Do university psychology staff need a specific job title to be exempt from the Texas Psychologists' Licensing Act?

Plain-English summary

Tim F. Branaman, chair of the Texas State Board of Examiners of Psychologists, asked the Attorney General two questions about the Psychologists' Licensing Act and the exemption in Occupations Code section 501.004, which lifts the Act's requirements for the activity or service of a person employed as a psychologist or psychological associate by a regionally accredited institution of higher education, so long as the work falls within the duties the institution employs the person to perform.

The first question was whether a university has to call its employees "psychologist" or "psychological associate" for their work to qualify for the exemption. The Attorney General said no. The statute exempts both the activity or service and the use of an official title, and nothing in its text requires a particular job title. A court would look to the function of the position, not the label, to decide whether someone is employed as a psychologist or psychological associate. The employing institution makes that determination in the first instance, because it is the institution that defines an employee's scope of employment.

The second question was whether a licensed specialist in school psychology (LSSP) employed by a university as an LSSP is exempt. The Attorney General explained that section 501.004 is not a blanket exemption for an individual; it exempts the activity or service a person performs as a psychologist or psychological associate of a covered entity. A university to which section 501.004 applies could employ an LSSP, or even an unlicensed person, to engage in the practice of psychology, and all activity or service within the scope of that employment would be exempt from the Act. Whether the employee holds a license is irrelevant to that exemption.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The State Board of Examiners of Psychologists (as the opinion described it): The opinion told the Board that section 501.004's exemption is keyed to what an employee does for a covered university, not to the title the university gives the employee, so the Board could not treat the absence of a "psychologist" or "psychological associate" title as taking the work outside the exemption. It also told the Board that the exemption attaches to the activity or service rather than to the person, meaning a university subject to section 501.004 could have a licensed specialist in school psychology (or an unlicensed person) practice psychology within the scope of employment and that work would fall outside the Act. The opinion framed both points as the Legislature's signal that the Board generally is not to interfere in the internal workings of regionally accredited institutions of higher education.

Common questions

Does a university have to call someone a "psychologist" for the exemption to apply?
No. The opinion concluded that nothing in section 501.004 requires a particular official title; the function of the position, not the title, determines whether someone is employed as a psychologist or psychological associate.

Who decides whether an employee is employed as a psychologist?
The opinion said the employing institution decides in the first instance, because it is the institution that establishes an employee's scope of employment.

Is a licensed specialist in school psychology (LSSP) exempt from the Act at a university?
The opinion explained that the exemption is for the activity or service performed, not a blanket exemption for the person. A university covered by section 501.004 could employ an LSSP to practice psychology, and that work would be exempt as long as it is within the scope of employment.

Does it matter whether the university employee is licensed at all?
According to the opinion, no. It quoted a prior opinion stating that whether or not the employee is licensed is irrelevant to the section 501.004 exemption, as long as the activity is within the scope of employment by a covered institution.

Background and statutory framework

The Psychologists' Licensing Act is Occupations Code chapter 501, and it authorizes the Board to issue four licenses: psychologist, provisional license holder, psychological associate, and licensed specialist in school psychology. Occupations Code § 501.251 bars practicing psychology unless the person is licensed or exempt under section 501.004, and section 501.004(a) exempts the activity, service, or official title of a person employed as a psychologist or psychological associate by a regionally accredited institution of higher education performing duties within the institution.

For the title question, the Attorney General reasoned from the statute's text and analogized to Patton v. Jones, 212 S.W.3d 541, 549 (Tex. App.-Austin 2006, pet. denied), where a court looked to the function of a position rather than its label. For the scope-of-employment and "first instance" points, it relied on its own prior opinion, Tex. Att'y Gen. Op. No. JC-0321 (2001), which addressed when an activity is beyond the scope of a covered institution's employment and stated that an employee's license status is irrelevant. A footnote noted that the Act does not define "regionally accredited institution of higher education" and that the Board had defined the term by rule at 22 Tex. Admin. Code § 463.6.

Citations

Cases:

• Patton v. Jones, 212 S.W.3d 541, 549 (Tex. App.-Austin 2006, pet. denied)

Statutes and rules:

• Tex. Occ. Code Ann. §§ 501.001-.505 (West 2012 & Supp. 2013) (Psychologists' Licensing Act)
• Tex. Occ. Code Ann. § 501.251
• Tex. Occ. Code Ann. § 501.004 (including § 501.004(a) and § 501.004(a)(1)) (West Supp. 2013)
• Tex. Occ. Code Ann. § 501.002(5) (West 2012)
• Tex. Occ. Code Ann. § 501.003(b)
• 22 Tex. Admin. Code § 463.6 (2013)

Other authority:

• Tex. Att'y Gen. Op. No. JC-0321 (2001) at 6, 7

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1025
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1025.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 22, 2013

Tim F. Branaman, Ph.D. Opinion No. GA-1025
Chair, Texas State Board of Examiners
of Psychologists Re: Whether an individual licensed as a
333 Guadalupe, Suite 2-450 specialist in school psychology who is
Austin, Texas 78701 employed by a university in that capacity is
exempt from the Psychologists' Licensing
Act (RQ-1126-GA)

Dear Dr. Branaman:

You ask two questions on behalf of the State Board of Examiners of Psychologists (the "Board") about licensed specialists in school psychology and whether they may be exempt from the Psychologists' Licensing Act ("the Act") in specific circumstances.[1]

The Act, Occupations Code chapter 501, governs the practice of psychology. TEX. OCC. CODE ANN. §§ 501.001-.505 (West 2012 & Supp. 2013). Within the Act, the Legislature has authorized the Board to issue four separate licenses: (1) psychologist; (2) provisional license holder; (3) psychological associate; and (4) licensed specialist in school psychology ("LSSP"). Id. §§ 501.252, .253, .259, .260 (West 2012). "A person may not engage in or represent that the person is engaged in the practice of psychology unless the person is licensed under [the Act] or exempt under Section 501.004." Id. § 501.251. Section 501.004 states in relevant part:

This chapter does not apply to . . . the activity or service of a person, or the use of an official title by the person, who is employed as a psychologist or psychological associate by a regionally accredited institution of higher education if the person performs duties the person is employed by the institution to perform within the confines of the institution ....[2]

Id. § 501.004(a) (West Supp. 2013).

You ask whether a university must use the official title of psychologist or psychological associate when describing employees in order for those employees' activity and service to be exempt from the Act under section 501.004. Request Letter at 1. Section 501.004 exempts both "the activity or service of a person" and "use of an official title by the person" when employed as a psychologist or psychological associate by an entity subject to that provision. TEX. OCC. CODE ANN. § 501.004(a)(1) (West Supp. 2013). Nothing in the language of the statute requires that an official title of "psychologist" or "psychological associate" be used in order for the exemption to apply. Rather than conclude that an employee's job title is dispositive of whether the section 501.004 exemption applies, a court would likely conclude that "'the function of the position at issue'" determines whether the individual is employed as a psychologist or a psychological associate. Cf. Patton v. Jones, 212 S.W.3d 541, 549 (Tex. App.-Austin 2006, pet. denied) (applying the same analysis for purposes of the ministerial exception under the Free Exercise Clause of the First Amendment) (citation omitted).

Furthermore, whether an individual is employed as a psychologist or psychological associate is a question to be determined in the first instance by the employing entity. See Tex. Att'y Gen. Op. No. JC-0321 (2001) at 7 (explaining that whether a particular activity or service is beyond the scope of a licensee's employment is a question for the regionally accredited institution of higher education in the first instance). "It is, after all, the employing [entity] that has established any particular employee's scope of employment." Id. Thus, section 501.004 does not require a university to use the official title of "psychologist" or "psychological associate" when describing employees in order for those employees' activity or service to be exempt from the Act under section 501.004.

You also ask whether, pursuant to section 501.004, "an individual licensed as a specialist in school psychology (LSSP) who is employed by a regionally accredited institution of higher education (University) as an LSSP, is exempt from" the Act. Request Letter at 1. You explain that your question arises because while section 501.004 expressly exempts "the activity or service of individuals employed as psychologists or psychological associates by a University, the Act contains no such exemption for LSSPs." Id. at 2.

Although you phrase your question in terms of whether an individual is exempt, subsection 501.004(a) does not provide a blanket exemption for an individual. See TEX. OCC. CODE ANN. § 501.004(a) (West Supp. 2013). Instead, it exempts the activity or service that an individual performs as a psychologist or psychological associate employee of a specified entity. Id.; Tex. Att'y Gen. Op. No. JC-0321 (2001) at 6. And as discussed above, it is not the employee's title that is relevant, but the activity or service that determines the capacity in which a university employs a person as a psychologist or a psychological associate.

The Act authorizes psychologists to "engage in the practice of psychology." TEX. OCC. CODE ANN. § 501.002(5) (West 2012); see id. § 501.003(b) (explaining what it means to be "engaged in the practice of psychology"). Thus, a university to which section 501.004 applies could employ an individual with an LSSP license-or an unlicensed individual-to engage in the practice of psychology, and all activity or service performed within the scope of that employment would be exempt. See Tex. Att'y Gen. Op. No. JC-0321 (2001) at 6 ("Whether or not the employee ... is licensed is irrelevant."). As this office noted in a prior opinion, by exempting from the Act's application the activity or service of an employee of a regionally accredited institution of higher education, where the activity or service is within the scope of employment, the Legislature has indicated that generally "the Board is not to interfere in the workings of" those entities. Id. at 7.

SUMMARY

A university is not required to use the official title of "psychologist" or "psychological associate" when describing employees in order for those employees' activity or service to be exempt from the Psychologists' Licensing Act under Occupations Code section 501.004.

A university subject to section 501.004 could employ a licensed specialist in school psychology as a psychologist or psychological associate, and that individual's activity or service performed within the scope of the employment would be exempt from the Psychologists' Licensing Act.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] See Letter from Tim F. Branaman, Ph.D., Chair, State Bd. of Exam'rs of Psychologists, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (May 21, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] The Act does not define "regionally accredited institution of higher education." The Board has defined the term as "an educational institution which satisfies the standards of the accrediting association" for the region in which the institution is located. 22 TEX. ADMIN. CODE § 463.6 (2013).