The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Gary E. Miller, M.D. Opinion No. MN-555
Supreme Court Building
P. 0. BOX 12546
C0HdSSi0l-l~~
Austin. TX. 78711. 2546 Texas Department of Mental Health Ice: Licensing of audiologists
5121475-2501 and Mental Retardation under article 4566, V.T.C.S.
Telex 9101674-1367 P. 0. Box 12668
Telecwhr 5121475-0266 78711
Austin, Texas
1607 Main St.. Suite 1400 Dear Dr. Miller:
Dallas. TX. 75201-4709
2141742.6944 You have requested our opinion on the following two questions
concerning article 4566, V.T.C.S.:
4624 Alberta Ave.. Suite 160
El Paso, TX. 799052793 1. Does article 4566 require that an
9151533.3464 audiologist with a master's or doctorate degree be
licensed by the Texas Board of Examiners in the
1220 Dallas Ave.. Suite 202
Fitting and Dispensing of Hearing Aids?
Houston, TX. 77002.6966
713,650.0666 2. If an individual with a master's or
doctorate degree in audiology is not licensed by
the Board of Examiners in the Fitting and
606 Broadway. Suite 312
Dispensing of Hearing Aids, may he/she make
Lubbock, TX. 79401-3479
6061747.5236 impressions for earmolds to be used as a part of
the hearing aid?
4309 N. Tenth. Suite B To answer your questions, we must analyze several provisions of
McAllen, TX. 76501-1665
article 4566. Paragraph (a) of article 4566-1.06, V.T.C.S., states:
5121662-4547
Every person desiring to engage in fitting and
200 Main Plaza, Suite 400 dispensing hearing aids in the State of Texas
San Antonio. TX. 76205.2797 shall be required to pass an examination given by
5121225-4191
the Texas Board of Examiners in the Fitting and
Dispensing of Hearing Aids. (Emphasis added).
An Equal Opportunity/
Affirmative Action Employer Paragraph (e) of the same statute provides in part:
Every applicant successfully passing the examina-
tion and meeting all the requirements of this Act
shall be registered by the Board as possessing the
qualifications required by this Act and shall
receive from the Board a license to fit and
dispense hearing aids in this state. (Emphasis
added).
p. 2031
Dr. Gary E. Miller - Page 2 (1.~+555)
Article 4566-1.01(f) defines "[flitting and [dlispensing hearing aids"
a*:
the measurement of human hearing by the use of an
audiometer or by any means for the purpose of
making selections, adaptations and/or sales of
hearing aids. The term also includes the sale of
hearing aids, and the making of impressions for
earmolds to be used as a part of the hearing aid.
Article 4566-1.19 provides:
Nothing in this Act shall be construed to apply to
the following:
. . .,
(3) An individual with a master's or doctorate
degree in audiology from an accredited college or
university may engage in the measurement of human
hearing by the use of an audiometer or by any
means for the purpose of making selections and
adaptations of or recommendations for a hearing
aid, provided such persons do not sell hearing
aids.
When the foregoing provisions are read together, the following
becomes apparent: (1) as a general rule, anyone who desires to engage
in "fitting and dispensing hearing aids" in this state must pass an
examination given by the Board of Examiners as a prerequisite to
becoming licensed by the board to do so; (2) the term "fitting and
dispensing hearing aids" includes those specific functions enumerated
in article 4566-1.01(f); (3) the examination and licensing
requirements of article 4566 do not apply to individuals with a
master's or doctorate degree in audiology who perform those functions
enumerated in article 4566-1.19(3); and (4) the functions enumerated
in article 4566-1.19(3) do not include all those functions enumerated
in article 4566-1.01(f).
In Cameron v. Terre11 & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.
1981), the Texas Supreme Court stated:
It is a rule of statutory construction that every
word of a statute must be presumed to have been
used for a purpose... Likewise, we believe that
every word excluded from a statute must also be
presumed to have been excluded for a purpose.
Only when it is necessary to give effect to the
clear legislative intent can we insert additional
p. 2032
Dr. Gary E. Miller - Page 3 (MW-555)
words or requirements to a statutory provision....
(Emphasis added).
This rule makes it clear that we cannot ignore the significant
difference in the wording of articles 4566-1.01(f) and 4566-1.19(3).
The former article includes functions which are simply not included in
the latter. Specifically, the former defines "fitting and dispensing
hearing aids" to include, inter alia, "the making of impressions for
earmolds to be used as a part of the hearing aid," whereas the latter
does not include this phrase. We can only conclude that the
legislature omitted this phrase from article 4566-1.19(3) because it
did not want to authorize individuals with a master's or doctorate
degree in audiology to make such impressions without a license.
It has been suggested that the proviso in article 4566-1.19(3)
indicates that the legislature really intended to permit individuals
with a master's or doctorate degree in audiology to perform = of the
functions included in the definition of "fitting and dispensing
hearing aids" without a license, as long as they do not sell hearing
aids. In other words, it has been suggested that the list of
functions which precedes the proviso in article 4566-1.19(3) is not
exhaustive, that the proviso is actually the key phrase in the
statute, and, therefore, that individuals with a master's or doctorate
degree must obtain a license only if they sell hearing aids.
We cannot accept this argument. In our opinion, the argument
places too much emphasis upon a proviso and not enough upon the fact
that article 4566-1.19(3) specifically omits one of the functions
included in the definition of "fitting and dispensing hearing aids"
set forth in article 4566-1.01(f). While it is of course possible
that the proviso was put in article 4566-1.19(3) to indicate that
selling hearing aids is the & function which individuals with a
master's or doctorate degree may not perform without a license, it is
also possible that it was added to the statute to clarify the fact
that persons with those degrees may "engage in the measurement of
human hearing by the use of an audiometer or by any means for the
purpose of making selections and adaptations of or recommendations for
a hearing aid" & if they do not sell hearing aids. In short, we
believe that the fact that article 4566-1.19(3) omits any reference to
making impressions for earmolds to be used as a part of the hearing
aid is far more significant than the fact that the proviso therein
refers only to selling hearing aids.
We therefore conclude, in answer to both of your questions, that
individuals with a master's or doctorate degree in audiology from an
accredited college or university are not exempt from the provisions of
article 4566 if they sell hearing aids or make impressions for
ear-moldsto be used as a part of the hearing aid.
p. 2033
Dr. Gary E. Miller - Page 4 (MW-555)
SUMMARY
Individuals with a master's or doctorate degree
in audiology from an accredited college or
university are not exempt from the provisions of
article 4566, V.T.C.S., if they sell hearing aids
or make impressions for earmolds to be used as a
part of the hearing aid.
Very truly yours,
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible and
Stan Reid
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Jim Moellinger
Stan Reid
p. 2034