Untitled Texas Attorney General Opinion

Honorable R. H. Cory, Chairman State Affairs Committee House of Representatives Austin, Texas Opinion No. W-612 Re: Constltutionallty of House Bill 42 of the 56th Leg., the Psycho- logist Certification Dear Mr. Cory: Act. You have requested our opinion on the validity of Rouse Bill 42 of the 56th Legislature, calling particular attention to whether its provisions are so vague, indefinite and uncertain as to be incapable of interpretation or of being enforced and whether Its provisions violate the pre- ference provision of Section 31 of Article XVI of the Constitution of Texas. Section 2 of the Bill states its purpose as follows : "In order to safeguard life, health and property and to promote the public welfare this Act is enacted. Recognizing the difficulty persons seeking psychologi- cal services encounter in determining who is qualified to render those services for them, the Legislature enacts this Act so as to provide a list of qualified psycho- logists from which these persons may make their choice. Exploitation by the un- trained and unscrupulous and positive Injury from erroneous counsel of the unquali- fied may thus be avoided." The phrase "psychological services" Is not defined in the Bill. Subdivision (c) of Section 3 provides: Honorable R. Ii.Cory, page 2 (W-612) 'IWOperson certified hereunder 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." The above language in Sectfon 3'of Rouse Bill 42 Is taken from Article 4510, Revised Civil Statutes of Texas, 1925, as amended, defining the practice of medicine. Section 24 of the.Bill provides as follows: "Certification under this Act does not authorize the psychologist to engage in any manner in the practice of meditine as defined by the laws of this State. In view of the provisions of Subdivision (c) of Section 3 and of Section 24, the Bill does~not authorize any Individual to practice medicine. Thus, the provisions of Section 31 of Article XVI of the Constitution of,Texas, prohibiting the Legislature from giving any preference to any school of medicine, is not violated. See: Schllchting 1. Texas State Board of Medical Examiners, Texas ,310 S.W.2d 557 (1958);W.ilsonv. State Board ofmturopzlc Examin- ers, 298 S.W. 2d,ga6, (Tex.Civ.App. 1957 error ref. n.'f.e.; cert. den. 78 S. Ct. 121). Khili~th~'p~o~isSo~s'of~~H~~~e'~'Bill 42 does not authorize the practice of medicine and states that its purpose Is to safeguard the life, health and property and to promote the public welfare by preventing th,eexploitation by the nntralned and unscrupulous,~no grovlslon in the Bill attempts to regulate the renditibn of psychological services". The oriy attempt to carry outthe declared purpose is to provide that any one who 'represents himself to be a psycho- logist within this State without being certified" shall be guilty of a misdemeanor. Section 27. Thus, under the &rovisions of the Bill !o one Is prohibited from performing psychological services . The only prohtbitlon is the use of the name "psychologist" without certification. This uncertainty of regulation and enforcement renders it's provisions so vague and .lndefinite'asto,be incapable of interpretation or of being enforced and House Bill 42 is therefore void. Wilson v. State Board of Raturopathlc Examiners supra; 23~parte Raistea, 147 Tex.Cr. R.453, 182 s.w.2d 479 (19443. Honorable R. H. Cory, page 3 (WW-612) It is elementary that the exercises of the police power by the Legislature is not unrestricted. A statute enacted under the police power must be appropriate and reasonably necessary under all circumstances to accomplish a purpose within the scope of the police power. It also must be reasonable in the sense of not being arbitrary or unjust. Its effect on individuals must'not be out of proportion to the benefit to be gained by the public. Snann v. City~of Dallas, 111 Tex. 350, 235 S.W. 513 71921); City of Coleman v. Rhone, 222 S.W.2d 646 (Tex.Clv. A P. ly>g, ewe Smythe, 116 Tex. Cr. R. 1E6, 28 S.W:2d 161 (1930);on & T.C.Ry. Co. v. Dallas, 98 Tex. 396, 84 S.W. 648, ('l905)-Heel Texas Liquor Control, 259 S.W.2d 312 (T;x. Civ:'App. 1953, error ref. n.r.e.); Brown v. Humble Oil & Refining Company, 126 Tex. 296,,83 S,W.2d 935 (1935 j Ex parte Smith 152 T Cr.R. 126, 211 S.W.2d 204 (19 8); American Fe&atione% Labor v. Mann, 188s.w.28 276 (Tex.Civ.App. 1~45). There is no provision in the Bill which seeks to accomplish the declared purpose of protecting the public from unqualified individuals performing "psychological services'. The Bill only governs the use of the name "psychologist". It Is therefore our further opinion that the provisions of House Bill 42 Is an unreasonable exercise of the police power of the State and therefore In violation of the due process clause of Section 19 of Article I of the Constitution of Texas. Bdti~~Bil1~42 .is vojd for va#ehessand uncertainty and Is a.,unreLtionableexercise of the police power in violation of the due process clause of Section 19 of Article I of the Constitution of Texas. Yours very truly, WILL WILSON Attorney General of Texas &? -f/F;;., ...g By:,, John Reeves P Assistant JR:rm:sd Honorable R. H. Cory, page 4 (NW-612) APPROVED: OPINION COMMTTEE Gee. P. Blackburn, Chairman Robert T. Lewis Zellner J. Turlington REVIEWED FOR THE A!lTORNEYGENERAL BY: Norgan Nesbitt