The Honorable Betty Cleland Opinion No. H- 735
Executive Secretary
~Texas State Board of Examiners Re: Definition of governmental
of Psychologists agency for purpose of the
108 W. 15th Street Psychologists’ Certification and
Austin, Texas 78701 Licensing Act, article 4512c,
V. T. C. S.
Dear Mrs. Cleland:
You have requested our opinion concerning the scope and effect of
section 22 of the Psychologists ’ Certification and Licensing Act, article 4512c,
V. T. C. S. Section 22 establishes various exemptions from the application oi
article 4512c, providing in part:
Nothing in this Act shall be construed to apply to:
(a) the activities, services and use of official title
on the part of a person employed as a psychologist
by any: (1) governmental agency, . . . (3) . . . or
any hospital licensed by the Texas State Department
of Health, including medical clinics associated with
such hospitals and are organized as an unincorporated
association. . . .
Your questions are:
Are MH/MR centers which contract with the Department
of Mental Health and Mental Retardation, some of which
are private corporations, some of which are multiply-
funded, governmental agencies? Are community agencies
such as child welfare clinics, which are multiply-funded,
“governmental agencies”?
If a patient in an MH/MR center which is not administratively
part of the Department of MHIMR is damanged by some
action of an unlicensed person offering psychological services.
to whom does that patient turn for redress in the case of a
county MH/MR Center? In the case of a private corporatm,,
center? In the case of a multiply-funded center, subsisting
on grants?
p. 3128
The Honorable Betty Cleland - page two (H-735)
Article 5547-202, V. T. C. S., provides for contracts between the De-
partment of Mental Health and Mental Retardation and various public and
private entities. Article 5547-203, V. T. C. S., authorizes the creation of
community centers for mental health and mental retardation services.
These centers may be formed only by local governmental units and are sub-
ject to control by those units. The character of these centers as governmental
agencies or political subdivisions has varied depending on the context. In
Attorney General Opinion H-29~1( 1974)v.e noted that:
Community centers have been held to be political
subdivisions under statutes concerning social
security coverage, Attorney General Opinion M-149
(1967) and .unemployment compensation coverage,
Attorney General Opinion M-1033(1971). But they
were determined to be neither “departments of the
state government ” for the purposes of Board of Con-
trol purchasing requirements, Attorney General
Opinion M-316( 1968), nor “units of government” for
the purposes of the Texas Tort Claims Act, Attorney
General Opinion M-538( 1969). The latter opinion
held that community centers were merely component
parta of units of government. Attorney General
Opinion M-1266(1972) held that community centers
are agencies of the state, although not state agencies.
In Attorney General Opinion H-291, community centers were held to be political
subdivisions for purposes of workmen’s compensation. And in Attorney General
Opinion H-104( 1973) these centers were held to be exempt from the child care
licensing provisions of article 695c, section 8(a), V. T. C. S. In light of the fore-
going, in our opinion a community center created under the provisions of article
5547-203, V. T. C. S., is a “governmental agency” within the meaning of sect ion
22 of article 4512c, V. T. C. S. See also Board Adjustment of City of Fort
Worth v. Stovall, 216 S. W. 2d 1’71(TSup. 1949). However, a private corpo-
ration does not become a governmental agency by contracting to render services
to the government. Davis v. Smith, 28 S. E. 2d 148 (Ga. 1943). Accordingly, in
our opinion a private corporation contracting with the Department of Mental
Health and Mental Retardation as a general matter is not a governmental agency
under article 4512~. section 22.
Your second group of questions concern a patient’s remedy when damaged
by an unlicensed person offering psychological services. Under our resolution
of your first question, a person working as a psychologist for a community cen-
ter need not be licensed in that capacity. Thus there would be no special liability
p. 3129
The Honorable Betty Cleland - page three (H-735)
for failure to obtain a license. However, under the Texas Torts Claims Act,
article 6252-19, V. T. C. S., torts committed by an employee of such a center
may be the responsibility of the creating governmental units. Attorney General
Opinion M-538( 1969). Of course, if a patient is injured, any recovery to which
he is entitled would depend on the facts of the particular situation. The identity
of any defendent, the relief sought, and the theory of recovery advanced would
depend on the facts of the case and undoubtedly would be determined by the patirnt
and his private attorney.
SUMMARY
A community center created under article
5547-203 is a governmental agency within the
meaning of section 22 of article 4512~. A
private corporation does not become a govern-
mental agency by virtue of a contract to provide
services to the Department of Mental Health and
Mental Retardation.
Torts committed by an employee of a community
center created under article 5547-203 are the re-
sponsibility of the governmental units creating the
center. The liability of a private corporation and
the recourse of a person damaged thereby depend
upon the facts of the particular situation.
Very truly yours,
Attorney General of Texas
Opinion Committee
jad:
p. 3130