Untitled Texas Attorney General Opinion ( 2001 )

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN
February 20,200l
Mr. John P. Maline Opinion No. JC-0344
Executive Director
Executive Council of Physical Therapy Re: Whether an applicant for a physical therapist
and Occupational Therapy Examiners license or a physical therapist assistant license
333 Guadalupe, Suite 2-5 10 may submit the examination fee directly to the
Austin, Texas 7870 l-3942 exam provider (RQ-0287- JC)
Dear Mr. Maline:
An applicant for a physical therapist license or a physical therapist assistant license must
“submit to” the Texas Board of Physical Therapy Examiners (the “Board”) a written application
“accompanied by . . . an examination fee.” TEX. Oct. CODE ANN. 8 453.202(a), (b)(l) (Vernon
2001); see id. 5 453.001(l) (defining “board”). You state that an entity other than the Board owns
and administers the examination, and the entity would like to know whether an applicant may pay
the examination fee directly to it. You accordingly ask whether an applicant may “pay the
examination fee directly to the provider of the exam.“’ Section 453.202 of the Occupations Code
does not permit payment directly to the exam provider.
A person may not practice physical therapy or as a physical therapist assistant unless he or
she has obtained a license from the Board. See TEX. OCC. CODEANN. 0 453.201(a) (Vernon 2001).
As an initial step toward obtaining a license, section 453.202 of the Occupations Code requires a
license applicant to submit to the Board a written application “accompanied by” the examination fee:
(a) An applicant for a physical therapist license or a physical
therapist assistant license must submit to the board a written
application on a form provided by the board.
(b) The application must be accompanied by:
(1) an examination fee prescribed by the board; and
(2) a nonrefundable application fee prescribed by the board.
‘See Letter from Mr. John P. Maline, Executive Director, Executive Council of Physical Therapy and
Occupational Therapy Examiners, to Honorable John Comyn, Texas Attorney General (Sept. 19,200O) (on file with
Opinion Committee) [hereinafter Request Letter].
Mr. John P. Maline - Page 2 (JC-0344)
Id. 0 453.202(a), (b). Under a recently adopted Board rule, the Executive Council of Physical
Therapy and Occupational Therapy Examiners sets the examination fee, and a fee paid to the Board
“may be in the form of a personal check, cashier’s check, money order, or other certified funds.”
25 Tex. Reg. 8130 (2000), adopted 25 Tex. Reg. 11288 (2000) (to be codified as an amendment to
22 TEX. ADMIN. CODE 0 339.1) (Tex. Bd. of Physical Therapy Exam%, Fees).
When the substance of section 453.202 was adopted in 1971, see Act of May 25,1971,62d
Leg., R.S., ch. 836,§ 8(a), 1971 Tex. Gen. Laws 2542,2545, you suggest that requiring an applicant
to submit the examination fee payment directly to the Board with the application made sense. See
Request Letter, supra note 1, at 1. But the examination procedure has changed since 197 1, and you
suggest that it no longer makes sense for an examination fee payment to be submitted to the Board.
In 1971, you recount, “the Board paid Professional Examination Service, the owner of the exam,
directly for the exams before applicants took it. . . . The written exam was offered three times a year
in Austin.” Id. When an applicant “signed up for” the exam, the applicant sent the exam fee to the
Board, which deposited it into the state’s general revenue fund. See id. In 1994, however, the Board
switched to “a computer-based exam format” so that an applicant may take the exam at his or her
convenience at any Sylvan Learning Center. See id. Also in 1994, you state, “the Board began
acting as a ‘pass through’ for the exam fee.” Id. An applicant submits a certified check to the Board,
payable to the exam’s current owner, the Federation of State Boards of Physical Therapy
(“Federation”), with the application. See id. at l-2. “The Board keeps the certified check in its
office safe until an applicant meets all of the Board’s requirements to sit for the exam.” Id. at 2. The
Board then sends the certified check to the Federation, presumably along with certified checks from
other applicants who have just met the Board’s requirements. See id. Soon, you state, applicants
will be able “to register for the exam online and pay for the exam with a credit card.” Id. The
Federation therefore would like to know whether an applicant may pay the examination fee directly
to it. See id.
We assume that the Federation may administer the examination and may do so in the manner
described. CJ: TEX. Oct. CODEANN. $5432.152(b)( 1) (V emon 2001) (requiring Executive Council
of Physical Therapy and Occupational Therapy Examiners to perform “administrative functions
relating to issuing . . . licenses, including” administering written examinations and collecting fees),
.153(b) (designating Board or Board of Occupational Therapy Examiners as responsible to select
“standardized national or generally accepted examinations”), 433.205(a) (Vernon 2001) (requiring
Board to examine applicants at “time designated by the board”).
We conclude that an applicant must submit the examination fee to the Board and must submit
it with the application for a license. To approve the Federation’s proposal, we would have to
conclude that an applicant may pay the examination fee directly to the examination administrator
with the examination registration. But that construction contravenes section 453.202’s plain
language.
Section 453.202 of the Occupations Code requires that the examination fee accompany the
application to the Board. Chapter 453 does not define the phrase “accompanied by” used in section
Mr. John P. Maline - Page 3 (JC-0344)
453.202(b), see TEX. OCC. CODEANN. ch. 453 (Vemon2001); id. 8 435.202(b), and you suggest that
it may be interpreted broadly to mean “occur at the same time.” Request Letter, supra note 1, at 2.
Thus, “a person could register to take the exam as part of the application process[] and pay the
examination fee directly to the Federation.” Id. But a word that the legislature has not defined by
statute must be defined consistently with common usage. See TEX. GOV’T CODEANN. 8 3 11 .Ol 1(a)
(Vernon 1998). To “accompany” commonly means to go with or joined. See 1 OXFORDENGLISH
DICTIONARY 80 (2d ed. 1989); CJ: In re Louie, 10 B.R. 928, 93 1 (Bankr. E.D. Mich. 1981)
(“‘accompanied by satisfactory evidence . . . ’means that” evidence is “attached”); Grisham v. Five
Star Ins. Co., 925 P.2d 1075, 1078 (Ariz. Ct. App. 1996) (“To ‘accompany’ is ‘to go with as an
associate or companion.“‘) (quoting WEBSTER’SNINTH NEW COLLEGIATEDICTIONARY(1986)).
Accordingly, we cannot construe the phrase to permit an applicant to submit the examination fee to
the Federation at the same time he or she submits the license application to the Board if the fee does
not go with the application to the Board.
Moreover, the examination fee must accompany the application-which is submitted to the
Board-and not the registration, which you indicate is submitted directly to the Federation. See
Request Letter, supra note 1, at 2. Section 453.202 of the Occupations Code directs an applicant to
submit to the Board “a written application on a form” the Board has provided. TEX. OCC. CODE
ANN. 5 453.202(a) (Vernon 2001). The written application, “accompanied by . . . an examination
fee,” must be submitted to the Board. Id. 6 453.202(b)(l); see also 25 Tex. Reg. 8128 (2000)’
adopted 25 Tex. Reg. 11286 (2000) (to be codified at 22 TEX. ADMIN. CODE 5 329.1) (“General
Licensure Requirements and Procedures”). You do not define what you mean by registration, and
chapter 453 of the Occupations Code does not use the term. See TEX. OCC. CODE ANN. ch. 453
(Vernon 2001); cJ: XIII OXFORD ENGLISHDICTIONARY 5 14, sense 2(d) (2d ed. 1989) (defining
“register” as “[t]o enter oneself or have one’s name recorded in a list of people, . . . , as being of a
specified category or having a particular eligibility or entitlement”).
In short, we conclude that an applicant must submit the examination fee to the Board with
the written application for a license. The examination fee may not be submitted directly to the entity
that owns and administers the examination (where that entity is not the Board), nor may it be
submitted with the registration.
Mr. John P. Maline - Page 4 (JC-0344)
SUMMARY
Under section 453.202 of the Occupations Code, an applicant
for a physical therapist license or physical therapist assistant license
must submit the required examination fee directly to the Board of
Physical Therapy Examiners along with the written application for a
license. See TEX. OCC. CODE ANN. 8 453.202 (Vernon 2001). An
applicant may not submit the examination fee directly to the entity
that administers the examination-which is not the Board-with the
registration to take the examination. See id.
JOtiN CORNYN -
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERWIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee