Can a Texas physical therapist license applicant pay the exam fee directly to the exam company?

Plain-English summary

The Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners asked whether a person applying for a physical therapist or physical therapist assistant license could pay the examination fee directly to the outside company that owns and runs the exam, instead of routing it through the Board of Physical Therapy Examiners.

The request explained how the process had changed since 1971, when the Board itself paid the exam owner and applicants mailed the fee to the Board. After the exam moved to a computer-based format in 1994, the Board began acting as a "pass through," holding an applicant's certified check (made out to the exam's owner, the Federation of State Boards of Physical Therapy) until the applicant met the Board's requirements, then forwarding it. With online registration and credit-card payment coming, the Federation wanted to collect the fee directly.

The opinion said the statute does not allow that. Section 453.202 of the Occupations Code requires an applicant to "submit to the board a written application" that "must be accompanied by" the examination fee. Because the legislature did not define "accompanied by," the opinion gave it its common meaning, to go with or be joined to, so the fee must physically travel with the application to the Board. Paying the fee to the Federation at the same time the application goes to the Board would not satisfy that requirement, because the fee would not go with the application. The opinion also distinguished the license application (submitted to the Board) from the exam registration (submitted to the Federation), and concluded the fee must accompany the application, not the registration. So an applicant must send the examination fee to the Board along with the written application, and may not pay it directly to the exam provider.

Currency note

This opinion was issued in 2001. 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 licensing board and the exam provider (what the opinion held for them): The opinion held that under section 453.202, the examination fee had to be submitted to the Board with the written application, and that the outside entity owning and administering the exam could not collect the fee directly, nor could the fee be submitted with the exam registration.

License applicants (what the opinion held for them): The opinion held that an applicant had to send the examination fee to the Board together with the license application, the route the statute's "accompanied by" language required.

Common questions

Where does a physical therapist license applicant send the exam fee in Texas?
Under this opinion, to the Board of Physical Therapy Examiners, and it must accompany the written license application.

Why couldn't the exam company just collect the fee itself?
The opinion read section 453.202 to require the fee to "accompany" the application submitted to the Board. Paying a third party directly would mean the fee did not go with the application, which the statute's plain language does not allow.

Does paying at the same time as registration count?
No. The opinion concluded the fee must accompany the application to the Board, not the exam registration submitted to the outside entity, even if the two happen at the same time.

Background and statutory framework

A person may not practice as a physical therapist or physical therapist assistant in Texas without a license from the Board. See Tex. Occ. Code Ann. § 453.201(a) (Vernon 2001). Section 453.202 requires a license applicant to submit a written application to the Board "accompanied by" an examination fee and a nonrefundable application fee. See id. § 453.202. The opinion construed the undefined term "accompanied by" under the rule that undefined statutory words take their common meaning, citing Government Code section 311.011(a) and dictionary and case authority including In re Louie, 10 B.R. 928 (Bankr. E.D. Mich. 1981), and Grisham v. Five Star Ins. Co., 925 P.2d 1075 (Ariz. Ct. App. 1996). It noted the related provisions giving the Executive Council authority to administer examinations and collect fees, and assumed the Federation could administer the exam as described, while still requiring the fee itself to reach the Board with the application.

Citations

Statutory provisions:

• Tex. Occ. Code Ann. §§ 453.201(a), 453.202 (Vernon 2001)
• Tex. Gov't Code Ann. § 311.011(a) (Vernon 1998)

Cases:

• In re Louie, 10 B.R. 928 (Bankr. E.D. Mich. 1981)
• Grisham v. Five Star Ins. Co., 925 P.2d 1075 (Ariz. Ct. App. 1996)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0344
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0344.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

February 20, 2001

Mr. John P. Maline
Executive Director
Executive Council of Physical Therapy and Occupational Therapy Examiners
333 Guadalupe, Suite 2-510
Austin, Texas 78701-3942

Opinion No. JC-0344

Re: Whether an applicant for a physical therapist license or a physical therapist assistant license may submit the examination fee directly to the exam provider (RQ-0287-JC)

Dear Mr. Maline:

An applicant for a physical therapist license or a physical therapist assistant license must "submit to" the Texas Board of Physical Therapy Examiners (the "Board") a written application "accompanied by . . . an examination fee." TEX. OCC. CODE ANN. § 453.202(a), (b)(1) (Vernon 2001); see id. § 453.001(1) (defining "board"). You state that an entity other than the Board owns and administers the examination, and the entity would like to know whether an applicant may pay the examination fee directly to it. You accordingly ask whether an applicant may "pay the examination fee directly to the provider of the exam."(1) Section 453.202 of the Occupations Code does not permit payment directly to the exam provider.

A person may not practice physical therapy or as a physical therapist assistant unless he or she has obtained a license from the Board. See TEX. OCC. CODE ANN. § 453.201(a) (Vernon 2001). As an initial step toward obtaining a license, section 453.202 of the Occupations Code requires a license applicant to submit to the Board a written application "accompanied by" the examination fee:

(a) An applicant for a physical therapist license or a physical therapist assistant license must submit to the board a written application on a form provided by the board.

(b) The application must be accompanied by:

(1) an examination fee prescribed by the board; and

(2) a nonrefundable application fee prescribed by the board.

Id. § 453.202(a), (b).

(Footnote 1: See Letter from Mr. John P. Maline, Executive Director, Executive Council of Physical Therapy and Occupational Therapy Examiners, to Honorable John Cornyn, Texas Attorney General (Sept. 19, 2000) (on file with Opinion Committee) [hereinafter Request Letter].)

Under a recently adopted Board rule, the Executive Council of Physical Therapy and Occupational Therapy Examiners sets the examination fee, and a fee paid to the Board "may be in the form of a personal check, cashier's check, money order, or other certified funds." 25 Tex. Reg. 8130 (2000), adopted 25 Tex. Reg. 11288 (2000) (to be codified as an amendment to 22 TEX. ADMIN. CODE § 339.1) (Tex. Bd. of Physical Therapy Exam'rs, Fees).

When the substance of section 453.202 was adopted in 1971, see Act of May 25, 1971, 62d Leg., R.S., ch. 836, § 8(a), 1971 Tex. Gen. Laws 2542, 2545, you suggest that requiring an applicant to submit the examination fee payment directly to the Board with the application made sense. See Request Letter, supra note 1, at 1. But the examination procedure has changed since 1971, and you suggest that it no longer makes sense for an examination fee payment to be submitted to the Board. In 1971, you recount, "the Board paid Professional Examination Service, the owner of the exam, directly for the exams before applicants took it. . . . The written exam was offered three times a year in Austin." Id. When an applicant "signed up for" the exam, the applicant sent the exam fee to the Board, which deposited it into the state's general revenue fund. See id. In 1994, however, the Board switched to "a computer-based exam format" so that an applicant may take the exam at his or her convenience at any Sylvan Learning Center. See id. Also in 1994, you state, "the Board began acting as a 'pass through' for the exam fee." Id. An applicant submits a certified check to the Board, payable to the exam's current owner, the Federation of State Boards of Physical Therapy ("Federation"), with the application. See id. at 1-2. "The Board keeps the certified check in its office safe until an applicant meets all of the Board's requirements to sit for the exam." Id. at 2. The Board then sends the certified check to the Federation, presumably along with certified checks from other applicants who have just met the Board's requirements. See id. Soon, you state, applicants will be able "to register for the exam online and pay for the exam with a credit card." Id. The Federation therefore would like to know whether an applicant may pay the examination fee directly to it. See id.

We assume that the Federation may administer the examination and may do so in the manner described. Cf. TEX. OCC. CODE ANN. §§ 432.152(b)(1) (Vernon 2001) (requiring Executive Council of Physical Therapy and Occupational Therapy Examiners to perform "administrative functions relating to issuing . . . licenses, including" administering written examinations and collecting fees), .153(b) (designating Board or Board of Occupational Therapy Examiners as responsible to select "standardized national or generally accepted examinations"), 433.205(a) (Vernon 2001) (requiring Board to examine applicants at "time designated by the board").

We conclude that an applicant must submit the examination fee to the Board and must submit it with the application for a license. To approve the Federation's proposal, we would have to conclude that an applicant may pay the examination fee directly to the examination administrator with the examination registration. But that construction contravenes section 453.202's plain language.

Section 453.202 of the Occupations Code requires that the examination fee accompany the application to the Board. Chapter 453 does not define the phrase "accompanied by" used in section 453.202(b), see TEX. OCC. CODE ANN. ch. 453 (Vernon 2001); id. § 453.202(b), and you suggest that it may be interpreted broadly to mean "occur at the same time." Request Letter, supra note 1, at 2. Thus, "a person could register to take the exam as part of the application process[] and pay the examination fee directly to the Federation." Id. But a word that the legislature has not defined by statute must be defined consistently with common usage. See TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 1998). To "accompany" commonly means to go with or joined. See 1 OXFORD ENGLISH DICTIONARY 80 (2d ed. 1989); cf. In re Louie, 10 B.R. 928, 931 (Bankr. E.D. Mich. 1981) ("'accompanied by satisfactory evidence . . .' means that" evidence is "attached"); Grisham v. Five Star Ins. Co., 925 P.2d 1075, 1078 (Ariz. Ct. App. 1996) ("To 'accompany' is 'to go with as an associate or companion.'") (quoting WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY (1986)). Accordingly, we cannot construe the phrase to permit an applicant to submit the examination fee to the Federation at the same time he or she submits the license application to the Board if the fee does not go with the application to the Board.

Moreover, the examination fee must accompany the application, which is submitted to the Board, and not the registration, which you indicate is submitted directly to the Federation. See Request Letter, supra note 1, at 2. Section 453.202 of the Occupations Code directs an applicant to submit to the Board "a written application on a form" the Board has provided. TEX. OCC. CODE ANN. § 453.202(a) (Vernon 2001). The written application, "accompanied by . . . an examination fee," must be submitted to the Board. Id. § 453.202(b)(1); see also 25 Tex. Reg. 8128 (2000), adopted 25 Tex. Reg. 11286 (2000) (to be codified at 22 TEX. ADMIN. CODE § 329.1) ("General Licensure Requirements and Procedures"). You do not define what you mean by registration, and chapter 453 of the Occupations Code does not use the term. See TEX. OCC. CODE ANN. ch. 453 (Vernon 2001); cf. XIII OXFORD ENGLISH DICTIONARY 514, sense 2(d) (2d ed. 1989) (defining "register" as "[t]o enter oneself or have one's name recorded in a list of people, . . . , as being of a specified category or having a particular eligibility or entitlement").

In short, we conclude that an applicant must submit the examination fee to the Board with the written application for a license. The examination fee may not be submitted directly to the entity that owns and administers the examination (where that entity is not the Board), nor may it be submitted with the registration.

SUMMARY

Under section 453.202 of the Occupations Code, an applicant for a physical therapist license or physical therapist assistant license must submit the required examination fee directly to the Board of Physical Therapy Examiners along with the written application for a license. See TEX. OCC. CODE ANN. § 453.202 (Vernon 2001). An applicant may not submit the examination fee directly to the entity that administers the examination, which is not the Board, with the registration to take the examination. See id.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee