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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION – DISTRICT COURT

Mr. Michael Moates, MA, QBA, LBA, 

Plaintiff

v.

Michael Arismendez, in his capacity as Executive 

Director of the Texas Department of Licensing and 

Regulation;

Texas Department of Licensing and Regulation; and

Behavior Analyst Certification Board;

Case No.: 4:22-cv-00262-P-BJ 

MOTION FOR PRELIMINATY 

INJUNCTION

* WE ASK THE COURT TO WAIT TO RULE ON THIS MOTION UNTIL THE PARTIES HAVE BEEN 

SERVED IN ACCORDANCE WITH THE FEDERAL RULES OF CIVIL PROCEEDURE *

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A. BACKGROUND AND FACT OF CASE

1. The issue at controversy began on June 15, 2017, when Governor Greg Abbott signed a bill approving a 

new law requiring behavior analysts to be licensed in the State of Texas. The Bill SB 589.

2. Michael Moates is Chairman and Executive Director of the Global Institute for Behavior Practitioners and 

Examiners. He is a triple board-certified/licensed behavior analyst by the Qualified Applied Behavior 

Analysis Credentialling Board (QABA), Virginia Board of Medicine (VBM), and International Behavior 

Analysis Organization (IBAO). See Exhibit A, B, and C. Mr. Moates has been in the field of behavior 

analysis and psychology since 2015 working in home-based, center-based, school-based, and psychiatrichospital based programs using the techniques of Applied Behavior Analysis (ABA). He holds a Bachelor of 

Science with a primary concentration in Psychology from Tarleton State University, Master of Arts with a 

primary area of study of Psychology and is in the dissertation phase of his Doctor of Education. He 

achieved candidacy for the Doctor of Education in 2021. He is also a Qualified Mental Health Professional 

– Trainee by the Virginia Board of Counseling and Qualified Mental Health Professional – Registered by 

the Mental Health and Addictions Certification Board of Oregon. He was recently appointed as an adjunct 

instructor at the first tuition-free accredited university in the United States, University of the People. Mr. 

Moates also serves on the Student Health Advisory Committee in the Eagle Mountain Saginaw 

Independent School District. He holds a certificate in Accreditation Evaluation from the Distance 

Education Accreditation Commission (DEAC) (a university accreditation board recognized by the US 

Department of Education). Finally, Mr. Moates is a member of the Christian Counselors of Texas, Alonso 

Center for Psychodynamic Studies, and Carnegie Project on the Educational Doctorate.

3. The Plaintiff began working toward certification in 2015 and has worked in the field for over 10 years.

4. This entire case stems from 3 statutory problems. First, under OC 506.002(2), "Certifying entity" means the 

nationally accredited Behavior Analyst Certification Board or another entity that is accredited by the 

National Commission for Certifying Agencies or the American National Standards Institute to issue 

credentials in the professional practice of applied behavior analysis and approved by the department.” 

Second, under OC 506.256 which allows for reciprocity it does not specify what “license requirements 

similar” is. Finally, the statute gives the department to authority to approve 3rd party entitles outside of the 

Behavior Analyst Certification Board. But neither the statute, nor the department rules layout a process by 

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which someone can petition for approval. Nor is there a policy determining the process, timeframe, or 

application for alternative certification. This is clearly needed since the department has taken over a year to 

consider certification and has suspended all future meetings on the matter. Because there is no time limit 

this allows the government to engage in an unlimited restrain of due process. Respectfully, I ask this court 

to say that over a year is enough time. In addition, I provide evidence to the court that both Qualified 

5. On 30 November 2021, Mr. Moates reaches out to the Texas Department of Licensing and Regulation to 

find out what he will need to do to apply for licensure in the State of Texas as a Behavior Analyst after 

passing the Qualified Behavior Analyst (QBA) exam offered by QABA. QABA is accreted by the ANSI 

National Accreditation Board. See Exhibit D. Katie Brice “Senior Program Specialist” emailed Mr. Moates 

stating “Thank you for contacting Texas Department of Licensing and Regulation (TDLR). The QASP-S 

credential issued by QABA is ANSI accredited for autism services, not for applied behavior analysis. 

BACB is the only approved certifying entity in Texas for licensure as a behavior analyst or assistant 

behavior analyst. If you have other questions, please let me know.” See Exhibit E. It is important to note 

that Mrs. Brice’s statement was inaccurate. In fact, they noted this in a filing with the Virginia Board of 

Medicine where the state, “ANSI National Accreditation Board recommended that “QABA certification 

programs accredited by ANAB be included in the licensing of Applied Behavior Analysis.1” ANAB = 

ANSI National Accreditation Board. ANSI is an acceptable accreditation board by statute. See OC Section 

5006.002 (2) under certifying entities. However, despite her inaccuracies, this did not answer Mr. Moates’ 

question as he was calling to inquire about the QBA not the QASP-S credential. Mr. Moates inquired again 

and on 9 December 2021, TDLR via Heather Muehr, Manager of the Medical and Health Professions 

Section, replied to Mr. Moates letting him know that the QBA was under review, and they had been 

reviewing the QBA credential since 26 February 2021. See Exhibit F. Since that day on the 26th, the 

Behavior Analyst Advisory Board has not met to discuss this issue (as of 29 March 2022). This is a 

violation of the Texas Administrative Code Rule 121.69 (a) which states “The advisory board shall meet at 

least twice each year and at the call of the presiding officer of the commission or the executive director.” 

The board has not met in over a year. COVID 19 is no excuse as many of the other TDLR boards have met 

1 https://townhall.virginia.gov/L/viewcomments.cfm?commentid=121046

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and given the ability to meet remotely. In the 9 December 2021 letter, TDLR notifies Mr. Moates that there 

are no future meetings of the Behavior Analyst Advisory Board scheduled, essentially indefinitely halting 

review of the QABA credentials. Something to keep in mind here, when the legislature wrote the law, they 

did not intent for the behavior analyst advisory board to approve the certification, they intended for the 

department to review and make a determination. We know this because it started with the behavior analyst 

advisory board2 but then the legislature intentionally changed the language to make it the responsibility of 

the department3.

6. On 22 December 2022, Mr. Moates passes the QBA psychometric exam accredited by the national 

American National Standards Institute. At this point, Mr. Moates has verified his degree, 270 hours of 

behavior analysis coursework, federal and state background check, and on that day is issued the QBA 

credential. On this same day, Mr. Moates attempts to apply for behavior analyst licensure in the State of 

Texas. However, Mr. Moates is denied the right to apply for licensure because TDLR website DOES NOT 

allow anyone to apply unless they are credentialed by the Behavior Analyst Certification Board. Since Mr. 

Moates was unable to apply, he was also not afforded his due process rights under the law.

7. On 14 January 2022, after numerous requests for help on the issue regarding application, TDLR finally 

responds nearly 3 weeks later to tell Mr. Moates that he will not be treated the same as every other 

applicant. That he must take the extra steps of printing out an application, going to the bank, requesting a 

check, and then mailing it to TDLR. This is even though every other applicant is allowed to apply and pay 

online. This requirement of mailing also delayed Mr. Moates’ application. In that same letter on 14 January 

2022 (the Plaintiff birthday), Mrs. Brice notes “Please note that only the Board Certified Behavior 

Analyst® (BCBA®) or Board Certified Behavior Analyst-Doctoral® (BCBA-D®) credentials are currently 

accepted for behavior analyst licensure in Texas. The Behavior Analyst Advisory Board will be discussing 

the QBA® and QASP-S® credentials, issued by QABA®, at a future board meeting and may make a 

recommendation to the Executive Director to approve or deny approval of these credentials for licensure. 

The date for this meeting has not been set.” See Exhibit E. This in effect told the Plaintiff 1) that they had 

2 https://legiscan.com/TX/text/SB589/id/1478094

3 https://legiscan.com/TX/text/SB589/id/1599953

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indefinitely put the evaluation on hold and 2) That his application would be denied without consideration 

given the fact that they have now said in writing that they will not accept his certification. 

8. On 31 January 2022, after being called out for not holding any meetings as required by the TAC, TDLR 

notifies the public or a proposed rule change4that would remove the requirement of 2 meetings by the 

Behavior Analyst Advisory Board per year. Further showing the intent of TDLR to indefinitely delay board 

meetings5.

9. On 2 February 2022, Mr. Moates attempts to file litigation in with the State District Court in Denton 

County, Texas. However, that filing is returned and not accepted because of the need for a final correction. 

Further, Mr. Moates decided that the federal courts were better for determine federal issues. Since Mr. 

Moates works in Fort Worth that is the Northern District of Texas Fort Worth Division. The following day, 

counsel for TDLR Elizabeth Salinas-Strittmatter reached out to Mr. Moates, stating to have the department 

served and that they would “not engaging in any further issues about the issues in controversy.”

10. On 8 February 2022, Mr. Moates files his first request under the Texas Public Information Act. This 

request is made requesting documents related to this issue at hand. It was directed at documents that had to 

do with various credentialing boards and the process by which TDLR was considering them for licensure.

11. Despite the above statement, Mrs. Salinas-Strittmatter sets up a meeting with Plaintiff Moates on 14 

February 2022. They discuss the issue but do not come to a resolution. At this meeting, Mrs. SalinasStrittmatter informs Mr. Moates that they are waiting on QABA to return documentation. This 

subsequently was discovered to be not true. In fact, when Mrs. Salinas-Strittmatter made this statement, 

TDLR had not even sent the documentation to QABA. They sent the questions they had that day. TDLR 

mislead the Plaintiff into believing that QABA was at fault when TDLR had not done its due diligence. In 

addition, Mrs. Salinas-Strittmatter had now mislead Plaintiff Moates twice. She sends up a follow up email 

now redirecting him to another individual.

4https://www.sos.texas.gov/texreg/archive/February42022/Proposed%20Rules/16.ECONOMIC%20RE

GULATION.html#62

5https://www.sos.state.tx.us/texreg/archive/January282022/Proposed%20Rules/16.ECONOMIC%20R

EGULATION.html#19

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12. On 15 February 2022, the Virginia Board of Medicine issues the Licensed Behavior Analyst credential to 

Plaintiff Moates pursuant to Virginia statutes. That same day, Plaintiff Moates reaches out to Mrs. SalinasStrittmatter to ask about reciprocity under the Texas Behavior Analysis Law Section 506.256.

13. On 24 February 2022, the department tells Plaintiff Moates he does not qualify for reciprocity because they 

have still after a year not determined whether they are going to accept the QBA credential for licensure. At 

this point, the still don’t have a meeting scheduled with the Behavior Analyst Advisory Board to discuss 

this. At this same time, Plaintiff Moates filed a Petition for Rules Change to include QABA as a certifying 

entity.

14. On 7 March 2022, Plaintiff Moates requested communications regarding the documents TDLR was using 

to consider the QBA certification. They failed to respond within the 10-day period as required by law. 

Further, after being reminded the Friday before. They then tried to walk it back and say that they needed 

clarification after the deadline had passed. Under TAC Rule 70.11(6)(a), failure to request an attorney 

general opinion within 10 days “will result in a presumption that the information is open6”

15. On 24 March 2022, TDLR responds to Plaintiff Moates’ 8 February 2022 Public Information Act Request 

with a document drop and exception request they send to the Texas Attorney General. The exemptions they 

claim are attorney-client privilege, pending litigation (which at this point is not filed), and internal 

communications. It is however important to note that TDLR withheld documents that it did not seek an 

exemption for in violation of the law. The documents I am referencing are questions sent to QABA on 14 

February 2022. These questions and communications would not be covered by attorney-client privilege 

because they are between two non-attorneys Mrs. Brice and Hollie Benincosa of QABA. They are not 

internal documents and finally, they are not related to litigation. So why TDLR was dishonest for the third 

time since this ordeal began is beyond the Plaintiff. But in the letter the Defendant sent to the Attorney 

General, they state that they need to withhold documents because it “would reveal information that would 

damage TDLR’s position at this juncture.” The Plaintiff would ask this court to find out why TDLR is 

engaging in a campaign of mis-information, dishonesty, cover-ups, and constant delays.

6https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_p

loc=&pg=1&p_tac=&ti=1&pt=3&ch=70&rl=11

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16. On 27 March 2022, after numerous delays, and at the request of the department, Plaintiff Moates edits their 

application template, fills it out, and mails it to them via FedEx. This is despite Katie Brice saying “Please 

note that only the Board Certified Behavior Analyst® (BCBA®) or Board Certified Behavior AnalystDoctoral® (BCBA-D®) credentials are currently accepted for behavior analyst licensure in Texas. The 

Behavior Analyst Advisory Board will be discussing the QBA® and QASP-S® credentials, issued by 

QABA®, at a future board meeting and may make a recommendation to the Executive Director to approve 

or deny approval of these credentials for licensure. The date for this meeting has not been set” on 14 

January 2022.

D. FUTHER FACTS THE PLAINTIFF ASKS THE COURT TO CONSIDER

17. The 10th Amendment gives the powers not delegated to the United States to the states, not corporations 

such as the Behavior Analyst Certification Board or the Association of Professional Behavior Analysts. The 

government should be required to do its job rather than outsource to one corporation. If the state chooses 

not to retain its right the Constitution does not say the rights, then get transferred to a 3rd party 

corporation... it says just the opposite “reserved to the States respectively, or to the people.”

18. There is an emergent need for additional ABA providers. Licensed Behavior Analysts take on an average 

case load of 15 clients at the maximum. There is a total of 3,577 behavior analysts in Texas (Licensing List 

sent to Plaintiff from TDLR). In Texas, 201,617 minors have Autism,7that means that currently in order to 

offer ABA to just student with Autism behavior analysts would have to take on a caseload of 56 clients. 

Currently of the 201,617 students with Autism, if the average behavior analyst took a normal case load of 

15, only 53,655 students would receive care. This doesn’t even consider other behavior analysis specialties 

that treat ADHD, PTSD, Addiction, Gambling, Sexual Addiction, etc. We are short. There are long waiting 

lists and this is a crisis. 

19. The Behavior Analyst Certification Board and its academic accreditation arm the Association for Behavior 

Analysis International (who accredits its programs) are affiliated and continue to allow the certification of 

multiple behavior analysts in Canton, Massachusetts at the Judge Rotenberg Center which shocks minors 

7 https://www.hhs.texas.gov/sites/default/files/documents/laws-regulations/reportspresentations/2020/texas-autism-council-report-april-2019.pdf

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with maladaptive behaviors sending an electrical current through their body8. I implore the court to watch 

the videos attached in this footnote9. The United Nations designated this torture. When our Lord and Savior 

Jesus Christ was on the cross, he was tortured and then crucified before being killed. Plaintiff Moates is 

firmly against torture of any kind. He believes that because TDLR refuses to evaluate alternatives they are 

attempting to force Plaintiff Moates to associate with the BACB in violation of his First Amendment right 

against government interference of religion. Further, it is a violation of his freedom to associate. See 

NAACP v. Alabama. This can never be cured because the BACB at this time is aware of it and has taken 

no action. Even if the BACB took action today, the Plaintiff would not by definition of his religion be able 

to associate with an organization that condoned torture for even a short time.

20. In a similar case, Time Warner Cable Inc. v. Hudson, 667 F.3d 630, 636 (5th Cir. 2012) (“When the 

government targets certain speakers for the exclusion of benefits bestowed on similar parties, “no further 

showing of suffering based on that unequal positioning is required for purposes of standing.” Hudson, 265 

Fed.Appx. at 218; see also Lujan, 504 U.S. at 561–62, 112 S.Ct. 2130.”) Here there an alternative to the 

Behavior Analyst Certification Board. These include Qualified Applied Behavior Analysis Credentialing 

Board, International Behavior Analysis Organization, and Behavior Intervention Certification Council. This 

alone is enough to find that TDLR is in violation of the law. Here, the Plaintiff, is being told that he must 

operate in the way that the BACB deems acceptable and that includes various previsions of speech, 

religion, association, etc. For example, the BACB has an ethics code and in the ethics code it holds 

individuals responsible for public statements. This is under Section 5. By limiting speech, the BACB has 

engaged in censorship under the First Amendment by virtue of their status as a de facto government 

agency. Taking it a step further, because TDLR refuses to approve other agencies, they are also limiting 

speech by saying that you can only be a behavior analyst if you confirm to their standards. Finally, the 

legislature is in violation of the Constitution by stating that you must be in compliance with this policy in 

the statute.

8 https://www.wbur.org/hereandnow/2021/08/12/shock-treatment-school-disability

9 https://www.youtube.com/watch?v=Ko-ip3MImik

https://www.youtube.com/watch?v=-aUIhWmDPeI

https://www.youtube.com/watch?v=PUhPMNdnOW8

https://www.youtube.com/watch?v=A7hklHN-qqY

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21. The behavior analyst statute restricts the term behavior analyst to those licensed or those exempt. The term 

licensed behavior analyst is restricted to those licensed. However, the 5th Circuit Court of Appeals ruled in 

Serafine v Branaman, et al that “Thus, assuming arguendo that the speech of professionals can be 

regulated incidentally to a valid licensing scheme, Justice White’s concurrence suggests that such 

restrictions―to avoid running afoul of the First Amendment―are properly confined to occupationalrelated speech made to individual clients.” Meaning the state cannot restrict the term outside of those who 

acting within occupational speech made to clients. The court continues “Any interest the government can 

claim in protecting clients from manipulation or exploitation by a psychotherapist fails when the 

psychotherapist is no longer speaking to the client in her capacity as such.” Thus, the restriction of the term 

behavior analyst outside of a direct client relationship is illegal. This is important because TDLR had 

previously told the Plaintiff he could not use the term based on his license from Virginia in the meeting 

with attorneys. However, Plaintiff disputes that if he is not speaking to a client that the statute would be 

unconstitutional.

22. The Civil Rights Act of 1964 outlaws’ discrimination based on race, color, religion, sex, national origin, 

and later sexual orientation and gender identity. However, the BACB has a clear history of discrimination 

policies that lead to the minority being unable to get certified and therefore licensed. 85% of certified 

people are female with just over 13% of certified people, male. 0.38% are American Indian/Natives. 6.61% 

are Asian. 9% of Behavior Analysts are African American. 21% are Hispanic10. This is a real problem for 

disadvantaged communities and people who prefer a male analyst in healthcare. The BACB used to certify 

analysts globally. The no longer do and are even cutting down on the international community. This means 

individuals who want to practice internationally will be unable to because they cannot under any 

circumstances become certified. This includes military families and families of the State Department.

23. Again, pursuant to the Civil Rights Act of 1974, the government is not allowed to discriminate based on 

disability. However, that is exactly what the BACB has done. 72% of its certified are practitioners in the 

field of autism spectrum disorder and 10% choose not to identify. That leaves 12% of individuals to work 

in other fields. The BACB is a mainly Autism focused agency. This is discriminatory against individuals 

10 https://www.bacb.com/bacb-certificant-data/

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who wish to utilize behavior analytic services for other intellectual, learning, personality, and cognitive 

disabilities. Not only are there few qualified practitioners in other areas but without supervisors in other 

areas, the number of practitioners in other areas will not grow. To put it into perspective:

Number of Behavior Analysts Certified by the BACB in the United States of America:

Sports/Fitness – 39 Organizational - 365 Education - 6701

Public Policy – 49 Research - 19 Corrections - 49

Supervision - 177 Intellectual Disability - 2734 Child Welfare - 99

Parent Training - 493 Higher Education - 642 Pediatrics - 458

Clinical Behavior Analysis - 1762 Gerontology - 62 Addiction – BACB Doesn’t Track

Animal - BACB Doesn’t Track Prevention Behavior - BACB Doesn’t 

Track

Life Coaching - BACB Doesn’t Track

Non-Profit - BACB Doesn’t Track LGBTQ - BACB Doesn’t Track Learning Disability - BACB Doesn’t 

Track

Sexual Behavior - BACB Doesn’t 

Track

Environment Preserv - BACB Doesn’t 

Track

Security Analysis - BACB Doesn’t 

Track

24. The above makes a good next point. The BACB only allows its BCBA’s or specialty certified psychologists 

to provide supervision of technicians, and aspiring analysts. This creates problems for other supervisors 

who have behavior analysis in their scope of practice such as medical doctors practicing psychiatry. They 

by law have this in their scope of practice, yet they cannot supervise technicians.

25. Most professions of mental health if not all are regulated by the states and not external certification boards. 

The top 6 mental health fields are medicine, psychology, counseling, social work, marriage and family 

therapy, and chemical dependency. While some states may require an applicant to pass a board exam, 

certification is not usually a requirement of licensure. But the BACB will not allow individuals to take their 

exam unless they plan to get certified. Further none of the above fields require certification in Texas to be 

licensed.

26. Texas defines the practice of behavior analysis as:

a. (a) The practice of applied behavior analysis is the design, implementation, and evaluation of 

instructional and environmental modifications to produce socially significant improvements in 

human behavior.

b. (b) The practice of applied behavior analysis includes the empirical identification of functional 

relations between behavior and environmental factors, known as functional assessment or 

functional analysis.

c. (c) Applied behavior analysis interventions:

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i. (1) are based on scientific research and the direct observation and measurement of 

behavior and environment; and

ii. (2) use contextual factors, motivating operations, antecedent stimuli, positive

reinforcement, and other procedures to help individuals develop new behaviors, increase 

or decrease existing behaviors, and elicit or evoke behaviors under specific 

environmental conditions.

d. (d) The practice of applied behavior analysis does not include:

i. (1) psychological testing, psychotherapy, cognitive therapy, psychoanalysis, 

hypnotherapy, or counseling as treatment modalities; or

ii. (2) the diagnosis of disorders.

27. The state has carved out various exemptions. However, it has missed so many things. Here are a few 

examples of those practicing in accordance with the above definition and by virtue of practicing are in 

violation of the law:

a. Prison Guards – They have someone in a different environment, they attempt to modify their 

behavior and rehabilitate prisoners. Prisoners are punished for bad behavior and rewarded for good 

behavior. Prison Guards do not have a scope of practice that includes Applied Behavior Analysis.

b. Psychiatric Technicians – While behavior technicians under the supervision of a Licensed

Behavior Analyst (BCBA), those implementing psychiatric behavior analysis at a mental hospital 

are doing so under a psychiatrist and are not covered by the law. The psychiatrist would be 

covered by the law, but the technicians are not licensed in the State of Texas and therefore would 

not be exempt from the implementation of behavior analytic services.

c. Federal Behavior Analysts – Members of the FBI’s NCAVC Behavior Analysis Unit get requests 

from federal, state, local, and international law enforcement and some days can be in a state for 

many days. Under Section B above, they would only be covered for 20 days and that is assuming 

they are licensed in another state. Most empirical behavior analyst do not require licensure.

28. QABA is approved by the following:

a. Approved by Statute:

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i. State of Alaska – (via Sec. 08.15.20 with Board Approval 

https://www.commerce.alaska.gov/web/Portals/5/pub/BehaviorStatutes .pdf)

ii. State of Indiana – (via Sec. IC 25-8.5-3 with Committee Approval -

http://iga.in.gov/legislative/laws/2021/ic/titles/025/#25-8.5-3-1)

iii. State of Kansas – (via Sec 65-7502 with Agency Approval -

https://www.ksrevisor.org/statutes/chapters/ch65/065_075_0002.html) 

iv. State of Louisiana – (via SB 134 with Board Approval - https://lababoard.org/wpcontent/uploads/Laws-act351.pdf)

v. State of Massachusetts – (via 262 CMR 10 with the Passing of a Board Approved Exam -

https://www.mass.gov/doc/262-cmr-10-requirements- for-licensure-as-an-appliedbehavior-analyst-and-assistant- applied/download) vi. State of Missouri – (via Section 

337.300 - https://revisor.mo.gov/main/OneSection.aspx?section=337.300)

vi. State of North Dakota - (via Section 43-64-05 -

https://www.ndlegis.gov/cencode/t43c64.pdf#nameddest=43-64-03)

vii. State of Ohio - (via Section 4783.04 https://codes.ohio.gov/ohio-revised- code/section4783.04)

viii. State of Oregon – (via Chapter 824 

https://secure.sos.state.or.us/oard/displayChapterRules.action?selected Chapter=197)

ix. State of Rhode Island (via 5-86-9 http://webserver.rilin.state.ri.us/Statutes/TITLE5/5-

86/5-86-9.htm)

x. State of Virginia - (via 54.1-2957 

http://www.dhp.virginia.gov/media/dhpweb/docs/med/leg/Ch29_Medic ine.pdf) xii. State 

of Wyoming – (via 22LSO-0341 https://www.wyoleg.gov/2022/Introduced/HB0110.pdf)

b. Approved by Policy:

i. Department of Defense – Military Health Service (TRICARE Operations Manual 

6010.59-M https://manuals.health.mil/pages/DisplayManualHtmlFile/2021-03-

26/AsOf/TO15/C18S4.html)

c. Approved via Reciprocity:

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i. State of Connecticut – (via Sec. 191 - https://portal.ct.gov/DPH/Practitioner-Licensing--

Investigations/Behavioral-Analyst/Practice-Act)

ii. State of Hawaii – (via Sec. 465 with Director Approval -

https://www.capitol.hawaii.gov/hrscurrent/Vol10_Ch0436-

0474/HRS0465D/HRS_0465D-0009.htm)

iii. State of Indiana – (via Sec. IC 25-8.5-3 with Committee Approval -

http://iga.in.gov/legislative/laws/2021/ic/titles/025/#25-8.5-3-1)

iv. State of Massachusetts – (via 262 CMR 10 - https://www.mass.gov/doc/262-cmr-10-

requirements-for-licensure-as- an-applied-behavior-analyst-and-assistantapplied/download)

v. State of Missouri – (via Section 337.300 -

https://revisor.mo.gov/main/OneSection.aspx?section=337.300)

vi. State of Nevada – (via NRS 437.215 https://www.leg.state.nv.us/NRS/NRS437.html#NRS437Sec215)

vii. State of Tennessee – (via 63-11-311 

https://advance.lexis.com/documentpage/?pdmfid=1000516&crid=0967 3bc1-20dd-4ec4-

ab1c-84bcbf06671e&nodeid=ACKAALAADAAL&nodepath=%2FROOT%2FACK% 

2FACKAAL%2FACKAALAAD%2FACKAALAADAAL&level=4&haschildren=&p 

opulated=false&title=63-11-

311.+Reciprocal+licensing.&config=025054JABlOTJjNmIyNi0wYjI0LTRjZGE 

tYWE5ZC0zNGFhOWNhMjFlNDgKAFBvZENhdGFsb2cDFQ14bX2GfyBTaI9 

WcPX5&pddocfullpath=%2Fshared%2Fdocument%2Fstatuteslegislation%2Furn%3AcontentItem%3A5CD7-JJM0-R03K-W39V-00008-

00&ecomp=5g1_kkk&prid=1d8f06a6-ea35-4e68-8377-781eb7269b1f)

29. QABA is accredited by ANSI National Accreditation Board (ANAB).

30. The QABA website is offered in 13 different languages supporting people around the world. Same with the 

coursework and exams. They are offered across the world to diverse backgrounds including both men and 

women of color.

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31. QABA International Standards Committee represents the United States, Spain, Philippines, Africa, Nigeria, 

Ecuador, South Korea, India, Brazil, Czech Republic, Peru, Japan, Pakistan, Egypt, UAE, Poland, Kenya, 

and Saudi Arabia.

32. QABA has a code of ethics and a complaints process. 

33. QABA requires a federal and state background check for all certified individuals, the BACB does not 

require this for analysts.

34. The Court can see a side-by-side comparison of the BCBA and QBA as Exhibit G. We note to the court this 

is as of December 2021 when the petitioner sought licensure from TDLR.

35. The TDLR Behavior Analyst Advisor Board has not met in over a year since 26 February 2021.

36. TDLR continues to engage in delay tactics. They have been considering the QBA since 26 February 2021. 

They have been considering the QASP-S since 2020. They did deny the QASP-S stating that it was an 

“Autism certificate” and while the coursework includes Autism this is just an additional component of the 

behavior analysis coursework. It is not Autism specific as noted by the accreditation board ANSI above.

37. TDLR has not been truthful and has given mis-information or omitted information required by law.

38. TDLR is violating not only the law but also the Texas Administrative Code and its own rules.

39. TDLR has conspired with the BACB and various other entitles to block other certification types using the 

BACB’s private email database that is not open to the public.

40. TDLR has been dishonest. According to the email from Katie Brice, the BCBA and BCBA-D are the only 

credentials accepted for licensure. That is clearly not true. Pursuant to a public information act request, the 

department provided the Plaintiff with a spreadsheet of all Licensed Behavior Analysts and when you 

delete the assistants and the expired, you get 3,393. But according to the Behavior Analyst Certification 

Board there are 2,877 BCBA’s and 121 BCBA-D’s11. That totals 2,998. So where do the other 516 

Licensed Behavior Analysts come from? So, either TDLR or the BACB is being dishonest. If TDLR, they 

have given inaccurate information responsive to a PIA request or have failed to check certification. Either 

way this is not good. 

41. The Plaintiff notes all parties are in violation of TFEAA of 1983 Sec. 15.05(a) and that while the 

government entities are not subject to the Texas Free Enterprise and Antitrust Act of 1983(b forward) the 

11 https://www.bacb.com/services/o.php?page=101135&s=1

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BACB and APBA are. These two Defendants engaged in a civil conspiracy to restrict trade. There are 5 

elements to this. 1) Two or more people. The BACB and APBA and various other state entities including 

Texas. 2) Attempted to restrict the practice of behavior analysis to the BACB credentials only. 3) They met 

privately behind closed doors numerous times via a private email exchange where they communicated 

about restricting trade. 4) It was unlawful under the Texas Free Enterprise and Antitrust Act of 1983. 5) 

Plaintiff continues to suffer damages including loss of income, inability to obtain license, loss of due 

process, etc. Information about this private email server can be viewed on the BACB’s website12. They 

only allow governments to communicate with them in it. They call it the Licensure Exchange Listserv. The 

Texas Administrative Code remains at odds with this law as it restricts trade and commerce under section 

(a) making it illegal. They are also in violation of 15 USC 2 the Clayton Act.

42. Further, the attorney general’s office has a checklist on their website that defines collusion with regards to 

anti-trust regulation13. Here are the red flags that apply:

a. The BACB defines the licensing market

b. Tight Regulation make it impossible to substitute the BACB

c. The legislature pulled the law from APBA directly14

d. The BACB and APBA colluded on the legislation15

e. APBA was set up to per its website “Although the Behavior Analyst Certification Board, Inc. is an 

international organization concerned with professional interests, it is a credentialing body rather 

than a membership organization, and is constrained in its involvement in certain activities by 

virtue of its mission and its 501(c)(3) nonprofit status.” Literally created to do what the BACB 

cannot legally do. APBA brags that it “it works closely with the BACB.”

43. The Plaintiff asks the court to note that what has happened is unprecedented in this state. As far as the 

Plaintiff can tell there is no other licensure that requires certification from one board. The Plaintiff 

12 https://www.bacb.com/for-regulators/

13https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/antitrust/AntitrustCollusionFactSheet.pdf

14 https://www.apbahome.net/resource/resmgr/pdf/APBA_ModelLicensureAct_Aug20.pdf

15 https://www.bacb.com/for-regulators/

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reviewed the psychology, medical, social work, professional counseling, marriage and family therapy, and 

chemical dependency statutes and not a single one requires certification by a board. 

44. Also, to be transparent with the court, the Plaintiff has filed complaints with the FTC, FDA, IRS, 

Department of Justice, NCCA, etc. alleging anti-trust violations, inhumane treatment, non-profit violations, 

etc.

B. ARGUMENT OF BEHALF OF PLAINTIFF FOR LIKELYHOOD OF SUCCESS ON 

THE MERITS

45. In West Virginia State Board of Education v. Barnette (1943), ruled that state governments cannot compel 

someone engage in forced speech because there are various First Amendment protections that can be 

invoked. Justice Jackson said it best saying, “If there is any fixed star in our constitutional constellation, it 

is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or 

other matters of opinion or force citizens to confess by word or act their faith therein.”

46. In a more recent case, Rumsfeld v. Forum for Academic and Institutional Rights (2006), Chief Justice 

Roberts stated, “Some of this Court’s leading First Amendment precedents have established the principle 

that freedom of speech prohibits the government from telling people what they must say.”

a. Forced speech outside of professional work is unconstitutional regardless of what your title or 

status is. If you are not acting within your profession, the government nor a 3rd party can 

determine what you are allowed to say. But that is what the government and BACB are attempting 

to do by enforcing an ethics code that goes beyond the scope of practice of behavior analysis and 

rather seeks to limit speech outside of the practice. See the Behavior Analyst Certification Boards’ 

ethics code, the section titled Public Statements by Behavior Analysts16. You will not stop being a 

behavior analyst simply because you are not working.

47. In the Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), the court ruled that 

individuals nor groups could not be forced to associate with other groups.

a. The government has done that here. Either the Behavior Analyst Certification Board is the only 

certification board by statute, or the government has made is the only approved entity by refusing 

16 https://www.bacb.com/wp-content/uploads/2022/01/Ethics-Code-for-Behavior-Analysts-220316-

2.pdf

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to adopt alternatives. Further, the various governments have created administrative rules that block 

other entities.

48. In Healy v. James (1972), similarly, a college refused to recognize an organization. The court ruled, “The 

courts erred in (1) discounting the cognizable First Amendment associational interest that petitioners had in 

furthering their personal beliefs...”

a. Where various other very similar organizations exist, the Plaintiff argues that the government 

cannot refuse to recognize a particular organization. Further, the Plaintiff argues that this must be 

done within a reasonable amount of time and that over a year is not a reasonable amount of time.

49. In Boy Scouts of America v Dale (2000), the Supreme Court ruled that the government cannot force private 

entities to associate with particular persons. This creates a major problem because if the Behavior Analyst 

Certification Board were to refuse to associate with someone, they would in turn not be able to get a 

license. Further, the Behavior Analyst is not subject to the due process requirements as the government is.

a. The Behavior Analyst Certification Board has already accused the Plaintiff of trademark 

infringement via a threat of legal action from their attorney. They could willingly choose not to 

associate with the Plaintiff thereby creating an issue where he cannot get licensed. Further given 

religious differences, speech differences, etc. the Plaintiff has no intentions of associating with the 

BACB. 

50. In Janus v AFSCME (2018), the Supreme Court ruled that the government cannot force someone to pay 

fees to a labor union because it would violate their First Amendment rights. Similarly, here, the government 

cannot force someone to pay fees to the Behavior Analyst Certification Board for certification and related 

fees because it would violate their First Amendment right to free speech. 

51. In Franklin v State (1971), that vague language was stricken down because it was “unconstitutional for 

vagueness and uncertainty in its language, violating constitutional due process to the defendants.”

52. Papachristou v. Jacksonville (1972) and Kolender v. Lawson (1983), the court ruled that laws that gave 

police vague determination was “void for vagueness” Here, similarly, the law in various states, does not 

give effective notice about what certification boards would be allowed. Further, if one starts the process 

with one certification boards, the state could change the rules within a matter of one month thereby 

requiring the analyst to start the process over. The phrase “another entity that is accredited by the National 

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Commission for Certifying Agencies or the American National Standards Institute to issue credentials in 

the professional practice of applied behavior analysis and approved by the department” in the Texas law is 

too broad. Especially given the QABA accreditation by ANSI and the Texas Department of Licensing and 

Regulations refusal to accept it. It leaves the question open of what more do they want? What are the 

requirements to be approved? What is the process for getting approved? None of these are listed in the 

statute or the administrative rules.

a. In various states that follow the Association of Professional Behavior Analysts Model Licensure 

Act,17 certifying entity is defined as “The Behavior Analyst Certification Board (BACB) or 

another entity whose programs to credential practitioners of applied behavior analysis are 

accredited by the National Commission on Certifying Agencies (NCCA) or the American National 

Standards Institute (ANSI).” This language is too broad. It does not give the state behavior 

analysis boards guidance on what should or should not be approved. By definition, the QABA 

board is ANSI certified in behavior analysis and yet various state boards refuse to recognize this. 

This discretion is too broad. In Texas for example, the Texas Department of Licensing and 

Regulation refuse to adopt alternatives despite the language of the statute. Further, they rely on 

inaccurate propaganda information from the Behavior Analyst Certification Board to come to their 

conclusions.

C. REQUEST

53. With the information provide above, the Plaintiff requests the following:

a. A preliminary injunction denying the enforcement of any state statute that only allow for 

certification if certified by the Behavior Analyst Certification Board;

i. In the alternative, requiring the approval of the QABA Board as certified by ANSI.

b. A preliminary injunction denying the enforcement of any federal statute that only allow for 

certification if certified by the Behavior Analyst Certification Board;

i. In the alternative, requiring the approval of the QABA Board as certified by ANSI.

17https://cdn.ymaws.com/www.apbahome.net/resource/resmgr/pdf/APBA_ModelLicensureAct_Aug

20.pdf

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c. A preliminary injunction denying the enforcement of any state administrative rule that only allow 

for certification if certified by the Behavior Analyst Certification Board;

i. In the alternative, requiring the approval of the QABA Board as certified by ANSI.

d. A preliminary injunction denying the enforcement of any federal rule that only allow for 

certification if certified by the Behavior Analyst Certification Board;

i. In the alternative, requiring the approval of the QABA Board as certified by ANSI.

e. A preliminary injunction requiring boards to begin approving alternatives for when litigation is 

successful.

i. In the alternative, the Plaintiff requests a hearing on this motion.

D. SERVICE

54. Plaintiff Moates can be served and consents to service via email if service is sent to both email addresses: 

michaelsmoates@gmail.com and michael@gibpe.org

55. Defendants Texas Department of Licensing and Regulation and its Executive Director have consented to 

service via email on 8 February 2022. The email is Elizabeth.Salinas-Strittmatter@tdlr.texas.gov. See 

Exhibit H.

56. Defendant Behavior Analyst Certification Board can be served at Behavior Analyst Certification Board, 

7950 Shaffer Parkway, Littleton, CO 80127.

Respectfully Submitted,

/s/ Michael S. Moates, MA, QBA, LBA

michael@gibpe.org

michaelsmoates@gmail.com

2700 Colorado Boulevard #1526

Denton, TX 76210

Cell Phone: 817-999-7534

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EXHIBIT A

Michael Moates

Certificate# 12471

Qualified Applied Behavior AnalysisCredentialing Board

haspassed all requirementsfor and isnow credentialed as

QBA

Qualified Behavior Analyst

dated 22December 2021

Thiscertificateexpires01January2024

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EXHIBIT B

This document certifies that

Michael Moates

has successfully achieved the certification

International Behavior Analyst

January 23, 2022

INTERNATIONAL BEHAVIOR

ANALYSIS ORGANIZATION

Date

January 23, 2024

Expires

45237805

Certificate

TM

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EXHIBIT C

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EXHIBIT D

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EXHIBIT E

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EXHIBIT F

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EXHIBIT G

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EXHIBIT H

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