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee
