# The Attorney General of Texas November 8, 1979 MARK WHITE Attorney General

Honorable Robert B.Hall Executive Director Texas Board ofExaminers inthe Fitting andDispensing ofHearing Aids Penthouse Apts., Suite 105 1212Guadalupe Austin, Texas 78701 Opinion No. NW-79 Re: Scope of temporary training permits under article 4566, V.T.C.S., which relates to fitting and dispensing ofhearing aids.

Dear Mr.Halh You have asked whether it is appropriate under the facts you present for the Texas Board of Examiners in the Fitting and Dispensing of Hearing Aids [hereinafter referred to as Board1to issue temporary training permits. You state the following facts: factory representatives for out-of-state hearing aid manufacturers have sought temporary training permits for the purpose ofpromoting their product by the fitting and dispensing of hearing aids out of the retail establishments of licensed dealers in Texas. Weare informed that these individuals are trained professionals and are paid a commission on their sales. The representatives travel from city to city to hold “Open House” in the businesses of licensees who act as sponsors. They are advertised asexpert and experienced in their field. Youask four questions. 1. Does the Temporary Training Permit allow its holder to fit and dispense hearing aids according to ourlaw? The Board is established and acts pursuant to article 4566, V.T.C.S. Every person desiring to engage inthe fitting and dispensing ofhearing aids is required to pass an examination given by the Board. Art. 4566-LO6(a), V.T.C.S. Those licensed in other states having requirements equivalent or higher than those in Texas may be granted a license without taking the examination under the reciprocal licensing provisions. Art. 4566-1.08, V.T.C.S Article 4566-1.09 permits the issuance of temporary training permits to those who have never taken the examination and who have never

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previously had atraining permit. Id. subsec. (a). The application for atemporary permit must be accompanied by an affidaz from aperson duly licensed and qualified to fit and dispense hearing aids. Ia, subsec. (b). The affidavit must state that the applicant for the temporary permit will be supervised in all work done by the applicant. A temporary training permit isdefined as

a permit issued by the Board to persons authorized to fit and dispense hearing aids only under the supervision of a person who holds alicense under this Act. Art. 4566-LOl(c), V.T.C.S. Thus, in answer to your first question, aholder ofatemporary permit isauthorized to fit and dispense hearing aids ifdone with supervision.

2. Can factory representatives secure a Temporary Training Permit for the purpose of holding three day ‘Open House’ meetings indifferent locations over the State? Article 4566-1.09, V.T.C.S., authorizes the issuance of a temporary training permit to “any person applying to the Board’ who fulfills stated requirements. The law doas not require that the permit holder enroll inatraining program but only that he work under the supervision of a licensee. V.T.C.S. arts. 4566-1.01(c); 4566-1.09(b). Consequently, we believe the permit may be issued to a factory representative complying with the statute and the representative may useit while holding open houses and wcrking at sll times under the supervision of the affiant who supported his application. The temporary training permit becomes void at the end of six months unless extended for an additional period not to exceed sixmonths.

3. Our application requires the applicant for a Temporary Training Permit to declare his intent to take the State examination. Does our law require the applicant who has stated his ‘intention’ to take the State examination to follow through and actually take the examination? Webelieve that the Board would have no authority to compel an individual to take the examination although the Board may enjoin his dispensing of hearing aids without a license. U.S. Const. amend. XIII;V.T.C.S. arts. 4566-1.04(e), 4566-1.06.

4. Can a factory representative hold himself out in public advertising asbeing an ‘expert’ inthe fitting and dispensing of hearing aids even though heholds only atemporary license? The licensing law contains noprovisions relating to the advertisement ofa licensee as an expert. Cf. V.T.C.S. art. 4566-1.15(a)(5) (prohibition against unlicensed person holding out as authorized to fit hearing aids). The Deceptive Trade Practices Act prohibits false representations concerning the quality of services. Bus. &Comm. Code S17.46(bX7). Whether an individual may truthfully advertise himself as an expert in the

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fitting and dispensing of hearing aids depends on his qualifications. Cf. United States Fidelity &Guaranty Co. v. Rochester, 281S.W. 306(Tex. Civ. App.- Fz Worth 1926,no writ) (definition of expert witness). The fact that an individual held a temporary training license would be relevant to a decision whether heisan expert, but wedonot believe it is dispositive ofthe issue. If a factory representative were in fact an expert in the fitting and dispensing of hearing aids, his possession of a temporary license would not bar him from advertising himself as an expert.SUMMARY

Manufacturer’s representatives may obtain temporary training permits for the purpose oftransacting promotional sales. w?mw&&g

Attorney General ofTexas JOHNW.FAINTER, JR. First Assistant Attorney General TEDL.HARTLEY Executive Assistant Attorney General Prepared byDavid B.Brooks and Susan Garrison Assistant Attorneys General APPROVED: OPINIONCOMMI’ITEE C. Robert Heath, Chairman David B.Brooks BobGammage Susan Garrison Rick Gilpin William GReid Bruce Youngblood

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