Untitled Texas Attorney General Opinion ( 1969 )

September 4, 1969
Honorable Preston Smith Opinion NO. M-463
Governor of Texas
Austin, Texas Re: Validity of Senate Bill 667,
Acts of 61at Legislature,
Regular Session, 1969 re-
lating to licensing of
Dear Governor Smith: psychologists
Your request for an opinion on the validity of
Senate Bill 667, Acts of 61at Legislature, Regular Session,
1969, Chapter 713, Page 2059 (codified in Vernon's as
Article 4512C, Vernon's Civil Statutes), asks the following
questions:
"1 . Does this caption meet the constitutional
requirement of giving notice to the public in
that it makes no reference to the definition
of who is a 'psychologist'; it makes no reference
to qualifications of members of the Board; it
makes no reference to the qualifications of appli-
cants for examination for certification; it makes
no reference to exemptions from the act; it makes
no reference to cancellation or suspension of
licenses or certificates; and it makes no refer-
ence to criminal penalties for violations of the
act?
" 2 . Does Section 4 of this Act establishing
staggered three year terms violate the provisions
of Article XVI, Section 30 or Article XVI, Section
30a, of the Texas Constitution?
" 3 . Is the definition of the term 'psycholo-
gists' within Section 2(b) and (c) of this Act
so vague and indefinite that it is impossible of
interpretations and enforcement in view of Wilson
v. State Board of Naturopathic Examiners, 298
S.W+2d 946 and Ex Parte Halsted, 182 S.W.2d 479?
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Hon. Preston Smith, Page 2 (~-463)
"4 . Is any other provision of this Act in
conflict with the laws and Constitution of this
State or these United States?"
Section 35 of Article III of the Constitution of
Texas provides:
"No bill, (except general appropriation
bills, which may embrace the various subjects
and accounts, for and on account of which moneys
are appropriated) shall contain more than one
subject, which shall be expressed in its title.
But if any subject shall be embraced in an act,
which shall not be expressed in the title, such
act shall be void only as to so much thereof, as
shall not be so expressed."
Although the above provision is mandatory
upon the Legislature, it should be given a liberal construction.
C&nom v. Hemphill, 7 Tex. 184 (1851); State v. Praetorians,
143 Tex. 565, 186 S.W.Zd 973, 158 A.L.R. 596 (1945).
The purpose of this section is to afford legislators and other
interested people a ready and reasonably accurate means of
knowledge of the contents of bills without their having to read
the full text. Falkner v. Allied Finance Company of Bay City, 394
S.W.2d 208, (Civ.App. 1965, error ref. n.r.e.1; Schlichting v.
Texas State Board of Medical Examiners, 310 S.W.2d 557 (Sup.Ct.
‘1958); Board of Water Engineers v. City of San Antonio, 155
Tex. 111, 283 S.W.Zd 722 (1955). Therefore, it is not necessary
that the caption state the details of the provisions of the Act
so long as the reader of the caption is not misled as to the
real contents of the Bill. State v. McCracken, 42 Tex. 383 (1875);
Gunter v. Texas Land & Mortgage Co., 82 Tex. 496, 17 S.W. 840
(1891); English & Scottish-American Mortgage & Investment Co.,
Ltd. v. Hardy, 93 Tex. 289, 55 S.W. 169 (1900). However, if the
reader of the caption is misled, and the bill actually deals
with a different-subject than that contained in the caption, or
contains provisions not contemplated, or contains provisions to
which no fair notice was given in the caption, the act will be
in violation of Section 35 of Article III of the Constitution of
Texas. Board of Water Engineers v. City of San Antonio, supra;
Harris County Fresh Water Supply District No. 55 v. Carr, 372
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Bon. Preston Smith, Page 3 (M-463)
S.W.2d 523 (Sup.Ct. 1963); Fletcher v. State, 439 S.W.2d 656
(Sup.Ct. 1969); White v. State, 440 S.W.2d 660 (Tex.Crim. 1969).
The caption of Senate Bill 667 provides:
"An Act concerning the profession of
Psychology; requiring certification and
licensing of psychologists; establishing a
Texas State Board of Examiners of Psycholo-
gists i making an appropriation and declaring
an emergency."
The body of the Bill provides for the certification and licensing
of Psychologists, establishes a Texas State Board of Examiners
of Psychologists, and makes provisions for the duties of the
Board, qualifications of applicants and other related provisions.
It is our opinion that a reader of the caption is given fair
notice of the purpose and intent of the Act and, therefore, the
caption meets the requirements of Section 35 of Article III of the
Constitution of Texas.
Section 30 of Article XVI of the Constitution of Texas
provides that the duration of all offices not fixed by this
Constitution shall never exceed two years. Section 30a of
Article XVI of the Constitution of Texas provides:
"The Legislature may provide by law that the
members of the Board of Regents of the State
University and boards of trustees or managers of
the educational, eleemosynary, and penal institu-
tions of the State, and such-boards-as have been,
or may hereafter be established by law, may hold
their respective offices for the term of six (6)
years, one-third of the members of such boards
to be elected or appointed every two (2) years in
such manner as the Legislature may determine;
vacancies in such offices to be filled as may be
provided by law, and the Legislature shall enact
suitable laws to give effect to this section."
(emphasis added).
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Hon. Preston Smith, Page 4 (M-463)
Section 4 of Senate Bill 667 provides:
"There is hereby created the Texas State
Board of Examiners of Psychologists which shall
consist of six qualified persons appointed by
the governor with the atlviceand consent of
the Senate. The,members of the first Board shall
be appointed within ninety days after this Act
takes effect to serve the following terms; two
members for one year, two members for two years,
and two members for three years from the date of
their appointment. Thereafter, at the expiration
of the term of each member, the governor shall
appoint a successor for a term of three years.
Before, entering upon the duties of his office,
each member of the Board shall take the consti-
tutional oath of office and file it with the
Secretary of State."
It is evident that Section 30 of Article XVI of
the Constitution of Texas limits the terms of office to two
years, unless a different term of office is authorized by
other constitutional provisions. Section 4 of Senate Bill 667
does not comply with Section 30a; and since the terms fixed
by Section 4 are not authorized by any other constitutional
provision, such section is invalid.
Section 31 of Article XVI of the Constitution of
Texas provides:
"The Legislature may pass laws prescribing
the qualifications of practitioners of medicine
in this State, and to punish persons for mal-
practice, but no preference shall ever be given
by law to any schools of medicine." (emphasis added).
The purpose of Section 31 of Article XVI of the Constitution of
Texas is stated in Ex Parte Kalsted, 182 S.W.2d 479 (Tex.Crim.
1944) as follows:
"We come now to a determination of whether
the Act before us is violative of the non-
preference clause of Art. 16, Sec. 31, of our
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hon. Preston Smith, Page 5 (M-463)
State Constitution. Said Section is a part
of the Constitution of 1876, and has remained
unchanged through the years. It is and has
been the basis upon which has rested the legis-
lative control over, and definition of, the prac-
tice of medicine. It furnishes the direct reasons
why the courts have steadfastly held that, if
one treats or offers to treat, as a business,
profession, or avocation, diseases or disorders
of the human body--by any method, system, or means--
he must first qualify himself to do so by taking
the same examination that is required..ofall
others doing the,same thing, regardless of the
system employed. Not only was such interpretation
authorized, but same was required by that provision
of said Art. 16, Sec. 31, which says that 'No
preference shall ever be given by law to any schools
of medicine.' The term 'schools of medicine,'
as there used, means, and has reference to, the
system, means, or method employed, or the schools
of thought as accepted, by the practitioner. Such
is exemplified by Chapter 12, Acts 27th Legislature,
1901, wherein the Legislature created three separate
Boards of Medical Examiners in this State,.each
representing a particular system, method, or school
of thought, for the treatment of disease, that is,
a Board of Examiners for the allopaths, one for
the homeopaths, and one for the eclectics. now-
ever, the subjects embraced in the examination
required for license under either Board were the
same, such requirement being necessary ,in order
that there be no preference between the three differ-
ent schools of thought. The Act of 1901 was super-
ceded by our present Medicinal Practice Act, passed
in 1907, c. 123.
"Under the Medical Practice Act, one desiring
to practice medicine must possess certain qualifi-
cations as to character and educational attainments,
Art. 4501, R.C.S., and must pass a satisfactory
examination upon certain basic subjects, Art. 4503,
R.C.S.” (emphasis added).
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HOIl. Preston Smith, Page 6 (M-463)
The Court concluded that the Legislature could not carve out
of the field of the healing art a single system for treating
diseases and disorders and give such system special treat-
ment limiting the use thereof to those only who qualify.
The Court held that such legislation violates Section 31 of
Article XVI of the Constitution of Texas.
The same conclusion was reached in Wilson v. State
Board of Naturopathic Examiners, 298 S.W.2d 946 (Tex.Civ.App.
1957 error ref. n.r.e.), cert. denied 355 U.S. 870, 78 Sup.
Ct. 121, 2 L ed 2d 76, wherein the Court construed the
Naturopathic Act as authorizing and not denying the practice
of medicine in specialized fields and giving,preference to
naturopathy in violation of Section 31 of Article XVI of the
Constitution of Texas. Thus, it has been held that where
an Act both authorizes and prohibits simultaneously the
practice of medicine, such Act is either in violation of
Section 31 of Article XVI of the Constitution or is void for
vaaueness since the Act will be incapable of enforcement. Ex
Paste Halsted, supra; Wilson v. State Board of Naturopathic-
Examiners, supra.
Section 3 of Senate Bill 667 provides.:
"Nothing in this Act shall be construed as
permitting the practice of medicine as defined
by the laws of this state."
The practice of medicine is defined in Article 4510, Vernon's
Civil Statutes and Article 741, Vernon's Penal Code, as follows:
"Any person shall be regarded as practicing
medicine within the meaning of this law:
(1) Who shall publicly profess to be a physician
or surgeon and shall diagnose, treat, or offer to
treat, any disease or disorder, mental or ,physical,
or any physical deformity or injury, by any system
or method, or to effect cures thereof;
(2) or who shall diagnose, treat or offer to treat
any disease or disorder, mental or physical or any
physical deformity or injury by any system or
method and to effect cures thereof and charge therefor,
directly or indirectly, money or other compensation;"
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Bon. Preston Smith, Page 7 (M-463)
Section 3 of Senate Bill 667 specifically provides that its
provisions shall not permit the practice of medicine as defined
by the laws of this state and an examination of the remaining
provisions of the Senate Bill 667 does not reveal any provisions
which would authorize a licensee to diagnose, treat, or offer
to treat, any disease or disorder, mental or physical, or any
physical deformity or injury by any system or method or to
effect cures thereof.
"Psychiatry" is a branch of medicine that relates to
mental diseases and deals with the science and practice of
treating mental, emotional, and behavioral disorders. Wallach v.
Monarch Life Insurance Co., 295 N.Y.S.2d 109, 111 (58 Misc. 2d
202 1968); Mashak v. Poelker, 356 S.W.2d 713, 720 (Mo.App. 1962).
Psychology on the other hand is the study of an individual's
mental characteristics as memory intelligence,,emotionality,
intelligence, or speed of reaction. Calhoun,v,;Members of
Board of Education, City of Atlanta, 188 FrSupp. 401, 409, (1959).
Section 2 of Senate Bill 667 contains the following definitions:
"(b) A person represents himself to be a
'psychologist' within the meaning of this Act
when he holds himself out to the public by any
title or description of services incorporating
the words 'psychological,' 'psychologists,' or
'psychology,' or offers to render or renders
services to individuals, corporations, or the
public for compensation.
"(c) The term 'psychological services,' means
acts or behaviors coming within the purview of
the practice of psychology."
Therefore, a psychiatrist in Texas is an individual who has been
issued a license to practice medicine in this state by the
Texas Board of Medical Examiners and specializes in the treat-
ment of mentally ill individuals, while a psychologist in Texas
has not been issued a license to practice medicine in this
state, is not authorized to practice medicine, and is not
permitted to treat or offer to treat mentally ill persons.
No provision in Senate Bill 667 permits the performance of any
act constituting the practice of medicine. See Attorney General
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Hon. Preston Smith, Page 8 (M-463)
Opinion No. M-453(1969). Therefore, the conflict referred to
in Ex Parte Halsted, supra, and Wilson v. State Board of
Naturopathic Examiners, supra, does not exist in Senate Bill 667.
Thus, we conclude that the provisions of Senate Bill 667
neither violate Section 31 of the Constitution of Texas nor
is it void for the vagueness or uncertainty described in Wilson
v. State Board of Naturopathic Examiners, supra, and Ex Parte
Halsted, supra.
In answer to the fourth question, it is our opinion
that with the exception of Section 4 of Senate Bill 667 referred
to above, no other provision of this Act which has come to our
attention appears to be in conflict withany provision of the
Constitution of this State or of the United States.
SUMMARY
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The provisions of Senate Bill 667, Acts of
61st Legislature, Regular Session, 1969, Chapter
713, Page 2059 (relating to licensing of Psycholo-
gists) are not in violation of either Section 35 of
Article III of the Constitution of Texas or Section 31
of Article XVI of the Constitution of Texas. Section
4 of Senate Bill 667 prescribing terms for Board mem-
bers for three years is in violation of Section 30 of
Article XVI of the Constitution of Texas.
General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
tieorgeKelton, Vice Chairman
Bill Corbusier
Houghton Brownlee, Jr.
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. .,
Hon. Preston Smith, Page 9 (M-463)
Sarah E. Phillips
Harold Kennedy
MEADE F. GRIFFIN
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant
NOLA WHITE
First Assistant
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