     OFFKE   OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

    JOHN CORNYN




                                                    January 5,200l



Ms. Sherry L. Lee                                          Opinion No. JC-0321
Executive Director
Texas State Board of                                       Re: Whether, under the Psychologists’ Licensing Act,
 Examiners of Psychologists                                chapter 501 of the Occupations Code, the Board of
333 Guadalupe, Suite 2-450                                 Examiners of Psychologists         may investigate    the
Austin, Texas 78701                                        activity or service of a person who is licensed by the
                                                           Board if the activity or service is performed within the
                                                           scope of the person’s employment by an “exempt
                                                           facility,” and related questions; reconsidering Attorney
                                                           General Opinion JM-1247 (1990) (RQ-0213-JC)


Dear Ms. Lee:

          The Psychologists’ Licensing Act (the “Act”), chapter 501 ofthe Occupations Code, see TEX.
 OCC. CODE ANN. 5 501.001 (Vernon 2000), does not apply to the “activity or service of a person[]
 who is employed as a psychologist or psychological associate by a governmental agency or
 regionally accredited institution of higher education” if the activity or service is among the
 “duties the person is employed to perform within the confines of the agency or institution.” Id.
 5 501.004(a)(l).   Attorney General Opinion JM-1247 concludes that a person who is employed to
 practice psychology for a governmental       agency or regionally accredited institution of higher
 education (together, an “exempt facility”), but who has chosen to obtain a license under the Act is
 subject to the Act even with respect to duties the licensee is employed to perform and performs
 “within the confines of’ the employing exempt facility. See Tex. Att’y Gen. Gp. No. JM-1247
 (1990) at 3. You ask whether Attorney General Opinion N-1247 correctly construes the Act to
permit the State Board of Examiners of Psychologists (the “Board”) to investigate misconduct by
 a voluntarily licensed psychologist or psychological associate committed “within the confines of’
 an exempt facility.’ It does not. Section 501.004(a)(l) of the Act expressly exempts the activity or
 service of a licensee who is employed at an exempt facility if the activity or service is within the
 “duties the person is employed by the” exempt facility “to perform within the confines of the agency
 or institution.” TEX. Oct. CODE ANN. 5 501.004(a)(l) (V emon 2000). Thus, the Board has no
jurisdiction of duties a voluntarily licensed person is employed by an exempt facility “to perform
within the confines of the” exempt facility. See id. We further interpret the statutory phrase “within



         ‘Letter from Ms. Sherry L. Lee, Executive Director, Texas State Board of Examiners of Psychologists, to
Honorable John Comyn, Texas Attorney General (Mar. 30, 2000) (on tile with Opinion Committee) [hereinafter
Request Letter].
Ms. Sherry L. Lee - Page 2                      (X-0321)




the confines of’ to refer to duties within the scope of employment,    whether or not the duties are
performed within the geographic bounds of the exempt facility.

        You ask five specific questions regarding the Board’s jurisdiction to investigate a complaint
against a licensed psychologist or psychological associate who is employed by an exempt facility.
See id.

                1. Is Attorney   General   Opinion   Number   JIM-1247 still a valid
                   opinion?

               2. By forwarding complaints to an exempt facility for investigation,
                  does the Board violate its duty to investigate complaints filed
                  against its licensees?

               3. Is it necessary to obtain a formal written agreement, such as a
                  memorandum       of understanding,  between the Board and the
                  exempt agency or institution before a complaint can be referred
                  for investigation at the agency level?

               4. What, if any, is the Board’s recourse if an exempt agency or
                  facility is unwilling to permit the Board to investigate an alleged
                  violation and is unwilling to conduct [its] own investigation on
                  behalf of the Board?

               5. If a complaint must be dismissed due to the Board’s inability to
                  investigate   the matter, has the Board violated         Section
                  501.204(a)(2) of the Act, which requires the Board to ensure that
                  a complaint is not dismissed without appropriate consideration?

Id. at l-2. Questions 2-5 appear to assume that the Board has jurisdiction to investigate complaints
regarding the activity or service of a licensee who is employed by an exempt facility, even though
the activity or service is within the scope of employment.     Because we conclude that Attorney
General Opinion JM1247 is incorrect and that the Board has jurisdiction to investigate complaints
concerning a licensee’s activity or service performed at an exempt facility only if the activity or
service is beyond the scope of employment at the exempt facility, we do not answer these questions.

        You also ask us to evaluate a Board policy statement. See id. at 1. Under the “Policy
Statement on Licensees Who Work in Exempt Facilities” (the “Policy Statement”),

               persons who are employed in exempt facilities as psychologists or
               psychological  associates are not required to be licensed
               However,      persons who are [so] employed      and who provide
Ms. Sherry L. Lee - Page 3                        (X-0321)




               services to the public for added compensation   above their salary from
               the exempt agency [must] be licensed

               Therefore, any “activities and services” regarding the practice of
               psychology and licensure with this Board outside the context of the
               exempt setting are subject to the requirements of the Act and the rules
               and to the discipline of the Board.

                 . .


               Complaints received by the Board concerning the “activities and
               services” of a licensee in an exempt setting are referred to the
               appropriate exempt agency so that the matter can be resolved in the
               most expedient and proper manner. Complaints pertaining to the
               “activities and services” occurring outside of the exempt setting by
               a licensee who is employed by an exempt agency will be investigated
               and resolved by the Board.

Policy Statement attached to Request Letter, supra note 1. We conclude that, to be completely
consistent with our interpretation, the Policy Statement should make clear that a licensee’s activity
or service, performed at an exempt facility but beyond the scope of the licensee’s employment with
the exempt facility, is subject to the Act and may be investigated by the Board.

         Your questions arise from two types of situations.         See Telephone conversation with
Amy Swamr, General Counsel, Board (June 29,200O). In the first, the employer, an exempt facility,
asks the Board to investigate the conduct of a person who is employed by the facility to practice
psychology there and who has voluntarily obtained a license. See id. You do not indicate whether
the conduct in question was performed within the scope of the licensee’s employment. In the second
scenario, the Board learns of alleged misconduct by a licensee who is employed to practice
psychology by an exempt facility, but when the Board informs the exempt facility of the
allegations or attempts to investigate the allegations, the exempt facility does not cooperate. See id.
Presumably, some of the exempt facilities about which you ask are governmental agencies, but
others are private entities, such as private colleges and universities.

         Several portions of the Act relate to the issues you raise. Under the Act, a person “engaged
in the practice of psychology” generally must be licensed by the Board. TEX. Oct. CODE ANN.
55 501.003(a), .25 1 (Vernon 2000); see also id. 5 501.003@), (c) (defining when person “is engaged
in the practice of psychology” and “practice of psychology”). A psychologist may obtain a license
under section 501.252 oftheOccupations      Code, whileapsychological    associatemayobtainalicense
under section 501.259. See id. $5 501.002(4), (5), ,252, .259.
Ms.   Sherry L. Lee - Page 4                       (X-0321)




        Among the Board’s duties is that ofreceiving and investigating complaints about a licensee’s
conduct. The Board is required to regulate the investigation and disposition of complaints:

                   (a) The board shall adopt rules concerning the investigation of a
               complaint filed with the board.      The rules adopted under this
               subsection must:

                       (1) distinguish   between categories of complaints;

                      (2) ensure that a complaint          is not   dismissed    without
               appropnate consideration;

                       (3) require that the board be advised of a complaint that is
               dismissed and that a letter be sent to the person who tiled the
               complaint explaining the action taken on the dismissed complaint;

                       (4) ensure that the person who tiled the complaint has an
               opportunity to explain the allegations made in the complaint; and

                        (5) prescribe guidelines concerning  the categories   of
               complaints that require the use of a private investigator and the
               procedures    for the board to obtain the services of a private
               investigator.

                   (b) The board shall:

                       (1) dispose of each complaint in a timely manner; and

                       (2) establish a schedule for conducting each phase of a
               complaint that is under the control of the board not later than the 30th
               day after the date the complaint is received by the board.

Id. 5 501.204(a), (b). The board may discipline a licensee who violates the Act or who commits
certainother acts. See id. $9 501.402, ,451.

         Section 501.004(a)( 1) of the Act exempts from the Act’s application the activity or service
of a person who is employed by an exempt facility to practice psychology if the activity or service
is among the employee’s duties performed “within the confines of’ the exempt facility:

               (a) This chapter does not apply to:

                   (1) the activity or service of aperson, or the use of an official title
               by the person, who is employed as a psychologist or psychological
Ms. Sherry L. Lee - Page 5                             (X-0321)




                 associate by a governmental         agency or regionally   accredited
                 institution of higher education if the person performs duties the
                 person is employed by the agency or institution to perform within the
                 confines of the agency or institution.

TEX. OCC. CODEANN. § 501.004(a)( 1) (Vernon 2000). The Board may assist an agency to formulate
voluntary guidelines for persons who perform psychological services:

                      (a) The board may cooperate with an agency that is not subject to
                 this chapter to formulate voluntary guidelines to be observed in the
                 training, activities, and supervision    of persons who perform
                 psychological services.

                     (b) Except as provided by Subsection (a), the board may not
                 adopt a rule that relates to the administration of an agency that is not
                 subject to this chapter.

Id. § 501.155

           Attorney General Opinion JM-1247, issued in 1990, concludes that a person who practices
 psychology at an exempt facility and who has voluntarily obtained a license is “subject to” the
 Act’s provisions.      See Tex. Att’y Gen. Op. No. JM-1247 (1990) at 3. (For the sake of clarity
 and except where noted, we refer to the statutory provisions discussed in Attorney General Opinion
 JM-1247 as they are codified now, and not to the pre-codified version actually cited in the opinion,
SeeActofMay         13,1999,76thLeg.,RS.,ch.        388,s 1, ch. 501,1999Tex. Gen. Laws 1431,1853-74
 (codifying chapter 501, Occupations Code); id. 5 6,1999 Tex. Gen. Laws 1431,2439-40 (repealing
 article 4512c, Revised Civil Statutes).) The opinion construes section 501.004(a), which provided
that “‘[nlothing in this Act shall be construed to apply to               the activities, services and use of
official title on the part of a person employed as a psychologist”’ by an exempt facility. See Tex.
Att’y Gen. Gp. No. JM-1247 (1990) at 1 (quoting TEX. REV. CIV. STAT. ANN. art. 4512c, 5 21). “If
the phrase ‘[nlothing in this Act shall be construed to apply’ is taken absolutely literally,” the
opinion reasons, “persons described in the exemptions.            would be ineligible for       licensure[, and
w]e do not think.       that the purpose of section [501.004(a)] is to make certain individuals ineligible
for       licensure. Rather, the plain purpose of the exemption             is to allow persons to engage in
certain types of employment without a. license.” Id. at 2. Consequently, the opinion determines,
a person who voluntarily chooses to be licensed is subject to the board’s rules “to the extent that [the
rules] are qualifications for.       licensure.” Id. at 3. Finally, the opinion states that the Board may
“cancel, revoke, suspend, or refuse to renew [the]             license [of a voluntary licensee] for any of
the reasons the board may take such action in regard to           licenses generally.       Similarly,      any
person who chooses to seek licensure            is subject to the fees imposed by” section 501.152. Id.

         Since Attorney General Opinion JM-1247 was issued, the Board “has attempted to conduct
investigations and resolve consumer complaints relating to violations that have occurred while [a]
Ms. Sherry L. Lee - Page 6                          (X-0321)




licensee was providing psychological services in an exempt setting.” Request Letter, supra note 1,
at 2. Investigation and enforcement have, at times, been difficult:

                [T]he [Bloard has experienced mixed results with regard to the
                amount of cooperation it has received from other agencies and
                institutions during the Board’s direct investigation into alleged
                violations.    For example, [Bloard investigators have experienced
                difficulties obtaining requested documents, mental health records, or
                other information needed to substantiate the complainant’s alleged
                violations. The Board’s difficulty in investigating the complaints first
                hand has necessitated the forwarding of complaints to the exempt
                facility for investigation at the agency level. Once an investigation
                has been completed and the results received, the Board [is] able to
                determine the appropriate disciplinary action to be taken against the
                licensee. Unfortunately, in the majority of cases the Board does not
                receive a response of any kind from the exempt facilities. Without
                the ability to ascertain whether      a violation has been committed,
                the Board is compelled to dismiss the complaint.

Id,

         Webelieve Attorney General OpinionJM-1247 incorrectly interprets section501.004’splain
language, and so we overrule it. Subsection (a)(l) states that chapter 501 does not apply to the
activity or service of a person who practices psychology at an exempt facility if the activity or
service is among the duties the person is employed by the exempt facility to perform and is
performed “within the confines of the” exempt facility. See TEX. Oct. CODE ANN. 5 501.004(a)(l)
(Vernon 2000). Under subsection (a)(l), it is not the practitioner who is exempt from the Act;
rather, it is certain activities or services performed by a person who is employed by an exempt
facility as a psychologist or psychological associate. Whether or not the employee of an exempt
facility is licensed is irrelevant.     Attorney General Opinion JM-1247, by contrast, construes
subsection (a)( 1) to exempt the practitioner unless the practitioner is licensed, and if the practitioner
is licensed, then all ofhis or her activities and services performed as a psychologist or psychological
associate are subject to the Act. See Tex. Att’y Gen. Op. No. JM-1247 (1990) at 3.

         The activity or service of a person, licensed or not, who is employed by an exempt facility
as a psychologist or psychological associate is not subject to the Act only if the activity or service
is among the “duties the person is employed           to perform within the confines of the” exempt
facility. TEX. Oct. CODE ANN. 5 501.004(a)(l) (Vernon 2000). But a licensed psychologist’s or
psychological associate’s activity or service is subject to the Act despite the licensee’s employment
by an exempt facility if the activity or service is not among the duties the person is employed to
perform “within the confines of the” exempt facility. Id. The Board has a duty to investigate
allegations regarding an activity or service that is not among the duties a licensee is employed to
perform “within the confines of’ an exempt facility.
Ms. Sherry L. Lee - Page 7                         (X-0321)




         While section 501.004(a)(l) facially limits its application to activities or services that are
among the duties apersonis employed by an exempt facility to perform “within the confines of’ the
exempt facility, id., we are uncertain what the phrase “within the confines of’ means. The Act does
not define it. The term “conllnes” otten has geographic connotations. See III OXFORDENGLISH
DICTIONARY 708-09 (2d ed. 1989) (defining “confine”). Practically speaking, though, we cannot
imagine that the legislature intended that a person, employed by an exempt facility to practice
psychology, who commits some misconduct outside of the geographic boundaries of an exempt
facility but within the scope of his or her employment-for,     example, on a home visit-should      be
treated differently than an identical person who commits the misconduct within the walls of the
exempt facility. Based on our presumption that the legislature intends the law to achieve “ajust and
reasonableresult,“T~~.    GOV’TCODEANN. 9 311.021(3)(Vemon          1998), we conclude that theBoard
lacks jurisdiction to investigate alleged misconduct committed within the scope of a person’s
employment by an exempt facility, regardless of the geographic location at which the alleged
misconduct occurred.

         Whether a particular activity or service is beyond the scope of a licensee’s employment is
a question to be determined in the first instance by the employing exempt facility. It is, after all, the
employing exempt facility that has established any particular employee’s scope of employment. By
contrast, the Board is unable to make that determination.

         Where, as we understand sometimes happens, an employing exempt facility asks the Board
to investigate the conduct of a licensed employee, see supra at 3 (citing Telephone Conversation
with Amy Swarm), we believe the Board may presume that the exempt facility has determined that
the activity or service is beyond the scope of employment. Accordingly, the Board has jurisdiction
to investigate the allegations.

         On the other hand, where an exempt facility refuses to inform the Board whether a particular
activity or service is within the scope of an employee’s employment, the Board may assume that the
activity or service complained ofis within the scope ofthe licensee’s employment and that the Board
does not have jurisdiction to investigate. While this assumption is not explicitly stated in the Act,
it is the interpretation most consistent with the “hands-off’ policy that appears to underlie section
501.004. Our goal is to effect the legislative intent. See National hub. &Fire Ins. Co. v. Allen, 15
S.W.3d 525,527 (Tex. 2000) (stating that court’s objective is to determine and effect legislature’s
intent). By exempting from the Act’s application the activity or service of an employee of an exempt
facility, where the activity or service is within the scope of employment, the Act suggests that the
Board is not to interfere in the workings of an exempt facility.

         Our conclusion that the Board may investigate a complaint regarding the activity or service
of a licensee employed by an exempt facility only if the activity or service is beyond the scope of
employment,    does not mean that the Board may not take notice of a past complaint in an
investigation against the same licensee, where the investigation is within the Board’s jurisdiction.
If the Board does so, it must provide a process that protects the licensee’s due-process rights.
Ms. Sherry L. Lee - Page 8                        (X-0321)




           Likewise, although the Board has no duty to investigate a complaint regarding an activity or
service within the scope of a licensee’s employment at an exempt facility, nothing in the Act
explicitly forbids the Board to forward a complaint to the exempt facility, so long as the Board
complies with any applicable confidentiality provisions. See, e.g., TEX. Oct. CODE ANN. 3 501.205
(Vernon 2000) (directing that complaint information is not subject to disclosure except to certain
entities).

        Because your questions 2-5 appear to assume that the Board has jurisdiction to investigate
any licensee activity or service performed at an exempt facility, we do not answer them.

          Finally, the Policy Statement does not reflect completely our conclusion today: that the
activity or service of a licensee performed at an exempt facility but beyond the scope of the
licensee’s employment with the exempt facility is subject to the Act and to Board regulation. As the
Policy Statement makes clear, “‘activities and services’ regarding the practice ofpsychology” of a
licensee “outside the context of [an] exempt setting are subject to” Board oversight. See Policy
Statement attached to Request Letter, supru note 1. But the Policy Statement suggests that all of a
licensee’s activities and services that are performed within “the context of the exempt setting” are
beyond the Act and the Board’s concomitant authority to investigate. Id. Consistently with our
conclusions here, the Policy Statement should make clear that a licensee’s activity or service,
performed at an exempt facility but beyond the scope ofthe licensee’s employment with the exempt
facility, is subject to the Act and to investigation by the Board.
Ms. Sherry L. Lee - Page 9                       (JC-0321)




                                       SUMMARY

                        Attorney General Opinion JM-1247 (1990), which concluded
               that thePsychologists’ Licensing Act, chapter 501 ofthe Occupations
               Code, applies to a person who is employed to practice psychology for
               a governmental agency or regionally accredited institution of higher
               education (together, an “exempt facility”) if the person has
               voluntarily obtained a license under the Act, is overruled. Rather, the
               Board of Examiners of Psychologists has jurisdiction of a licensee’s
               activity or service only if the activity or service is beyond the scope
               of the licensee’s employment by the exempt facility. See TEX. OCC.
               CODE ANN. 5 501.004(a) (Vernon 2000) (“Applicability”).             The
               Board has no jurisdiction to investigate a complaint regarding the
               activity or service of a licensee employed by an exempt facility ifthe
               activity or service is within the scope of employment. Board policy
               should make clear that a licensee’s activity or service, performed at
               an exempt facility but beyond the scope ofthe licensee’s employment
               with the exempt facility, is subject to the Act and to investigation by
               the Board.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVLN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
