# 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 inSection 2, Subsection 3and 

### 4of the act creating the Texas Board of Examiners inthe’ Fitting and Dispensing of Hearing Aids. Prior to the end of his term as representative, the Honorable Vernon J. Stewart requested an opinion ofthe Attorney General with reference to the qualifications of tho.se to serve on the Texas Board of Examiners inthe Fitting and Dispensing of Hearing Aids created inActs 1969, and now codified as Chapter 10a of Title 71of the Civil Statutes, Section 4566-l. 01et 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 dowith Subsections 3and 4of 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 inthe 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 ina hearing aid manufacturing company or awholesale 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 aparty could qualify under subsection 3if he was a full-time administrator ofa clinic “‘and does not practice his profession7” And (2) whether aparty might qualify under sub: section 4 ifhe was a fulltime faculty member of a college or university. The word “active” has many meanings. Itmight 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). Itmight 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, inpart:

“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; 

### onewho actually diagnoses, treats or affers’to” treat mental or physical diseases or disorders; one who devotes sufficient time to the practice of medicine as to be identified~ inhis community as an active practitioner.

-13-Honorable James Cole, page 3, (H-4)

Mr. Stewart’s letter asked whether aparty might possibly qualify under subsection 3 “if he is afull-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. Itis not uncommon, we believe, for aperson to be an “active practicing physician or surgeon” and at the same time to devote alarge part of his energies to administering a clinic or a small hospital. Most indicative ofthe 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 inany pa,rticular field of medicine. Technically, anyone who is licensed to practice medicine may claim to specialize inaparticular area. However it is our understanding that the medical profession will look with disfavor upon a man who holds himself out as a specialist inafield such as otolaryngology without afair 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 4with 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 inthe duties of an audiologist. Mr. Stewart’s letter specifically asks whether aparty.could conform with the requirements of subsection 4 ifhe was afull-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 afaculty. For instance Article 4495, V. T. C.S., excludes from the Texas Board of Medical Examiners a person who is “a member ofthe faculty or aboard 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 ofpodiatry. 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 ofpharmacy. Article 4543 V. T. C.S. , creating the State Board of Dental Examiners excludes those who are members of.afacultyof 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 inthe Fitting and Dispensing of Hearing Aids any person who is amember 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 onthat 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 afaculty 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 ofhis 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 aparty may conform to the requirements. ’ of subsection 3that he be an active practicing physician or surgeon and specilise inthe 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 aperson 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 ofthe Texas Board of Examiners in the Fitting and Dispensing of Hearing Aids be an active practicing physician or surgeon specializing inthe practice of otolaryngology and that another be an active practicing audiologist requires only that those persons be, respectively, alicensed physician or surgeon specializing in otolaryngology inthe one case and atrained audiologists inthe other and that each be actually and actively engaged inthe practice ofhis profession. Very truly yours,

Attorney General of Texas APPROVED:

**@ii***

M. BARRON 

# d

DAVID M. KENDALL, Chairman OpinionCommittee

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