Does a Texas therapist need a separate state license to treat sex offenders, on top of their professional license?

TX AG Opinion GA-0423: Do therapists need a separate license to treat sex offenders?

Plain-English summary

Smith County Juvenile Services used several counselors of different backgrounds (a forensic psychologist, a clinical social worker who was also a professional counselor, a master social worker, a counselor intern, and a graduate student) to counsel juveniles in the juvenile justice system. The county's Criminal District Attorney asked the Attorney General whether those professionals could provide rehabilitation services or act as sex offender treatment providers without holding a license from the Council on Sex Offender Treatment, and how much discretion a counselor has over the broad terms "rehabilitation service" and "sex offender" in chapter 110 of the Occupations Code.

The answer turned on a 2005 change in the law. Before 2005, the Council kept a voluntary registry of sex offender treatment providers. In its 2005 regular session, the Legislature switched the Council's mission from voluntary registration to mandatory licensing, and chapter 110 now says a person "may not provide a rehabilitation service or act as a sex offender treatment provider unless the person is licensed under this chapter." The District Attorney suggested there might be a conflict in the statute, and proposed reading "licensed under this chapter" to mean any of the underlying health-care licenses listed in the definition of a sex offender treatment provider, so that the existing professional licenses would be enough.

The opinion rejected that reading. It explained that section 110.001(7) defines who is a sex offender treatment provider, but it does not say "licensed sex offender treatment provider." The license required by section 110.301 is the sex offender treatment provider license, not the underlying medical, psychology, counseling, or social-work license, none of which is issued "under" chapter 110. So chapter 110 requires both: a professional license and the separate sex offender treatment provider license, before a person may render rehabilitation services or provide mental health or medical services for the rehabilitation of sex offenders. Practicing without the chapter 110 license is a Class A misdemeanor. The opinion added a transition point: anyone who held a Council registration on September 1, 2005, the effective date of the new law, is considered to already hold a license under amended chapter 110.

On the discretion question, the opinion agreed the definitions of "rehabilitation service" and "sex offender" are broad (a "sex offender" includes not only someone convicted of or given deferred adjudication for a sex crime, but also someone who admits violating a sex-conduct law or who evidences a paraphiliac disorder). But it said the wisdom of the law is the Legislature's call. Whether a patient is a "sex offender" as defined, and whether the treatment is for a problem that "may relate or contribute to" the offender's criminal or paraphiliac problem, is for the treating professional to determine in the first instance, but only within the bounds of chapter 110 and the Council's rules.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion describes chapter 110 of the Occupations Code shortly after the 2005 shift to mandatory licensing, at a time when the Council on Sex Offender Treatment had only proposed its licensing rules. The statute and the Council's rules have developed since. Anyone determining today whether a particular professional needs a sex offender treatment provider license should check the current Occupations Code chapter 110 and the Council's current rules, not rely on this 2006 account.

Who this opinion affected (as of 2006)

Counselors, therapists, and other mental-health professionals: The opinion told them that their professional license alone did not let them treat sex offenders; they needed the separate Council license, and practicing without it was a Class A misdemeanor.

Professionals already registered with the Council: It reassured them that a Council registration held on September 1, 2005 was automatically converted into a license under the amended chapter.

Counties and juvenile-services programs: It clarified that staff providing sex offender rehabilitation services had to hold both licenses, which affected how programs like Smith County Juvenile Services staffed that work.

Common questions

Is my professional license enough to treat sex offenders in Texas?
According to the opinion, no. A medical, psychology, counseling, marriage-and-family-therapy, or social-work license makes you a "sex offender treatment provider" by definition, but chapter 110 separately requires the sex offender treatment provider license from the Council on Sex Offender Treatment.

What happens if someone provides this treatment without the Council license?
The opinion noted that a person who lacks a chapter 110 license and provides a rehabilitation service or acts as a sex offender treatment provider may be liable criminally; a violation of section 110.301 is a Class A misdemeanor.

I was already registered with the Council before the law changed. Do I need to reapply?
The opinion explained that a person who held a Council registration on September 1, 2005, the effective date of the 2005 legislation, is considered to hold a license under amended chapter 110.

Who decides whether a patient counts as a "sex offender" under the broad definition?
The opinion concluded that the treating professional makes that determination in the first instance, including whether the treatment relates to the offender's criminal or paraphiliac problem, but must do so within the express terms of chapter 110 and the Council's rules.

Background and statutory framework

Chapter 110 of the Occupations Code governs sex offender treatment providers. A "sex offender treatment provider" is a person licensed or certified in Texas, including a physician, psychiatrist, psychologist, licensed professional counselor, licensed marriage and family therapist, or social worker, who provides mental health or medical services for the rehabilitation of sex offenders (Tex. Occ. Code Ann. § 110.001(7) (Vernon Supp. 2005)). Before 2005, the Council kept a voluntary registry; the 2005 Legislature replaced voluntary registration with mandatory licensing (Act of May 20, 2003, 78th Leg., ch. 1276; Act of May 25, 2005, 79th Leg., R.S., ch. 1089), so chapter 110 now bars providing a rehabilitation service or acting as a provider unless the person is "licensed under this chapter" (Tex. Occ. Code Ann. § 110.301(a) (Vernon Supp. 2005)).

Reading the statute in context (Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)), the opinion noted that chapter 110 charges the Council with setting eligibility standards and developing license requirements by rule (Tex. Occ. Code Ann. §§ 110.151(2), 110.152(2), 110.158, 110.302). A "rehabilitation service" is a mental health treatment or medical intervention program designed to treat or remedy a sex offender's mental or medical problem that may relate or contribute to the offender's criminal or paraphiliac problem, and a "sex offender" is defined broadly to include those convicted of or given deferred adjudication for a sex crime, those who admit violating a sex-conduct law, and those who evidence a paraphiliac disorder under the Revised Diagnostic and Statistical Manual (id. § 110.001(5), (6)(A)-(D)). Practicing without the chapter 110 license is a Class A misdemeanor (id. § 110.401).

The opinion concluded the underlying professional licenses (for example, to practice medicine, psychology, or professional counseling) are issued under other chapters, not under chapter 110 (id. §§ 155.001, 501.251, 503.301 (Vernon 2004)), so section 110.301 requires the separate sex offender treatment provider license in addition to a professional license. It noted the transition rule deeming September 1, 2005 registrants to hold a license (Act of May 25, 2005, 79th Leg., R.S., ch. 1089, §§ 33, 36), and that the breadth of the definitions, while real, reflects the Legislature's prerogative (Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968)), leaving the threshold determinations to the treating professional within chapter 110's limits.

Citations

Statutes:

• Tex. Occ. Code Ann. § 110.001(5), (6)(A)-(D), (7); §§ 110.151(2), 110.152(2), 110.158, 110.301(a), 110.302, 110.401; §§ 155.001, 501.251, 503.301 (Vernon 2004 & Supp. 2005)
• Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005)
• Act of May 25, 2005, 79th Leg., R.S., ch. 1089; Act of May 20, 2003, 78th Leg., ch. 1276

Cases:

• Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)
• Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0423
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0423.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

April 18, 2006

The Honorable D. Matt Bingham
Smith County Criminal District Attorney
Smith County Courthouse
100 North Broadway, Fourth Floor
Tyler, Texas 75702

Opinion No. GA-0423

Re: Whether a physician, psychiatrist, licensed professional counselor, licensed marriage and family therapist, or social worker must be licensed by the Council on Sex Offender Treatment to provide rehabilitation services or act as a sex offender treatment provider (RQ-0405-GA)

Dear Mr. Bingham:

You ask whether a physician, psychiatrist, licensed professional counselor, licensed marriage and family therapist, or social worker may provide rehabilitation services or act as a sex offender treatment provider without being licensed by the Council on Sex Offender Treatment (the "Council").[1] You also ask about the discretion of counselors concerning the scope of the terms "rehabilitation service" and "sex offender" as defined in chapter 110 of the Occupations Code. Request Letter, supra note 1, at 1.

As background, we observe that chapter 110 of the Occupations Code generally governs sex offender treatment providers. Under the chapter, a sex offender treatment provider is:

a person, licensed or certified to practice in this state, including a physician, psychiatrist, psychologist, licensed professional counselor, licensed marriage and family therapist, or social worker, who provides mental health or medical services for rehabilitation of sex offenders.

TEX. OCC. CODE ANN. § 110.001(7) (Vernon Supp. 2005). Prior to 2005, the Council maintained a voluntary registry of sex offender treatment providers who (1) met the Council's criteria for the treatment of sex offenders and (2) provided mental health or medical services for the rehabilitation of sex offenders. Act of May 20, 2003, 78th Leg., ch. 1276, § 14.005(a), 2003 Tex. Gen. Laws 4158, 4309 (formerly codified as TEX. OCC. CODE ANN. § 110.001(4)). During the legislature's last regular session in 2005, it changed the Council's mission from registering sex offender treatment providers on a voluntary basis to mandatory licensing. Act of May 25, 2005, 79th Leg., R.S., ch. 1089, 2005 Tex. Gen. Laws 3579. Thus, chapter 110 now provides:

(a) A person may not provide a rehabilitation service or act as a sex offender treatment provider unless the person is licensed under this chapter.

TEX. OCC. CODE ANN. § 110.301(a) (Vernon Supp. 2005).

You state that Smith County currently provides counseling to juveniles in the juvenile justice system through several counselors of different backgrounds: a licensed psychologist and diplomat in forensic psychology, a person licensed as a clinical social worker and as a professional counselor, a licensed master social worker, a licensed professional counselor intern, and a graduate student at the University of Texas at Tyler. See Request Letter, supra note 1, at 2. You ask whether the health care licenses that qualify a person as a sex offender treatment provider in section 110.001(7) constitute the license required in section 110.301(a). See id. at 4-5.

We must construe statutes in context. See TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 2005). Consequently, we must consider section 110.301 in light of other sections of chapter 110 governing the Council and sex offender treatment providers, particularly those that pertain to licensing. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) ("We should not give one provision a meaning out of harmony or inconsistent with other provisions . . . ."). Chapter 110 charges the Council with setting the standards that sex offender treatment providers must meet to be eligible for a license under the chapter. See TEX. OCC. CODE ANN. § 110.151(2) (Vernon Supp. 2005). The Council has broad authority to adopt rules consistent with chapter 110 and has the specific duty to develop and implement license requirements by rule. See id. §§ 110.152(2), .158, .302 (Vernon 2004). Under section 110.301, a person must be licensed "under" chapter 110 either to "provide a rehabilitation service" or to "act as a sex offender treatment provider." Id. § 110.301(a) (Vernon Supp. 2005). A "rehabilitation service" is "a mental health treatment or medical intervention program designed to treat or remedy a sex offender's mental or medical problem that may relate or contribute to the sex offender's criminal or paraphiliac problem." Id. § 110.001(5). A person "act[s] as a sex offender treatment provider" when the person provides "mental health or medical services for rehabilitation of sex offenders." Id. §§ 110.001(7), .301(a). A person who does not have a license under chapter 110 and who provides a rehabilitation service or acts as a sex offender treatment provider may be liable criminally. See id. § 110.401 (providing that violations of section 110.301 are a Class A misdemeanor).

You state that several of the licensed professionals who are counseling juveniles for Smith County Juvenile Services meet the definition of a sex offender treatment provider in section 110.001(7) but do not possess any additional license under chapter 110. See Request Letter, supra note 1, at 3-4. You suggest that the legislature likely did not intend to "provide an exclusive licensing program, to the exclusion of other licensing as provided for in section 110.001(7) of the Occupations Code." Id. at 4. Also, while you acknowledge that section 110.302 as revised "seems to contemplate the issuance of a license by the Council," you note that the Council had not promulgated licensing rules as of the date of your request. Id. For these reasons, you perceive a conflict among sections 110.001(7) (defining a sex offender treatment provider), section 110.301 (requiring a license), and 110.302 (requiring the Council to promulgate licensing rules). You propose that the conflict may be resolved by construing the provision in 110.301 that requires a person to be "licensed under this chapter" as referring to any of the health care licenses listed in section 110.001(7). Id. at 4-5. However, the plain language of the statutes does not support your construction.

Sections 110.001(7), 110.301 and 110.302 do not conflict. Section 110.001(7) defines a person who is a sex offender treatment provider, not a licensed sex offender treatment provider. See TEX. OCC. CODE ANN. § 110.001(7) (Vernon Supp. 2005). The license required in section 110.301 is the sex offender treatment provider license, not any of the various health care licenses listed in section 110.001(7). See id. § 110.301. Physicians, psychiatrists, psychologists, professional counselors, marriage and family therapists, and social workers do not receive their respective professional licenses "under" chapter 110. See, e.g., id. §§ 155.001 (license to practice medicine); 501.251 (psychologist license); 503.301 (professional counselor license) (Vernon 2004). Chapter 110 requires a person to have both a professional license and a sex offender treatment provider license before the person may render rehabilitation services or provide mental health or medical services for the rehabilitation of sex offenders. See id. §§ 110.001(7), .301(a) (Vernon Supp. 2005).

We note that persons who held a registration issued under Chapter 110, Occupations Code, on the effective date of the 2005 legislation, September 1, 2005, are to be "considered to hold a license under Chapter 110, Occupations Code, as amended." Act of May 25, 2005, 79th Leg., R.S., ch. 1089, §§ 33, 36, 2005 Tex. Gen. Laws 3579, 3586-87. Thus, if any of the Smith County Juvenile Services professionals were registered with the Council on September 1, 2005, they are automatically deemed to be licensed sex offender treatment providers. For further guidance concerning the implementation of chapter 110, you should keep apprised of any rules as they are promulgated by the Council.[2]

You suggest that if chapter 110 requires a separate license, it poses practical problems for professional counselors not licensed by the Council due to the scope of terms such as "rehabilitation service" and "sex offender." Request Letter, supra note 1, at 4-5. A "rehabilitation service" is a "mental health treatment or medical intervention program designed to treat or remedy a sex offender's mental or medical problem that may relate or contribute to the sex offender's criminal or paraphiliac problem." TEX. OCC. CODE ANN. § 110.001(5) (Vernon Supp. 2005) (emphasis added). A "sex offender" is not only a person who has been convicted of or received deferred adjudication for a sex crime, but also a person who admits to violating a state or federal law regarding sexual conduct or who "experiences or evidences a paraphiliac disorder as defined by the Revised Diagnostic and Statistical Manual." Id. § 110.001(6)(A)-(D). Thus, you conjecture that a professional counselor who is not licensed by the Council and is treating a condition such as substance abuse may have to terminate treatment if the patient admits a past sex crime or evidences a paraphiliac disorder. See Request Letter, supra note 1, at 4-5. You also suggest that such a counselor should be granted a measure of discretion to determine if treatment for a problem such as substance abuse should continue. See id. at 5.

We agree that the respective definitions of the terms "rehabilitation service" and "sex offender" are markedly broad, but the "wisdom or expediency of the law is the Legislature's prerogative," Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968). Under section 110.001(5), a person must be licensed under chapter 110 to provide mental health treatment or administer a medical intervention program to treat or remedy a sex offender's mental or medical problem if it "may relate or contribute to the sex offender's criminal or paraphiliac problem." TEX. OCC. CODE ANN. § 110.001(5) (Vernon Supp. 2005). Whether the patient is a "sex offender" as defined, and whether the treatment or program is for a problem that "may relate or contribute to" the offender's criminal or paraphiliac problem is a matter for the treating professional's determination in the first instance. But the professional must exercise the discretion to make that determination within the confines of chapter 110's express terms and the rules promulgated by the Council. See id. §§ 110.001(5), (7), .401.

SUMMARY

Chapter 110 of the Occupations Code requires a person to have one of the professional licenses listed in section 110.001(7) as well as a sex offender treatment provider license under section 110.301(a) before the person may render rehabilitation services or provide mental health or medical services for the rehabilitation of sex offenders. A person who was registered as a sex offender treatment provider as of September 1, 2005, is considered to hold a license under chapter 110. Whether the patient is a "sex offender" as defined and whether the treatment or program is for a problem that "may relate or contribute" to the offender's criminal or paraphiliac problem is a matter for the treating professional's determination within the bounds of chapter 110's express terms and the rules of the Council on Sex Offender Treatment.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter from Honorable D. Matt Bingham, Smith County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas (Oct. 13, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. We note that the Council has proposed rules concerning various categories of licenses and licensing requirements. See 31 Tex. Reg. 209, 234-64 (proposed Dec. 30, 2005) (Council on Sex Offender Treatment).