            HE   ASTBIECNEY            GENERAL
                      OF      EXAS



                           June 29, 1971
Mr. John F. Boff                       Opinion No. M-895
Executive Director
Texas Board of Examiners in the        Re:   Whether certain activities
  Fitting and Dispensing of                  relating to preparation of
  Hearing Aids                               earmolds for hearing aids
Penthouse Apts. Room 105                     constitute sales of hearing
1212 Guadalupe                               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:
          "It has come to our attention that some
     confusion as to the role of those individuals
     employed by non-profit organizations or institu-
     tions of higher learning, in the fitting and
     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
     individuals employed by institutions of higher
     learning, non-profit organizations, or under the
     supervision of a physician and surgeon can carry
     out hearing aid evaluations, hearing aid selec-
     tions, hearing aid fitting (what ever the
     preferred clinical terminology might be) as
     long as they do not sell hearing aids."
          In addition, you have advised this office that an earmold
is an essential component part of any "hearing aid" as the latter
term is defined by the provisions of Article 4566-1.01(d), Vernon's
Civil Statutes.
          In this regard you question whether a clinic or individual
who takes an ear impression, has an earmold prepared from the im-
pression, pays for the mold and in turn sells the mold to an in-
dividual, is engaging in the sale of a hearing aid and is required
to be licensed to sell and dispense hearing aids by the Texas State
Board of Examiners in the Fitting and Dispensing of Hearing Aids.

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


         Under the provisions of Article 4566-1.06(a):
          'Every person desiring to engage in fitting and
     dispensing hearing aids in the State of Texas shall
     be required to pass an examination given by the
     Texas Board of Examiners,,inthe Fitting and Dis-
     pensing of Hearing Aids.
The term "fitting and dispensing of hearing aids" is defined by
the provisions of Article 4566-1.01(f) as follows:

          "(f) 'Fitting and Dispensing hearing aids'
     means 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 im-
     pressions for eaTmolds to be used as a part of
     the hearing aid.
          Article 4566-1.19, which exempts certain persons and
practices from the provisions of the Act, is quoted as follows:
          "Nothing in this Act shall be 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 institution of higher
     learning.
          "(2) Persons engaged in the practice of
     measuring human hearing as a part of a program
     conducted by a nonprofit rrganization, provided
     such organization or its employees does not sell
     hearing aids.
          “(3)  Physicians and surgeons duly licensed
     by the Texas State Board of Medical Examiners and
     qualified to practice in the State of Texas.
          "(4) Persons employed and directly supervised
     by a physician and surgeon to test or measure human
     hearing, provided such persons do not sell hearing
     aids."


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_   .   r




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 ordinarily be 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 individual which Is intended to be used
as a component part 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 of being licensed by 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 individual which is intended to be used
            as a component part of a hearing aid, is selling
            hearing aids and Is not exempted by the provisions
            of Article 4566-1.19, Vernon's Civil Statutes, from
            the requirement of being licensed by the Texas State
            Board of Examiners in the F ting and Dispensing of
            Hearing Aids.             ,,/q
                                     ,',/
                                   Very truly yofls,




Prepared by 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


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Mr. John F. Boff, page 4    (M-895)


MEADE,F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant




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