Untitled Texas Attorney General Opinion

The Attorney General of Texas
November 8, 1979
MARK WHITE
Attorney General
Honorable Robert B. Hall Opinion No. NW-7 9
Executive Director
Texas Board of Examiners in the Re: Scope of temporary training
Fitting and Dispensing of Hearing permits under article 4566,
Aids V.T.C.S., which relates to fitting
Penthouse Apts., Suite 105 and dispensing of hearing aids.
1212 Guadalupe
Austin, Texas 78701
Dear Mr. Halh
You have asked whether it is appropriate under the facts you present
for the Texas Board of Examiners in the Fitting and Dispensing of Hearing
Aids [hereinafter referred to as Board1 to issue temporary training permits.
You state the following facts: factory representatives for out-of-state
hearing aid manufacturers have sought temporary training permits for the
purpose of promoting their product by the fitting and dispensing of hearing
aids out of the retail establishments of licensed dealers in Texas. We are
informed that these individuals are trained professionals and are paid a
commission on their sales. The representatives travel from city to city to
hold “Open House” in the businesses of licensees who act as sponsors. They
are advertised as expert and experienced in their field.
You ask four questions.
1. Does the Temporary Training Permit allow its
holder to fit and dispense hearing aids according
to our law?
The Board is established and acts pursuant to article 4566, V.T.C.S.
Every person desiring to engage in the fitting and dispensing of hearing aids
is required to pass an examination given by the Board. Art. 4566-LO6(a),
V.T.C.S. Those licensed in other states having requirements equivalent or
higher than those in Texas may be granted a license without taking the
examination under the reciprocal licensing provisions. Art. 4566-1.08,
V.T.C.S
Article 4566-1.09 permits the issuance of temporary training permits
to those who have never taken the examination and who have never
P. 240
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Honorable Robert B. Hall - Page Two &lW-79 1
previously had a training permit. Id. subsec. (a). The application for a temporary permit
must be accompanied by an affidaz from a person duly licensed and qualified to fit and
dispense hearing aids. Ia, subsec. (b). The affidavit must state that the applicant for the
temporary permit will be supervised in all work done by the applicant. A temporary
training permit is defined as
a permit issued by the Board to persons authorized to fit and
dispense hearing aids only under the supervision of a person who
holds a license under this Act.
Art. 4566-LOl(c), V.T.C.S. Thus, in answer to your first question, a holder of a temporary
permit is authorized to fit and dispense hearing aids if done with supervision.
2. Can factory representatives secure a Temporary Training
Permit for the purpose of holding three day ‘Open House’
meetings in different locations over the State?
Article 4566-1.09, V.T.C.S., authorizes the issuance of a temporary training permit
to “any person applying to the Board’ who fulfills stated requirements. The law doas not
require that the permit holder enroll in a training program but only that he work under the
supervision of a licensee. V.T.C.S. arts. 4566-1.01(c); 4566-1.09(b). Consequently, we
believe the permit may be issued to a factory representative complying with the statute
and the representative may use it while holding open houses and wcrking at sll times under
the supervision of the affiant who supported his application. The temporary training
permit becomes void at the end of six months unless extended for an additional period not
to exceed six months.
3. Our application requires the applicant for a Temporary
Training Permit to declare his intent to take the State
examination. Does our law require the applicant who has
stated his ‘intention’ to take the State examination to follow
through and actually take the examination?
We believe that the Board would have no authority to compel an individual to take
the examination although the Board may enjoin his dispensing of hearing aids without a
license. U.S. Const. amend. XIII; V.T.C.S. arts. 4566-1.04(e), 4566-1.06.
4. Can a factory representative hold himself out in public
advertising as being an ‘expert’ in the fitting and dispensing of
hearing aids even though he holds only a temporary license?
The licensing law contains no provisions relating to the advertisement of a licensee
as an expert. Cf. V.T.C.S. art. 4566-1.15(a)(5) (prohibition against unlicensed person
holding out as authorized to fit hearing aids). The Deceptive Trade Practices Act
prohibits false representations concerning the quality of services. Bus. & Comm. Code
S 17.46(bX7). Whether an individual may truthfully advertise himself as an expert in the
p. 241
Honorable Robert B. Hall - Page Three (Mw-79)
fitting and dispensing of hearing aids depends on his qualifications. Cf. United States
Fidelity & Guaranty Co. v. Rochester, 281 S.W. 306 (Tex. Civ. App. - Fz Worth 1926, no
writ) (definition of expert witness). The fact that an individual held a temporary training
license would be relevant to a decision whether he is an expert, but we do not believe it is
dispositive of the issue. If a factory representative were in fact an expert in the fitting
and dispensing of hearing aids, his possession of a temporary license would not bar him
from advertising himself as an expert.
SUMMARY
Manufacturer’s representatives may obtain temporary training
permits for the purpose of transacting promotional sales.
w?mw&&g
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by David B. Brooks
and Susan Garrison
Assistant Attorneys General
APPROVED:
OPINION COMMI’ITEE
C. Robert Heath, Chairman
David B. Brooks
Bob Gam mage
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
p. 242