Untitled Texas Attorney General Opinion

HE ASTBIECNEY GENERAL OF EXAS June 29, 1971 Mr. John F. Boff Opinion No. M-895 Executive Director Texas Board of Examiners in the Re: Whether certain activities Fitting and Dispensing of relating to preparation of Hearing Aids earmolds for hearing aids Penthouse Apts. Room 105 constitute sales of hearing 1212 Guadalupe aids under Article 4566, Austin, Texas 78701 Vernon's Civil Statutes. Dear Mr. Boff: In your letter requesting an opinion from this office, you state the following: "It has come to our attention that some confusion as to the role of those individuals employed by non-profit organizations or institu- tions of higher learning, in the fitting and dispensing of hearing aids in the State of Texas exist. We would like a formal opinion to clarify this role. "We feel that It is understood that those individuals employed by institutions of higher learning, non-profit organizations, or under the supervision of a physician and surgeon can carry out hearing aid evaluations, hearing aid selec- tions, hearing aid fitting (what ever the preferred clinical terminology might be) as long as they do not sell hearing aids." In addition, you have advised this office that an earmold is an essential component part of any "hearing aid" as the latter term is defined by the provisions of Article 4566-1.01(d), Vernon's Civil Statutes. In this regard you question whether a clinic or individual who takes an ear impression, has an earmold prepared from the im- pression, pays for the mold and in turn sells the mold to an in- dividual, is engaging in the sale of a hearing aid and is required to be licensed to sell and dispense hearing aids by the Texas State Board of Examiners in the Fitting and Dispensing of Hearing Aids. -4358- Mr. John F. Boff, page 2 (M-895) Under the provisions of Article 4566-1.06(a): 'Every person desiring to engage in fitting and dispensing hearing aids in the State of Texas shall be required to pass an examination given by the Texas Board of Examiners,,inthe Fitting and Dis- pensing of Hearing Aids. The term "fitting and dispensing of hearing aids" is defined by the provisions of Article 4566-1.01(f) as follows: "(f) 'Fitting and Dispensing hearing aids' means 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 im- pressions for eaTmolds to be used as a part of the hearing aid. Article 4566-1.19, which exempts certain persons and practices from the provisions of the Act, is quoted as follows: "Nothing in this Act shall be construed to apply to the following: "(1) Persons engaged in the practice of measuring human hearing as a part of the academic curriculum of an accredited institution of higher learning. "(2) Persons engaged in the practice of measuring human hearing as a part of a program conducted by a nonprofit rrganization, provided such organization or its employees does not sell hearing aids. “(3) Physicians and surgeons duly licensed by the Texas State Board of Medical Examiners and qualified to practice in the State of Texas. "(4) Persons employed and directly supervised by a physician and surgeon to test or measure human hearing, provided such persons do not sell hearing aids." -4359- _ . r Hon. John F. Boff, page 3 (M-89,5) The language of the above quoted provisions of these Articles Is clear and unambiguous. A statute that is plain and unambiguous will ordinarily be interpreted literally. . . :' 53 Tex.Jur.2d 197, Statutes, $135. Consequently, it is our opinion that an Individual, other than a physician, licensed to practice in this State, or a clinic, who sells an earmold to an individual which Is intended to be used as a component part of a hearing aid, is sellin hearing aids and is not exempted by the provisions of Article 45%6-1.19, Vernon's Civil Statutes, from the requirement of being licensed by the Texas State Board of Examiners in the Fitting and Dispensing of Hearing Aids. SUMMARY An individual, other than a physician licensed to practice in this State or a clinic,whlch sells an earmold to an individual which is intended to be used as a component part of a hearing aid, is selling hearing aids and Is not exempted by the provisions of Article 4566-1.19, Vernon's Civil Statutes, from the requirement of being licensed by the Texas State Board of Examiners in the F ting and Dispensing of Hearing Aids. ,,/q ,',/ Very truly yofls, Prepared by Ivan R. Williams, Jr. Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Malcolm Quick Bill Corbusier Pat Bailey Ken Nordquist -4360- Mr. John F. Boff, page 4 (M-895) MEADE,F. GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WRITE First Assistant -4361-