### HE ASTBIECNEY GENERAL OF EXAS

June29,1971 Mr. John F. Boff Executive Director OpinionNo. M-895 Texas Board of Examiners in the Re: Whether certain activities Fitting and Dispensing of relating to preparation of Hearing Aids earmolds for hearing aids PenthouseApts. Room 105 constitute sales of hearing 1212Guadalupe aids under Article 

### 4566, Austin,Texas 78701 Vernon's Civil Statutes. Dear Mr. Boff:

In your letter requesting an opinion from this office, you state the following:

"Ithas come to our attention that some confusionas to the role of those individuals employedby non-profit organizationsor institutions of higher learning, in the fittingand dispensing of hearing aids in the State of Texas exist. We would like a formal opinion to clarify this role. "We feel that It is understood that those individualsemployedby institutionsof higher learning,non-profit organizations,or under the supervision of a physician and surgeon can carry out hearing aid evaluations,hearing aid selections, hearing aid fitting (what ever the preferred clinical terminologymight be) as long as they do not sellhearing aids."
In addition,you have advised this office that an earmold is an essential componentpart of any "hearingaid" as the latter term is defined by the provisions of Article 4566-1.01(d),Vernon's Civil Statutes.

In this regard you questionwhether a clinic or individual who takes an ear impression,has an earmold prepared from the impression,pays for themold and in turn sells themold to an individual, is engaging in the sale of a hearing aid and is required to be licensed to sell and dispensehearing aids by theTexas State Board of Examiners in the Fitting and Dispensing of Hearing Aids.

-4358-Mr. John F. Boff, page 2 (M-895)

Under the provisions of Article 4566-1.06(a): 'Everyperson desiring to engage in fittingand dispensinghearing aids in the State of Texas shall be required to pass an examinationgiven by the Texas Board of Examiners,,in the Fitting and Dispensing of Hearing Aids. The term "fittingand dispensing of hearing aids" is defined by the provisions of Article 4566-1.01(f) as follows:

"(f) 'Fittingand Dispensinghearing aids' means themeasurement of human hearing by the use of an audiometer or by anymeans for the purpose ofmaking selections,adaptationsand/or sales of hearing aids. The term also includes the sale of hearing aids, and the making of impressions for eaTmolds to be used as a part of the hearing aid. Article 4566-1.19,which exempts certainpersons and practices from the provisions of the Act, is quoted as follows:

"Nothing in this Act shallbe construed to apply to the following: "(1) Persons engaged in the practice of measuring human hearing as a part of the academic curriculum of an accredited institutionof higher learning. "(2) Persons engaged in the practice of measuring human hearing as a part of a program conductedby a nonprofitrrganization,provided such organization or its employeesdoes not sell hearing aids.

“(3) Physiciansand surgeonsduly licensed by the Texas State Board of Medical Examiners and qualified to practice in the State of Texas. "(4) Persons employedand directly supervised by a physician and surgeon to test ormeasure human hearing, provided such persons do not sellhearing aids."

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Hon. John F. Boff, page 3 (M-89,5)

The language of the above quoted provisions of these Articles Is clear and unambiguous. A statute that is plain and unambiguous will ordinarilybe interpreted literally.

. . :' 53 Tex.Jur.2d 197, Statutes, $135.

Consequently, it is our opinion that an Individual, other than a physician, licensed to practice in this State, or a clinic, who sells an earmold to an individualwhich Is intended to be used as a componentpart of a hearing aid, is sellin hearing aids and is not exempted by the provisions of Article 45 6-1.19, % Vernon's Civil Statutes, from the requirement ofbeing licensedby the Texas State Board of Examiners in the Fitting and Dispensing of Hearing Aids. SUMMARY

An individual,other than a physician licensed to practice in this State or a clinic,whlch sells an earmold to an individualwhich is intended to be used as a componentpart of a hearing aid, is selling hearing aids and Is not exemptedby the provisions of Article 4566-1.19,Vernon's Civil Statutes, from the requirement of being licensedby the Texas State Board of Examiners in the F ting and Dispensing of Hearing Aids. ,,/q ,',/ Very truly yofls,

Preparedby Ivan R. Williams, Jr. Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Malcolm Quick Bill Corbusier Pat Bailey Ken Nordquist

-4360-Mr. John F. Boff, page 4

MEADE,F. GRIFFIN Staff Legal Assistant
ALFRED WALKER Executive Assistant NOLA WRITE First Assistant (M-895)

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