Untitled Texas Attorney General Opinion ( 2012 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 7,2012
The Honorable Aaron Pefia Opinion No. GA-0921
Chair, Committee on Technology
Texas House of Representatives Re: Whether a member of the State Committee of
Post Office Box 2910 Examiners in the Fitting and Dispensing of Hearing
Austin, Texas 78768-2910 Instruments may sell hearing instruments at retail as
part of his practice of otolaryngology (RQ-0984-GA)
Dear Representative Pefia:
You ask whether the "medical doctor member of the State Committee of Examiners in the
Fitting and Dispensing of Hearing Instruments may sell hearing instruments at retail as a part of his
or her practice of otolaryngology without running afoul of the prohibition in section 402.053( d) [of
the Texas Occupations Code]." J The State Committee of Examiners in the Fitting and Dispensing
of Hearing Instruments ("Committee") assists the Texas Department of Health in administering,
coordinating, and enforcing the Occupations Code provisions governing the fitting and dispensing
of hearing instruments. See TEX. OCC. CODE ANN. § § 402.101 (West Supp. 2011) (providing for
general powers and duties of the Committee), 402.001(2), (5) (defining "Committee" and "hearing
instrument"), 402.003 (providing for applicability of chapter 402). The Committee consists of nine
members, most of whom must come from the hearing and fitting of hearing instruments profession.
See id. § 402.051(a)(1) (providing that six members must be "engaged in fitting and dispensing
hearing instruments" for a specified time period). Chapter 402 specifies that one member must be
a person who "actively practic[es] as a physician licensed by the Texas State Board of Medical
Examiners" and, along with meeting residency and citizenship requirements, "specializes in the
practice of otolaryngology.,,2 Id. § 402.051(a)(2).
Chapter 402 imposes restrictions on the makeup of the Committee. Subsection 402.053( d)
provides that the practicing physician member "may not have a financial interest in a hearing
instrument manufacturing company or in a wholesale or retail hearing instrument company." Id.
'Letter from Honorable Aaron Pena, Chair, House Comrn. on Technology, to Honorable Greg Abbott, Tex.
Att'y Gen. at 1 (July 11, 2011), https:llwww.texasattorneygeneral.gov/opin ("Request Letter").
2The medical practice of otolaryngology involves the treatment of ear, nose, and throat conditions. See Ketter
v. ESC Med. Sys., Inc., 169 S.W.3d 791, 795 (Tex. App.-Dallas 2005, no pet.).
The Honorable Aaron Pefia - Page 2 (GA-0921)
§ 402.053(d) (applying to a "committee member appointed under Section 402.051(a)(2)"); see id.
§ 402.051(a)(2) (providing for membership by an actively practicing physician). You ask whether
subsection 402.053(d) prohibits a medical doctor who "sell[s] hearing instruments as a part of his
or her practice of otolaryngology" from serving on the Committee. Request Letter at 2. You do not
suggest that a hearing instrument manufacturing company is involved or that the hearing instruments
are being sold wholesale; thus, we consider only whether the retail sale of hearing instruments by
a doctor's office results in the doctor having a "financial interest in a ... retail hearing instrument
company." Id.
The primary goal in construing statutes is to ascertain and effectuate the Legislature's intent.
See Galbraith Eng 'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863,867 (Tex. 2009). Courts begin
with the statute's plain language as the surest guide to that intent. See Presidio Indep. Sch. Dist. v.
Scott, 309 S.W.3d 927, 930 (Tex. 2010); Entergy GuljStates, Inc. v. Summers, 282 S.W.3d433, 437
(Tex. 2009) ("Where text is clear, text is determinative of that intent."). And courts give undefined
words their plain and common meaning. See City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex.
2010); TEX. GOV'T CODE ANN. § 31 1.011 (a) (West 2005) ("Words and phrases shall be .
construed according to the rules of grammar and common usage.").
Chapter 402 defines only one term in the statutory phrase at issue. See generally TEX. OCC.
CODE ANN. § 402.001 (West Supp. 2011) ("Definitions"). A "hearing instrument" means "any
wearable instrument or device designed for, or represented as, aiding, improving, or correcting
defective human hearing. The term includes the instrument's parts and any attachment, including
an earmold, or accessory to the instrument" and does not include a battery or cord. Id. § 402.001(5).
Though the term "financial interest" is undefined in chapter 402, this office has previously
considered its meaning for purposes of this section. See Tex. Att'y Gen. Op. No. DM-18 (1991)
at 2 (citing BLACK'S LAW DICTIONARY 568 (5th ed. 1979)) (addressing question about a "financial
interest" under section 402.053's statutory predecessor and concluding that a financial interest
encompasses employment). Opinion DM-18 defined "financial interest" to mean "an interest
equated with money or its equivalent." Id. (concluding that a financial interest encompasses
employment). A doctor plainly has a financial interest in his or her medical practice.
Neither the Legislature nor Texas courts have provided any definitions or other guidance on
the meanings ofthe terms "retail" and "company" as used in subsection 402.053(d). Both terms are
broad, general terms capable of a variety of meanings in this context. The phrase "retail hearing
instrument company" could, for example, be interpreted narrowly to include only businesses whose
primary pursuit is the retail sale of hearing instruments. It could also be interpreted more broadly
to include any business that ever sells a hearing instrument at retail. Absent any meaningful
guidance from the Legislature or Texas courts on the meaning of "retail hearing instrument
company," we are unable to definitively discern the Legislature's intent with respect to the scope of
subsection 402.053(d).
Moreover, as the administrative agency given regulatory authority over the fitting and
dispensing of hearing aids, the Committee is in the best position to determine the meaning of a
The Honorable Aaron Pefia - Page 3 (GA-0921)
provision pertaining to the qualifications of a potential Committee member. See generally Sw. Bell
Telephone Co. v. Pub. Util. Comm'n, 863 S.W.2d 754,758 (Tex. App.-Austin 1993, writ denied)
(recognizing that the Public Utility Commission is in the best position to evaluate rate issues raised
under agency's regulations). Generally, "[w]hen an administrative agency is created to centralize
expertise in a certain regulatory area, it is to be given a large degree of latitude in the methods it uses
to accomplish its regulatory function." State v. Pub. Util. Comm'n., 883 S.W.2d 190, 197 (Tex.
1994). Courts, therefore, give serious consideration to an agency's interpretation of its enabling
statute, so long as the interpretation does not contradict the plain language of the statute. See R.R.
Comm'n of Tex. v. Tex. CitizensforaSafe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011).
Here, the Committee is expressly authorized to administer and enforce chapter 402. See TEX. OCe.
CODE ANN. § 402.101(1) (West Supp. 2011). The Committee is also authorized to adopt rules for
the performance of the Committee's duties. See id. § 402.102. Further, chapter 402 provides for the
removal of a member of the Committee, suggesting that the Legislature intended the Committee to
oversee matters related to the qualifications of its members. See id. § 402.056(a)(1), (c). We believe
the Committee is authorized to determine the scope of the meaning of the prohibition in subsection
402.053(d), provided that the Committee's interpretation does not contradict the plain language of
the statute.
The Honorable Aaron Pefia - Page 4 (GA-092l)
SUMMARY
Subsection 402.053(d) ofthe Occupations Code prohibits the
doctor member of the State Committee of the Examiners in the
Fitting and Dispensing of Hearing Instruments from having a
financial interest in a retail hearing instrument company. Absent
statutory definitions of appropriate terms or other meaningful
guidance from the Legislature or Texas courts on the meaning of the
phrase "retail hearing instrument company," we cannot definitively
determine the scope of that phrase. As the administrative agency that
oversees the regulation of hearing instruments, the Committee is
authorized to determine the scope of the meaning of the prohibition
in subsection 402.053(d).
DANIEL T. HODGE
First Assistant Attorney General
DA VID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee