ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

The Honorable Aaron Pefia 

Chair, Committee on Technology 

Texas House of Representatives 

Post Office Box 2910 

Austin, Texas 78768-2910 

Dear Representative Pefia: 

May 7,2012 

Opinion No. GA-0921 

Re: Whether a member of the State Committee of 

Examiners in the Fitting and Dispensing of Hearing 

Instruments may sell hearing instruments at retail as 

part of his practice of otolaryngology (RQ-0984-GA) 

You ask whether the "medical doctor member of the State Committee of Examiners in the 

Fitting and Dispensing of Hearing Instruments may sell hearing instruments at retail as a part of his 

or her practice of otolaryngology without running afoul of the prohibition in section 402.053( d) [of 

the Texas Occupations Code]." J The State Committee of Examiners in the Fitting and Dispensing 

of Hearing Instruments ("Committee") assists the Texas Department of Health in administering, 

coordinating, and enforcing the Occupations Code provisions governing the fitting and dispensing 

of hearing instruments. See TEX. OCC. CODE ANN. § § 402.101 (West Supp. 2011) (providing for 

general powers and duties of the Committee), 402.001(2), (5) (defining "Committee" and "hearing 

instrument"), 402.003 (providing for applicability of chapter 402). The Committee consists of nine 

members, most of whom must come from the hearing and fitting of hearing instruments profession. 

See id. § 402.051(a)(1) (providing that six members must be "engaged in fitting and dispensing 

hearing instruments" for a specified time period). Chapter 402 specifies that one member must be 

a person who "actively practic[es] as a physician licensed by the Texas State Board of Medical 

Examiners" and, along with meeting residency and citizenship requirements, "specializes in the 

practice of otolaryngology.,,2 Id. § 402.051(a)(2). 

Chapter 402 imposes restrictions on the makeup of the Committee. Subsection 402.053( d) 

provides that the practicing physician member "may not have a financial interest in a hearing 

instrument manufacturing company or in a wholesale or retail hearing instrument company." Id. 

'Letter from Honorable Aaron Pena, Chair, House Comrn. on Technology, to Honorable Greg Abbott, Tex. 

Att'y Gen. at 1 (July 11, 2011), https:llwww.texasattorneygeneral.gov/opin ("Request Letter"). 

2The medical practice of otolaryngology involves the treatment of ear, nose, and throat conditions. See Ketter 

v. ESC Med. Sys., Inc., 169 S.W.3d 791, 795 (Tex. App.-Dallas 2005, no pet.). 
The Honorable Aaron Pefia - Page 2 (GA-0921) 

§ 402.053(d) (applying to a "committee member appointed under Section 402.051(a)(2)"); see id. 

§ 402.051(a)(2) (providing for membership by an actively practicing physician). You ask whether 

subsection 402.053(d) prohibits a medical doctor who "sell[s] hearing instruments as a part of his 

or her practice of otolaryngology" from serving on the Committee. Request Letter at 2. You do not 

suggest that a hearing instrument manufacturing company is involved or that the hearing instruments 

are being sold wholesale; thus, we consider only whether the retail sale of hearing instruments by 

a doctor's office results in the doctor having a "financial interest in a ... retail hearing instrument 

company." Id. 

The primary goal in construing statutes is to ascertain and effectuate the Legislature's intent. 

See Galbraith Eng 'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863,867 (Tex. 2009). Courts begin 

with the statute's plain language as the surest guide to that intent. See Presidio Indep. Sch. Dist. v. 

Scott, 309 S.W.3d 927, 930 (Tex. 2010); Entergy GuljStates, Inc. v. Summers, 282 S.W.3d433, 437 

(Tex. 2009) ("Where text is clear, text is determinative of that intent."). And courts give undefined 

words their plain and common meaning. See City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 

2010); TEX. GOV'T CODE ANN. § 31 1.011 (a) (West 2005) ("Words and phrases shall be . 

construed according to the rules of grammar and common usage."). 

Chapter 402 defines only one term in the statutory phrase at issue. See generally TEX. OCC. 

CODE ANN. § 402.001 (West Supp. 2011) ("Definitions"). A "hearing instrument" means "any 

wearable instrument or device designed for, or represented as, aiding, improving, or correcting 

defective human hearing. The term includes the instrument's parts and any attachment, including 

an earmold, or accessory to the instrument" and does not include a battery or cord. Id. § 402.001(5). 

Though the term "financial interest" is undefined in chapter 402, this office has previously 

considered its meaning for purposes of this section. See Tex. Att'y Gen. Op. No. DM-18 (1991) 

at 2 (citing BLACK'S LAW DICTIONARY 568 (5th ed. 1979)) (addressing question about a "financial 

interest" under section 402.053's statutory predecessor and concluding that a financial interest 

encompasses employment). Opinion DM-18 defined "financial interest" to mean "an interest 

equated with money or its equivalent." Id. (concluding that a financial interest encompasses 

employment). A doctor plainly has a financial interest in his or her medical practice. 

Neither the Legislature nor Texas courts have provided any definitions or other guidance on 

the meanings ofthe terms "retail" and "company" as used in subsection 402.053(d). Both terms are 

broad, general terms capable of a variety of meanings in this context. The phrase "retail hearing 

instrument company" could, for example, be interpreted narrowly to include only businesses whose 

primary pursuit is the retail sale of hearing instruments. It could also be interpreted more broadly 

to include any business that ever sells a hearing instrument at retail. Absent any meaningful 

guidance from the Legislature or Texas courts on the meaning of "retail hearing instrument 

company," we are unable to definitively discern the Legislature's intent with respect to the scope of 

subsection 402.053(d). 

Moreover, as the administrative agency given regulatory authority over the fitting and 

dispensing of hearing aids, the Committee is in the best position to determine the meaning of a 
The Honorable Aaron Pefia - Page 3 (GA-0921) 

provision pertaining to the qualifications of a potential Committee member. See generally Sw. Bell 

Telephone Co. v. Pub. Util. Comm'n, 863 S.W.2d 754,758 (Tex. App.-Austin 1993, writ denied) 

(recognizing that the Public Utility Commission is in the best position to evaluate rate issues raised 

under agency's regulations). Generally, "[w]hen an administrative agency is created to centralize 

expertise in a certain regulatory area, it is to be given a large degree of latitude in the methods it uses 

to accomplish its regulatory function." State v. Pub. Util. Comm'n., 883 S.W.2d 190, 197 (Tex. 

1994). Courts, therefore, give serious consideration to an agency's interpretation of its enabling 

statute, so long as the interpretation does not contradict the plain language of the statute. See R.R. 

Comm'n of Tex. v. Tex. CitizensforaSafe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). 

Here, the Committee is expressly authorized to administer and enforce chapter 402. See TEX. OCe. 

CODE ANN. § 402.101(1) (West Supp. 2011). The Committee is also authorized to adopt rules for 

the performance of the Committee's duties. See id. § 402.102. Further, chapter 402 provides for the 

removal of a member of the Committee, suggesting that the Legislature intended the Committee to 

oversee matters related to the qualifications of its members. See id. § 402.056(a)(1), (c). We believe 

the Committee is authorized to determine the scope of the meaning of the prohibition in subsection 

402.053(d), provided that the Committee's interpretation does not contradict the plain language of 

the statute. 
The Honorable Aaron Pefia - Page 4 (GA-092l) 

SUMMARY 

Subsection 402.053(d) ofthe Occupations Code prohibits the 

doctor member of the State Committee of the Examiners in the 

Fitting and Dispensing of Hearing Instruments from having a 

financial interest in a retail hearing instrument company. Absent 

statutory definitions of appropriate terms or other meaningful 

guidance from the Legislature or Texas courts on the meaning of the 

phrase "retail hearing instrument company," we cannot definitively 

determine the scope of that phrase. As the administrative agency that 

oversees the regulation of hearing instruments, the Committee is 

authorized to determine the scope of the meaning of the prohibition 

in subsection 402.053(d). 

DANIEL T. HODGE 

First Assistant Attorney General 

DA VID J. SCHENCK 

Deputy Attorney General for Legal Counsel 

JASON BOATRIGHT 

Chair, Opinion Committee 

Charlotte M. Harper 

Assistant Attorney General, Opinion Committee