                      The Attorney                General of Texas
                                         August    25,   1980
MARK WHITE
Attorney General

                   Honorable Patti Bizzell, M.P.A.              Opinion NO. m-227
                   Executive Secretary
                   Texas Board of Examiners                     Re:   Relicensing of psychologists
                    of Psychologists
                   5555 N. Lamar
                   Build@ H, Suite 126
                   Austin, Texas 78751

                   Dear Ms. Bizzell:

                          You inquire as to the standards applied to the recertification     of a
                   psychologist whose license has been revoked. You wish to know whether he
                   is shject to (1) the standards used to judge his original application, (2) the
                   standards used to judge applicants at the time of revocation of that
                   particular  individual’s license, (3) the current standards applied to all
                   applicants   at the time of reapplication,       or (4) any other standards
                   promulgated by the Texas Board of Examiners of Psycholcgists on an
                   individual case by case basis not inconsistent with the act.

                          Section 23 of article 4512c, V.T.C.S., authorizes the Texas State Board
                   of Examiners of Psychologists to cancel, revoke, suspend, or refuse to renew
                   the license of any psychologist upon proof of a number of specific offenses.
                   In addition, the board may take such action “for any cause for which . . .
                   [it] shall be authorized to refuse to admit persons to its examination.” The
                   individual may apply for relicensing under the following provision:

                               Upon application,     the Board may recertify        the
                               applicant or reissue a license to a person whose
                               license has been cancelled or suspended, but such
                               application, in the case of cancellation or revocation,
                               shall not be made prior to one (1) year after the
                               cancellation or revocation and shall be made in such
                               manner and form, as the Board may require.

                   V.T.C.S. art. 4512c, 523.

                         Section 11 describes the qualifications   required of applicants            for
                   examination.    These qualifications  have become more exacting since             the
                   Psychologists’ Certification and Licensing Act was first enacted in 1969.     See
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Acts 1969, 6lst Leg., ch. 713, S 11, at 2061. The grandfather clause authorized licensing
until December 31, 1970, of persons who had not taken the examination required by the
act, and who did not meet the educational requirements for licensing. Sec. 15. Finally,
there is a reciprocity provision which allows the board to certify as a psychologist any
person licensed by another state, territory, or possession of the United States with
licensing requirements the substantial equivalent of the Texas requirements.

       Section 23 authorizes the board to take away a license for a number of specific
causes, some of which also bar initial licensing, and for any other cause for which the
board may refuse to license someone. Many of these causes cannot be remedied through
passage of time or through the individual’s efforts to change. These include conviction of
a felony, a past habit of intemperance or drug addiction, and having aided or abetted
someone to impersonate a psychologist. Yet the statute makes no distinction with respect
to relicensing on the basis of reason for license revocation.   We believe, therefore, that
the Board has discretion to relicense a person whom it could have initially refused to
license.    Thus, in relicensing cases, the beard is not bound by the standards set out in
section 11 for new applicants.       Nor does the statute require the board to apply the
standards used when the applicant made his original application or the standards in effect
when his license was revoked.

       Section 23 states that “[ulpcn application, the Board s      recertify the applicant”
(Emphasis added). In our opinion, the word “may” is used in the usual permissive sense.
See Mitchell v. Hancock, 196 S.W. 694, 700 (Tex. Civ. App. - Fort Worth 1917, no writ).
The board is not required to relicense any individual but instead may make case by case
determinations    according to general standards promulgated        under its rule making
authority. See S 8(a). We do not believe that Bloom v. Texas State Board of Examiners of
Psychologists,492    S.W.2d 460 (Tex. 1973) requires a different result. In that case, the
Supreme Court interpreted the grandfather clause of the Psychologists’ Licensing Act,
which stated that a person who meets various requirements “may, upon application and
payment of the certification    fee, be certified without examination by the Board as a
psychologists (Emphasis added). The court determined that the board could not refuse to
license a psychologist who met all of the qualifications on the ground that the statute used
the word “may.” The court stated as follows:

              The correct meaning of the word, “may;’ is that the Board has
           discretion in its administration   of the statute’s stated standards,
           but the word &es not empower the Board to make standards that
           are different from or inconsistent with the statute. . . .

492 S.W.Zd at 462. In the present case, there are no explicit statutory standards for
relicensing. The beard is empowered to promulgate its own standards, consistent with the
statute, and to exercise its discretion in administering them evenhandedly. It may adopt
some or all of the statutory standards for initial licensing as well as other reasonable
standards which it develops.        See Bloom v. Texas State Board of Examiners of
Psychol@sts,   475 S.W.2d 374 (Texxiv.     App. - Austin 19721, rev’d on other grounds, 492
S.W.2d 460 (Tex. 1973).




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        Honorable Patti Bizzell - Page Three     (NW-227 )




                                               SUMMARY

                   The State Board of Examiners of Psychologists should evaluate
                   applications for relicensing by parsons whose licenses have been
                   revoked applying standards it has promulgated itself.




                                                           MARK      WHITE
                                                           Attorney General of Texas
        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        Prepared by Susan Garrison
        Assistant Attorney General

    APPROVED:
    OPINION COMMH’TEE

    C. Robert Heath, Chairman
    Susan Garrison
    Rick Gilpin
    Eva Loutzenhiser
    Bruce Youngblood




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