ATTORNEY GENERAL OF TEXAS GREG ABBOTT

The Honorable Aaron Pefia Chair, Committee on Technology Texas House ofRepresentatives 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 partofhis practiceofotolaryngology (RQ-0984-GA)

You ask whether the "medical doctor member ofthe State Committee ofExaminers in the Fitting and Dispensing ofHearing Instruments may sell hearing instruments at retail as a part ofhis orher practice ofotolaryngology without running afoul ofthe prohibition in section 402.053(d) [of the Texas Occupations Code]."J The State Committee ofExaminers 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 ofhearing instruments. See TEX. OCC. CODE ANN. § § 402.101 (West Supp. 2011) (providing for general powers and duties ofthe Committee), 402.001(2), (5) (defining "Committee" and "hearing instrument"), 402.003 (providing for applicability ofchapter402). The Committee consists ofnine members, mostofwhom mustcome from the hearing and fitting ofhearinginstruments 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 ofMedical Examiners" and, along with meeting residency and citizenship requirements, "specializes in the practice ofotolaryngology.,,2 Id. § 402.051(a)(2). Chapter402 imposes restrictions on the makeup ofthe 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 ofotolaryngology involves the treatment ofear, nose, and throat conditions. See Ketter v. ESCMed. Sys., Inc., 169 S.W.3d 791, 795 (Tex. App.-Dallas 2005, no pet.).The Honorable Aaron Pefia

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§ 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 ofhis orherpractice ofotolaryngology" from serving on the Committee. RequestLetter at 2. You do not suggestthatahearinginstrumentmanufacturingcompanyis involvedorthatthehearinginstruments are being sold wholesale; thus, we consider only whether the retail sale ofhearing instruments by a doctor's office results in the doctor having a "financial interest in a ... retail hearing instrument company." Id. Theprimarygoal in construing statutes is to ascertain and effectuatetheLegislature'sintent. See GalbraithEng 'g Consultants, Inc. v. Pochucha, 290S.W.3d 863,867 (Tex. 2009). Courtsbegin with the statute's plain language as the surest guide to that intent. See Presidio Indep. Sch. Dist. v. Scott, 309S.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 ofthatintent."). And courts give undefined words their plain and common meaning. See City ofWaco 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 ofgrammar and common usage."). Chapter402 defines only one term in the statutoryphrase at issue. See generallyTEX. 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 notinclude abatteryorcord. Id. §402.001(5). Though the term "financial interest" is undefined in chapter 402, this office has previously considered its meaning for purposes ofthis section. See Tex. Att'y Gen. Op. No. DM-18 (1991) at 2 (citingBLACK'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 oftheterms "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 onlybusinesses whose primary pursuit is the retail sale ofhearing 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 aThe Honorable Aaron Pefia

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provision pertaining to the qualifications ofa potential Committee member. See generallySw. Bell Telephone Co. v. Pub. Util. Comm'n, 863 S.W.2d754,758 (Tex. App.-Austin 1993, writ denied) (recognizing that the Public Utility Commission is in the bestposition 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 begiven alarge degree oflatitude in the methods ituses 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 ofthe statute. See R.R. Comm'n of Tex. v. Tex. CitizensforaSafeFuture & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). Here, the Committeeis expressly authorized to administer and enforcechapter402. See TEX. OCe. CODE ANN. § 402.101(1) (West Supp. 2011). The Committee is also authorized to adopt rules for theperformance ofthe Committee's duties. See id. §402.102. Further, chapter402provides for the removal ofa member ofthe Committee, suggesting that the Legislature intended the Committeeto overseematters related to the qualifications ofits members. See id. §402.056(a)(1), (c). Webelieve the Committee is authorized to determine the scope ofthe meaning ofthe 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

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### SUMMARY Subsection402.053(d) oftheOccupations Codeprohibits 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 ofthe phrase "retail hearing instrument company," we cannot definitively determine the scope ofthatphrase. As the administrative agencythat oversees the regulation of hearing instruments, the Committee is authorized to determine the scope ofthe meaning ofthe prohibition in subsection 402.053(d).

DANIELT. HODGE First Assistant Attorney General DAVID J. SCHENCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee Charlotte M. Harper Assistant Attorney General, Opinion Committee