Does the practical part of the Texas hearing aid fitter licensing exam have to be validated by an independent testing professional?

TX AG Opinion GA-0382: Must the practical hearing-aid fitter exam be independently validated?

Plain-English summary

To get a license to fit and dispense hearing instruments in Texas, an applicant has to pass an examination given by the State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments, which sits inside the Department of State Health Services. By statute and committee rule, that examination has a written section and a practical section, and the practical section is administered by individual committee members. Because different committee members run the practical part, it can vary quite a bit from one examiner to the next. That variation is what prompted the question here.

Section 402.104(c) of the Occupations Code says "[t]he examination must be validated by an independent testing professional." The chair of the House Committee on Human Services pointed out that subsection 402.104(a), right above it, talks only about a "written examination," so the validation requirement might be read to cover only the written test. A different provision, section 402.204(a), describes the examination as consisting of "written, oral, or practical tests." So the real question was whether independent validation reaches the practical tests, or stops at the written one.

The Attorney General concluded that the validation requirement covers the whole examination, practical part included. Reading chapter 402 as a whole, the word "examination" describes a single licensing event that may have written, oral, and practical components, not several separate exams. The opinion also treated section 402.104(c) as ambiguous and looked back to the predecessor statute, which had said "[a]ll examinations shall be validated by an independent testing professional." Because the 1999 recodification was nonsubstantive, the older, clearer language controlled the reading. So an independent testing professional has to validate the practical section as well as the written one.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2005)

The State Committee of Examiners (and the Department of State Health Services): The opinion told the committee it could not treat independent validation as a written-test-only requirement. The practical section it administered had to be validated by an independent testing professional under section 402.104(c), the same as the written section.

Applicants for a hearing instrument fitter/dispenser license: It meant the practical part of their licensing exam, the part that varied by examiner, was supposed to carry the same independent-validation safeguard as the written part.

Lawyers and legislators reading the statute: It showed how the office resolved the tension between section 402.104 (which mentions only a "written examination") and section 402.204 (which lists "written, oral, or practical tests"), by reading "examination" as one event and using the pre-1999 predecessor language to settle the ambiguity.

Common questions

What did the opinion actually decide?
That the licensing examination for hearing instrument fitters and dispensers must be validated by an independent testing professional in its entirety, including the practical part, not just the written part.

Why was there any doubt? Doesn't 402.104(c) just say "the examination"?
The doubt came from subsection 402.104(a), which speaks only of a "written examination." Read in isolation, that made it arguable that the validation requirement in 402.104(c) attached only to the written test. The opinion rejected that isolated reading.

How did the AG resolve the ambiguity?
Two ways. First, by reading chapter 402 as a whole: other sections use "examination" to describe a single event that can include written, oral, and practical tests, so validation of "the examination" reaches all of it. Second, by looking at the predecessor statute, which expressly required "[a]ll examinations" to be independently validated. Because the 1999 codification was nonsubstantive, that earlier language governed.

If the practical exam did not have to be validated, what standard would apply?
The opinion did not need to answer that, given its conclusion. It noted only that section 402.204 requires the examination to be objective in method and applied consistently, and quoted Sunset Advisory Commission guidance that practical exams should have written guidelines, clear performance criteria, and clearly defined tasks.

Background and statutory framework

The State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments is a nine-member body, appointed by the governor with senate advice and consent, that operates as part of the Department of State Health Services (Tex. Occ. Code Ann. § 402.051(a) (Vernon 2004)). With the department's help, the committee evaluates applicants' qualifications and examines them (id. § 402.101(2)-(3)). Section 402.104 directs the committee to administer or arrange a written examination at least twice a year, and provides that "[t]he examination must be validated by an independent testing professional" (id. § 402.104(a)-(c)). To be licensed, a person must pass an examination given by the committee (id. § 402.202(a)), though a Chapter 401 audiologist or audiology intern is exempt (id. § 402.202(b)).

The examination "must consist of written, oral, or practical tests that are objective in method and applied in a consistent manner" (id. § 402.204(a)), and "shall be conducted in writing and by other means the committee determines adequate" (id. § 402.205(b)). A committee rule provides that the examination has a written section and a practical section (22 Tex. Admin. Code § 141.15(a), (c)(1) (2005)). Other provisions treat the examination as one event: the committee gives notice of "the date and place of the examination" and its subjects (Tex. Occ. Code Ann. § 402.205(a)); a reexamined applicant may be tested "only on those portions of the examination that the applicant failed" (id. § 402.205(c)); a temporary training permit is available to someone who "has never taken the examination" (id. § 402.251(1)); and a license holder may satisfy continuing education by taking "the state examination" (id. § 402.304(a)).

The opinion construed the statute by its plain language and as a whole, not provision by provision (Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864 (Tex. 1999); Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001)), and gave a repeated word the same meaning throughout absent contrary intent (Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314 (Tex. 2002)). Treating section 402.104(c) as ambiguous, it turned to the predecessor of chapter 402, which had required that "[a]ll examinations shall be validated by an independent testing professional." Because the 1999 recodification was nonsubstantive, the office read the current provision consistently with that earlier language (Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278 (Tex. 1999); Tex. Att'y Gen. Op. No. JC-0517 (2002)). The result: independent validation covers the practical as well as the written components of the licensing examination.

Citations

Statutes and rules:

• Tex. Occ. Code Ann. § 402.051, 402.051(a) (Vernon 2004)
• Tex. Occ. Code Ann. § 402.101(2)-(3) (Vernon 2004)
• Tex. Occ. Code Ann. § 402.104, 402.104(a), 402.104(b), 402.104(c) (Vernon 2004)
• Tex. Occ. Code Ann. § 402.202(a)-(b) (Vernon 2004)
• Tex. Occ. Code Ann. § 402.204(a) (Vernon 2004)
• Tex. Occ. Code Ann. § 402.205(a), 402.205(b), 402.205(c) (Vernon 2004)
• Tex. Occ. Code Ann. § 402.251, 402.251(1) (Vernon 2004)
• Tex. Occ. Code Ann. § 402.304(a) (Vernon 2004)
• 22 Tex. Admin. Code § 141.15(a), (c)(1) (2005)

Cases:

• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864 (Tex. 1999)
• Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001)
• Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314 (Tex. 2002)
• Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278 (Tex. 1999)

Other authorities:

• Tex. Att'y Gen. Op. No. JC-0517 (2002)
• Sunset Occupational Licensing Model (2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0382
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0382.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

December 13, 2005

The Honorable Suzanna Gratia Hupp
Chair, Committee on Human Services
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0382

Re: Standards applicable to the State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments in conducting examinations (RQ-0353-GA)

Dear Representative Hupp:

You request an opinion about Texas Occupations Code chapter 402, which establishes and governs the State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments (the "committee").[1] See TEX. OCC. CODE ANN. § 402.051 (Vernon 2004). You specifically ask about the meaning of two provisions relating to examinations conducted by the committee.

The committee, consisting of nine members appointed by the governor with the advice and consent of the senate, is part of the Department of State Health Services. See id. § 402.051(a).[2] With the assistance of the department, the committee is required to "evaluate the qualifications of applicants" for licensing under chapter 402 and "examine applicants." Id. § 402.101(2)-(3). Section 402.104 provides that

             (a) The committee shall administer or arrange for the administration of a written examination.

             (b) The examination shall be administered at least twice each year.

             (c) The examination must be validated by an independent testing professional.

Id. § 402.104 (emphasis added).

Section 402.204 provides that "[t]he examination must consist of written, oral, or practical tests that are objective in method and applied in a consistent manner." Id. § 402.204(a). "An examination shall be conducted in writing and by other means the committee determines adequate to ascertain the qualifications of applicants." Id. § 402.205(b). A committee rule setting out examination procedures provides that "[t]he examination shall consist of a written section and a practical section." 22 TEX. ADMIN. CODE § 141.15(a), (c)(1) (2005).

Because the practical examination is administered by committee members, it may vary widely depending on the committee member conducting the practical examination. Request Letter, supra note 1, at 2. You ask whether the practical examination must be validated by an independent testing professional, and if not what standard applies. See id. You write that the language of section 402.104 "appears to be limited to written examinations, since subsection 402.104(a) references only written examinations," while "[i]n contrast, section 402.204(a) by its terms applies to written and practical examinations." Id.

We consider whether section 402.104(c), which states that "[t]he examination must be validated by an independent testing professional," applies only to the written examination that section 402.104(a) requires the committee to provide or also to the "practical tests" authorized by section 402.204(a). TEX. OCC. CODE ANN. § 402.104(c) (Vernon 2004). We construe the statute according to its plain language. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999) (stating that a court construes a statute by looking to the plain meaning of the statute's language). We also consider it as a whole rather than considering its provisions in isolation. Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). Unless a contrary intention appears, words that are used repeatedly in a statute will bear the same meaning throughout. See Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). Accordingly, we will consider the section 402.104(c) validation requirement in the context of chapter 402 as a whole.

Pursuant to section 402.202, "a person must pass an examination given by the committee" to engage in fitting and dispensing hearing instruments in Texas. TEX. OCC. CODE ANN. § 402.202(a) (Vernon 2004). Section 402.204(a), quoted above, provides that "[t]he examination must consist of written, oral, or practical tests that are objective in method and applied in a consistent manner." Id. § 402.204(a) (emphasis added). Section 402.205(b) provides that "[a]n examination shall be conducted in writing and by other means the committee determines adequate to ascertain the qualifications of applicants." Id. § 402.205(b) (emphasis added). These provisions indicate that practical tests are a component of the examination or a means of examining applicants for licensure and are not themselves a separate examination.

Other provisions of chapter 402 indicate that an examination is a single event, even though it may include a practical as well as a written part. "To engage in fitting and dispensing hearing instruments in this state a person must pass an examination given by the committee," but "[a] person licensed under Chapter 401 as an audiologist or an audiology intern is exempt from the examination required under this chapter." Id. § 402.202(a)-(b). "The examination shall be administered at least twice each year." Id. § 402.104(b). "The committee shall give each applicant due notice of the date and place of the examination and the subjects, areas, and skills that will be included in the examination." Id. § 402.205(a). "On reexamination, an applicant who previously failed an examination may be examined only on those portions of the examination that the applicant failed." Id. § 402.205(c) (emphasis added). A person who "has never taken the examination administered under" chapter 402 may be issued a temporary training permit under section 402.251. Id. § 402.251(1). Moreover, as an alternative to fulfilling the continuing education requirement a license holder, on written request to the committee, "may take the state examination given by the committee." Id. § 402.304(a). See id. ("A license holder who pays the examination fee and passes the examination is exempt from the continuing education requirement for the year in which the test is taken."). Based on these provisions, we conclude that the committee gives an examination that must be conducted in writing and that may also include practical or oral tests.

Reading section 402.104 in the context of chapter 402 as a whole and noting how the term "examination" is used repeatedly elsewhere in the chapter, we conclude that the examination in its entirety, including any practical parts of the examination, must be validated by an independent testing professional pursuant to section 402.104(c).

You have suggested that only written examinations must be validated by an independent testing professional. See Request Letter, supra note 1, at 2. This reading, which is contrary to our reading of the statute, implies that section 402.104(c) is ambiguous. We may resolve any such ambiguity in chapter 402 by referring to its language prior to its nonsubstantive codification in 1999. See Act of May 13, 1999, 76th Leg., R.S., ch. 388, §§ 1, 6, 1999 Tex. Gen. Laws 1431, 1788-89, 2439-40 (nonsubstantive revision of statutes on licensing and regulation of certain professions and business practices, including fitting and dispensing of hearing instruments). Unambiguous provisions of a purportedly nonsubstantive codification are current law even though inconsistent with the predecessor provisions. See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286-87 (Tex. 1999). However, if a provision in a nonsubstantive codification is ambiguous, we may look at the predecessor law to determine its meaning. See id. at 286; Tex. Att'y Gen. Op. No. JC-0517 (2002) at 3-4. The predecessor of chapter 402 provided with respect to the examination:

             The examination must consist of written, oral, or practical tests that are objective in method and applied in a consistent manner. The examination shall be administered at least twice a year. The committee shall administer or arrange for the administration of a written examination. All examinations shall be validated by an independent testing professional. The examination must cover the following areas . . . .

Act of May 21, 1993, 73d Leg., R.S., ch. 441, § 8, 1993 Tex. Gen. Laws 1772, 1776 (formerly codified as TEX. REV. CIV. STAT. ANN. art. 4566-1.06(c)) (emphasis added), repealed and reenacted by Act of May 13, 1999, 76th Leg., R.S., ch. 388, §§ 1, 6, 1999 Tex. Gen. Laws 1431, 1788-89, 2439-40 (adopting nonsubstantive revisions of statutes on licensing and regulation of certain professions and business practices, including fitting and dispensing of hearing instruments).

The predecessor of section 402.104(c) requires independent validation of the written, oral, and practical components of an examination. Given the ambiguity of section 402.104(c) as presently codified, we construe it consistently with its statutory predecessor. Accordingly, section 402.104(c) requires a licensing examination given by the committee to be validated by an independent testing professional in its entirety, including the practical as well as written components of the examination.

If the practical part of the examination were not required to be validated by an independent testing professional, you asked what standard would apply. In view of our conclusion, we do not need to address this question. We note, however, that section 402.204 requires the examination given by the committee to be objective in method and applied in a consistent manner. The Sunset Advisory Commission has moreover stated that

             Practical exams should be used with caution, since they can be subjective if not structured carefully. When they are used, practical exams should have written guidelines laying out acceptable methods of examination, clear criteria for performance, and clear definition of tasks to be performed. These elements promote consistency in judging performance as well as overall fairness of the exam procedure.

SUNSET OCCUPATIONAL LICENSING MODEL at 9-10 (2003), available at http://www.sunset.state.tx.us/licensemodel05.pdf (last visited Sept. 28, 2005).

                                  SUMMARY

                   A licensing examination given by the State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments must be validated by an independent testing professional in its entirety, including the practical as well as written components of the examination.

                                         Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. McBEE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Suzanna Gratia Hupp, Chair, Committee on Human Services, Texas House of Representatives, to Honorable Greg Abbott, Texas Attorney General (June 20, 2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Section 402.051 of the Occupations Code states that the committee is part of the Texas Department of Health. However, on September 1, 2004, all powers, duties, functions, programs and activities of the Texas Department of Health were transferred to the Department of State Health Services. See Act of June 1, 2003, 78th Leg., R.S., ch. 198, § 1.19, 2005 Tex. Gen. Laws 611, 636 (codified in part as Health and Safety Code ch. 1001, establishing the Department of State Health Services). See also Texas Department of State Health Services, Department of State Health Services Transition Plan (Aug. 2, 2004) at 26-27, available at http://www.dshs.state.tx.us (last visited Sept. 28, 2005).