                                         The Attorney            General of Texas
                                                           December 31, 1982

MARK WHITE
Attorney General


                                        Gary E. Miller,   M.D.                   Opinion No. MN-555
Supreme      Court Building
P. 0. BOX 12546
                                        C0HdSSi0l-l~~
Austin.    TX. 78711. 2546              Texas Department of Mental Health        Ice: Licensing of audiologists
5121475-2501                               and Mental Retardation                under article 4566, V.T.C.S.
Telex    9101674-1367                   P. 0. Box 12668
Telecwhr       5121475-0266                             78711
                                        Austin, Texas

1607 Main St.. Suite 1400               Dear Dr. Miller:
Dallas.   TX. 75201-4709
2141742.6944                                 You have requested our opinion on the following two questions
                                        concerning article 4566, V.T.C.S.:
4624 Alberta       Ave.. Suite    160
El Paso, TX.       799052793                           1. Does    article   4566   require   that   an
9151533.3464                                        audiologist with a master's or doctorate degree be
                                                    licensed by the Texas Board of Examiners in the
1220 Dallas Ave.. Suite          202
                                                    Fitting and Dispensing of Hearing Aids?
Houston,     TX. 77002.6966
713,650.0666                                           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
606 Broadway.        Suite 312
                                                    Dispensing of Hearing Aids, may he/she make
Lubbock,     TX.    79401-3479
6061747.5236                                        impressions for earmolds to be used as a part of
                                                    the hearing aid?

4309 N. Tenth. Suite B                       To answer your questions, we must analyze several provisions of
McAllen,     TX. 76501-1665
                                        article 4566. Paragraph (a) of article 4566-1.06, V.T.C.S., states:
5121662-4547

                                                    Every person desiring to engage in fitting and
200 Main Plaza, Suite 400                           dispensing hearing aids in the State of Texas
San Antonio.  TX. 76205.2797                        shall be required to pass an examination given by
5121225-4191
                                                    the Texas Board of Examiners in the Fitting and
                                                    Dispensing of Hearing Aids. (Emphasis added).
An Equal      Opportunity/
Affirmative     Action     Employer     Paragraph (e) of the same statute provides in part:

                                                    Every applicant successfully passing the examina-
                                                    tion and meeting all the requirements of this Act
                                                    shall be registered by 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).



                                                                       p. 2031
Dr. Gary E. Miller - Page 2 (1.~+555)




Article 4566-1.01(f) defines "[flitting and [dlispensing hearing aids"
a*:

         the measurement of human hearing by 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 to be used as a part of the hearing aid.

Article 4566-1.19 provides:

          Nothing in this Act shall be construed to apply to
          the following:

          . . .,

            (3) An individual with a master's or doctorate
         degree in audiology from an accredited college or
         university may 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 general rule, anyone who 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
dispensing hearing 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 doctorate degree in audiology who perform those functions
enumerated in article 4566-1.19(3); and (4) the functions enumerated
in article 4566-1.19(3) do not include all those functions enumerated
in article 4566-1.01(f).

     In Cameron v. Terre11 & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.
1981), the Texas Supreme Court 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




                               p. 2032
Dr. Gary E. Miller - Page 3 (MW-555)




         words or requirements to a statutory provision....
         (Emphasis added).

     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 functions which are simply not 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 individuals with a master's or doctorate
degree in audiology to make such impressions without 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 doctorate degree 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 individuals with a master's or doctorate
degree must obtain a license only if they sell hearing 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 degree may not perform without 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 of making selections and adaptations of or recommendations for
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 selling hearing aids.

     We therefore conclude, in answer to both of your questions, that
individuals with a master's or doctorate degree in audiology from an
accredited college or university are not exempt from the provisions of
article 4566 if they sell hearing aids or make impressions for
ear-moldsto be used as a part of the hearing aid.




                                p. 2033
Dr. Gary E. Miller - Page 4 (MW-555)




                              SUMMARY

            Individuals with a master's or doctorate degree
         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 the hearing aid.

                                        Very truly yours,




                                        Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible and
Stan Reid
Assistant Attorneys General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Jim Moellinger
Stan Reid




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