Untitled Texas Attorney General Opinion ( 1972 )

Hon. John F. Boff Opinion No. M- 1063
Executive Director
Texas Board of Examiners in the Re: Questions relating to
Fitting & Dispensing of Hearing authority to act out of
Aids Texas under a Texas li-
Penthouse Apts., Room 105 cense issued by the Texas
1212 Guadalupe Board of Examiners in the
Austin, Texas 78701 Fitting and Dispensing of
Hearing Aids, reciprocity
and renewal of such a
Dear Mr. Boff: license.
In your letter requesting an opinion from this office,
you ask the following questions:
1. When a person licensed by this Board,
while visiting or residing in another State,
conducts his business in such a way as to be
in violation of Article 4566 of Vernon's Civil
Statutes, Sections 1.01 or 1.14 or 1.15, can
the Board proceed against this person for his
actions even though they took place outside of
the State of Texas?
2. In granting reciprocity with another
State can the Board stipulate that reciprocity
will be granted if the person has obtained his
license in that State by way of a 'Grandfather
Clause' or an examination but not if it was ob-
tained by reciprocity?
3. After the Board has exercised its au-
thority under Article 4566-1.13(d) and has can-
celled a license for non-payment of annual
renewal fees, may the Board refuse to issue
a new license after a licensee pays all pre-
vious unpaid annual fees.
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Ron. John F. Boff, page 2 (M-1063)
We will answer your questions in the order in which they are
presented.
The Texas Board of Examiners in the Fitting and Dis-
pensing of Hearing Aids was created by the provisions of Articles
4566-1.01 through 4566-1.22, Vernon's Civil Statutes. Article
4566-1.10 authorizes the Board in its discretion to refuse to
issue a license to any applicant. Under this Article also it may
cancel, revoke or suspend the operation of any license it has granted
for any of 24 enumerated reasons; number (6) of these is that "The
applicant or licensee has violated any of the provisions of this
Act." The provisions of Article 4566-1.14 specify certain duties
of a licensee under the Act. Article 4566-1.15 of the Act lists
additional prohibited acts.
Article 4566-1.16 provides a criminal penalty for viola-
tion of any provision of the Act. Generally, the State courts have
no jurisdiction to try and punish a person for a crime against its
laws committed by him outside the State's boundaries. 16 Tex.Jur.
2d 352, Criminal Law, Sec. 196; McKenzie v. State, 32 Crim.R. 568,
25 S.W. 426 (1894). Put another way, "common law tradition and
the local policy of common law states have . . . given rise to a
rule that the criminal law of a state does not usually apply to
acts and events occurring abroad. . . II Stumberg, Conflict of Law,
57 (2nd Ed. 1951). Consesuentlv, it is our oprnion that a person
who.is visiting or residing outside the boundaries of the State
of Texas and violates any provision of Articles 4566-1,Ol through
4566-1.22, Vernon's Civil Statutes, is not subject to criminal
prosecution in the courts of this State under the penal provisions
of Article 4566-1.16.
On the other hand, our opinion is that a licensee who
by reason of his Texas license, conducts his Texas business in
such a way that he violates Sections 1.01, 1.14, or 1.15, Article
4566, while outside the boundaries of the State, may, in the dis-
cretion of the Board, where pertinent and applicable, have his
license ordered suspended or revoked after due notice and hearing
pursuant to Article 4566-1.11 of the Act. However, this is not
to say that if what the licensee does in another state is legal
there and it does not constitute a part of his Texas business
performed pursuant to his Texas license, Article 4566 would be
necessarily violated. Acts of the licensee regarding his per-
sonal conduct and integrity, however, as contemplated in Article
4566-1.10, whether relating to his practice of his profession or
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Hon. John F. Boff, page 3 (M-1063)
not, and irrespective of where they may occur, may be suf-
ficient grounds, if declared so by statute, for cancellation,
revocation, or suspension of his license. In 36 Texas Juris-
prudence 2d 641, Licenses, Section 55, is this statement:
"Subject to constitutional proscriptions
against unreasonable or arbitrary action, the
state at its pleasure may revoke a license
granted by it."
See also 53 C.J.S. 624 note 13, Licenses, Section 33, and the
same text and volume at page 635 note 22, Section 38.
The procedure for revocation or suspension of a license
issued under authority of these Articles is provided for in
Article 4566-1.11. This procedure is an administrative civil
proceeding and an appeal from the Board's order refusing, can-
celling, revoking or suspending a license is civil in nature.
A licensee under the Act is subject to the jurisdiction of the
Texas Board of Examiners in the Fitting and Dispensing of Hearing
Aids, an agency of the State of Texas, regardless of his residence
or domicile. We have found no provision in the Act which would
prevent the Board from enforcing the licensing provisions of the
Act to suspend or revoke the license of any person practicing the
profession of a fitter and dispenser of hearing aids within the
territorial limits of the State of Texas.
Your second question concerns reciprocity between this
State and other states and territories. Article 4566-1.08 pro-
vides, in part, as follows:
"(a) Upon proper application, the Texas
Board of Examiners in the Fitting and Dispensing
of Hearing Aids shall grant a license to fit and
dispense hearing aids without requiring an ex-
amination to licentiates of other states or
territories having requirements equivalent to
or higher than those in effect pursuant to this
Act for fitting and dispensing hearing aids.
. . .II (Emphasis added).
The basic requirements for a license are contained in
Article 4566-1.06, the pertinent portion of which reads as follows:
1,
. . .
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Hon. John F. Boff, page 4 (M-1063)
"(b) The applicant shall make applica-
tion, furnishing to the Secretary-Treasurer
of the Board on forms to be furnished by the
Board, sworn evidence that he has attained
the age of 18 years, is of good moral character,
is free of contagious or infectious disease,
and has graduated from an accredited high
school or equivalent, and such other informa-
tion as the board may deem necessary for the
enforcement of this Act."
It is our opinion that under the provisions of Article
4566-1.08 the Board is required to grant a license, without an
examination, to any licensee of another state or territory which
has equivalent or higher requirements than those specified in
Article 4566-1.06(b). Consequently, it would not be material
whether the licensee of another state had obtained his license
in that state by way of a "Grandfather Clause", examination or
reciprocity with another state.
The answer to your third question is found in Article
4566-1.13, paragraph (d) which reads as follows:
"(d) After the Board shall have cancelled
a license for non-payment of the annual renewal
fee, the Board may refuse to issue a new license
until such fitter and dispenser of hearing aids
has paid all previous unpaid annual fees."
Under this Section, the function of renewing the license
upon payment of all delinquent fees would be a ministerial function
only. Therefore, the Board would have no discretion in this re-
gard. It is our opinion that when an applicant for a new license
has paid all previous unpaid annual fees he is entitled to be
issued a new license by the Board of Examiners in the Fitting and
Dispensing of Hearing Aids as a matter of right.
SUMMARY
1. A person who is visiting or residing
outside the boundaries of the State of Texas
and violates any provision of Articles 4566-1.01
through 4566-1.22, Vernon's Civil Statutes, is
not subject to criminal prosecution in the courts
of this State under the penal provisions of
Article 4566-1.16.
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.
Hon. John F. Boff, page 5 (M-1063)
A licensee under Articles 4566-1.01
through 4566-1.22 who, by reason of his
Texas license, conducts his Texas business
in such a way that he violates any of these
licensing provisions while outside the
boundaries of the State, may, where pertinent
and applicable, in the discretion of the Board,
have his license suspended or revoked after due
notice and hearing pursuant to Article 4566-
1.11 of the Act.
2. Under the provisions of Article 4566-1.08
the Board is required to grant a license without
an examination to any licensee of another state
or territory which has the equivalent or higher
requirements than those specified in Article
4566-1.06(b).
3. After the Board has cancelled a license
for non-payment of the annual renewal fee, and
an applicant for a new license has paid all pre-
vious unpaid annual fees, he is entitled to be
issued a new license bye the Board as a matter of
right.
n
ry truly yours,