Untitled Texas Attorney General Opinion ( 1980 )

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
P. 642