The Honorable Barry Read 

Executive Secretary 

Opinion No. H- 930 

Texas State Board of Examiners Re: Application of Psyof Psychologists chologists' Certification 

108 West 15th Street and Licensing Act to persons 

Austin, Texas 78701 contracting to provide 

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 "any person who offers psychological services as defined herein for compensation." 

Sec. 21. Section 22, however, provides that: 

Nothing in this Act shall be construed 

to apply to: (a) the activities, services 

and use of official title on the part of a 

person employed as a psychologist by any: 

. . . (2) public school district. . . 

provided such employee is performing those 

duties for which he is employed by such . . . 

district . . . . 

YOU ask whether a psychological consultant to a school 

district is an "employee" of the district and thus exempt 

from the licensing requirement. 

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

The answer to your 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 in making such a determination. Although the 

following cases address the issue primarily in the context 

of liability and workmen's compensation claims, and thus 

should not be treated as dispositive of the Board's determination, we believe that they may be useful in focusing upon 

some of the elements which the Board may consider in reaching 

a decision in a particular case. 

The most important element in determining whether a 

psychological consultant is an employee or an independent 

contractor is the school district's right to control the 

details of his work. 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 ricrht of the school 

district to terminate the contract without regard to the 

final result of the work 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 is made is a circumstance tending 

to show the existence of an independent contractor relationship. 

Southwestern Telegraph & Tele hone Co 

724. 725 (Tex. Civ. APP. - &w&? %'k%&~: zfW;he 

school district to set-the psychologist's hours of labor and 

to require him to work exclusively for the district are 

factors which tend to imply that the psychologist 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 tax withholding records, 

it may be difficult to deny that he is an employee. Anchor 

;;C;;tty Co. v. Hartsfield, 390 S.W.2d 469, 471 (Tex. Sup. 

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

The foregoing list of factors are certainly not meant 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. 

S UM,MARY 

Whether a person who contracts to supply 

psychological services to a school district 

on a consulting basis is an 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. 

(-$YJz& 

Attorney General of Texas 

APPROVED: 

6 

DAVID M. KENDALL, First Assistant 

C . RCX?EXT HEATH, Chairman 

Opinion Committee 

jwb 

p. 3889