The 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