    OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN CORNYN




                                                   August 52002



Ms. Sherry L. Lee, Executive Director                        Opinion No. JC-0535
Texas State Board of Examiners of
Psychologists                                                Re: What constitutes a “recognized member of
333 Guadalupe, Suite 2-450                                   the clergy” for purposes of section 501.004(4) of
Austin, Texas 78701                                          the Occupations Code, which governs exemptions
                                                             from the Psychologists Licensing Act
                                                             (RQ-0503-JC)

Dear Ms. Lee:

         You have asked this office how the Texas State Board of Examiners of Psychologists (the
“Board”) may determine, for the purpose of section 501.004(4) of the Occupations Code (the
“Code”), whether to accept particular claims that an individual is exempt from the licensing
requirements of the Code on the ground that he or she is a “recognized member of the clergy” who
is acting “within the person’s ministerial capabilities.“* TEX. Oct. CODEANN. 8 501.004(4) (Vernon
2002). You ask what guidelines may exist in Texas law or regulation that would define such
recognition. In particular, you ask whether a person who has been ordained “via the Internet or mail
for a fee” is a recognized member of the clergy. Request Letter, supra note 1, at 1. We conclude
that, in examining the question of whether a person who purports to be exempt from licensing under
the Code is a recognized member of the clergy, the Board may take into account, as one factor, the
ordination of that person for a fee by Internet or mail. However, the Board should not conclusively
presume that a person is not a recognized member of the clergy based on that factor alone, unless
the person provides no other evidence of his or her ministerial activities and religious affiliation
other than the Internet or mail order certificate.

        Chapter 501 of the Occupations Code, the Psychologists’ Licensing Act, establishes the
Board and requires those who “engage[] in or represent that [they are] engaged in the practice of
psychology” to be licensed by the Board unless they are “exempt under Section 501.004.” TEX.Oct.
CODEANN. 5 501.251 (Vernon 2002). Section 501.004 exempts “the activity or service of a
recognized member of the clergy who is acting within the person’s ministerial capabilities” if the
clergyman does not describe him- or herself as a psychologist or the services as psychological. Id.
5 501.004(4).   The Board has power to commence an action for injunctive relief to prevent a



            ‘See Letter from Sherry L. Lee, Executive Director, Texas State Board of Examiners of Psychologists,     to
Honorable     John Cornyn, Texas Attorney General (Jan. 29,2002) (on file with Opinion Committee) [hereinafter Request
Letter].
Ms. Sherry L. Lee - Page 2                      (JC-0535)




violation of chapter 501. Id. 6 501.501(a).   Engaging in the unlicensed practice of psychology     is a
Class A misdemeanor.     Id. 8 501.503.

         As we understand the situation giving rise to your inquiry, the Board, when seeking to enjoin
the unlicensed practice of psychology, is faced with “persons who claim exemption using a
ministerial certificate or other ordination procured without training via the mail or Internet.” Request
Letter, supra note 1, at 1. Recognizing the possibility that such claims may be made for the purpose
of evading the strictures of the Code, but mindful of the free exercise rights embodied in the First
Amendment to the United States Constitution, you inquire as to the criteria by which the Board can
distinguish spurious claims of exemption from legitimate ones.

         You ask “[w]hat guidelines exist in the laws or regulations of the State of Texas that define
‘recognition’ of a member of the clergy?” Id. We note that the statute governing licensed
professional counselors also exempts “a recognized religious practitioner.” See TEX. Oct. CODE
ANN. 5 503.054(2) (V emon 2002). The Texas State Board of Examiners of Professional Counselors
has promulgated a rule further defining “[rlecognized religious practitioner” as “[a] rabbi, member
of the clergy, or person of similar status who is a member in good standing of and accountable to a
legally recognized denomination, church, sect or religious organization legally recognized under the
Internal Revenue Code 6 501(c)(3) . . . . ” 22 TEX. ADMIN. CODE 5 681.2( 14) (2002). Such
practitioners must be counseling “within the scope . . . of their regular or specialized ministerial
duties . . . under the auspices of. . . [their] organization,” must be “accountable to [its] established
authority,” and must not hold themselves out as professional counselors. Id. See also TEX. R. EVID.
505 (defining member of clergy for purposes of privileged communications as “a minister, priest,
rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious
organization or an individual reasonably believed so to be by the person consulting with such
individual.“).

         In our view, the Texas State Board of Examiners of Professional Counselors’ rule offers a
model that may be of value to you, given its focus on a member of the clergy as a person who has
an acknowledged place within some sort of religious organization. In both your statute and that of
the licensed professional counselors, an exemption is in effect being offered for pastoral counseling,
an activity that implies a relation within and accountability to a religious organization. Moreover,
in both cases, the counseling is limited to the clergy member’s ministry, in his or her ministerial
capacity.

         Determining what constitutes a legitimate claim for a religious exemption from generally
applicable law and distinguishing such a claim from those asserted for the purpose of evading the
effect of such law is a difficult task. In the necessarily factual investigation of whether a claim for
religious exemption such as the one about which you have asked is valid or spurious, the Board may
rely on a variety of inquiries. By way of example, and in light of the Board of Examiners of
Professional Counselors’ rule, we note that the Internal Revenue Service has historically relied in
this context on a series of questions developed to investigate whether a religious organization may
qualify as a church for tax exemption purposes, including, among other things, whether such an
Ms. Sherry L. Lee - Page 3                      (JC-0535)




organization has a distinct legal existence, a recognized creed, a distinct ecclesiastical government,
a formal code of doctrine and discipline, a distinct religious history, a literature of its own, ordained
ministers selected after a prescribed course of study, and regular congregations and services. See
Scialabba, Kurtzrnan, and Steinhart, Mail-Order Ministries Under the Section I70 Charitable
Contribution Deduction: The First Amendment Restrictions, the Minister’s Burden of ProoJ and
the Effect of TRA ‘86, 11 CAMPBELLL. REV. 27 n.3 1 (Winter 1988) (citing Internal Revenue
Manual); see also INTERNAL       REVENUESERVICE,FORM 1023: APPLICATION              FOR RECOGNITION OF
EXEMPTION,   SCHEDULE    A (revised 1998) (current Internal Revenue Service questions).

        Your particular concern is what once was referred to as “Mail-Order Ministries.” See supra,
Mail-Order Ministries, 11 CAMPBELL      L. REV. 1. Such enterprises permit any person, for a small fee
or donation, to receive credentials asserting that they have been ordained as clergy. Some recipients
have used such credentials in a variety of schemes to avoid the law, and in particular to attempt to
evade payment of income taxes. See, e.g., Church of World Peace, Inc. v. Commissioner, 67 T.C.M.
(CCH) 2282 (1994); Stephenson v. Commissioner, 79 T.C. 995 (1983) (“Life Science Church of
Allegan”); Davis v. Commissioner, 81 T.C. 806 (1983) (“U niversal Life Church”). One such
ministry is the Universal Life Church of Modesto, California.           As the district court notes in
Universal Life Church v. Utah:

                         The ULC will ordain anyone free, for life, without questions
                of faith. Anyone can be ordained a ULC minister in a matter of
                minutes by clicking onto the ULC’s website and by providing a
                name, address, and e-mail address. Anyone can also be ordained by
                mailing to the ULC a name and address. There is no oath, ceremony,
                or particular form required.

                         The ULC requires virtually nothing from its ministers: they
                are not required to perform any religious ceremonies, to oversee a
                congregation, to provide religious guidance or counseling, to report
                religious ceremonies to headquarters, to keep in contact with the ULC
                other than routine address changes, or to attend any worship services.

Universal Life Church v. Utah, 189 F. Supp.2d 1302, 1307 (D. Utah 2002).

         In Universal Lzfe Church, the district court declared unconstitutional     on equal protection
grounds a Utah statute that distinguished between ministers who applied for their ordination through
the Internet or mail from those who had applied “via fax, telephone, or in person.” Id. at 13 17- 18.
The statute at issue forbade only ministers who had applied for their credentials through the Internet
or mail, but not those who applied in another manner, from solemnizing marriages. See id. at 1307.
While the court dismissed the Universal Life Church’s substantive due process claim on the ground
that the Utah legislature could reasonably decide that “one who so cavalierly becomes a minister
might not appreciate the gravity of solemnizing a marriage,” id. at 13 15-l 6, it held that a distinction
Ms. Sherry L. Lee - Page 4                     (JC-0535)




based solely on the method of application for ordination was “a classification whose relationship   to
a goal is so attenuated as to render the distinction arbitrary and irrational.” Id. at 13 17-18.

         While Universal Lzfe Church is not controlling law in Texas, it demonstrates that the Board
is better advised not to distinguish between applicants for exemption from the strictures of chapter
501 solely on the basis of the means by which they obtained ordination. The Board may, however,
require more information from a person claiming such exemption than the mere production of a
ministerial certificate granted by mail or Internet.

         Accordingly, while mere Internet ordination, which would appear to be the cyberspace
equivalent of mail-order ministry, is a factor which the Board may consider in seeking to enjoin a
purported minister from practicing psychology without a license, that factor alone may not be
dispositive in every case. The Board should inquire further in seeking to establish whether the
person in question has a legitimate claim for exemption as a member of the clergy. If, for example,
the facts show that the sole “religious” activity of the person in question is the provision of
counseling otherwise indistinguishable from the practice of psychology, or that such counseling is
independent of any relationship or accountability to a religious organization of some sort, we believe
that the Board would be justified in seeking to enjoin such activity.
Ms. Sherry L. Lee - Page 5                   (JC-0535)




                                      SUMMARY

                        In examining whether a person is a “recognized member of
               the clergy” acting “within the person’s ministerial capabilities” for
               the purpose of exemption from the licensing requirements of chapter
               501 of the Occupations Code, the Texas State Board of Examiners of
               Psychologists may consider, as one factor, the ordination of that
               person for a fee by Internet or mail. However, the Board should not
               conclusively presume that the person may not make a claim for
               exemption based on that factor alone. The Board should inquire
               further in seeking to establish whether the person in question has a
               legitimate claim for exemption as a member of the clergy, and may
               require more information from a person making such a claim for
               exemption than the mere production of a ministerial certificate
               granted by mail or Internet.




                                             Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
