The Honorable Barry Read

Executive Secretary Opinion No. H-930
Texas State Board of Examiners Re: Application of Psyof Psychologists chologists' Certification 108West 15th Street and Licensing Act to persons Austin, Texas 78701 contracting toprovide 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 "anyperson who offers psychological services as defined herein for compensation." Sec. 21. Section 22,however, provides that:

Nothing in thisAct shall be construed to apply to: (a)the activities, services and use of official title on thepart of a person employed as apsychologist by any:

. . . (2)public school district.

. . provided such employee isperforming those duties forwhich he is employed by such

. . . district

. . . .
YOU askwhether apsychological consultant to a school district isan "employee" of the district and thus exempt from the licensing requirement.

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

The answer toyour 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, lmrian, --- 380 S.W.Zd 582, 591 (Tex.Sup. however, suggest a number of factors which the courts have considered inmaking such a determination. Although the following cases address the issue primarily in the context of liability andworkmen's compensation claims, and thus should not be treated as dispositive of the Board's determination, we believe that theymay be useful in focusing upon some of the elements which the Board may consider in reaching a decision inaparticular case. Themost important element indetermining whether a psychological consultant isan employee or an independent contractor is the school district's right to control the details of hiswork. 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 ricrhtof the school district to terminate the contract without regard to the final result of thework 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 ismade isa circumstance tending to show the existence of an independent contractor relationship. Southwestern Telegraph &Tele hone Co

- &w&? %'k%&~: zfW;he 724. 725 (Tex.Civ.APP. school district to set-the psychologist's hours of labor and to require him towork exclusively for the district are factors which tend to imply that thepsychologist 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 taxwithholding records, itmay be difficult todeny thathe isan employee. Anchor ;;C;;tty Co. v. Hartsfield, 390 S.W.2d 469, 471 (Tex.Sup.

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

The foregoing list of factors are certainly notmeant 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.
SUM,MARY Whether aperson who contracts to supply psychological services toa school district on a consulting basis isan 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. 

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Attorney General of Texas
APPROVED:

6 DAVID M. KENDALL, First Assistant

C

.RCX?EXTHEATH, Chairman Opinion Committee jwb

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