# 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

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An Equal Opportunity/ Affirmative Action Employer Gary E. Miller, M.D. C0HdSSi0l-l~~ OpinionNo. MN-555
Texas Departmentof Mental Health andMental 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 concerningarticle 4566,V.T.C.S.:

1. Does article 4566 require that an audiologistwith a master's or doctoratedegreebe licensed by the Texas Board of Examiners in the Fittingand Dispensingof HearingAids? 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 thehearing aid?
To answer your questions,we must analyze several provisions of article 4566. Paragraph (a)of article4566-1.06,V.T.C.S., states:

Every person desiring to engage in fitting and dispensing hearing aids in the State of Texas shallbe required to pass an examinationgiven by the Texas Board of Examiners in the Fitting and Dispensing of HearingAids. (Emphasisadded). Paragraph (e)of the same statuteprovides inpart:

Every applicant successfullypassing the examination and meeting all the requirementsof thisAct shallbe registeredby 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).

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Article 4566-1.01(f)defines "[flittingand [dlispensinghearing aids" a*: themeasurement of human hearingby 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 tobe used as a part of thehearing aid. Article 4566-1.19provides:

Nothing in thisAct shallbe construedto apply to the following:

. . ., (3) An individualwith a master's or doctorate degree in audiology from an accredited college or universitymay 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 generalrule, anyonewho 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 dispensinghearing 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 doctoratedegree in audiologywho perform those functions enumerated in article 4566-1.19(3); and (4) the functions enumerated in article 4566-1.19(3)do not includeall those functions enumerated in article 4566-1.01(f).
In Cameronv. Terre11 & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981), the Texas SupremeCourt 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

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words or requirementsto a statutoryprovision.... (Emphasisadded). 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 functionswhich are simplynot 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 individualswith a master's or doctorate degree in audiology tomake such impressionswithout 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 doctoratedegree 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 individualswith a master's or doctorate degreemust obtain a licenseonly if they sellhearing 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 degreemay not performwithout 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 ofmaking selectionsand adaptationsof or recommendationsfor 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 sellinghearing aids.
We therefore conclude, in answer to both of your questions, that individualswith a master's or doctorate degree in audiology from an accreditedcollegeor universityare not exempt from the provisionsof article 4566 if they sell hearing aids or make impressions for ear-molds

tobe used as a part of thehearing aid.

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SUMMARY Individualswith amaster's or doctoratedegree 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 thehearing aid. Very trulyyours,

Attorney General of Texas JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral
RICHARD E. GRAY III ExecutiveAssistantAttorney General Preparedby Jon Bible and StanReid AssistantAttorneysGeneral
APPROVED: OPINION COMMITTEE
SusanL. Garrison,Chairman Jon Bible Jim Moellinger StanReid

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