texas-state-board-of-examiners-of-marriage-and-family-therapists-charles ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00077-CV
Appellants, Texas State Board of Examiners of Marriage and Family Therapists;
Charles Horton in his Official Capacity; Sandra DeSobe in her Official Capacity, and
Texas Association of Marriage and Family Therapy //
Cross-Appellant, Texas Medical Association
v.
Appellee, Texas Medical Association//
Cross-Appellees, Texas State Board of Examiners of Marriage and Family Therapists;
Charles Horton in his Official Capacity; Sandra DeSobe in her Official Capacity, and
Texas Association of Marriage and Family Therapy
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-08-003279, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
OPINION
The Texas Medical Association (TMA) sued the Texas State Board of Examiners of
Marriage and Family Therapists (the Therapist Board), its executive director, its presiding officer,
and the Texas Association for Marriage and Family Therapy (collectively, the Therapist Defendants)
seeking declarations that certain portions of two of the Therapist Board’s administrative rules are
invalid. See Tex. Admin. Code §§ 801.42(13) (2014) (Texas State Bd. of Exam’rs of Marriage &
Family Therapists, Professional Therapeutic Services), .44(q) (Texas State Bd. of Exam’rs of
Marriage & Family Therapists, Relationships with Clients). Specifically, the TMA asserted that the
rules are void because they (1) impermissibly expand the scope of practice for marriage and family
therapists under the Licensed Marriage and Family Therapist Act and (2) conflict with the Medical
Practice Act by allowing marriage and family therapists to engage in the practice of medicine. On
cross-motions for summary judgment, the trial court declared that only one of the rules was invalid.
Both parties have appealed. For the reasons that follow, we will affirm the trial court’s judgment.
BACKGROUND
The practice of medicine in Texas is governed by the Texas Medical Practice Act and
regulated by the Texas Medical Board. See Tex. Occ. Code §§ 151.001-168.202. Among other
things, the Medical Practice Act requires that a person have a Medical Board-issued license to
lawfully “practice medicine” in the State. Id. § 155.001. “Practicing medicine” is defined as “the
diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity
or injury by any system or method, or the attempt to effect cures of those conditions” by a person
who either “directly or indirectly charges money or other compensation for those services” or
publicly professes to be a physician or surgeon. Id. § 151.002(a)(13).
The practice of “marriage and family therapy” is regulated by the Licensed Marriage
and Family Therapists Act. Id. §§ 502.001-.455. The Act defines the practice of “marriage and
family therapy” as
providing professional therapy services to individuals, families, or married couples,
alone or in groups, that involve applying family systems theories and techniques.
The term includes the evaluation and remediation of cognitive, affective, behavioral,
or relational dysfunction in the context of marriage or family systems.
Id. § 502.002(6). The Act imposes licensing requirements on marriage and family therapists and
delegates regulatory authority to the Therapist Board. See id. §§ 502.151, .251.
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In 1994, the Therapist Board adopted administrative Rule 801.42, listing the
“professional therapeutic services” that a marriage and family therapist may provide. See 22 Tex.
Admin. Code § 801.42. In relevant part, subsection 13 of Rule 801.42 provides that a marriage and
family therapist may provide “diagnostic assessment which utilizes the knowledge organized in
the Diagnostic and Statistical Manual of Mental Disorders (DSM) as well as the International
Classification of Diseases (ICD).” Id. § 801.42(13). The Therapist Board later promulgated Rule
801.44 describing the relationship between marriage and family therapists and their clients. See id.
§ 801.44. Rule 801.44, subsection q, provides that “a [licensed marriage and family therapist] shall
base all services on an assessment, evaluation, or diagnosis of the client.” Id. § 801.44(q).
In 2008, the Texas Medical Association (TMA) sued the Therapist Board and the
other Therapist Defendants seeking a declaration that Rule 801.42(13) and Rule 801.44(q) are
invalid because they exceed the Board’s statutory rule-making authority. The TMA did not challenge
the Therapist Board’s general authority to adopt rules concerning the scope of practice for licensed
marriage and family therapists. Instead, the TMA argued that Rule 801.42(13) and Rule 801.44(q)
are inconsistent with the scope of practice for marriage and family therapists as defined in Section
502.002(6) of the Licensed Marriage and Family Therapists Act. Alternatively, the TMA claimed
that the statutory scope of practice under Section 502.002(6) is unconstitutional.
The parties subsequently filed cross-motions for summary judgment. The TMA moved
for summary judgment on its claims that the rules were invalid; the Therapist Defendants moved for
summary judgment seeking a take-nothing judgment on the TMA’s claims. The trial court granted
the TMA’s motion in part and determined that Rule 801.42(13) exceeds the Therapist Board’s
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statutory authority under Section 502.002(6). As a result, the trial court declared that Rule 801.42(13)
is invalid. The trial court, however, also granted the Therapist Defendants’ motion in part, ordering
that the TMA take nothing on its claim for a declaration that Rule 801.44(q) is invalid. The
Therapist Defendants appealed, and the TMA filed a cross-appeal.
In their sole issue on appeal, the Therapist Defendants contend that the trial court
erred in finding that the Therapist Board exceeded its rulemaking authority under the Licensed
Marriage and Family Therapists Act in adopting Rule 801.42(13). Conversely, in its cross-appeal,
the TMA contends that the trial court erred in refusing to declare that Rule 801.44(q) is invalid.
In addition, the TMA argues that if Rule 801.44(q) does not conflict with the Licensed Marriage
and Family Therapists Act, the trial court erred in failing to conclude that the Act and the Rules are
unconstitutional under article XVI of the Texas Constitution.
STANDARD OF REVIEW
Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). Summary judgment is proper when the summary-judgment evidence
shows that there are no disputed issues of material fact and that the movant is entitled to judgment
as a matter of law. Tex. R. Civ. P. 166(a)(c). When, as here, both parties move for summary judgment
on overlapping issues and the trial court grants one motion and denies the other, we consider
the summary-judgment evidence presented by both sides and determine all questions presented.
Valence, 164 S.W.3d at 661. If we determine that the trial court erred, we render the judgment the
trial court should have rendered. Id.
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ANALYSIS
In this appeal, we must determine whether the Therapist Board exceeded its rule-
making authority in promulgating Rule 801.42(13) and Rule 801.44(q). The Therapist Board, as a
state administrative agency, has only those powers that the legislature expressly confers upon it and
those implied powers that are reasonably necessary to carry out its express functions or duties.
Public Util. Comm’n of Tex. v. City Pub. Serv. Bd., 53 S.W.3d 310, 315 (Tex. 2001). Absent
specific or implied statutory authority, an agency rule is invalid. Id. An agency may not exercise
what is effectively a new power based on a claim that the exercise is expedient for administrative
purposes. Id.
To establish a rule’s facial invalidity, a challenger must show that the rule
(1) contravenes specific statutory language, (2) is counter to the statute’s general objectives, or
(3) imposes additional burdens, conditions, or restrictions in excess of or inconsistent with the
relevant statutory provisions. An agency rule is presumed valid, and the challenging party bears the
burden to demonstrate its invalidity. Office of Pub. Util. Counsel v. Public Util. Comm’n of Tex.,
131 S.W.3d 314, 321 (Tex. App.—Austin 2004, pet. denied).
The parties’ arguments on appeal primarily concern the proper construction of the
Licensed Marriage and Family Therapists Act. We review questions of statutory construction de novo.
First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008). When construing a statute,
our primary objective is to ascertain and give effect to the legislature’s intent. Id. at 631-32. In
determining legislative intent, we begin with the statute’s words. TGS-NOPEC Geophysical Co. v.
Combs, 340 S.W.3d 432, 439 (Tex. 2011). We use any definitions provided by the statute and assign
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undefined terms their ordinary meaning, unless a different, more precise definition is apparent from
the term’s use in the context of the statute. Id.
Where the statutory text is clear, it is determinative of legislative intent, unless
enforcing the plain meaning of the statute’s words would lead to absurd results. Entergy Gulf States,
Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). If a statute is ambiguous—i.e., there is more
than one reasonable interpretation—we give “serious consideration” to the construction of the statute
by the administrative agency charged with its enforcement, “so long as the construction is reasonable
and does not conflict with the statute’s language.” Railroad Comm’n of Tex. v. Texas Citizens for
a Safe Future & Clean Water, 336 S.W.3d 619, 628-30 (Tex. 2011).
With these principles in mind, we first examine whether the trial court erred in
concluding that the Therapist Board exceeded its rule-making authority in promulgating Rule
801.42(13). In relevant part, this Rule states:
The following are professional therapeutic services which may be provided by a
Licensed Marriage and Family Therapists or a Licensed Marriage and Family
Therapist Associate.
...
(13) Diagnostic assessment which utilizes the knowledge organized in the
Diagnostic and Statistical Manual of Mental Disorders (DSM) as well as the
International Classification of Diseases (ICD) as part of [a marriage and
family therapist’s] therapeutic role to help individuals identify their
emotional, mental, and behavioral problems when necessary.
22 Tex. Admin. Code § 801.42(13).
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In its sole issue on appeal, the Therapist Defendants argue that the trial court erred
in concluding that the Therapist Board exceeded its rulemaking authority in promulgating Rule
801.42(13). The Therapist Defendants point out that Section 502.002(6) of the Licensed Marriage
and Family Therapists Act allows marriage and family therapists to provide “professional therapy
services” including “evaluation of . . . cognitive, affective, behavioral, or relational dysfunction.”
See Tex. Occ. Code § 502.002(6). The Therapist Defendants argue that (1) the plain meaning of
the terms “evaluation,” as used in Section 502.002(6), and “diagnostic assessment,” as used in Rule
801.42(13), involve the same process of examining a patient and forming a judgment about the
patient’s condition; and (2) the term “evaluation,” if anything, is a broader, more general term that
includes “diagnosis.” The Therapist Defendants also argue that the language in Section 502.002(6)
authorizing marriage and family therapists to “evaluat[e] cognitive, affective, behavioral, or
relational dysfunction” would be meaningless if the therapists could not also “utilize the [Diagnostic
and Statistical Manual of Mental Disorders].”1 In short, the Therapist Defendants contend that the
scope of practice for marriage and family therapists under Section 502.002(6) is intentionally broad
and unambiguously includes the ability to diagnose, utilizing the DSM, certain mental disorders.
In the alternative, the Therapist Defendants argue that, to the extent that the scope of practice under
the Licensed Marriage and Family Therapists Act is ambiguous, we should defer to the Therapist
Board’s interpretation. See Texas Citizens, 336 S.W.3d at 625.
1
The Diagnostic and Statistical Manual of Mental Disorders (DSM) is a 900 page categorical
classification system that divides mental disorders into types based on criteria sets with defining
features. Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association,
Text Revision, 4th ed. (2000)). According to the Therapist Defendants, the DSM is an authoritative
compilation of information about mental disorders and represents the best consensus of the
psychiatric profession on how to diagnose mental disorders.
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In response, the TMA argues that the trial court correctly concluded that Rule
801.42(13) is invalid because the diagnosis of any mental disease or disorder is outside the scope of
practice for marriage and family therapists under Section 502.002(6). The TMA contends that the
terms “evaluation” and “diagnosis” are not equivalent and that, in fact, the Therapist Board’s own
rule—Rule 801.44(q), providing that all services be “based on an assessment, evaluation, or
diagnosis”—acknowledges that they are not. See 22 Tex. Admin. Code § 801.44(q) (emphasis
added). The TMA contends that, based on the plain language of Section 502.002(6), “a licensed
marriage and family therapist can examine and judge the worth, quality, significance, amount or
condition of abnormal or impaired thinking, emotions, actions and relationships in the context of
marriage and family systems,” but under the Medical Practice Act, only a person licensed to practice
medicine can diagnose mental diseases or disorders.
As previously discussed, under the Medical Practice Act, a person who engages in
the “diagnosis” of a mental disease or disorder for compensation is practicing medicine, and only
a person with a Medical Board-issued license may practice medicine in this State. See Tex. Occ.
Code § 155.001. In addition, the eligibility requirements to obtain a license to practice marriage and
family therapy in Texas are distinct from those necessary to obtain a license to practice medicine.
Compare id. § 155.003 (eligibility requirements to obtain license to practice medicine), and id.
§ 155.051 (license examination for license to practice medicine), with id. § 502.252 (requirements
to obtain license to practice marriage and family therapy), and id. § 502.254 (license examination
for license to practice marriage and family therapy). Nevertheless, under the Therapist Defendants’
construction of Section 502.002(6), licensed marriage and family therapists could engage in what
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is plainly the practice of medicine without a Medical Board-issued license. See id. § 151.002(a)(13)
(defining “practicing medicine” as “the diagnosis . . . [of] of mental or physical disease or disorder”).
There is no exemption under the Medical Practice Act allowing marriage and family therapists to
practice medicine in Texas without a Medical Board-issued license. See id. § 151.052 (exemptions
from Medical Practice Act). Consequently, the Therapist Board’s construction of the scope of practice
under Section 502.002(6) is in direct conflict with the licensing requirements of the Medical
Practice Act.
Absent a contrary intention in either the Licensed Marriage and Family Therapists
Act or the Medical Practice Act, we must presume that the legislature intended both statutes to be
fully effective. Tex. Gov’t Code § 311.021(2); CenterPoint Energy Houston Elec., LLC v. Gulf
Coast Coal. of Cities, 263 S.W.3d 448, 461 (Tex. App.—Austin 2008), aff’d sub nom. Texas Indus.
Energy Consumers v. CenterPoint Energy Houston Elec., LLC, 324 S.W.3d 95 (Tex. 2010). We also
presume that the legislature was aware of the requirements of the Medical Practice Act when it
subsequently enacted the Licensed Marriage and Family Therapists Act. See Acker v. Texas Water
Comm’n, 790 S.W.2d 299, 301 (Tex. 1990). Although the legislature was aware that only persons
licensed by the Medical Board may practice medicine in Texas, it did not provide an exemption from
the Medical Practice Act’s requirements for marriage and family therapists when it adopted the
Licensed Marriage and Family Therapists Act. We therefore must construe the statutory scope of
practice under the Licensed Marriage and Family Therapists Act “in a manner that harmonizes
rather than conflicts with that law.” CenterPoint Energy Houston Elec., 263 S.W.3d at 461 (citing
Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 531 (Tex. 2002)).
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The parties agree that the ordinary meaning of the term “evaluation” is “to examine
and judge concerning the worth, quality, significance, amount, degree or condition.”2 See Webster’s
Third New Int’l Dictionary 786 (2002). In contrast, the term “diagnosis” means “the act or process
of discovering or identifying a diseased condition by means of a medical examination.” See Webster’s
New World College Dictionary 397 (4th ed. 2001); see also Mosby’s Medical Dictionary 546 (8th ed.
2009) (“diagnose” means “identification of a disease or condition by scientific evaluation of physical
signs, symptoms, history, laboratory test results, and procedures”). Based on the plain meaning of
the terms “evaluation” and “diagnosis,” we conclude that the terms are related but are not
synonymous. That is, while all diagnoses arise from some type of evaluation, not all evaluations
necessarily lead to a diagnosis. The TMA’s construction of Section 502.002(6)—that a therapist’s
authority to “evaluat[e] and remediat[e] [certain] dysfunctions” does not include the authority to
conduct “diagnosis . . . [of] a mental . . . disease or disorder”—recognizes this distinction between
the relevant terms and gives effect to both the Licensed Marriage and Family Therapists Act and the
Medical Practice Act.
In support of their construction, the Therapist Defendants point out that in numerous
statutes in which the legislature has expressly prohibited certain medical professions from diagnosing,
the legislature has done so in clear and express terms. See Tex. Occ. Code §§ 262.151(a)(3)(A)
(dental hygienists may not “diagnose a dental disease or ailment”), 301.002(2) (professional nursing
“does not include acts of medical diagnosis”), 453.006(a) (physical therapists “may not engage in
2
The terms “evaluation” and “diagnosis” are not defined in the statute. Accordingly, both
parties assign the terms their common, ordinary meanings. See Tex. Gov’t Code § 311.011.
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diagnosing diseases”). The Therapist Defendants reason that the legislature’s failure to expressly
prohibit marriage and family therapists from diagnosing indicates that the legislature, in fact,
intended for marriage and family therapists to have this ability.
We agree that the legislature has not, by statute, expressly prohibited marriage and
family therapists from engaging in diagnosing. We disagree, however, that this lack of an express
statutory prohibition means that the legislature necessarily intended to authorize marriage and family
therapists to make diagnoses. Instead, we must examine the statute as a whole and determine whether
this construction is reasonable. See Tex. Gov’t Code § 311.021(2), (3); City of Dallas v. Abbott,
304 S.W.3d 380, 384 (Tex. 2010) (“We presume that the Legislature intended all provisions of a
statute to be effective, and that it intended a just and reasonable result.”). Because we have
determined that construing Section 502.002(6) in a manner that includes the authority to diagnose
any mental disease or disorder would result in a conflict with the Medical Practice Act, the Therapist
Defendant’s construction is not reasonable. We conclude that the diagnosis of mental diseases or
disorders is excluded from the statutory scope of practice for licensed marriage and family therapists
under Section 502.002(6).
Rule 801.42(13) authorizes licensed marriage and family therapists to conduct
“diagnostic assessments” utilizing the DSM, a comprehensive classification of mental disorders
and diseases. In effect, Rule 801.42(13) authorizes marriage and family therapists to engage in the
diagnosis of mental diseases and disorders.3 Because this authorization exceeds the statutory scope
3
While the parties join issue on whether Rule 801.42(13) exceeds the statutory scope of
practice for marriage and family therapists based on their competing interpretations of Section
502.002(6), the proper construction of Rule 801.42(13) is generally not disputed. Both parties
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of practice for marriage and family therapists permitted under Section 502.002(6), the trial court
did not err in granting summary judgment in favor of the TMA on this claim and declaring Rule
810.42(13) invalid. We overrule the Therapist Defendants’ sole issue on appeal.
Finally, we consider whether the Therapist Board exceeded its rule-making authority
by promulgating Rule 801.44(q). In two related issues, the TMA argues that the trial court erred in
denying its motion for summary judgment on this claim because, like Rule 801.42(13), Rule 801.44(q)
also unlawfully authorizes marriage and family therapists to diagnose mental diseases and disorders.
As previously discussed, Rule 801.44(q) states:
[A licensed marriage and family therapist] shall base all services on an assessment,
evaluation, or diagnosis of the client.
22 Tex. Admin. Code § 801.44(q).
The Therapist Defendants respond by arguing that, by its own terms, Rule 801.44(q)
does not require that all services be based on a diagnosis, or that a marriage and family therapist
diagnose every patient. Instead, according to the Therapist Defendants, Rule 801.44(q) merely
presupposes that a diagnosis by marriage and family therapists is appropriate in some circumstances.
The Therapist Defendants reason that as long as the Licensed Marriage and Family Therapists Act
acknowledge that there is no substantive difference between the authority to conduct a “diagnostic
assessment” and the authority to “diagnose.” See Webster’s Third New Int’l Dictionary 131 & 622
(2002) (“diagnostic” means “adopted to or used for the furthering of diagnosis: employing or marked
by the methods of diagnosis” and “assessment” means “an appraisal or evaluation (as of merit)”).
In addition, neither party disputes, and we agree, that the qualifying phrase “utilizing the DSM”
refers to the ability to diagnose, at least to some degree, mental diseases and disorders. See United
States v. Weis, 891 F. Supp. 2d 1007, 1010 (N.D. Ill. 2012) (explaining that the DSM provides “a
standard, comprehensive diagnostic tool for evaluating mental disorders, and reflects a consensus
opinion of the medical community at the time of publication”).
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“gives marriage and family therapists some authority to diagnose, no matter how broad or narrow,
[Rule 801.44(q)] is consistent with the statute and should stand.” For the following reasons, we
conclude that Rule 801.44(q) is valid.
First, we note that Rule 801.44(q), on its face, does not expressly require a marriage
and family therapist to diagnose a client—only that the therapist’s services be based on an assessment,
evaluation or diagnosis of the client, presumably by some health care professional legally qualified
to provide one. Id. (emphases added). Therefore, while Rule 801.44(q) contemplates that a diagnosis
may be made, the rule does not specify that the diagnosis must be made, or even can be made, by a
marriage and family therapist. Second, because we have already determined that the statutory scope
of practice for licensed marriage and family therapists under Section 502.002(6) does not include
the authority to diagnose mental diseases and disorders, we cannot reasonably construe Rule 801.44(q)
as allowing for such a practice. See TGS-NOPEC Geophysical, 340 S.W.3d at 438 (“If there is
vagueness, ambiguity, or room for policy determination in a statute or regulation, . . . we normally
defer to the agency’s interpretation unless it is plainly erroneous or inconsistent with the language
of the statute, regulation, or rule.”). Because the plain language of Rule 801.44(q), standing alone,
does not authorize marriage and family therapists to engage in diagnoses of any type, we conclude
that Rule 801.44(q) does not exceed the statutory scope of practice for marriage and family therapists.
Accordingly, the trial court did not err in granting summary judgment in favor of the
Therapist Defendants on this claim.4 We overrule the TMA’s first and second issues on appeal.
4
In its third issue on appeal, the TMA asks, in the alternative, that this Court conclude that
Section 502.002(6) is unconstitutional to the extent it permits marriage and family therapists to
engage in the practice of medicine. See Tex. Const. art. XVI, § 31 (“The Legislature may pass laws
prescribing the qualifications of practitioners of medicine in this State, and to punish persons for
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CONCLUSION
Having concluded that the trial court did not err in granting the TMA’s motion for
summary judgment in part and in granting the Therapist Defendants’ motion for summary judgment
in part, we affirm the judgment of the trial court.
____________________________________
Scott K. Field, Justice
Before Chief Justice Jones, Justices Pemberton and Field
Concurring and Dissenting Opinion by Chief Justice Jones
Affirmed
Filed: November 21, 2014
mal-practice, but no preference shall ever be given by law to any schools of medicine.”). In response,
the Therapist Defendants contend that the TMA failed to preserve this challenge because it was not
raised by TMA as a ground for summary judgment. See Tex. R. Civ. P. 166a (issues not presented
to trial court shall not be considered on appeal as grounds for reversal of summary judgment).
Because we have concluded that Section 502.002(6) does not permit marriage and family therapists
to engage in the practice of medicine, we do not decide this issue. See Tex. R. App. P. 47.1.
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