ATTORNEY GENERAL OFTEXAS 

GREG ABBOTT 

April 18, 2006 

The Honorable D. Matt Bingham 

Smith County Criminal District Attorney 

Smith County Courthouse 

100 North Broadway, Fourth Floor 

Tyler, Texas 75702 

Opinion No. GA-0423 

Re: Whether a physician, psychiatrist, licensed 

professional counselor, licensed marriage and 

family therapist, or social worker must be licensed 

by the Council on Sex Offender Treatment to 

provide rehabilitation services or act as a sex 

offender treatment provider (RQ-0405-GA) 

Dear Mr. Bingham: 

Youaskwhether aphysician,psychiatrist, licensed professional counselor, licensedmarriage 

and family therapist, or social worker may provide rehabilitation services or act as a sex offender 

treatment provider without being licensed by the Council on Sex Offender Treatment (the 

“Council”).’ You also ask about the discretion of counselors concerning the scope of the terms 

“rehabilitation service” and “sex offender” as defined in chapter 110 of the Occupations Code. 

Request Letter, sugLa note 1, at 1. 

As background, we observe that chapter 110 of the Occupations Code generally governs~ sex 

offender treatment providers. Under the chapter, a sex offender treatment provider is: 

a person, licensed or certified to practice in this state, including a 

physician, psychiatrist, psychologist, licensed professional counselor, 

licensed marriage and family therapist, or social worker, who 

provides mental health or medical services for rehabilitation of sex 

offenders. 

TEX. Oct. CODE ANN. 5 llO.OOl(7) (Vernon Supp.~2005). Prior to 2005, the Council maintained 

a voluntary registry of sex offender treatment providers who (1) met the Council’s criteria for the 

treatment of sex offenders and (2) provided mental health or medical services for the rehabilitation 

of sex offenders. Act of May 20,2003,78th Leg., ch. 1276,s 14.005(a), 2003 Tex. Gen. Laws 4158, 

‘See Letter from Honorable D. Matt Bingham, Smith County Criminal District Attorney, to Honorable Greg 

Abbott, Attorney General of Texas (Oct. 13, 2005) (on tile with the Opinion Committee, ako mailable af 

h~p://www.oag.state.tx.us) [hereinafter Request Letter]. 
The Honorable D. Matt Bingham - Page 2 (GA-0423) 

4309 (formerlycoditiedas TEX.OCC.CODEANN. § llO.OOl(4)). During the legislature’s lastregular 

session in 2005, it changed the Council’s mission from registering sex offender treatment providers 

on a voluntary basis to mandatory licensing. Act of May 25,2005,79th Leg., R.S., ch. 1089,2005 

Tex. Gen. Laws 3579. Thus, chapter 110 now provides: 

(a) A person may not provide a rehabilitation service or act as a sex 

offender treatment provider unless the person is licensed under this 

chapter. 

TEX. Oct. CODE ANN. 5 110.301(a) (Vernon Supp. 2005). 

You state that Smith County currently provides counseling to juveniles in the juvenile justice 

system through several counselors of different backgrounds: a licensed psychologist and diplomat 

in forensic psychology, a person licensed as a clinical social worker and as a professional counselor, 

a licensed master social worker, a licensed professional counselor intern, and a graduate student at 

the University of Texas at Tyler. See Request Letter, supra note 1, at 2. You ask whether the health 

care licenses that qualify a person as a sex offender treatment provider in section 110.001(7) 

constitute the license required in section 110.301(a). See id. at 4-5. 

We must construe statutes in context. See TEX: GOV’T CODE ANN. § 3 11 .Ol l(a) (Vernon 

2005). Consequently, we must consider section 110.301 in light of other sections of chapter 110 

governing the Council and sex offender treatment providers, particularly those that pertain to 

licensing. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486,493 (Tex. 2001) (“We should not give 

one provision a meaning out of harmony or inconsistent with other provisions .“). Chapter 110 

charges the Council with setting the standards that sex offender treatment providers must meet 

to be eligible for a license under the chapter. See TEX. OCC. CODE ANN. 5 110.151(2) (Vernon 

Supp. 2005). The Council has broad authority to adopt rules consistent with chapter 110 and has 

the specific duty to develop and implement license requirements by rule. See id. 55 110.152(2), 

,158, ,302 (Vernon 2004). Under section 110.301, a person must be licensed “under” chapter 110 

either to “provide a rehabilitation service” or to “act as a sex offender treatment provider.” Id. 

5 110.301(a) (Vernon Supp. 2005). A “rehabilitation service” is “a mental health treatment or 

medical intervention program designed to treat or remedy a sex offender’s mental or medical 

problem that may relate or contribute to the sex offender’s criminal or paraphiliac problem.” Id. 

5 llO.OOl(5). A person “act[s] as a sex offender treatment provider” when the person provides 

“mental health or medical services for rehabilitation of sex offenders.” Id. $5 110.001(7), .301(a). 

A person who does not have a license under chapter 110 and who provides a rehabilitation service 

or acts as a sex offender treatment provider may be liable criminally. See id. 5 110.401 (providing 

that violations of section 110.301 are a Class A misdemeanor). 

You state that several of the licensed professionals who are counseling juveniles for Smith 

County Juvenile Services meet the definition of a sex offender treatment provider in section 

110.001(7) but do not possess any additional license under chapter 110. See Request Letter, supra 

note 1, at 34. You suggest that the legislature likely did not intend to “provide an exclusive 

licensing program, to the exclusion of other licensing as provided for in section 110.001(7) of the 
The Honorable D. Matt Bingham - Page 3 (GA-0423) 

Occupations Code.” Id. at 4. Also, while you acknowledge that section 110.302 as revised “seems 

to contemplate the issuance of a license by the Council,” you note that the Council had not 

promulgated licensing rules as of the date of your request. Id. For these reasons, you perceive a 

conflict among sections 110.001(7) (defining a sex offender treatment provider), section 110.301 

(requiring a license), and 110.302 (requiring the Council to promulgate licensing rules). You 

propose that the conflict may be resolved by construing the provision in 110.301 that requires a 

person to be “licensed under this chapter” as referring to any of the health care licenses listed in 

section 110.00 l(7). Id. at 4-5. However, the plain language of the statutes does not support your 

construction. 

Sections 110.001(7), 110.301 and 110.302 do not conflict. Section llO.OOl(7) defines a 

person who is a sex offender treatment provider, not a licensed sex offender treatment provider. See 

TEX. Oct. CODE ANN. 3 llO.OOl(7) (Vernon Supp. 2005). The license required in section 110.301 

is the sex offender treatment provider license, not any of the various health care licenses listed 

in section llO.OOl(7). See id. 5 110.301. Physicians, psychiatrists, psychologists, professional 

counselors, marriage and family therapists, and social workers do not receive their respective 

professional licenses “under” chapter 110. See, e.g., id. $5 155.001 (license to practice medicine); 

501.25 1 (psychologist license); 503.301 (professional counselor license) (Vernon 2004). Chapter 

110 requires a person to have both a professional license and a sex offender treatment provider 

license before the person may render rehabilitation services or provide mental health or medical 

services for the rehabilitation of sex offenders. See id. §§ 110.001(7), .301(a) (Vernon Supp. 2005). 

We note that persons who held a registration issued under Chapter 110, Occupations Code, 

on the effective date of the 2005 legislation, September 1, 2005, are to be “considered to hold a 

license under Chapter 110, Occupations Code, as amended.” Act of May 25,2005,79th Leg., R.S., 

ch. 1089, $3 33, 36, 2005 Tex. Gen. Laws 3579, 3586-87. Thus, if any of the Smith County 

Juvenile Services professionals ~were registered with the Council on September 1, 2005, they are 

automatically deemed to be licensed sex offender treatment providers. For further guidance 

concerning the implementation of chapter 110, you should keep apprised of any rules as they are 

promulgated by the Council.* 

You suggest that if chapter 110 requires a separate license, it poses practical problems for 

professional counselors not licensed by the Council due to the scope of terms such as “rehabilitation 

service” and “sex offender.” Request Letter, supru note 1, at 4-5. A “rehabilitation service” is a 

“mental health treatment or medical intervention program designed to treat or remedy a sex 

offender’s mental or medical problem that may relate or contribute to the sex offender’s criminal 

or paraphiliac problem.” TEX. OCC. CODE ANN. 3 110.001(5) (Vernon Supp. 2005) (emphasis 

added). A “sex offender” is not only a person who has been convicted of or received deferred 

adjudication for a sex crime, but also a person who admits to violating a state or federal law 

regarding sexual conduct or who “experiences or evidences a paraphiliac disorder as defined by the 

Revised Diagnostic and Statistical Manual.” Id. § 110.001(6)(A)-(D). Thus, you conjecture that 

‘We note that the Council has proposed rules concerning various categories of licenses and licensing 

requirements. See 31 Tex. Reg. 209,234-64 (proposed Dec. 30,200s) (Council on Sex Offender Treatment). 
The Honorable D. Matt Bingham - Page 4 (GA-0423) 

a professional counselor who is not licensed by the Council and is treating a condition such as 

substance abuse may have to terminate treatment if the patient admits a past sex crime or evidences 

a paraphiliac disorder. See Request Letter, supra note 1, at 4-5. You also suggest that such a 

counselor should be granted a measure of discretion to determine if treatment for a problem such as 

substance abuse should continue. See id. at 5. 

We agree that the respective definitions of .the terms “rehabilitation service” and “sex 

offender” are markedly broad, but the “wisdom or expediency of the law is the Legislature’s 

prerogative,” Smiths. Davis, 426 S.W.2d 827,. 831 (Tex. 1968). Under section 110.001(5), aperson 

must be licensed under chapter 110 to provide mental health treatment or administer a medical 

intervention program to treaty or remedy a sex offender’s mental or medical problem if it “may 

relate or contribute to the sex offender’s criminal or paraphiliac problem.” TEX. OCC. CODE ANN. 

5 1 lO.OQl(5) (Vernon Supp. 2005). Whether the patient is a “sex offender” as defined, and whether 

the treatment or program is for a problem that “may relate or contribute to” the offender’s criminal 

or paraphiliac problem is a matter for the treating professional’s determination in the first instance. 

But the professional must exercise the discretion to make that determination within the confines 

of chapter 110’s express terms and the rules promulgated by the Council. See id. @ 110.001(5), 

(7), ,401. 
The Honorable D. Matt Bingham - Page 5 (GA-0423) 

SUMMARY 

Chapter 110 of the Occupations Code requires a person to 

have one of the professional licenses listed in section 1 lO.OOl(7) as 

well as a sex offender treatment provider license under section 

110.301(a) before the person may render rehabilitation services or 

provide mental health or medical services for the rehabilitation of sex 

offenders. A person who was registered as a sex offender treatment 

provider as of September 1, 2005, is considered to hold a license 

under chapter 110. Whether the patient is a “sex offender” as defined 

and whether the treatment or program is for a problem that “may 

relate or contribute” to the offender’s criminal or paraphiliac problem 

is a matter for the treating professional’s determination within the 

bounds of chapter 110’s express terms and the rules ofthe Council on 

Sex Offender Treatment. 

’ Attom&&eral of Texas 

BARRY R. MCBEE 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

William A. Hill 

Assistant Attorney General, Opinion Committee