The Honorable Barry Read          Opinion No. H- 930
Executive Secretary
Texas State Board of Examiners    Re: Application of Psy-
     of Psychologists             chologists' Certification
108 West 15th Street              and Licensing Act to persons
Austin, Texas 78701               contracting to provide
                                  psychological services to
                                  school districts on a
                                  consultation basis.

Dear Mr. Read:

     You have requested our opinion regarding whether a
person who contracts to supply psychological services to a
school district on a consulting basis is exempt from the
licensing requirement of article 4512c, V.T.C.S.  That
statute requires a license of "any person who offers psy-
chological services as defined herein for compensation."
Sec. 21. Section 22, however, provides that:

             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:
          . . . (2) public school district. . .
          provided such employee is performing those
          duties for which he is employed by such . . .
          district . . . .

YOU ask whether a psychological consultant to a school
district is an "employee" of the district and thus exempt
from the licensing requirement.




                        p. 3887
The Honorable Barry Read - page 2 (H-930)



     The answer to your question will depend on the facts of
each particular contractual arrangement between a school
district and a consulting psychologist.   The terms of the
contract will control the status of the individual as
employee or independent contractor and the Board must make
the ultimate determination in each instance.
Inc. v. Love, 380 S.W.Zd 582, 591 (Tex. Sup. lmrian,
---
however, suggest a number of factors which the courts have
considered in making such a determination.   Although the
following cases address the issue primarily in the context
of liability and workmen's compensation claims, and thus
should not be treated as dispositive of the Board's deter-
mination, we believe that they may be useful in focusing upon
some of the elements which the Board may consider in reaching
a decision in a particular case.

     The most important element in determining whether a
psychological consultant is an employee or an independent
contractor is the school district's right to control the
details of his work. A substantial degree of control by
the school district would tend to imply that the psychologist
is an employee. Halliburton v. Texas Indemnity Insurance
co., 213 S.W.2d 677, 680 (TexTSup. 1948); Truck Insurance
Exchange v. Cartmill, 385 S.W.2d 277, 279 (Tex. Civ. App. --
Waco 1964Twrit ref'd n.r.e.). The ricrht of the school
district to terminate the contract without regard to the
final result of the work also suggests that the consultant
occupies the status of an employee. Southern Surety Co. v.
Shoemake, 16 S.W.2d 950, 953 (Tex. Civ. App. -- Austin9s),
rev'd on other arounds. 24 S.W.2d 7 (Tex. Comm'n ADD. 1930.
judgmt adopted): The requirement of‘completion and-acceptance
of the work before payment is made is a circumstance tending
to show the existence of an independent contractor relationship.
Southwestern Telegraph & Tele hone Co
724. 725 (Tex. Civ. APP.- &w&?            %'k%&~:   zfW;he
school district to set-the psychologist's hours of labor and
to require him to work exclusively for the district are
factors which tend to imply that the psychologist is an
employee. Shannon v. Western Indemnity Co., 257 S.W. 522,
525 (Tex. Comm'n ApF 1924, jdgmt adopted). Finally, if the
consultant is carried on the school district's payroll and
on its social security and income tax withholding records,
it may be difficult to deny that he is an employee. Anchor
;;C;;tty Co. v. Hartsfield, 390 S.W.2d 469, 471 (Tex. Sup.



                      p. 3888
    The Honorable Barry Read - page 3 (H-930)



         The foregoing list of factors are certainly not meant to
    be exhaustive, and any number of other considerations might
    be determinative of the legal status of the relationship
    between the parties. We emphasize again that the specific
    terms of each particular contract will control the result.

                           S UM,MARY

                Whether a person who contracts to supply
                psychological services to a school district
                on a consulting basis is an employee of the
                district and thus exempt from the licensing
                requirement of article 4512c, V.T.C.S.,
                depends upon the terms of each particular
                contractual arrangement.



                                  (-$YJz&
                                        Attorney General of Texas

    APPROVED:



6
    DAVID M. KENDALL, First Assistant




    C . RCX?EXT HEATH, Chairman
    Opinion Committee

    jwb




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