Untitled Texas Attorney General Opinion

FFICE

OFTHEATTORNEY

GENERAL.

STATE

OFTEXAS

JOHN CORNYN

May 17,1999

Ms. Deborah Hammond, LMSW-ACP Opinion No. JC-0049

Chair, Texas State Board

of Social Worker Examiners Re: Whether section 50.023(e) of the Human

1100 West 49th Street Resources Code permits a person originally

Austin, Texas 78756-3183 licensed without an examination, whose license

has expired for more than a year, to reapply for a

new license without an examination (RQ-1172)

Dear Ms. Hammond:

You ask about the licensing of a person as a social worker by the Texas State Board of Social

Worker Examiners under section 50.023(e) of the Human Resources Code. Specifically, you ask

whether section 50.023(e) permits a person originally licensed without an examination, whose

license has expired for more than a year, to reapply for a new license without an examination.

Because the plain language ofthe statute so provides, we conclude in the affirmative. Accordingly,

we also conclude that the Board’s rule on reapplication, to the extent it requires an applicant

originally licensed without an examination to take an examination, is invalid.

You advise us of the following facts giving rise to your question. On April 24, 1998, an

individual whose license expired more than fourteen years ago reapplied for a license contending

that she is eligible to be licensed without an examination. You tell us this individual was originally

certified’ on August 31, 1983, under a “grandfather” provision which allowed her to be certified

without taking an examination.’ She did not renew the annual certification which expired on

September 30,1984. The applicant’s request for licensing without an examination has prompted the

‘Prior to 1993, social workers were “certifies’ rather than “licensed.” See Act ofMay 25,1993,73d Leg., R.S.,

ch. 605, $5 1, 12, 1993 Tex. Gen. Laws 2277,22&B.

‘Prior to 1993, qualified persons could be granted social worker certification without examination. See Act

of June 1, 1981,67th Leg., R.S., ch. 776,s 1,198l Tex. Gen. Laws 2923,292s (authorizing certifications ofpersons

meeting educational and other requirements of Act without examination until August 31, 1982), amended by Act of

May2,1983,68thLeg.,RS.,ch. 87,§ 8,1983 Tex. Gen. Laws417,424(authorizingcetificationwithoutexamination

of persons meeting requirements of Act until December 3 1, 1985, and Act’s work experience requirements after

December31,1985)(eff. Sept. 1,1983),amendedbyActofMay25,1993,73dLeg.,R.S., ch. 605, $5 1,21,1993Tex.

Gen. Laws 2277, 2287-88 (deleting grandfather provision); see also Tex. Att’y Gen. LO-89-104 (discussing 1983

grandfather provision).

Ms. Deborah Hammond, LMSW-ACP - Page 2 (JC-0049)

Texas State Board of Social Worker Examiners in turn to request an opinion from this o&e as to

whether section 50.023(e) of the Human Resources Code permits this.

The Texas Professional Social Work Act, sections 50.001-50.034 of the Human Resources

Code (the “Act”), creates the Texas State Board of Social Worker Examiners (the “Board”) and

authorizes it to license and regulate social workers. See TEX.HUM.RES. CODEANN. $5 50.004(a),

,006 (Vernon Supp. 1999). Unless licensed under the Act, a person may not hold himself or herself

out as a social worker or use a title that implies licensure or certification in professional social work

services. Id. $50.010. To be eligible for licensure, a person must submit an application stating the

person’s education, experience and other information required by the Board; be at least eighteen

years of age “and worthy of the public trust and confidence, ” id. 5 50.013; and have the requisite

educational degree. Id. $5 50.015, .017. An eligible applicant must also take an examination

administered by the Board. Id. $ 50.014(a). Upon satisfactory completion of the examination, an

applicant may be granted a license as a licensed master social worker, licensed social worker, or a

social work associate. Id. 5 50.014(b).

The licenses expire on staggered dates during the year and may be renewed before the

expiration date or within one year of the expiration date simply by paying renewal and examination

fees. Id. § 50.023(a)-(d). A different procedure must be followed if a license has expired for more

than a year, however. Section 50.023(e), which you ask about, requires these licensees to reapply

providing as follows:

If a person’s license or certificate or order of recognition has

been expired for one year or longer, the person may not renew the

license or order of recognition. The person may obtain a new license

or order of recognition by submitting to reexamination, if an

examination was originally required, and complying with the

requirements and procedures for obtaining an original license or

certificate or order of recognition. However, the board may renew

without reexamination an expired license or certificate or order of

recognition of a person who was licensed in this state, moved to

another state, and is currently licensed or certified and has been in

practice in the other state for the two years preceding application.

The person must pay to the department a fee that is equal to the

examination fee for the license or order of recognition.

TEX. HUM.RES. CODEANN. 5 50.023(e) (emphasis added).

Section 50.023(e) by its plain terms requires a person whose license has expired for a year

or longer applying for a new license to submit to an examination only if the person was originally

required to take an examination. Like a court, we must give effect to each word and phrase in

subsection (e). See Eddins-Walcher Butane Co. v. Calvert, 298 S.W.2d 93, 96 (Tex. 1957).

Subsection (e) provides that an applicant may obtain a new license “bysubmitting to reexamination,

Ms. Deborah Hammond, LMSW-ACP - Page 3 (X-0049)

if an examination was originally required . .” The emphasized language is clear and

unambiguous, and we must ascribe to that language its common everyday meaning. Commissioners

Court of Titus County v. Agan, 940 S.W.2d 77, 80 (Tex. 1997); see also Monsanto Co. v.

Cornerstones Mun. Vtil. Dist., 865 S.W.2d 937, 939 (Tex. 1993) (where language in statute is

unambiguous, court must seek legislative intent in plain and common meaning of words and terms

used in statute); TEX. GOV’TCODEANN. $ 3 11.O1 l(a) (Vernon 1998) (words and phrases shall be

read in context and construed according to rules of grammar and common usage). The ordinary

meaning of “reexamination,” is to retake or resubmit to an examination and the term necessarily

presupposes the existence of a prior examination. Thus, only an applicant previously subject to an

examination, by definition, may be subject to a reexamination. More importantly, the phrase

providing that reexamination is required “if an examination was originally required” emphasizes

that it is conditioned on a previously required examination. Accordingly, if an examination was not

originally required, then a reexamination is not required. Additionally, we have found no indication

in the Act or its legislative history that the legislature intended otherwise. Therefore, based on the

legislative language, weconclude that scction50.023(e)permits apersonoriginallylicensed without

an examination, whose license has expired for more than a year, to reapply for a new social work

license without an examination.

You have advised us that the Board’s “policy has been, if a person allows their license to

expire for more than one year, then the person is required to reapply under the rules that are in effect

at the time of reapplication” and that “[n]o person has ever been allowed to reapply and be licensed

after allowing their license to lapse, to be relicensed without taking an examination which has been

required since January 1,1986.” By policy, we understand you to refer to the Board’s interpretation

as embodied in the relevant Board rule. That rule provides as follows: “On or after one year from

the expiration date, a person may no longer renew the license and must reapply by submitting a new

application, paying the required fees, and meeting the current requirements for the license including

passing the licensure examination.” 22 TEX. ADMIN.CODE 9 781.504(g). This interpretation is

inconsistent with the plain language of the statute. See Monsanto, 865 S.W.2d at 939 (where

language in statute is unambiguous, court must seek legislative intent in plain and common meaning

of words and terms used in statute).

As the agency charged with executing the Act, the Board’s construction of the statute is

entitled to serious consideration, but only as long as such construction is reasonable and does not

contradict the plain language of the statute. Tarrant County Appraisal Dist. v. Moore, 845 S.W.2d

820,823 (Tex. 1993); see also TEX. GOV’T CODEANN. § 3 11.023(6) (Vernon 1998). As a general

matter, a construction that imposes additional burdens, conditions, or restrictions in excess of or

inconsistent with the statutory provisions cannot be upheld. See, e.g., Railroad Comm ‘n of Ten. v.

ARC0 Oil&Gas Co., 876 S.W.2d 473,481 (Tex. App.-Austin 1994, writ denied) (agency rulemay

not impose additional burdens, conditions, or restrictions in excess ofor inconsistent with statutory

provisions); Hollywood Calling v. Public Vtil. Comm’n of Tex., 805 S.W.2d 618, 620 (Tex.

App.-Austin 1991, no writ) (same). Specifically, a licensing agency for a business or profession

cannot enforce standards that are more burdensome than those of the controlling statute, even though

they may be reasonable and may be administered reasonably. Bloom v. Texas State Bd. of&am ‘rs

Ms. Deborah Hammond, LMSW-ACP - Page 4 (X-0049)

ofPsychologists, 492 S.W.2d460,462(Tex. 1973);Murphyv..Mttlelstadt, 199 S.W,2d478,481-82

(Tex. 1947); Tex. Att’y Gen. Op. No. N-650 (1987) at 5. Notwithstanding that the Board’s

interpretation of section 50.023(e) may be consistent with the Act’s general objective of setting high

standards for social worker qualifications and protecting the public,’ it is inconsistent with the plain

language of section 50.023(e). The Board’s interpretation reads out of the statute the phrase “by

submitting to reexamination, ifan examination was originally requires’ and gives effect only to the

remaining provision, i.e., the language requiring the applicant to comply with the procedures for a

new license, including examination. This interpretation imposes the burden of taking an

examination on an applicant reapplying for a license who was not originally required to take an

examination when the statute plainly exempts such applicant from examination and, thus, is

inconsistent with section 50.023(e). Accordingly, we also conclude that the Board’s rule on

reapplication, to the extent it requires an applicant originally licensed without an examination to take

an examination, is invalid. See Bloom, 492 S.W.2d at 462; ARCO, 876 S.W.2d at 481.

‘S~~TEX.HUM.RES.CODEANN.$50.014(a)(VemonSupp. 1999)(“At leastonceeachcalendaryearthe board

shall prepare and administer an examination to determine the qualifications of applicants for licenses under this

chapter.“); Sunset Commission Recommendations to 68th Legislature (1982) at 19 (noting that the “state generally

should only regulate a profession when the unregulated practice can clearly harm or endanger the public,” describing

tasks commonlyperformed by social workers, and concluding as follows: “From this description it can be seen that the

social worker is often involved in areas in which professional judgment can have significant impact on the well-being

of clients. Thus, substantial harm to the public could result from incompetent or unqualified social workers.“); see also

Letter from Helen Fisher, President, National Association of Social Workers, Texas, to Sarah J. Shirley, Chair, Opinion

Committee (Aug. 25, 1998) (on file with Opinion Committee) (social workers licensed to protect credibility of

profession and to establish safeguards for public; exempting applicant reapplying for license from examination

detrimental for profession).

Ms. Deborah Hammond, LMSW-ACP - Page 5 (JC-0049)

SUMMARY

Section 50.023(e) of the Human Resources Code permits a

person originally licensed without an examination whose license has

expired for more than a year to reapply for a new social work license

without an examination. The Texas State Board of Social Worker

Examiners’ rule on reapplication, to the extent it requires an applicant

originally licensed without an examination to take an examination, is

invalid.

Attorney General of Texas

ANDY TAYLOR

First Assistant Attorney General

CLARK RENT ERVIN

Deputy Attorney General - General Counsel

ELIZABETH ROBINSON

Chair, Opinion Committee

Prepared by Sheela Rai

Assistant Attorney General