The Attorney General of Texas 

December 31, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin. TX. 78711. 2546 

5121475-2501 

Telex 9101674-1367 

Telecwhr 5121475-0266 

1607 Main St.. Suite 1400 

Dallas. TX. 75201-4709 

2141742.6944 

4624 Alberta Ave.. Suite 160 

El Paso, TX. 799052793 

9151533.3464 

1220 Dallas Ave.. Suite 202 

Houston, TX. 77002.6966 

713,650.0666 

606 Broadway. Suite 312 

Lubbock, TX. 79401-3479 

6061747.5236 

4309 N. Tenth. Suite B 

McAllen, TX. 76501-1665 

5121662-4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 76205.2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Gary E. Miller, M.D. 

C0HdSSi0l-l~~ 

Opinion No. MN-555 

Texas Department of Mental Health 

and Mental Retardation 

P. 0. Box 12668 

Austin, Texas 78711 

Dear Dr. Miller: 

Ice: Licensing of audiologists 

under article 4566, V.T.C.S. 

You have requested our opinion on the following two questions 

concerning article 4566, V.T.C.S.: 

1. Does article 4566 require that an 

audiologist with a master's or doctorate degree be 

licensed by the Texas Board of Examiners in the 

Fitting and Dispensing of Hearing Aids? 

2. If an individual with a master's or 

doctorate degree in audiology is not licensed by 

the Board of Examiners in the Fitting and 

Dispensing of Hearing Aids, may he/she make 

impressions for earmolds to be used as a part of 

the hearing aid? 

To answer your questions, we must analyze several provisions of 

article 4566. Paragraph (a) of article 4566-1.06, V.T.C.S., states: 

Every person desiring to engage in fitting and 

dispensing hearing aids in the State of Texas 

shall be required to pass an examination given by 

the Texas Board of Examiners in the Fitting and 

Dispensing of Hearing Aids. (Emphasis added). 

Paragraph (e) of the same statute provides in part: 

Every applicant successfully passing the examination and meeting all the requirements of this Act 

shall be registered by the Board as possessing the 

qualifications required by this Act and shall 

receive from the Board a license to fit and 

dispense hearing aids in this state. (Emphasis 

added). 

p. 2031 
Dr. Gary E. Miller - Page 2 (1.~+555) 

Article 4566-1.01(f) defines "[flitting and [dlispensing hearing aids" 

a*: 

the measurement of human hearing by the use of an 

audiometer or by any means for the purpose of 

making selections, adaptations and/or sales of 

hearing aids. The term also includes the sale of 

hearing aids, and the making of impressions for 

earmolds to be used as a part of the hearing aid. 

Article 4566-1.19 provides: 

Nothing in this Act shall be construed to apply to 

the following: 

. . . , 

(3) An individual with a master's or doctorate 

degree in audiology from an accredited college or 

university may engage in the measurement of human 

hearing by the use of an audiometer or by any 

means for the purpose of making selections and 

adaptations of or recommendations for a hearing 

aid, provided such persons do not sell hearing 

aids. 

When the foregoing provisions are read together, the following 

becomes apparent: (1) as a general rule, anyone who desires to engage 

in "fitting and dispensing hearing aids" in this state must pass an 

examination given by the Board of Examiners as a prerequisite to 

becoming licensed by the board to do so; (2) the term "fitting and 

dispensing hearing aids" includes those specific functions enumerated 

in article 4566-1.01(f); (3) the examination and licensing 

requirements of article 4566 do not apply to individuals with a 

master's or doctorate degree in audiology who perform those functions 

enumerated in article 4566-1.19(3); and (4) the functions enumerated 

in article 4566-1.19(3) do not include all those functions enumerated 

in article 4566-1.01(f). 

In Cameron v. Terre11 & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 

1981), the Texas Supreme Court stated: 

It is a rule of statutory construction that every 

word of a statute must be presumed to have been 

used for a purpose... Likewise, we believe that 

every word excluded from a statute must also be 

presumed to have been excluded for a purpose. 

Only when it is necessary to give effect to the 

clear legislative intent can we insert additional 

p. 2032 
Dr. Gary E. Miller - Page 3 (MW-555) 

words or requirements to a statutory provision.... 

(Emphasis added). 

This rule makes it clear that we cannot ignore the significant 

difference in the wording of articles 4566-1.01(f) and 4566-1.19(3). 

The former article includes functions which are simply not included in 

the latter. Specifically, the former defines "fitting and dispensing 

hearing aids" to include, inter alia, "the making of impressions for 

earmolds to be used as a part of the hearing aid," whereas the latter 

does not include this phrase. We can only conclude that the 

legislature omitted this phrase from article 4566-1.19(3) because it 

did not want to authorize individuals with a master's or doctorate 

degree in audiology to make such impressions without a license. 

It has been suggested that the proviso in article 4566-1.19(3) 

indicates that the legislature really intended to permit individuals 

with a master's or doctorate degree in audiology to perform = of the 

functions included in the definition of "fitting and dispensing 

hearing aids" without a license, as long as they do not sell hearing 

aids. In other words, it has been suggested that the list of 

functions which precedes the proviso in article 4566-1.19(3) is not 

exhaustive, that the proviso is actually the key phrase in the 

statute, and, therefore, that individuals with a master's or doctorate 

degree must obtain a license only if they sell hearing aids. 

We cannot accept this argument. In our opinion, the argument 

places too much emphasis upon a proviso and not enough upon the fact 

that article 4566-1.19(3) specifically omits one of the functions 

included in the definition of "fitting and dispensing hearing aids" 

set forth in article 4566-1.01(f). While it is of course possible 

that the proviso was put in article 4566-1.19(3) to indicate that 

selling hearing aids is the & function which individuals with a 

master's or doctorate degree may not perform without a license, it is 

also possible that it was added to the statute to clarify the fact 

that persons with those degrees may "engage in the measurement of 

human hearing by the use of an audiometer or by any means for the 

purpose of making selections and adaptations of or recommendations for 

a hearing aid" & if they do not sell hearing aids. In short, we 

believe that the fact that article 4566-1.19(3) omits any reference to 

making impressions for earmolds to be used as a part of the hearing 

aid is far more significant than the fact that the proviso therein 

refers only to selling hearing aids. 

We therefore conclude, in answer to both of your questions, that 

individuals with a master's or doctorate degree in audiology from an 

accredited college or university are not exempt from the provisions of 

article 4566 if they sell hearing aids or make impressions for 

ear-molds to be used as a part of the hearing aid. 

p. 2033 
Dr. Gary E. Miller - Page 4 (MW-555) 

SUMMARY 

Individuals with a master's or doctorate degree 

in audiology from an accredited college or 

university are not exempt from the provisions of 

article 4566, V.T.C.S., if they sell hearing aids 

or make impressions for earmolds to be used as a 

part of the hearing aid. 

Very truly yours, 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible and 

Stan Reid 

Assistant Attorneys General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Jim Moellinger 

Stan Reid 

p. 2034