THE ATTORNEY GENERAL 

OF-TEXAS 

JOHN L alLI, 

Amwrnv~ TEXAH 78711 

February 6, 1973 

Honorable James Cole 

House of Representatives 

State CapitoP Building 

Austin, Texas 78711 

Dear Mr. Cone: 

Opinion No. H- 4 

Re: Interpretation of 

the term “active” 

as used in Section 

2, Subsection 3 and 

4 of the act creating 

the Texas Board of 

Examiners in the’ 

Fitting and Dispensing of Hearing 

Aids. 

Prior to the end of his term as representative, the Honorable 

Vernon J. Stewart requested an opinion of the Attorney General with 

reference to the qualifications of tho.se to serve on the Texas Board 

of Examiners in the Fitting and Dispensing of Hearing Aids created 

in Acts 1969, and now codified as Chapter 10a of Title 71 of the Civil 

Statutes, Section 4566-l. 01 et seq, Vernon’s Texas Civil Statutes. 

We have been asked to make our response to you in Mr. StewartVs 

absence. 

Mr. Stewart’s precise questions had to do with Subsections 3 and 

4 of Article 4566-l. 02(a) which describe the qualifications for two of 

the nine members of the Board. 

One of them, in addition to residence requirements, is required 

to be “an active practicing physician or surgeon duly licensed to practice 

in this State by the Texas State Board of Medical Examiners, and 

specialize in the practice of otolaryngology. ‘I The other, with similar 

residence requirements, is to be “an active practicing audiologist. ” 

Both are specifically prohibited from having any financial interest in a 

hearing aid manufacturing company or a wholesale or retail hearing aid 

company. 
Honorable James Cole, page 2. (H-4) 

Mr. Stewart questioned the use of the word “active” and asked 

specifically (1) whether a party could qualify under subsection 3 if 

he was a full-time administrator of a clinic “‘and does not practice 

his profession7” And (2) whether a party might qualify under sub: 

section 4 if he was a fulltime faculty member of a college or university. 

The word “active” has many meanings. It might be used, for 

instance, to distinguish an active person from one who is retired. 

.- Corp.& al, 80 S. Ct. 1336, 363 

II. S. 685, 4. L. Ed. 2d 149 (1960). It might be used as an antonym to 

the word “massive”. Lohmever v. Marvland State Bar Assoc. of Law. 

Examiners, 218 Md. 575, 147 A.2d 703 (1959); Carson State Co. v. 

McColgan,l30 P. 2d 202 (Cal. App. 1942). The meaning most often 

. 

given it, is “characterized by action rather than by contemplation or 

speculation. ” Webster’s Third~New International Dictionary’(1967) 

p. 22. ;,. 

Article 4510, V. T. C. S. provides, in part: 

“Any person shall be regarded as pneticing 

medicine within the meaning of this law: 

“(1) Who shall publicly profess to be a 

physician or surgeon and shall diagnose, treat, or 

offer to treat any disease or disorder, mental or 

physical, or any physical deformity or injury, 

by any system or method, or to effect cures thereof; 

“(2) or who shall diagnose, treat or offer 

to treat any disease or disorder, mental or physical, 

or any physical deformity or injury, by any system 

or method, or to effect cures thereof and charge, 

therefor, directly or indirectly, money or other 

compensation. . .‘I 

‘. 

The phrase ,“active practicing physician or surgeoni means one who 

is active and practicing; one who actually diagnoses, treats or a f fers’to” 

treat mental or physical diseases or disorders; one who devotes 

sufficient time to the practice of medicine as to be identified~ in his 

community as an active practitioner. 

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Honorable James Cole, page 3, (H-4) 

Mr. Stewart’s letter asked whether a party might possibly 

qualify under subsection 3 “if he is a full-time administrator of 

a clinic and does not practice his profession?” As stated, the 

question answers itself. A man who does not practice his profession 

is not an active practicing physician or surgeon. However, we do 

not believe the Legislature intended to automatically disqualify all 

hospital or clinic administrators. It is not uncommon, we 

believe, for a person to be an “active practicing physician or 

surgeon” and at the same time to devote a large part of his 

energies to administering a clinic or a small hospital. 

Most indicative of the legislative intent as to the physician 

member of the board is the requirement that he be a specialist in :. .: : 

the practice of otolaryngology. There ark no state laws governing 

specialization in any pa,rticular field of medicine. Technically, 

anyone who is licensed to practice medicine may claim to 

specialize in a particular area. However it is our understanding 

that the medical profession will look with disfavor upon a man who 

holds himself out as a specialist in a field such as otolaryngology 

without a fair amount of specialized training, and will consider such 

conduct unethical. 

Because “active practicing” and “specializing in otolaryngology” 

are terms without precise meaning, it is impossible to prescribe any 

exact standards to determine whether a physician meets the requirements of subsection 3. Each case will have to be decided on its own 

facts. 

We give to the words “active practicing”, used in subsection 4 with 

reference to the audiologist member of the Board, the same meaning we 

gave to them with reference to the physician or surgeon member. We 

would require that, to be eligible, the audiologist be one who was I. 

actually and actively engaged in the duties of an audiologist. 

Mr. Stewart’s letter specifically asks whether a party.could 

conform with the requirements of subsection 4 if he was a full-time 

faculty manber of a college or’ university. .’ 

. 

.,._. 

. 

-14- 
Honorable James Cole, page 4, (H-4) 

We find that in other areas the Legislature has never found 

it difficult to exclude from eligibility persons who were members of 

a faculty. For instance Article 4495, V. T. C. S., excludes from 

the Texas Board of Medical Examiners a person who is “a 

member of the faculty or a board of trustee of any medical 

school. ” Article 4568, V. T. C. S. , creating the Board of 

Podiatry Examiners, specifi,cally excludes members of the 

faculty of any college of podiatry. Article 4542a, V. T. C. S., 

creating the State Board of Pharmacy excludes persons who are 

members of the faculty of any college or school of pharmacy. 

Article 4543 V. T. C. S. , creating the State Board of Dental 

Examiners excludes those who are members of .a facultyof a 

dental school. Article 4552-2.02, V. T. C. S., excludes members ‘~ 

of the faculty of any college of optometry from the Texas 

Optometry Board. 

That the Legislature did not see fit to exclude from the Texas 

Board of Examiners in the Fitting and Dispensing of Hearing Aids 

any person who is a member of the faculty of any college or other 

school when it so easily could have done so, indicates an intention 

that such a person would be qualified to serve on that board ‘, ‘,.. 

provided he met all other requirements. We question whether a 

full-time faculty member can be an active practitioner of his profession. 

However, the statute does not disqualify a faculty member. It ” ” 

affirmatively requires that the audiologist be an “active practicingfi 

on& Whether one is an ‘*active pract~icing audiologist” despite 

other activities is a question which will have to be determined ,from.the’. 

facts of each case. For example, an individual might sustain a 

‘tfull” teaching load of three to four hours per day, and, at the same, 

tin-e, devote six or more hours to the practice of his profes.sion. 

Full-time faculty member? Probably. Active practicing member of 

his profession? Probably. 1 , 

We therefore answer Mr. Stewart’s specific questions as 

follows: It is possible that a party may conform to the requirements. ’ 

of subsection 3 that he be an active practicing physician or surgeon 

and specilise in the practice of otolaryngology even though he is a 

full-time administrator of a clinic, depending upon the particular facts 

of each case. We answer his aecmd question that it is likewise possible 

-IS- 
. 

. . 

Honorable James Cole, page 5, (H-4) 

that a person may be an active practicing audiologists even though 

he is at the same time a full-time faculty member of a college or 

university, again depending upon the facts of each case. 

-SUMMARYArticle 4566-l. 02 Vernon’s Texas Civil 

Statutes providing that one member of the Texas 

Board of Examiners in the Fitting and Dispensing 

of Hearing Aids be an active practicing physician 

or surgeon specializing in the practice of otolaryngology and that another be an active practicing 

audiologist requires only that those persons be, 

respectively, a licensed physician or surgeon 

specializing in otolaryngology in the one case 

and a trained audiologists in the other and that 

each be actually and actively engaged in the 

practice of his profession. 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

@ii* 

M. BARRON 

d 

DAVID M. KENDALL, Chairman 

Opinion Committee 

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