The Honorable Betty Cleland

Executive Secretary Opinion No. H- 735 ~Texas State Board of Examiners of Psychologists 108 W. 15th Street Austin, Texas 78701 Re: Definition of governmental agency for purpose ofthe Psychologists’ Certification and Licensing Act, article 4512c, V. T. C.S.
Dear Mrs. Cleland:
You have requested our opinion concerning the scope and effect of section 22 ofthe Psychologists ’Certification and Licensing Act, article 4512c, V. T. C.S. Section 22 establishes various exemptions from the application oi article 4512c, providing inpart: Nothing inthis Act shall be construed to apply to: (a) the activities, services and use of official title on the part ofa person employed as apsychologist by any: (1) governmental agency,
. . .(3)

. . . or any hospital licensed by the Texas State Department of Health, including medical clinics associated with such hospitals and are organized as an unincorporated association.

. . . Your questions are:

Are MH/MR centers which contract with the Department of Mental Health and Mental Retardation, some ofwhich are private corporations, some ofwhich are multiplyfunded, governmental agencies? Are community agencies such as child welfare clinics, which are multiply-funded, “governmental agencies”? Ifapatient inan MH/MR center which is not administratively part ofthe Department ofMHIMR is damanged by 

### some action of an unlicensed person offering psychological services. towhom does that patient turn for redress inthe 

### case of a county MH/MR Center? Inthe case of a private corporatm,, center? Inthe case of a multiply-funded center, subsisting on grants?

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Article 5547-202, V. T. C.S., provides for contracts between the Department ofMental Health and Mental Retardation and various public and private entities. Article 5547-203, V. T. C.S., authorizes the creation of community centers for mental health and mental retardation services. These centers may be formed only by local governmental units and are subject to control by those units. The character ofthese centers as governmental agencies or political subdivisions has varied depending onthe context. In Attorney General Opinion H-29~1( 1974)v.e noted that: Community centers have been held to be political subdivisions under statutes concerning social security coverage, Attorney General Opinion M-149 (1967) and.unemployment compensation coverage, Attorney General Opinion M-1033(1971). But they were determined to be neither “departments ofthe state government ” for the purposes of Board of Control purchasing requirements, Attorney General Opinion M-316( 1968), nor “units of government” for the purposes ofthe Texas Tort Claims Act, Attorney General Opinion M-538( 1969). The latter opinion held that community centers were merely component parta ofunits of government. Attorney General Opinion M-1266(1972) held that community centers are agencies ofthe state, although not state agencies.
InAttorney General Opinion H-291, community centers were held tobe political subdivisions for purposes ofworkmen’s compensation. And inAttorney General Opinion H-104( 1973) these centers were held to be exempt from the child care licensing provisions ofarticle 695c, section 8(a), V. T. C.S. Inlight ofthe foregoing, inour opinion a community center created under the provisions ofarticle 5547-203, V. T. C.S., is a “governmental agency” within the meaning of section 22 of article 4512c, V. T. C.S. See also Board Adjustment ofCity ofFort Worth v. Stovall, 216 S.W. 2d 1’71(TSup. 1949). However, a private corporation does not become a governmental agency by contracting to render services tothe government. Davis v. Smith, 28 S.E. 2d 148 (Ga. 1943). Accordingly, in our opinion aprivate corporation contracting with the Department ofMental Health and Mental Retardation as a general matter is not a governmental agency under article 4512~. section 22.
Your second group of questions concern a patient’s remedy when damaged by an unlicensed person offering psychological services. Under our resolution ofyour first question, a person working as apsychologist for a community center need not be licensed inthat capacity. Thus there would be no special liability

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for failure to obtain a license. However, under the Texas Torts Claims Act, article 6252-19, V. T. C. S., torts committed by an employee of such a center may be the responsibility ofthe creating governmental units. Attorney General Opinion M-538( 1969). Of course, ifapatient is injured, any recovery towhich he is entitled would depend onthe facts ofthe particular situation. The identity ofany defendent, the relief sought, and the theory of recovery advanced would depend onthe facts ofthe case and undoubtedly would be determined by the patirnt and his private attorney.
SUMMARY
A community center created under article 5547-203 is a governmental agency within the meaning of section 22 of article 4512~. A private corporation does not become a governmental agency by virtue of a contract to provide services to the Department of Mental Health and Mental Retardation.
Torts committed by an employee of a community center created under article 5547-203 are the responsibility ofthe governmental units creating the center. The liability ofaprivate corporation and the recourse of aperson damaged thereby depend upon the facts ofthe particular situation. Very truly yours,

Attorney General of Texas

Opinion Committee jad:

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