OFFKE OF THE ATTORNEY GENERAL. STATE OF TEXAS 

JOHN CORNYN 

January 5,200l 

Ms. Sherry L. Lee 

Executive Director 

Texas State Board of 

Examiners of Psychologists 

333 Guadalupe, Suite 2-450 

Austin, Texas 78701 

Opinion No. JC-0321 

Re: Whether, under the Psychologists’ Licensing Act, 

chapter 501 of the Occupations Code, the Board of 

Examiners of Psychologists may investigate the 

activity or service of a person who is licensed by the 

Board if the activity or service is performed within the 

scope of the person’s employment by an “exempt 

facility,” and related questions; reconsidering Attorney 

General Opinion JM-1247 (1990) (RQ-0213-JC) 

Dear Ms. Lee: 

The Psychologists’ Licensing Act (the “Act”), chapter 501 ofthe Occupations Code, see TEX. 

OCC. CODE ANN. 5 501.001 (Vernon 2000), does not apply to the “activity or service of a person[] 

who is employed as a psychologist or psychological associate by a governmental agency or 

regionally accredited institution of higher education” if the activity or service is among the 

“duties the person is employed to perform within the confines of the agency or institution.” Id. 

5 501.004(a)(l). Attorney General Opinion JM-1247 concludes that a person who is employed to 

practice psychology for a governmental agency or regionally accredited institution of higher 

education (together, an “exempt facility”), but who has chosen to obtain a license under the Act is 

subject to the Act even with respect to duties the licensee is employed to perform and performs 

“within the confines of’ the employing exempt facility. See Tex. Att’y Gen. Gp. No. JM-1247 

(1990) at 3. You ask whether Attorney General Opinion N-1247 correctly construes the Act to 

permit the State Board of Examiners of Psychologists (the “Board”) to investigate misconduct by 

a voluntarily licensed psychologist or psychological associate committed “within the confines of’ 

an exempt facility.’ It does not. Section 501.004(a)(l) of the Act expressly exempts the activity or 

service of a licensee who is employed at an exempt facility if the activity or service is within the 

“duties the person is employed by the” exempt facility “to perform within the confines of the agency 

or institution.” TEX. Oct. CODE ANN. 5 501.004(a)(l) (V emon 2000). Thus, the Board has no 

jurisdiction of duties a voluntarily licensed person is employed by an exempt facility “to perform 

within the confines of the” exempt facility. See id. We further interpret the statutory phrase “within 

‘Letter from Ms. Sherry L. Lee, Executive Director, Texas State Board of Examiners of Psychologists, to 

Honorable John Comyn, Texas Attorney General (Mar. 30, 2000) (on tile with Opinion Committee) [hereinafter 

Request Letter]. 
Ms. Sherry L. Lee - Page 2 (X-0321) 

the confines of’ to refer to duties within the scope of employment, whether or not the duties are 

performed within the geographic bounds of the exempt facility. 

You ask five specific questions regarding the Board’s jurisdiction to investigate a complaint 

against a licensed psychologist or psychological associate who is employed by an exempt facility. 

See id. 

1. Is Attorney General Opinion Number JIM-1247 still a valid 

opinion? 

2. By forwarding complaints to an exempt facility for investigation, 

does the Board violate its duty to investigate complaints filed 

against its licensees? 

3. Is it necessary to obtain a formal written agreement, such as a 

memorandum of understanding, between the Board and the 

exempt agency or institution before a complaint can be referred 

for investigation at the agency level? 

4. What, if any, is the Board’s recourse if an exempt agency or 

facility is unwilling to permit the Board to investigate an alleged 

violation and is unwilling to conduct [its] own investigation on 

behalf of the Board? 

5. If a complaint must be dismissed due to the Board’s inability to 

investigate the matter, has the Board violated Section 

501.204(a)(2) of the Act, which requires the Board to ensure that 

a complaint is not dismissed without appropriate consideration? 

Id. at l-2. Questions 2-5 appear to assume that the Board has jurisdiction to investigate complaints 

regarding the activity or service of a licensee who is employed by an exempt facility, even though 

the activity or service is within the scope of employment. Because we conclude that Attorney 

General Opinion JM1247 is incorrect and that the Board has jurisdiction to investigate complaints 

concerning a licensee’s activity or service performed at an exempt facility only if the activity or 

service is beyond the scope of employment at the exempt facility, we do not answer these questions. 

You also ask us to evaluate a Board policy statement. See id. at 1. Under the “Policy 

Statement on Licensees Who Work in Exempt Facilities” (the “Policy Statement”), 

persons who are employed in exempt facilities as psychologists or 

psychological associates are not required to be licensed 

However, persons who are [so] employed and who provide 
Ms. Sherry L. Lee - Page 3 (X-0321) 

services to the public for added compensation above their salary from 

the exempt agency [must] be licensed 

Therefore, any “activities and services” regarding the practice of 

psychology and licensure with this Board outside the context of the 

exempt setting are subject to the requirements of the Act and the rules 

and to the discipline of the Board. 

. . 

Complaints received by the Board concerning the “activities and 

services” of a licensee in an exempt setting are referred to the 

appropriate exempt agency so that the matter can be resolved in the 

most expedient and proper manner. Complaints pertaining to the 

“activities and services” occurring outside of the exempt setting by 

a licensee who is employed by an exempt agency will be investigated 

and resolved by the Board. 

Policy Statement attached to Request Letter, supra note 1. We conclude that, to be completely 

consistent with our interpretation, the Policy Statement should make clear that a licensee’s activity 

or service, performed at an exempt facility but beyond the scope of the licensee’s employment with 

the exempt facility, is subject to the Act and may be investigated by the Board. 

Your questions arise from two types of situations. See Telephone conversation with 

Amy Swamr, General Counsel, Board (June 29,200O). In the first, the employer, an exempt facility, 

asks the Board to investigate the conduct of a person who is employed by the facility to practice 

psychology there and who has voluntarily obtained a license. See id. You do not indicate whether 

the conduct in question was performed within the scope of the licensee’s employment. In the second 

scenario, the Board learns of alleged misconduct by a licensee who is employed to practice 

psychology by an exempt facility, but when the Board informs the exempt facility of the 

allegations or attempts to investigate the allegations, the exempt facility does not cooperate. See id. 

Presumably, some of the exempt facilities about which you ask are governmental agencies, but 

others are private entities, such as private colleges and universities. 

Several portions of the Act relate to the issues you raise. Under the Act, a person “engaged 

in the practice of psychology” generally must be licensed by the Board. TEX. Oct. CODE ANN. 

55 501.003(a), .25 1 (Vernon 2000); see also id. 5 501.003@), (c) (defining when person “is engaged 

in the practice of psychology” and “practice of psychology”). A psychologist may obtain a license 

under section 501.252 oftheOccupations Code, whileapsychological associatemayobtainalicense 

under section 501.259. See id. $5 501.002(4), (5), ,252, .259. 
Ms. Sherry L. Lee - Page 4 (X-0321) 

Among the Board’s duties is that ofreceiving and investigating complaints about a licensee’s 

conduct. The Board is required to regulate the investigation and disposition of complaints: 

(a) The board shall adopt rules concerning the investigation of a 

complaint filed with the board. The rules adopted under this 

subsection must: 

(1) distinguish between categories of complaints; 

(2) ensure that a complaint is not dismissed without 

appropnate consideration; 

(3) require that the board be advised of a complaint that is 

dismissed and that a letter be sent to the person who tiled the 

complaint explaining the action taken on the dismissed complaint; 

(4) ensure that the person who tiled the complaint has an 

opportunity to explain the allegations made in the complaint; and 

(5) prescribe guidelines concerning the categories of 

complaints that require the use of a private investigator and the 

procedures for the board to obtain the services of a private 

investigator. 

(b) The board shall: 

(1) dispose of each complaint in a timely manner; and 

(2) establish a schedule for conducting each phase of a 

complaint that is under the control of the board not later than the 30th 

day after the date the complaint is received by the board. 

Id. 5 501.204(a), (b). The board may discipline a licensee who violates the Act or who commits 

certainother acts. See id. $9 501.402, ,451. 

Section 501.004(a)( 1) of the Act exempts from the Act’s application the activity or service 

of a person who is employed by an exempt facility to practice psychology if the activity or service 

is among the employee’s duties performed “within the confines of’ the exempt facility: 

(a) This chapter does not apply to: 

(1) the activity or service of aperson, or the use of an official title 

by the person, who is employed as a psychologist or psychological 
Ms. Sherry L. Lee - Page 5 (X-0321) 

associate by a governmental agency or regionally accredited 

institution of higher education if the person performs duties the 

person is employed by the agency or institution to perform within the 

confines of the agency or institution. 

TEX. OCC. CODE ANN. § 501.004(a)( 1) (Vernon 2000). The Board may assist an agency to formulate 

voluntary guidelines for persons who perform psychological services: 

(a) The board may cooperate with an agency that is not subject to 

this chapter to formulate voluntary guidelines to be observed in the 

training, activities, and supervision of persons who perform 

psychological services. 

(b) Except as provided by Subsection (a), the board may not 

adopt a rule that relates to the administration of an agency that is not 

subject to this chapter. 

Id. § 501.155 

Attorney General Opinion JM-1247, issued in 1990, concludes that a person who practices 

psychology at an exempt facility and who has voluntarily obtained a license is “subject to” the 

Act’s provisions. See Tex. Att’y Gen. Op. No. JM-1247 (1990) at 3. (For the sake of clarity 

and except where noted, we refer to the statutory provisions discussed in Attorney General Opinion 

JM-1247 as they are codified now, and not to the pre-codified version actually cited in the opinion, 

SeeActofMay 13,1999,76thLeg.,RS.,ch. 388,s 1, ch. 501,1999Tex. Gen. Laws 1431,1853-74 

(codifying chapter 501, Occupations Code); id. 5 6,1999 Tex. Gen. Laws 1431,2439-40 (repealing 

article 4512c, Revised Civil Statutes).) The opinion construes section 501.004(a), which provided 

that “‘[nlothing in this Act shall be construed to apply to the activities, services and use of 

official title on the part of a person employed as a psychologist”’ by an exempt facility. See Tex. 

Att’y Gen. Gp. No. JM-1247 (1990) at 1 (quoting TEX. REV. CIV. STAT. ANN. art. 4512c, 5 21). “If 

the phrase ‘[nlothing in this Act shall be construed to apply’ is taken absolutely literally,” the 

opinion reasons, “persons described in the exemptions. would be ineligible for licensure[, and 

w]e do not think. that the purpose of section [501.004(a)] is to make certain individuals ineligible 

for licensure. Rather, the plain purpose of the exemption is to allow persons to engage in 

certain types of employment without a. license.” Id. at 2. Consequently, the opinion determines, 

a person who voluntarily chooses to be licensed is subject to the board’s rules “to the extent that [the 

rules] are qualifications for. licensure.” Id. at 3. Finally, the opinion states that the Board may 

“cancel, revoke, suspend, or refuse to renew [the] license [of a voluntary licensee] for any of 

the reasons the board may take such action in regard to licenses generally. Similarly, any 

person who chooses to seek licensure is subject to the fees imposed by” section 501.152. Id. 

Since Attorney General Opinion JM-1247 was issued, the Board “has attempted to conduct 

investigations and resolve consumer complaints relating to violations that have occurred while [a] 
Ms. Sherry L. Lee - Page 6 (X-0321) 

licensee was providing psychological services in an exempt setting.” Request Letter, supra note 1, 

at 2. Investigation and enforcement have, at times, been difficult: 

[T]he [Bloard has experienced mixed results with regard to the 

amount of cooperation it has received from other agencies and 

institutions during the Board’s direct investigation into alleged 

violations. For example, [Bloard investigators have experienced 

difficulties obtaining requested documents, mental health records, or 

other information needed to substantiate the complainant’s alleged 

violations. The Board’s difficulty in investigating the complaints first 

hand has necessitated the forwarding of complaints to the exempt 

facility for investigation at the agency level. Once an investigation 

has been completed and the results received, the Board [is] able to 

determine the appropriate disciplinary action to be taken against the 

licensee. Unfortunately, in the majority of cases the Board does not 

receive a response of any kind from the exempt facilities. Without 

the ability to ascertain whether a violation has been committed, 

the Board is compelled to dismiss the complaint. 

Id, 

Webelieve Attorney General OpinionJM-1247 incorrectly interprets section501.004’splain 

language, and so we overrule it. Subsection (a)(l) states that chapter 501 does not apply to the 

activity or service of a person who practices psychology at an exempt facility if the activity or 

service is among the duties the person is employed by the exempt facility to perform and is 

performed “within the confines of the” exempt facility. See TEX. Oct. CODE ANN. 5 501.004(a)(l) 

(Vernon 2000). Under subsection (a)(l), it is not the practitioner who is exempt from the Act; 

rather, it is certain activities or services performed by a person who is employed by an exempt 

facility as a psychologist or psychological associate. Whether or not the employee of an exempt 

facility is licensed is irrelevant. Attorney General Opinion JM-1247, by contrast, construes 

subsection (a)( 1) to exempt the practitioner unless the practitioner is licensed, and if the practitioner 

is licensed, then all ofhis or her activities and services performed as a psychologist or psychological 

associate are subject to the Act. See Tex. Att’y Gen. Op. No. JM-1247 (1990) at 3. 

The activity or service of a person, licensed or not, who is employed by an exempt facility 

as a psychologist or psychological associate is not subject to the Act only if the activity or service 

is among the “duties the person is employed to perform within the confines of the” exempt 

facility. TEX. Oct. CODE ANN. 5 501.004(a)(l) (Vernon 2000). But a licensed psychologist’s or 

psychological associate’s activity or service is subject to the Act despite the licensee’s employment 

by an exempt facility if the activity or service is not among the duties the person is employed to 

perform “within the confines of the” exempt facility. Id. The Board has a duty to investigate 

allegations regarding an activity or service that is not among the duties a licensee is employed to 

perform “within the confines of’ an exempt facility. 
Ms. Sherry L. Lee - Page 7 (X-0321) 

While section 501.004(a)(l) facially limits its application to activities or services that are 

among the duties apersonis employed by an exempt facility to perform “within the confines of’ the 

exempt facility, id., we are uncertain what the phrase “within the confines of’ means. The Act does 

not define it. The term “conllnes” otten has geographic connotations. See III OXFORD ENGLISH 

DICTIONARY 708-09 (2d ed. 1989) (defining “confine”). Practically speaking, though, we cannot 

imagine that the legislature intended that a person, employed by an exempt facility to practice 

psychology, who commits some misconduct outside of the geographic boundaries of an exempt 

facility but within the scope of his or her employment-for, example, on a home visit-should be 

treated differently than an identical person who commits the misconduct within the walls of the 

exempt facility. Based on our presumption that the legislature intends the law to achieve “ajust and 

reasonableresult,“T~~. GOV’TCODEANN. 9 311.021(3)(Vemon 1998), we conclude that theBoard 

lacks jurisdiction to investigate alleged misconduct committed within the scope of a person’s 

employment by an exempt facility, regardless of the geographic location at which the alleged 

misconduct occurred. 

Whether a particular activity or service is beyond the scope of a licensee’s employment is 

a question to be determined in the first instance by the employing exempt facility. It is, after all, the 

employing exempt facility that has established any particular employee’s scope of employment. By 

contrast, the Board is unable to make that determination. 

Where, as we understand sometimes happens, an employing exempt facility asks the Board 

to investigate the conduct of a licensed employee, see supra at 3 (citing Telephone Conversation 

with Amy Swarm), we believe the Board may presume that the exempt facility has determined that 

the activity or service is beyond the scope of employment. Accordingly, the Board has jurisdiction 

to investigate the allegations. 

On the other hand, where an exempt facility refuses to inform the Board whether a particular 

activity or service is within the scope of an employee’s employment, the Board may assume that the 

activity or service complained ofis within the scope ofthe licensee’s employment and that the Board 

does not have jurisdiction to investigate. While this assumption is not explicitly stated in the Act, 

it is the interpretation most consistent with the “hands-off’ policy that appears to underlie section 

501.004. Our goal is to effect the legislative intent. See National hub. &Fire Ins. Co. v. Allen, 15 

S.W.3d 525,527 (Tex. 2000) (stating that court’s objective is to determine and effect legislature’s 

intent). By exempting from the Act’s application the activity or service of an employee of an exempt 

facility, where the activity or service is within the scope of employment, the Act suggests that the 

Board is not to interfere in the workings of an exempt facility. 

Our conclusion that the Board may investigate a complaint regarding the activity or service 

of a licensee employed by an exempt facility only if the activity or service is beyond the scope of 

employment, does not mean that the Board may not take notice of a past complaint in an 

investigation against the same licensee, where the investigation is within the Board’s jurisdiction. 

If the Board does so, it must provide a process that protects the licensee’s due-process rights. 
Ms. Sherry L. Lee - Page 8 (X-0321) 

Likewise, although the Board has no duty to investigate a complaint regarding an activity or 

service within the scope of a licensee’s employment at an exempt facility, nothing in the Act 

explicitly forbids the Board to forward a complaint to the exempt facility, so long as the Board 

complies with any applicable confidentiality provisions. See, e.g., TEX. Oct. CODE ANN. 3 501.205 

(Vernon 2000) (directing that complaint information is not subject to disclosure except to certain 

entities). 

Because your questions 2-5 appear to assume that the Board has jurisdiction to investigate 

any licensee activity or service performed at an exempt facility, we do not answer them. 

Finally, the Policy Statement does not reflect completely our conclusion today: that the 

activity or service of a licensee performed at an exempt facility but beyond the scope of the 

licensee’s employment with the exempt facility is subject to the Act and to Board regulation. As the 

Policy Statement makes clear, “‘ activities and services’ regarding the practice ofpsychology” of a 

licensee “outside the context of [an] exempt setting are subject to” Board oversight. See Policy 

Statement attached to Request Letter, supru note 1. But the Policy Statement suggests that all of a 

licensee’s activities and services that are performed within “the context of the exempt setting” are 

beyond the Act and the Board’s concomitant authority to investigate. Id. Consistently with our 

conclusions here, the Policy Statement should make clear that a licensee’s activity or service, 

performed at an exempt facility but beyond the scope ofthe licensee’s employment with the exempt 

facility, is subject to the Act and to investigation by the Board. 
Ms. Sherry L. Lee - Page 9 (JC-0321) 

SUMMARY 

Attorney General Opinion JM-1247 (1990), which concluded 

that thePsychologists’ Licensing Act, chapter 501 ofthe Occupations 

Code, applies to a person who is employed to practice psychology for 

a governmental agency or regionally accredited institution of higher 

education (together, an “exempt facility”) if the person has 

voluntarily obtained a license under the Act, is overruled. Rather, the 

Board of Examiners of Psychologists has jurisdiction of a licensee’s 

activity or service only if the activity or service is beyond the scope 

of the licensee’s employment by the exempt facility. See TEX. OCC. 

CODE ANN. 5 501.004(a) (Vernon 2000) (“Applicability”). The 

Board has no jurisdiction to investigate a complaint regarding the 

activity or service of a licensee employed by an exempt facility ifthe 

activity or service is within the scope of employment. Board policy 

should make clear that a licensee’s activity or service, performed at 

an exempt facility but beyond the scope ofthe licensee’s employment 

with the exempt facility, is subject to the Act and to investigation by 

the Board. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVLN 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Kymberly K. Oltrogge 

Assistant Attorney General - Opinion Committee