November 2, 1970
Hon. John F. Boff Cplnion No. M-715
Executive Director
Texas Board of Examiners in the ,Re: Authority of Texas Board
Fitting and Dispensing of of Examiners In the Fitting
Hearing Aids and Dispensing of Hearing
Penthouse Apts., Room 105 Aids to conduct educational
Austin, Texas 78701 seminars to licensed and
temporary trainees in the
Dear Mr. Boff: hearing aid profession.
We quote from your letter requesting an opinion from this
office as follows:
"The Texas Board of Examiners in the Fitting
and Dispensing of Hearing Aids has instructed me,
to request formal opinions from your office con-
cerning the following questions:
"1. The Board has planned educational sem-
inars to be offered to all licensed and temporary
trainees in the hearing aid profession. The sem-
inars are to be conducted by the Board members;
no funds are to be collected for the seminars.
"The Board's authority to hold such seminars
is now being challenged on the grounds the Board
does not have this power expressed in Article 4566-
1.01 of Vernon's Civil Statutes.
"The Board feels that it has implied powers to
hold these seminars basically from Section 1.06 of
the Article. Being charged with the responsibility
of developing an examination to test the skills and
knowledge of those entering the profession, the Board
feels that an educational program would better pre-
pare those Individuals. At the present time no ed-
ucational program, with the exception of home study
courses, are available to the people In the hearing
aid fitting and dispensing profession.
"2. In the Rules and Regulations promulgated by
the :Board the following rule was adopted in regards
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Hon. John F. Boff, page 2 (M-715)
to reciprocity:
'On and after May 1, 1970, In accordance with
Section 1.06, 1.08, 1.09 of the Article, all persons
applying for licenses shall furnish a physical home
address and a Texas place of business address; a
post office box is not acceptable.
"Does this mean that an Individual living In a
border state, licensed by that state to fit and dis-
pense hearing aids, in order to qualify for a Texas
license must have a physical residence within the
State of Texas as well as a business address within
the State of Texas?"
We will answer your questions in the order in which they are
submitted.
1.
The Texas Board of Examiners in the Fitting and Dispensing
of Hearing Aids Is created by the provisions of Article 4566, Ver-
non's Civil Statutes. The express powers of the Board are contained
in Article 4566-1.04, Vernon's Civil Statutes, and are quoted as
follows:
"(a) The Board shall have the power to
make such procedural rules consistent with this
Act as may be necessary for the performance of
its duties.
"(b) The Board shall have the power to ap-
point committees from its own membership, the
duties of which shall be to consider such matters,
pertaining to the enforcement of this Act, as shall
be referred to said committees, and they shall make
recommendations to the Board in respect thereto.
"(c) The Board shall have the power to employ
the services of stenographers, inspectors, agents,
attorneys, and other necessary assistants in carry-
ing out the provisions of this Act.
"(cl)The Board, by majority vote, shall have
the power to issue subpoenas and subooenas duces
tecum to compel the attendance of witnesses and
the production of books, records and documents, to
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Hon. John F. Boff, page 3 (M-715)
administer oaths and to take’testim6ny~concernlng
all matters within Its jurlsdlctlon.
“(e) The Board shall have the right to in-
stitute an action in its own name to enjoin the
violation of any of the provisions of this Act.
Said action for Injunction shall be in addition
to any other action, proceeding or remedy authorized
by law.
It is observed from a reading of the above quoted pro-
visions that the Board does not have the express authority to con-
duct educational seminars for licensed and temporary trainees in
the hearing aid profession, nor do we believe that such.power Is
necessarily Implied by the provisions of Article 4566-1.06, Vernon’s
Civil Statutes, which pertains to the examination of applicants for
licensing. The Board has no duty to inform or train prospective
licensees but merely to examine and license them. The giving of
seminars is not essential to or an incident of the discharge of its
express duties. Moreover, we observe that the appropriation to the
Board contained in House Bill 2, 61st Legislature, 2nd,Called
Session, 1969 (The General Appropriation Bill for the 1970-71
biennium) does not contain any express authority for the expendi-
ture of funds for conducting such educational seminars. The source
of the powers of State administrative agencies is stated in 1
Tex.Jur . 652, Administrative Law, $6, In part, as follows:
I,
. . . The agency has only such powers as
are expressly conferred upon it by statute to-
gether with those necessarily implled from
power: and duties expressly given or imposed.
. . .
Consequently, It is our opinion in answer to your first
question that the Texas State Board of Examiners In the Fitting
and Dispensing of Hearing Aids has no express or implied authority
to conduct educational seminars under any of the provisions of
Article 4566-1.01-1.21, Vernon's Civil Statutes.
2.
The Board has procedural rule maklng authority pursuant
to the provisions of Article 4566-1.04(a), supra. We find no re-
quirement under the provlslons of ArtQle 4566-1.06, 1.08 or 1.09
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Hon. John F. Boff, page 4 (M-715)
or any other of the provisions of the Act which specifically re-
quire an applicant for a license in this State to fit and dispense
hearing aids to have a "physical" residence and business address
within the State of Texas. With regard to an administrative agency's
rule making authority, it is stated in 1 Tex.Jur.2d, Administrative
Law, $11, in part, as follows:
11
where a statute expressly authorizes
an age& to regulate an industry it implledly
authorizes the adoption of regulations to that
end. An agency on which such authority is ex-
pressly or impliedly conferred may make reasonable
rules and regulations, proper and necessary to the
exercise of its powers. However, the rules and
regulations must be within the clear intent of
the statutf?,and not in excess of the powers
delegated.
Consequently, It is our opinion in answer to your second
question that the Board's rule, supra, is not a procedural rule
authorized by Section 1.04(a), supra, but a substantive rule which
imposes an additional requirement or qualif'icattonon applicants for
a license under the Act. Since we find no express or implied au-
thority for such a rule, we hold that it is void and non-enforceable.
SUMMARY
The Texas State Board of Examiners in the
Fitting and Dispensing of Hearing Aids has no
express or implied authority to conduct educa-
tional seminars under the provisions of Article
4566-1.01-1.21, Vernon's Civil Statutes.
The Board's rule, supra, is not a procedural
rule authorized by Section 1.04(a), supra, but a
substantive rule which imposes an additional re-
quirement or qualification on applicants for
license under the Act. Since we find no express
or implied authority for such a,r$le, we hold
that it is void and non-enforc"%le.
.,9
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. -
Hon. John F. Bof’f,page 5 (M-715)
Prepared by Ivan R. Williams, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Max Hamilton
John Reeves
Houghton Brownlee
Roger Tyler
MEADE F. GRIFFIN
Staff Legal Assistant
NOLA WHITE
First Assistant
ALFRED WALKER
Executive Assistant
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Untitled Texas Attorney General Opinion
Combined Opinion