Texas Attorney General Opinion: LO98-019 Page: 2 of 4
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William R. Archer, II, M.D. - Page 2
Board of Physical Therapy Examiners under article 4512e, V.T.C.S. Accordingly, it held that
kinesiotherapists might not be registered by the department.
The American Kinesiotherapy Association and the Texas Kinesiotherapy Association argue
on the contrary that those kinesiotherapists employed by the V.A. cannot be subject to article 4512e,
because federal law pre-empts it, and that it therefore follows that, not being regulated by the Board
of Physical Therapy Examiners, such persons may be registered under section 12.014(a).
Your office requested reconsideration and clarification of Letter Opinion No. 96-103 in light
of these concerns. You ask first "[w]hether it was the intent of the United States Congress to
preempt state laws conflicting" with the federal statute under which V.A. hospital standards for the
employment, inter alia, of kinesiotherapists are set. You further ask if article 4512e conflicts with
or impairs the federal scheme by which V.A. hiring is regulated, and in particular whether the
requirement that kinesiotherapists in Texas must be licensed by the Board of Physical Therapy
Examiners so conflicts with the federal scheme as to be pre-empted. If so, you ask whether article
4512e "fails to regulate the practice of kinesiotherapy in its entirety within the [S]tate of Texas," and
if therefore kinesiotherapists not subject to article 4512e-by which, we take it, you mean
kinesiotherapists employed by the V.A.-may be registered by the department pursuant to section
12.014.
Federal pre-emption of state law rests, doctrinally, on the Supremacy Clause of the United
States Constitution, article six, which reads in relevant part:
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; . . . shall be the supreme Law of the Land; any thing in the
Constitution or Laws of any State to the Contrary notwithstanding.
Supreme Court cases define three kinds of pre-emption. "First, Congress can define
explicitly the extent to which its enactments pre-empt state law. .... Pre-emption fundamentally is
a question of congressional intent. . . and when Congress has made its intent known through explicit
statutory language, the courts' task is an easy one." English v. General Electric Co., 496 U.S. 72,
78-9 (1990). The second kind of pre-emption, so-called field pre-emption, occurs when state law
"regulates conduct in a field that Congress intended the Federal Government to occupy
exhaustively." Id. at 79. If it is asserted that state law is pre-empted in an area "'traditionally
occupied by the States,' congressional intent to supersede state laws must be 'clear and manifest."'
Id. The third kind of pre-emption, conflict pre-emption, occurs when state law "actually conflicts
with federal law . . where it is impossible for a private party to comply with both state and federal
requirements, ... or where state law 'stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.'" Id.
(...continued)
Accordingly, even were we to hold that kinesiotherapists employed by the V.A. might be registered by the department,
such persons could not hold themselves out as licensed to practice generally in Texas.(L098-019)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: LO98-019, text, March 17, 1998; (https://texashistory.unt.edu/ark:/67531/metapth277315/m1/2/?q=%22%22~1: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.