                       THE     ATTORNEY               GENERAL
                                   OF-TEXAS
                                Amwrnv~   TEXAH       78711
JOHN    L     alLI,



                                   February       6,1973

       Honorable James Cole                                Opinion No.   H- 4
       House of Representatives
       State CapitoP Building                              Re:   Interpretation    of
       Austin,  Texas  78711                                     the term “active”
                                                                 as used in Section
                                                                 2, Subsection 3 and
                                                                 4 of the act creating
                                                                 the Texas Board of
                                                                 Examiners     in the’
                                                                 Fitting and Dis-
                                                                 pensing of Hearing
       Dear      Mr.   Cone:                                     Aids.

              Prior to the end of his term as representative,         the Honorable
       Vernon J. Stewart requested an opinion of the Attorney General with
       reference   to the qualifications    of tho.se to serve on the Texas Board
       of Examiners     in the Fitting and Dispensing      of Hearing Aids created
       in Acts 1969, and now codified as Chapter 10a of Title 71 of the Civil
       Statutes,  Section 4566-l.    01 et seq, Vernon’s     Texas Civil Statutes.

             We have been asked     to make our response         to you in Mr.   StewartVs
       absence.

              Mr. Stewart’s precise questions had to do with Subsections    3 and
       4 of Article 4566-l.  02(a) which describe the qualifications for two of
       the nine members     of the Board.

              One of them, in addition to residence     requirements,    is required
       to be “an active practicing physician or surgeon duly licensed to practice
       in this State by the Texas State Board of Medical Examiners,          and
       specialize  in the practice of otolaryngology.    ‘I The other, with similar
       residence   requirements,    is to be “an active practicing   audiologist. ”
       Both are specifically   prohibited from having any financial interest in a
       hearing aid manufacturing      company or a wholesale    or retail hearing aid
       company.
Honorable    James       Cole,   page 2.   (H-4)




       Mr. Stewart questioned the use of the word “active” and asked
specifically  (1) whether a party could qualify under subsection   3 if
he was a full-time    administrator of a clinic “‘and does not practice
his profession7”     And (2) whether a party might qualify under sub:
section 4 if he was a fulltime faculty member of a college or univer-
sity.

        The word “active” has many meanings.          It might be used, for
 instance,   to distinguish an active person from one who is retired.
.-                                         Corp.& al, 80 S. Ct. 1336, 363
 II. S. 685, 4. L. Ed. 2d 149 (1960).   It might be used as an antonym to
 the word “massive”.       Lohmever   v. Marvland State Bar Assoc.       of Law.
 Examiners,     218 Md. 575, 147 A.2d 703 (1959); Carson State Co. v.                .
 McColgan,l30     P. 2d 202 (Cal. App. 1942).    The meaning most often
 given it, is “characterized     by action rather than by contemplation      or
 speculation. ” Webster’s      Third~New International    Dictionary’(1967)
                                                                                 ;,.
 p. 22.

       Article   4510,     V. T. C. S. provides,   in part:

                            “Any person shall be regarded as pneticing
                 medicine     within the meaning of this law:

                           “(1) Who shall publicly profess to be a
                 physician or surgeon and shall diagnose,     treat, or
                 offer to treat any disease or disorder,   mental or
                 physical,    or any physical deformity or injury,
                 by any system or method, or to effect cures thereof;

                           “(2) or who shall diagnose,   treat or offer
                 to treat any disease or disorder,     mental or physical,
                 or any physical deformity or injury, by any system
                 or method, or to effect     cures thereof and charge,
                 therefor,    directly or indirectly, money or other
                 compensation.       . .‘I
                                                                       ‘.
        The phrase ,“active practicing physician or surgeoni means one who
is active and practicing;   one who actually diagnoses,  treats or a f fers’to”
treat mental or physical diseases     or disorders; one who devotes
sufficient time to the practice of medicine as to be identified~ in his
community as an active practitioner.



                                            -13-
Honorable   James   Cole,   page 3,   (H-4)




        Mr. Stewart’s letter asked whether a party might possibly
 qualify under subsection    3 “if he is a full-time  administrator    of
 a clinic and does not practice his profession?”       As stated, the
 question answers itself.     A man who does not practice his profession
is not an active practicing physician or surgeon.        However,    we do
 not believe the Legislature    intended to automatically    disqualify all
 hospital or clinic administrators.      It is not uncommon,    we
 believe,  for a person to be an “active practicing physician or
 surgeon” and at the same time to devote a large part of his
 energies to administering     a clinic or a small hospital.

       Most indicative of the legislative     intent as to the physician
                                                                             :.       .:        :
member of the board is the requirement          that he be a specialist  in
the practice of otolaryngology.      There ark no state laws governing
specialization   in any pa,rticular field of medicine.     Technically,
anyone who is licensed to practice medicine may claim to
specialize   in a particular  area.   However it is our understanding
that the medical profession     will look with disfavor upon a man who
holds himself out as a specialist     in a field such as otolaryngology
without a fair amount of specialized      training,   and will consider such
conduct unethical.

       Because “active practicing” and “specializing  in otolaryngology”
are terms without precise meaning,   it is impossible  to prescribe   any
exact standards to determine whether a physician meets the require-
ments of subsection   3. Each case will have to be decided on its own
facts.

       We give to the words “active practicing”,    used in subsection 4 with
reference  to the audiologist member of the Board, the same meaning we
gave to them with reference   to the physician or surgeon member.      We
would require that, to be eligible,  the audiologist be one who was I.
actually and actively engaged in the duties of an audiologist.

       Mr. Stewart’s letter specifically   asks   whether a party.could
conform with the requirements    of subsection    4 if he was a full-time
faculty manber   of a college or’ university.                                              .’

    .                                                                         .,._.




                                                                                      .

                                      -14-
Honorable   James   Cole,   page 4,   (H-4)




        We find that in other areas the Legislature        has never found
it difficult to exclude from eligibility persons who were members            of
a faculty.    For instance Article 4495, V. T. C. S., excludes from
the Texas Board of Medical Examiners           a person who is “a
member of the faculty or a board of trustee of any medical
school. ” Article 4568, V. T. C. S. , creating the Board of
Podiatry Examiners,        specifi,cally excludes members       of the
faculty of any college of podiatry.       Article 4542a,     V. T. C. S.,
creating the State Board of Pharmacy          excludes persons who are
members      of the faculty of any college or school of pharmacy.
Article 4543 V. T. C. S. , creating the State Board of Dental
Examiners      excludes those who are members         of .a facultyof   a
dental school.      Article 4552-2.02,    V. T. C. S., excludes members      ‘~
of the faculty of any college of optometry from the Texas
Optometry Board.

        That the Legislature     did not see fit to exclude from the Texas
Board of Examiners        in the Fitting and Dispensing    of Hearing Aids
any person who is a member of the faculty of any college or other
school when it so easily could have done so, indicates an intention
that such a person would be qualified to serve on that board                    ‘, ‘,..
provided he met all other requirements.           We question whether a
full-time   faculty member can be an active practitioner        of his profession.
However,     the statute does not disqualify a faculty member.         It           ” ”
affirmatively    requires that the audiologist be an “active practicingfi
on&     Whether one is an ‘*active pract~icing audiologist”      despite
other activities    is a question which will have to be determined ,from.the’.
facts of each case.      For example,    an individual might sustain a
‘tfull” teaching load of three to four hours per day, and, at the same,
tin-e, devote six or more hours to the practice of his profes.sion.
Full-time    faculty member?       Probably.    Active practicing member of
his profession?       Probably.                                           1 ,

        We therefore    answer Mr. Stewart’s     specific questions as
follows:   It is possible that a party may conform to the requirements.             ’
of subsection    3 that he be an active practicing physician or surgeon
and specilise    in the practice of otolaryngology    even though he is a
full-time   administrator    of a clinic, depending upon the particular   facts
of each case.     We answer his aecmd question that it is likewise possible




                                        -IS-
                                                                .                ..




Honorable   James    Cole,   page 5,    (H-4)




that a person may be an active practicing   audiologists  even though
he is at the same time a full-time faculty member of a college or
university,  again depending upon the facts of each case.

                               -SUMMARY-

                       Article 4566-l.    02 Vernon’s     Texas Civil
              Statutes providing that one member of the Texas
              Board of Examiners        in the Fitting and Dispensing
              of Hearing Aids be an active practicing physician
              or surgeon specializing       in the practice of otolaryngo-
              logy and that another be an active practicing
              audiologist   requires only that those persons be,
              respectively,     a licensed physician or surgeon
              specializing    in otolaryngology     in the one case
              and a trained audiologists       in the other and that
              each be actually and actively engaged in the
              practice of his profession.

                                                Very   truly yours,




                                                Attorney   General    of Texas

APPROVED:




                     @ii*
      M.    BARRON




d
DAVID M. KENDALL,
Opinion Committee
                             Chairman




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