Paxton, 020122 TXAGO, AGO RQ-0445-KP

• Case Date: February 01, 2022
• Court: Texas

The Honorable Ken Paxton Attorney General of Texas Attn: Opinions Committee AGO RQ-0445-KP FILE# ML-49080-22 I.D.# 49080 Texas Attorney General Opinion February 1, 2022          Dear Mr. Paxton:          The Texas Behavioral Health Executive Council (hereinafter referred to as "the Council") respectfully requests a Texas Attorney General Opinion regarding the rule review process for the Council, as required by Tex. Gov't Code Sec. 2001.039, given the unique nature of the Council's rulemaking authority.          H.B. 1501, 86^th Leg., R.S. (2019) created the Council and authorized the Council to regulate, administer, and adopt rules for the practice of marriage and family therapy, professional counseling, psychology, and social work. H.B. 1501 transferred rulemaking authority from the Boards for each of these professions to the Council. By way of example, see Tex. Occ. Code Sec. 507.153(c) which states: "[t]he executive council retains authority for final adoption of all rules and is responsible for ensuring compliance with all laws regarding the rulemaking process." See also 22 Tex. Admin. Code Sec. 881.20. But under H.B. 1501 the rulemaking power of the Council is not absolute, because Tex. Occ. Code Sec. 507.153(a) states:

(a) Unless the rule has been proposed by the applicable board for the profession, the executive council may not adopt under this chapter or Chapter 501, 502, 503, or 505:

(1) a rule regarding:

(A) the qualifications necessary to obtain a license, including limiting an applicant's eligibility for a license based on the applicant's criminal history;

(B) the scope of practice of and standards of care and ethical practice for the profession;

(C) continuing education requirements for license holders; or

(2) a schedule of sanctions for violations of the laws and rules applicable to the profession.

         Therefore, certain types of rules must first be proposed to the Council by the underlying professional Board before the Council may consider proposing or adopting them. Part of the Council's mission is to provide active state supervision through a controlling number of non-market...