                       The Attorney                General of Texas
                                            June    25,   1980
MARK WHITE
Attorney General


                   Honorable Robert B. Hall                      Opinion No. ML+198
                   Texas Board of Examiners in the
                     Fitting & Dispensing of Hearing             Re: Whether a licensee may fill a
                     Aids                                        prescription for a hearing aid from
                   Penthouse Apartments, Suite 105               a physician without further testing
                   Guadalupe Street                              of the individual’s hearing acuity.
                   Austin, Texas 78701

                   Dear Mr. Halh

                          You have requested our opinion as to whether a person licensed to
                   dispense hearing aids may fill a prescription for a hearing aid from a
                   physician without further testing the individual’s hearing acuity.

                         Section (a)(?‘) of article 4566-1.15, V.T.C.S. provides:

                               (7)   before any sale of a hearing aid shall be
                                     consummated,    the   person   purchasing  the
                                     hearing aid must have his hearing tested at an
                                     examination   conducted    in person by the
                                     licensee.

                         Article 4566-1.19, V.T.C.S., states that nothing in the act applies to:

                               (3)   [plhysicians and surgeons duly licensed by the
                                     Texas State Board of Medical Examiners and
                                     qualified to practice in the State of Texas.

                   You ask whether an individual licensed by the Board may validly disregard
                   the testing requirement imposed by article 4566 1.15(a)(7), V.T.C.S., when he
                   is presented with a prescription for a hearing aid from a physician exempted
                   from the statute by article 4566-1.19(3), V.T.C.S.

                          It is clear that the exception is applicable only to physicians and
                   surgeons, and not to persons who act at their instruction.      A statute that is
                   plain and unambiguous should be construed according to its literal meaning.
                   Brazce River Authority v. Graham, 354 S.W.2d 99, 109 (Tex. 1961); Board of
                   s                                                            180 S.W.2d 906? 909
                   ‘(Tex. 1944). Thus, if an individual licensed to fit and dispense hearing aids is
Honorable Robert B. Hall - Page Two        (Mw-198)




not included within one of the exceptions of article 4566-1.19, V.T.C.S., he must comply
with the testing requirement.    In the situation you pose, the licensee may not fill a
prescription for a hearing aid from a physician without first testing the hearing of the
purchaser of the hearing aid.

                                       SUMMARY

           A person licensed to dispense hearing aids may not fill a
           prescription for a hearing aid from a physician without first testing
           the indiviciral’s hearing.




                                                 MARK      WHITE
                                                 Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMPTTEE

C. Robert Heath, Chairman
Bob Gam mage
Susan Garrison
Bob Gauss
Rick Gilpin
Bruce Youngblood




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