Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL
OF-TEXAS
Amwrnv~ TEXAH 78711
JOHN L alLI,

February 6,1973

Honorable James Cole Opinion No. H- 4
House of Representatives
State CapitoP Building Re: Interpretation of
Austin, Texas 78711 the term “active”
as used in Section
2, Subsection 3 and
4 of the act creating
the Texas Board of
Examiners in the’
Fitting and Dis-
pensing of Hearing
Dear Mr. Cone: Aids.

Prior to the end of his term as representative, the Honorable
Vernon J. Stewart requested an opinion of the Attorney General with
reference to the qualifications of tho.se to serve on the Texas Board
of Examiners in the Fitting and Dispensing of Hearing Aids created
in Acts 1969, and now codified as Chapter 10a of Title 71 of the Civil
Statutes, Section 4566-l. 01 et seq, Vernon’s Texas Civil Statutes.

We have been asked to make our response to you in Mr. StewartVs
absence.

Mr. Stewart’s precise questions had to do with Subsections 3 and
4 of Article 4566-l. 02(a) which describe the qualifications for two of
the nine members of the Board.

One of them, in addition to residence requirements, is required
to be “an active practicing physician or surgeon duly licensed to practice
in this State by the Texas State Board of Medical Examiners, and
specialize in the practice of otolaryngology. ‘I The other, with similar
residence requirements, is to be “an active practicing audiologist. ”
Both are specifically prohibited from having any financial interest in a
hearing aid manufacturing company or a wholesale or retail hearing aid
company.
Honorable James Cole, page 2. (H-4)

Mr. Stewart questioned the use of the word “active” and asked
specifically (1) whether a party could qualify under subsection 3 if
he was a full-time administrator of a clinic “‘and does not practice
his profession7” And (2) whether a party might qualify under sub:
section 4 if he was a fulltime faculty member of a college or univer-
sity.

The word “active” has many meanings. It might be used, for
instance, to distinguish an active person from one who is retired.
.- Corp.& al, 80 S. Ct. 1336, 363
II. S. 685, 4. L. Ed. 2d 149 (1960). It might be used as an antonym to
the word “massive”. Lohmever v. Marvland State Bar Assoc. of Law.
Examiners, 218 Md. 575, 147 A.2d 703 (1959); Carson State Co. v. .
McColgan,l30 P. 2d 202 (Cal. App. 1942). The meaning most often
given it, is “characterized by action rather than by contemplation or
speculation. ” Webster’s Third~New International Dictionary’(1967)
;,.
p. 22.

Article 4510, V. T. C. S. provides, in part:

“Any person shall be regarded as pneticing
medicine within the meaning of this law:

“(1) Who shall publicly profess to be a
physician or surgeon and shall diagnose, treat, or
offer to treat any disease or disorder, mental or
physical, or any physical deformity or injury,
by any system or method, or to effect cures thereof;

“(2) or who shall diagnose, treat or offer
to treat any disease or disorder, mental or physical,
or any physical deformity or injury, by any system
or method, or to effect cures thereof and charge,
therefor, directly or indirectly, money or other
compensation. . .‘I
‘.
The phrase ,“active practicing physician or surgeoni means one who
is active and practicing; one who actually diagnoses, treats or a f fers’to”
treat mental or physical diseases or disorders; one who devotes
sufficient time to the practice of medicine as to be identified~ in his
community as an active practitioner.

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Honorable James Cole, page 3, (H-4)

Mr. Stewart’s letter asked whether a party might possibly
qualify under subsection 3 “if he is a full-time administrator of
a clinic and does not practice his profession?” As stated, the
question answers itself. A man who does not practice his profession
is not an active practicing physician or surgeon. However, we do
not believe the Legislature intended to automatically disqualify all
hospital or clinic administrators. It is not uncommon, we
believe, for a person to be an “active practicing physician or
surgeon” and at the same time to devote a large part of his
energies to administering a clinic or a small hospital.

Most indicative of the legislative intent as to the physician
:. .: :
member of the board is the requirement that he be a specialist in
the practice of otolaryngology. There ark no state laws governing
specialization in any pa,rticular field of medicine. Technically,
anyone who is licensed to practice medicine may claim to
specialize in a particular area. However it is our understanding
that the medical profession will look with disfavor upon a man who
holds himself out as a specialist in a field such as otolaryngology
without a fair amount of specialized training, and will consider such
conduct unethical.

Because “active practicing” and “specializing in otolaryngology”
are terms without precise meaning, it is impossible to prescribe any
exact standards to determine whether a physician meets the require-
ments of subsection 3. Each case will have to be decided on its own
facts.

We give to the words “active practicing”, used in subsection 4 with
reference to the audiologist member of the Board, the same meaning we
gave to them with reference to the physician or surgeon member. We
would require that, to be eligible, the audiologist be one who was I.
actually and actively engaged in the duties of an audiologist.

Mr. Stewart’s letter specifically asks whether a party.could
conform with the requirements of subsection 4 if he was a full-time
faculty manber of a college or’ university. .’

. .,._.

.

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Honorable James Cole, page 4, (H-4)

We find that in other areas the Legislature has never found
it difficult to exclude from eligibility persons who were members of
a faculty. For instance Article 4495, V. T. C. S., excludes from
the Texas Board of Medical Examiners a person who is “a
member of the faculty or a board of trustee of any medical
school. ” Article 4568, V. T. C. S. , creating the Board of
Podiatry Examiners, specifi,cally excludes members of the
faculty of any college of podiatry. Article 4542a, V. T. C. S.,
creating the State Board of Pharmacy excludes persons who are
members of the faculty of any college or school of pharmacy.
Article 4543 V. T. C. S. , creating the State Board of Dental
Examiners excludes those who are members of .a facultyof a
dental school. Article 4552-2.02, V. T. C. S., excludes members ‘~
of the faculty of any college of optometry from the Texas
Optometry Board.

That the Legislature did not see fit to exclude from the Texas
Board of Examiners in the Fitting and Dispensing of Hearing Aids
any person who is a member of the faculty of any college or other
school when it so easily could have done so, indicates an intention
that such a person would be qualified to serve on that board ‘, ‘,..
provided he met all other requirements. We question whether a
full-time faculty member can be an active practitioner of his profession.
However, the statute does not disqualify a faculty member. It ” ”
affirmatively requires that the audiologist be an “active practicingfi
on& Whether one is an ‘*active pract~icing audiologist” despite
other activities is a question which will have to be determined ,from.the’.
facts of each case. For example, an individual might sustain a
‘tfull” teaching load of three to four hours per day, and, at the same,
tin-e, devote six or more hours to the practice of his profes.sion.
Full-time faculty member? Probably. Active practicing member of
his profession? Probably. 1 ,

We therefore answer Mr. Stewart’s specific questions as
follows: It is possible that a party may conform to the requirements. ’
of subsection 3 that he be an active practicing physician or surgeon
and specilise in the practice of otolaryngology even though he is a
full-time administrator of a clinic, depending upon the particular facts
of each case. We answer his aecmd question that it is likewise possible

-IS-
 . ..

Honorable James Cole, page 5, (H-4)

that a person may be an active practicing audiologists even though
he is at the same time a full-time faculty member of a college or
university, again depending upon the facts of each case.

-SUMMARY-

Article 4566-l. 02 Vernon’s Texas Civil
Statutes providing that one member of the Texas
Board of Examiners in the Fitting and Dispensing
of Hearing Aids be an active practicing physician
or surgeon specializing in the practice of otolaryngo-
logy and that another be an active practicing
audiologist requires only that those persons be,
respectively, a licensed physician or surgeon
specializing in otolaryngology in the one case
and a trained audiologists in the other and that
each be actually and actively engaged in the
practice of his profession.

Very truly yours,

Attorney General of Texas

APPROVED:

@ii*
M. BARRON

d
DAVID M. KENDALL,
Opinion Committee
Chairman

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