                      The Attorney                General of Texas
                                             November      8,    1979

MARK WHITE
Attorney General


                   Honorable Robert B. Hall                     Opinion No. NW-7 9
                   Executive Director
                   Texas Board of Examiners in the              Re: Scope of temporary training
                     Fitting and Dispensing of Hearing          permits     under    article    4566,
                     Aids                                       V.T.C.S., which relates to fitting
                   Penthouse Apts., Suite 105                   and dispensing of hearing aids.
                   1212 Guadalupe
                   Austin, Texas 78701

                   Dear Mr. Halh

                         You have asked whether it is appropriate under the facts you present
                   for the Texas Board of Examiners in the Fitting and Dispensing of Hearing
                   Aids [hereinafter referred to as Board1 to issue temporary training permits.
                   You state the following facts: factory representatives       for out-of-state
                   hearing aid manufacturers have sought temporary training permits for the
                   purpose of promoting their product by the fitting and dispensing of hearing
                   aids out of the retail establishments of licensed dealers in Texas. We are
                   informed that these individuals are trained professionals and are paid a
                   commission on their sales. The representatives    travel from city to city to
                   hold “Open House” in the businesses of licensees who act as sponsors. They
                   are advertised as expert and experienced in their field.

                        You ask four questions.

                              1.    Does the Temporary Training Permit allow its
                                    holder to fit and dispense hearing aids according
                                    to our law?

                         The Board is established and acts pursuant to article 4566, V.T.C.S.
                   Every person desiring to engage in the fitting and dispensing of hearing aids
                   is required to pass an examination given by the Board. Art. 4566-LO6(a),
                   V.T.C.S. Those licensed in other states having requirements equivalent or
                   higher than those in Texas may be granted a license without taking the
                   examination   under the reciprocal licensing provisions.     Art. 4566-1.08,
                   V.T.C.S

                        Article 4566-1.09 permits the issuance of temporary training permits
                   to those who have never taken the examination and who have never




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Honorable Robert B. Hall    -   Page Two     &lW-79 1



previously had a training permit. Id. subsec. (a). The application for a temporary permit
must be accompanied by an affidaz     from a person duly licensed and qualified to fit and
dispense hearing aids. Ia, subsec. (b). The affidavit must state that the applicant for the
temporary permit will be supervised in all work done by the applicant.        A temporary
training permit is defined as

           a permit issued by the Board to persons authorized to fit and
           dispense hearing aids only under the supervision of a person who
           holds a license under this Act.

Art. 4566-LOl(c), V.T.C.S. Thus, in answer to your first question, a holder of a temporary
permit is authorized to fit and dispense hearing aids if done with supervision.

           2.    Can factory representatives     secure a Temporary Training
                 Permit for the purpose of holding three day ‘Open House’
                 meetings in different locations over the State?

       Article 4566-1.09, V.T.C.S., authorizes the issuance of a temporary training permit
to “any person applying to the Board’ who fulfills stated requirements.   The law doas not
require that the permit holder enroll in a training program but only that he work under the
supervision of a licensee.    V.T.C.S. arts. 4566-1.01(c); 4566-1.09(b). Consequently, we
believe the permit may be issued to a factory representative    complying with the statute
and the representative may use it while holding open houses and wcrking at sll times under
the supervision of the affiant who supported his application.       The temporary training
permit becomes void at the end of six months unless extended for an additional period not
to exceed six months.

           3.    Our application requires the applicant for a Temporary
                 Training Permit to declare his intent to take the State
                 examination.     Does our law require the applicant who has
                 stated his ‘intention’ to take the State examination to follow
                 through and actually take the examination?

       We believe that the Board would have no authority to compel an individual to take
the examination although the Board may enjoin his dispensing of hearing aids without a
license. U.S. Const. amend. XIII; V.T.C.S. arts. 4566-1.04(e), 4566-1.06.

           4.    Can a factory representative       hold himself out in public
                 advertising as being an ‘expert’ in the fitting and dispensing of
                 hearing aids even though he holds only a temporary license?

      The licensing law contains no provisions relating to the advertisement of a licensee
as an expert.     Cf. V.T.C.S. art. 4566-1.15(a)(5) (prohibition against unlicensed person
holding out as authorized to fit hearing aids). The Deceptive Trade Practices Act
prohibits false representations concerning the quality of services.    Bus. & Comm. Code
S 17.46(bX7). Whether an individual may truthfully advertise himself as an expert in the




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Honorable Robert B. Hall    -   Page Three        (Mw-79)



fitting and dispensing of hearing aids depends on his qualifications.     Cf. United States
Fidelity & Guaranty Co. v. Rochester, 281 S.W. 306 (Tex. Civ. App. - Fz Worth 1926, no
writ) (definition of expert witness). The fact that an individual held a temporary training
license would be relevant to a decision whether he is an expert, but we do not believe it is
dispositive of the issue. If a factory representative were in fact an expert in the fitting
and dispensing of hearing aids, his possession of a temporary license would not bar him
from advertising himself as an expert.

                                       SUMMARY

           Manufacturer’s   representatives    may obtain temporary           training
           permits for the purpose of transacting promotional sales.

                                         w?mw&&g




                                                  Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by David B. Brooks
and Susan Garrison
Assistant Attorneys General

APPROVED:
OPINION COMMI’ITEE

C. Robert Heath, Chairman
David B. Brooks
Bob Gam mage
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood




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