A yoga instructor. A fortune teller. A political consultant.
Under current Texas law, all three could call themselves “psychologists” because of some of the services they each provide and because doing so is protected speech.
The Texas Senate Health and Human Services Committee will hear a bill Wednesday that seeks to narrow the definition of the "practice of psychology," after the 5th Circuit Court of Appeals ruled last year that parts of the state's licensing statute are overly broad and unconstitutional. The court effectively said that the Texas State Board of Examiners of Psychologists could not take action against anyone practicing psychology in Texas without a license.
"The ability to provide guidance about the common problems of life – marriage, children, alcohol, health – is a foundation of human interaction and society, whether this advice be found in an almanac, at the feet of grandparents, or in a circle of friends," the three-judge panel wrote. "There is no doubt that such speech is protected by the First Amendment."
The court did leave open the opportunity for the Texas Legislature to narrow the definition of the practice of psychology in statute – a feat the plaintiff in Serafine v. Branaman maintains is impossible.
“The central feature that makes it unconstitutional,” Mary Louise Serafine, an Austin attorney and academic said, “is that it prohibits the practice of psychology to everybody except licensees and therefore it prohibits freedom of speech.”
The case began after Serafine referred to herself as an “Austin Attorney and Psychologist” on her campaign website during an unsuccessful bid for the Texas Senate in 2010 against state Sen. Kirk Watson, D-Austin. She soon received a cease-and-desist letter from the Texas Attorney General informing her that without a Texas psychology license she could not lawfully say she was a "psychologist."
Despite years of serving on psychology faculties at Yale University and Vassar College, Serafine didn’t meet eligibility requirements to apply for a license to practice in the state and never intended to get her license.
Serafine complied with the order and removed the title from her website. She then sued Dr. Tim Branaman, chair of the Texas State Board of Examiners of Psychologists, arguing that as a candidate for office, the First Amendment protected her right to call herself a psychologist as political speech.
After a loss in a lower court, she appealed her case to the 5th Circuit and won on both counts.
Now her former political opponent, Watson, is author of the legislation that seeks to narrow how the state categorizes the more than 4,800 licensed psychologists in Texas statute.
"Right now, anyone can call themselves a psychologist and that harms both legitimate, trained psychologists and the people who are seeking help,” Watson said. “This bill is about protecting Texans from the unlicensed practice of psychology."
Though three alternate definitions were proposed by various stakeholders, Watson's Senate Bill 2001 adopts the one closely modeled after the American Psychological Association's definition, according to Dr. Carol Grothues, president of Texas Psychological Association.
“It’s the most comprehensive and specific definition,” said Grothues, a licensed psychologist in Dripping Springs who plans to testify in favor of the bill Wednesday.
“One very, very important part is the inclusion of diagnosis. It is a fundamental part of what we do,” Grothues said, and it was not in statute previously.
The bill also outlines what the profession is not. “It does not include advice, guidance counseling in a general public area, peer support help,” the “normal behaviors” that are covered in current statute, Grotheus said.
Serafine intends to testify against the bill Wednesday.
"The whole problem can be solved by turning the licensing into a certification,” she said. “There would still be preferred providers, a certification, same as a license except that it doesn’t prohibit anyone else.”
Despite her opposition, Watson said he expects the bill to be voted out of committee.
- After a three-judge panel ruled last year that the state's definition of "psychologist" violated the First Amendment, officials began working to come up with a new definition that would still prove valuable to potential patients.
- Last month, the U.S. Supreme Court ruled that Texas had to stop using its current method of determining if a death-sentenced inmate is intellectually disabled.