Texas Attorney General Opinion: GA-1025 Page: 2 of 4
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Tim F. Branaman, Ph.D. - Page 2 (GA-1025)
You ask whether a university must use the official title of psychologist or psychological
associate when describing employees in order for those employees' activity and service to be
exempt from the Act under section 501.004. Request Letter at 1. Section 501.004 exempts both
"the activity or service of a person" and "use of an official title by the person" when employed as
a psychologist or psychological associate by an entity subject to that provision. TEx. Occ. CODE
ANN. 501.004(a)(1) (West Supp. 2013). Nothing in the language of the statute requires that an
official title of "psychologist" or "psychological associate" be used in order for the exemption to
apply. Rather than conclude that an employee's job title is dispositive of whether the section
501.004 exemption applies, a court would likely conclude that "'the function of the position at
issue"' determines whether the individual is employed as a psychologist or a psychological
associate. Cf Patton v. Jones, 212 S.W.3d 541, 549 (Tex. App.--Austin 2006, pet. denied)
(applying the same analysis for purposes of the ministerial exception under the Free Exercise
Clause of the First Amendment) (citation omitted).
Furthermore, whether an individual is employed as a psychologist or psychological
associate is a question to be determined in the first instance by the employing entity. See Tex.
Att'y Gen. Op. No. JC-0321 (2001) at 7 (explaining that whether a particular activity or service
is beyond the scope of a licensee's employment is a question for the regionally accredited
institution of higher education in the first instance). "It is, after all, the employing [entity] that
has established any particular employee's scope of employment." Id. Thus, section 501.004
does not require a university to use the official title of "psychologist" or "psychological
associate" when describing employees in order for those employees' activity or service to be
exempt from the Act under section 501.004.
You also ask whether, pursuant to section 501.004, "an individual licensed as a specialist
in school psychology (LSSP) who is employed by a regionally accredited institution of higher
education (University) as an LSSP, is exempt from" the Act. Request Letter at 1. You explain
that your question arises because while section 501.004 expressly exempts "the activity or
service of individuals employed as psychologists or psychological associates by a University, the
Act contains no such exemption for LSSPs." Id. at 2.
Although you phrase your question in terms of whether an individual is exempt,
subsection 501.004(a) does not provide a blanket exemption for an individual. See TEx. Occ.
CODE ANN. 501.004(a) (West Supp. 2013). Instead, it exempts the activity or service that an
individual performs as a psychologist or psychological associate employee of a specified entity.
Id.; Tex. Att'y Gen. Op. No. JC-0321 (2001) at 6. 'And as discussed above, it is not the
employee's title that is relevant, but the activity or service that determines the capacity in which
a university employs a person as a psychologist or a psychological associate.
2The Act does not define "regionally accredited institution of higher education." The Board has defined the
term as "an educational institution which satisfies the standards of the accrediting association" for the region in
which the institution is located. 22 TEX. ADMIN. CODE 463.6 (2013).
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-1025, text, November 22, 2013; (https://texashistory.unt.edu/ark:/67531/metapth1051040/m1/2/?rotate=270: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.