Service member's wife sues after Texas denies certification as a counselor

A school counselor was licensed in Ohio and later became licensed as school counselor in Missouri. In 2022, she was employed as a long-term substitute counselor at a middle school in Ohio and a guidance counselor at an elementary school in Missouri. On July 29, 2022, she married an active-duty Air Force officer. Shortly thereafter, he received orders for a permanent change of station from Scott Air Force Base in Illinois to Laughlin Air Force Base in Texas. His wife resigned her employment and relocated to Texas with her husband.

The Servicemembers Civil Relief Act guarantees the portability of certain professional licenses of U.S. service members and their spouses when they relocate on military orders. The law states that, in any case in which a service member or the spouse of a service member has a professional license and relocates his or her residency because of military orders for military service to a location that is not in the jurisdiction of the licensing authority that issued the license, the license shall be considered valid in the service member's new location.

When the service member's wife arrived in Texas, she applied to obtain a school counselor certificate. Her application was denied because she failed to verify two years of full-time, wage-earning experience in the role of a school counselor, which is a requirement for an out-of-state applicant for school counselor certification in Texas. When she pointed out that she believed that the Servicemembers Civil Relief Act allowed her out-of-state license to transfer, TEA informed her that, because the SCRA requires that the license have been "actively used during the two years immediately preceding the relocation," she would still be required to submit proof of "two creditable years of service" working as a school counselor before she would be eligible for Texas certification.

The service member's wife filed a lawsuit, alleging that TEA violated the Servicemembers Civil Relief Act by refusing to honor her out-of-state certification. She also applied for a temporary injunction to prevent TEA from denying her certification while the lawsuit was pending.

In deciding whether to grant the temporary injunction, the court was required to decide whether the service member's wife was likely to win her lawsuit. TEA argued that the requirement that the license must have been used "actively during the two years immediately preceding the relocation" means that the license must been used continuously for the entire two-year period preceding relocation. Under this interpretation, the service member's wife would be ineligible for the SCRA's portability protections because she did not actively use the licenses until 2022 when she was employed as a school counselor in Missouri and did not use them for the entire two-year period before she moved to Texas. The service member's wife argued that the law requires only that she used her Missouri and Ohio licenses at any point during the two-year period preceding her move to Texas.

The court found that TEA's interpretation would impose restrictions on the ability of service members and their spouses to port their professional licenses. For example, TEA's interpretation would prohibit newly licensed individuals from porting their credentials across state lines in the event of a military transfer. It would also disqualify deeply experienced licensees who work part time or who happened to take recent work leave for medical or personal reasons. Given the unpredictable timing and frequency of military-ordered moves, this approach would make license portability impossible for many service members and spouses. The court therefore found that the service member's wife was likely to win her lawsuit.

The court also found that failing to grant the service member's wife her counselor's license would cause irreparable harm, because she would be unable to find work in her chosen profession. Therefore, the court granted the application for temporary injunction and held that TEA could not deny her application for a school counselor due to lack of two creditable years of service.

This case will now proceed to trial, which could change the outcome.