                       The Attorney            General of Texas
                                          October 13, 1981

MARK WHITE
Attorney General


                   Mr. R. B. Hall                            opinion No. W-376
                   Executive Director
                   Texas Board of Examiners in the           Re: Construction of section
                     Fitting and Dispensing of Hearing       lZB(c) of article 4566,
                     Aids                                    V.T.C.S.
                   1212 Guadalupe
                   Austin, Texas 78701

                   Dear Mr. Hall:

                        Senate Bill No. 604, which became effective on Septe&ber 1, 1981.
                   amends article 4566-1.01 et seq., V.T.C.S., by adding, inter alia,
                   section 12B.    Section 12B is entitled "consumer Information and
                   Complaints." Subsection (c) thereof provides that:

                            The [Texas Board of Examiners in the Fitting and
                            Dispensing of Hearing Aids] shall establish
                            guidelines for a 30-day trial period on every
                            hearing aid purchased from a licensed hearing aid
                            fitter and dispenser.

                   Senate Bill No. 604 also amends section 1 of article 4566-1.01 by
                   adding subsection (g), which defines "30-day trial period" ss "the
                   period in which a person may cancel the purchase of a hearing aid."

                       Your questions involve section 12B(c). You ask:

                             1.     Does the law say that the dispenser must use
                                    the guidelines and give a 30-day trial period
                                    on every hearing aid he sells, or

                            2.      Does it mean that the dispenser is obligated
                                    only to make the guidelines known letting the
                                    consumer opt to use them or not, or

                            3.      Is it the board's responsibility simply to
                                    draw up the guidelines and make l?WXy
                                    dispenser aware that if he chooses to make
                                    available a 30-day trial period, these are
                                    the guidelines he must follow?




                                             p. 1267
Mr. R. B. Hall - Page 2   (MW-376)



     The Texas Board of Examiners in the Fitting and Dispensing of
Hearing Aids regulates the business of fitting and dispensing hearing
aids in this state. Anyone who desires to engage in this business
must pass an examination given by the board and sacura a license from
it. V.T.C.S. art. 4566-1.06. Licensees are obliged to abide by the
provisions of article 4566-1.01 et seq. Those who violate these
provisions may have their licenses revoked or suspended, be placed on
probation, or be reprimanded. V.T.C.S. art. 4566-1.10.

     It appears that you are asking, in effect, whether section 12B(c)
includes an element of choice. In other words, does a hearing aid
fitter and dispenser have the right to decide whether to provide a
30-day trial period on a hearing aid that he sells and, if so, may he
follow the board's guidelines or not, at his will?

     In our opinion, section 12B(c) contains no such element of
choice. We believe its plain language indicates that the intent of
the legislature was to require all hearing aid fitters and dispensers
to provide a 30-day trial period on every hearing aid they sell. We
further believe that the section imposes a duty on the board to
develop reasonable guidelines for the administration of this trial
period and, moreover, that all fitters and dispensers are obliged to
adhere to these guidelines.

     We therefore answer your first question in the affirmative and
your second and third questions in the negative.

                             SUMMARY

               Section 12B(c) of Senate Bill No. 604, which
          amends article 4566-1.01 et se ., V.T.C.S..
          requires that all hearing aid fitters and
          dispensers provide a 30-day trial period on every
          hearing aid they sell, and that they abide by
          guidelines drafted by the Texas Board of Examiners
          in the Fitting and Dispensing of Hearing Aids for
          the administration of this trial period.




                                        MA TK     WHITE
                                        Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General




                                   p. 1268
Mr. R. B. Hall - Page 3 (MW-376)



Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Peter Nolan




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