September21.1976

The Honorable Barry Read Executive Secretary Opinion No. H-879 Texas State Board of Examiners Re: Applicability of of Psychologists PsychologistsCertifica108 West 15th Street tion and LicensingAct to Austin, Texas 78701 state-supported institutions,ofhigher education. Dear Mr. Read: You have requestedour opinion regarding the applicability of the PsychologistsCertification and LicensingAct, article 4512c, V.T.C.S., to state-supported institutionsof higher education. Article 4512~ requires "anyperson who offers psychological services . . . for compensation" to have a license issued by the Texas State Board of Examiners of Psychologists. sec. 21. The statute specifically exempts from licensing, however,

the activities, services and use of official title on the part of a person employed as a psychologist by any: (1) governmental agency, (2)public school district, (3) institutionof higher education approved by the Board or any hospital licensedby the Texas State Department of Health . . . .V.T.C.S.art. 4512c, S 22(a). You ask whether a state-supported institutionof higher education is exempted as a "governmentalagency" or as an "institutionof higher education." If the latter, the statute would require that the institutionbe "approvedby the Board" in order to qualify for the exemption for its employees.

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The Honorable Barry Read - Page two (H-979)

It is clear that the usual definitionof "governmental agency" includes the governing board of a state-supported institution of higher education. Allis-Chalmers Mf Curtis Electric Co., 264 S.W.2d 706, 101 (Tex.SU$?~%.~ But since the term also includespublic school districts specifically exempted by section 22(a)(2), it might be argued that the Legislature here deemed state-supported institutions of higher education to be includedwithin the third category of exemption. In our opinion, however, such a construction raises serious constitutionalquestions regarding the authority of the Board, in the absence of any statutory standards, to confer its "approval"upon, or withhold it from, a state-supportedentity over which it exercises no general regulatory supervision. See Housin Authority of City of Dallas 5 Higginbotham, 1rS.W. ---n-39 a7 (Tex.sup. 194oK Southwestern Savin s & Loan Associati& of Houston v - 2 Falkner, 331 s.w.zd d1-(= Sup. 1960). It is well established that when a statute is susceptible of more than one interpretation,the courtswill prefer that construction which renders it constitutional. State v. Shoppers World, Inc., 380 S.W.2d 107, 111 (Tex.Sup. 1964);eEom v. State, 372 S.W.Zd 681, 693 (Tex.Crim. App. 1963). Since - any classificationof a state-supportedinstitutionof higher educationwhich would require Board approvalwithout providing any standards for the granting of such approval would raise substantial doubt as to the constitutionalityof section 22, and since a state-supported institution is in any event a "governmentalagency," it is our opinion that, for purposes of article 4512c, a state-supportedinstitutionof higher education should be deemed a governmental agency. As such, its employees are exempted from the licensing requirementsof section 21. SUMMARY For purposes of article 4512c, a statesupported institutionof higher education is a "governmentalagency," and, as such, its employees are exempted from the licensing requirementsof that statute.

Attorney General of Texas

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, The Honorable Barry Read - page three W-879)

APPROVED:

DAVID M. KENDALL, First Assistant

c. ROBERT HEATH, Chairman Opinion Committee jwb

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