September 4, 1969

Honorable Preston Smith Opinion NO. M-463 Governor of Texas Austin, Texas Re: Validity of Senate Bill 667, Acts of 61at Legislature, Regular Session, 1969 relating to licensingof Dear Governor Smith: psychologists

Your request for an opinion on the validity of Senate Bill 667,Acts of 61at Legislature, Regular Session, 1969, Chapter 713, Page 2059 (codifiedin Vernon's as Article 4512C,Vernon's Civil Statutes), asks the following questions:

"1

. Does this captionmeet the constitutional requirement of giving notice to the public in that itmakes no reference to the definition of who is a 'psychologist';itmakes no reference to qualifications of members of the Board; it makes no reference to the qualifications of applicants for examination for certification; itmakes no reference to exemptions from the act; it makes no reference to cancellation or suspension of licenses or certificates; and it makes no reference to criminalpenalties for violations of the act?

"2. Does Section 4 of thisAct establishing staggered threeyear terms violate theprovisions of Article XVI, Section 30 or Article XVI, Section 30a, of the Texas Constitution?

"3. Is the definition of the term 'psychologists'within Section 2(b) and (c)of this Act so vague and indefinite that it is impossible of interpretationsand enforcement in view of Wilson v. State Board of Naturopathic Examiners, 298 S.W+2d 946 and Ex Parte Halsted, 182 S.W.2d 479?

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"4

. Is any other provision of this Act in conflictwith the laws and Constitution of this State or these United States?"
Section 35 of Article III of the Constitution of Texas provides:

"Nobill, (exceptgeneral appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject,which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed." Although the above provision ismandatory upon the Legislature, it shouldbe given a liberal construction. C&nom v. Hemphill, 7 Tex. 184 (1851);State v. Praetorians, 143 Tex. 565, 186 S.W.Zd 973, 158 A.L.R. 596 (1945). The purpose of this section is to afford legislatorsand other interestedpeople a ready and reasonably accuratemeans of knowledge of the contents of billswithout their having to read the full text. Falkner v. Allied Finance Company of Bay City, 394 S.W.2d 208, (Civ.App.1965, error ref. n.r.e.1; Schlichtingv. Texas State Board of Medical Examiners, 310 S.W.2d 557 (Sup.Ct. ‘1958) ; Board of Water Engineersv. City of San Antonio, 155 Tex. 111, 283 S.W.Zd 722 (1955). Therefore, it is not necessary that the caption state the details of the provisions of the Act so long as the reader of the caption is not misled as to the real contents of the Bill. State v. McCracken, 42 Tex. 383 (1875); Gunter v. Texas Land & Mortgage Co., 82 Tex. 496, 17 S.W. 840 (1891);English & Scottish-AmericanMortgage & InvestmentCo., Ltd. v. Hardy, 93 Tex. 289, 55 S.W. 169 (1900). However, if the reader of the caption ismisled, and the bill actually deals with a different-subject than that contained in the caption, or containsprovisions not contemplated,or containsprovisions to which no fair noticewas given in the caption, the actwill be in violation of Section 35 of Article III of the Constitution of Texas. Board of Water Engineers v. City of San Antonio, supra; Harris County Fresh Water Supply DistrictNo. 55 v. Carr, 372

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S.W.2d 523 (Sup.Ct.1963); Fletcher v. State, 439 S.W.2d 656 (Sup.Ct.1969);White v. State, 440 S.W.2d 660 (Tex.Crim.1969).

The caption of Senate Bill 667 provides:

"AnAct concerning theprofession of Psychology; requiring certificationand licensing of psychologists; establishing a Texas State Board of Examiners of Psychologistsimaking an appropriationand declaring an emergency."
The body of the Bill provides for the certification and licensing of Psychologists, establishes a Texas State Board of Examiners of Psychologists, andmakes provisions for the duties of the Board, qualifications of applicants and other relatedprovisions. It is our opinion that a reader of the caption is given fair notice of thepurpose and intent of the Act and, therefore, the captionmeets the requirementsof Section 35 of Article III of the Constitution of Texas.

Section 30 of Article XVI of the Constitution of Texas provides that the duration of all offices not fixedby this Constitution shallnever exceed twoyears. Section 30a of Article XVI of the Constitution of Texas provides:

"TheLegislaturemay provideby law that the members of the Board of Regents of the State University and boards of trustees or managers of the educational, eleemosynary, andpenal institutions of the State, and such-boards-ashave been, or may hereafterbe establishedby law,may hold their respectiveoffices for the term of six (6) years, one-third of themembers of such boards to be elected or appointed every two (2)years in suchmanner as the Legislaturemay determine; vacancies in such offices to be filled asmay be providedby law, and the Legislature shall enact suitable laws to give effect to this section." (emphasisadded).

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Section 4 of Senate Bill 667 provides:
"There is hereby created the Texas State Board of Examiners of Psychologistswhich shall consist of six qualified persons appointedby the governorwith the atlvice and consent of the Senate. The,members of the first Board shall be appointedwithin ninety days after thisAct takes effect to serve the following terms; two members for one year, twomembers for two years, and twomembers for threeyears from the date of their appointment. Thereafter, at the expiration of the term of each member, the governor shall appoint a successor for a term of threeyears. Before, entering upon the duties of his office, eachmember of the Board shall take the constitutional oath of office and file itwith the Secretary of State."
It is evident that Section 30 of Article XVI of the Constitution of Texas limits the terms of office to two years, unless a different term of office is authorizedby other constitutionalprovisions. Section 4 of Senate Bill 667 does not complywith Section 30a; and since the terms fixed by Section 4 are not authorizedby any other constitutional provision, such section is invalid.

Section 31 of Article XVI of the Constitution of Texas provides:

"TheLegislature may pass lawsprescribing the qualifications of practitionersof medicine in this State, and to punish persons formalpractice,but no preference shall ever be given by law to any schools of medicine." (emphasisadded).
The purpose of Section 31 of Article XVI of the Constitution of Texas is stated in Ex Parte Kalsted, 182 S.W.2d 479 (Tex.Crim. 1944) as follows:

"We come now to a determinationof whether theAct before us is violative of the nonpreference clause of Art. 16, Sec. 31, of our

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State Constitution. Said Section is a part of the Constitution of 1876, and has remained unchanged through theyears. It is and has been the basis upon which has rested the legislative control over, and definitionof, thepractice of medicine. It furnishes the direct reasons why the courtshave steadfastlyheld that, if one treats or offers to treat, as a business, profession, or avocation,diseases or disorders of the human body--by anymethod, system, or means-- he must firstqualify himself to do so by taking the same examinationthat is required..of all others doing the,same thing, regardless of the system employed. Not only was such interpretation authorized,but samewas requiredby that provision of said Art. 16, Sec. 31,which says that 'No preference shall ever be given by law to any schools of medicine.' The term 'schoolsof medicine,' as there used,means, and has reference to, the system,means, or method employed, or the schools of thought as accepted,by the practitioner. Such is exemplifiedby Chapter 12,Acts 27th Legislature, 1901,wherein the Legislature created three separate Boards of Medical Examiners in this State,.each representing a particular system,method, or school of thought, for the treatment of disease, that is, a Board of Examiners for the allopaths,one for thehomeopaths, and one for the eclectics. nowever, the subjects embraced in the examination required for license under either Boardwere the same, such requirementbeing necessary ,inorder that there be no preference between the three different schools of thought. The Act of 1901was superceded by our present Medicinal Practice Act, passed in 1907, c. 123.
"Under theMedical Practice Act, one desiring to practicemedicinemust possess certain qualifications as to character and educational attainments, Art. 4501, R.C.S., andmust pass a satisfactory examination upon certain basic subjects,Art. 4503, R.C.S.” (emphasisadded).

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The Court concluded that the Legislature couldnot carve out of the field of thehealing art a single system for treating diseases and disorders and give such system special treatment limiting the use thereof to those only who qualify. The Court held that such legislationviolates Section 31 of Article XVI of the Constitutionof Texas.

The same conclusionwas reached in Wilson v. State Board of Naturopathic Examiners, 298 S.W.2d 946 (Tex.Civ.App. 1957 error ref. n.r.e.), cert. denied 355 U.S. 870, 78 Sup. Ct. 121, 2 L ed 2d 76,wherein the Court construed the NaturopathicAct as authorizingand not denying thepractice of medicine in specialized fields and giving,preferenceto naturopathy in violation of Section 31 of Article XVI of the Constitution of Texas. Thus, it has been held thatwhere an Act both authorizes and prohibits simultaneouslythe practice of medicine, suchAct is either in violation of Section 31 of Article XVI of the Constitution or is void for vaaueness since the Act will be incapable of enforcement. Ex Paste Halsted, supra;Wilson v. State Board of NaturopathicExaminers, supra.

Section 3 of Senate Bill 667provides.: "Nothingin thisAct shall be construedas permitting thepractice of medicine as defined by the laws of this state."
The practice of medicine is defined in Article 4510,Vernon's Civil Statutes and Article 741,Vernon's Penal Code, as follows:

"Anyperson shall be regarded as practicing medicinewithin themeaning of this law: (1) Who shallpublicly profess to be a physician or surgeon and shall diagnose, treat, or offer to treat, any disease or disorder,mental or ,physical, or any physical deformity or injury,by any system or method, or to effect cures thereof; (2) or who shall diagnose, treat or offer to treat any disease or disorder,mental or physical or any physical deformity or injuryby any system or method and to effect cures thereof and charge therefor, directly or indirectly,money or other compensation;"

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Section 3 of Senate Bill 667 specificallyprovides that its provisions shall not permit the practice of medicine as defined by the laws of this state and an examination of the remaining provisions of the Senate Bill 667 does not reveal any provisions which would authorize a licensee to diagnose, treat, or offer to treat, any disease or disorder,mental or physical, or any physical deformity or injuryby any system ormethod or to effect cures thereof.

"Psychiatry"is a branch of medicine that relates to mental diseases and dealswith the science andpractice of treatingmental, emotional, andbehavioral disorders. Wallach v. Monarch Life Insurance Co., 295 N.Y.S.2d 109, 111 (58Misc. 2d 202 1968);Mashak v. Poelker, 356 S.W.2d 713, 720 (Mo.App.1962). Psychology on the other hand is the study of an individual's mental characteristicsasmemory intelligence,, emotionality, intelligence,or speed of reaction. Calhoun,v,; Members of Board of Education, City of Atlanta, 188 FrSupp. 401, 409, (1959). Section 2 of Senate Bill 667 contains the followingdefinitions:

"(b) A person representshimself to be a 'psychologist'within themeaning of thisAct when he holds himself out to the public by any title or description of services incorporating thewords 'psychological,' 'psychologists,'or 'psychology,'or offers to render or renders services to individuals,corporations,or the public for compensation. "(c) The term 'psychologicalservices,'means acts or behaviors comingwithin thepurview of the practice of psychology." Therefore, a psychiatrist in Texas is an individualwho has been issued a license to practicemedicine in this state by the Texas Board of Medical Examiners and specializes in the treatment ofmentally ill individuals,while a psychologist in Texas has not been issued a license to practicemedicine in this state, is not authorized to practicemedicine, and is not permitted to treat or offer to treatmentally ill persons. No provision in Senate Bill 667 permits the performance of any act constituting thepractice of medicine. See Attorney General

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Opinion No. M-453(1969). Therefore, the conflict referred to in Ex Parte Halsted, supra, and Wilson v. State Board of Naturopathic Examiners, supra, does not exist in Senate Bill 667. Thus, we conclude that the provisions of Senate Bill 667 neither violate Section 31 of the Constitutionof Texas nor is it void for the vagueness or uncertainty described in Wilson v. State Board of Naturopathic Examiners, supra, and Ex Parte Halsted, supra.

In answer to the fourthquestion, it is our opinion thatwith the exception of Section 4 of Senate Bill 667 referred to above, no other provision of thisAct which has come to our attention appears to be in conflictwithany provision of the Constitution of this State or of the United States.

SUMMARY ------- The provisions of Senate Bill 667,Acts of 61st Legislature, Regular Session, 1969, Chapter 713, Page 2059 (relatingto licensingof Psychologists) are not in violation of either Section 35 of Article III of the Constitution of Texas or Section 31 of Article XVI of the Constitution of Texas. Section 4 of Senate Bill 667 prescribing terms for Board members for threeyears is in violation of Section 30 of Article XVI of the Constitution of Texas.

Preparedby John Reeves Assistant Attorney General General of Texas

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman tieorge

Kelton,Vice Chairman Bill Corbusier Houghton Brownlee, Jr.

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Hon. Preston Smith, Page 9 (M-463)

Sarah E. Phillips Harold Kennedy

MEADE F. GRIFFIN Staff Legal Assistant

HAWTHORNE PHILLIPS ExecutiveAssistant

NOLA WHITE First Assistant

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