November 2, 1970 

Hon. John F. Boff 

Executive Director 

Texas Board of Examiners in 

Fitting and Dispensing of 

Hearing Aids 

Penthouse Apts., Room 105 

Austin, Texas 78701 

Dear Mr. Boff: 

Cplnion No. M-715 

the ,Re: Authority of Texas Board 

of Examiners In the Fitting 

and Dispensing of Hearing 

Aids to conduct educational 

seminars to licensed and 

temporary trainees in the 

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 concerning the following questions: 

"1. The Board has planned educational seminars to be offered to all licensed and temporary 

trainees in the hearing aid profession. The seminars 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 prepare those Individuals. At the present time no educational 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 

-3460- 
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 dispense 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, Vernon'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 appoint 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 carrying 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 

-3461- 
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 institute 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 provisions that the Board does not have the express authority to conduct 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 expenditure 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 together 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 requirement under the provlslons of ArtQle 4566-1.06, 1.08 or 1.09 

-3462- 
Hon. John F. Boff, page 4 (M-715) 

or any other of the provisions of the Act which specifically require 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 

an age& 

where a statute expressly authorizes 

to regulate an industry it implledly 

authorizes the adoption of regulations to that 

end. An agency on which such authority is expressly 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'icatton on applicants for 

a license under the Act. Since we find no express or implied authority 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 educational 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 requirement 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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