Can an ENT doctor who sells hearing aids serve on Texas's hearing-instrument examiners board?

Plain-English summary

Aaron Peña, then chair of the Texas House Committee on Technology, asked whether the physician who sits on the State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments can sell hearing aids at retail through his own ear-nose-throat practice without violating a conflict-of-interest rule.

The board is a nine-member body that helps regulate the fitting and dispensing of hearing instruments. By law, one seat is reserved for an actively practicing physician who specializes in otolaryngology, the medical treatment of ear, nose, and throat conditions. A separate provision, subsection 402.053(d) of the Occupations Code, says that physician member "may not have a financial interest in a hearing instrument manufacturing company or in a wholesale or retail hearing instrument company." The narrow question was whether an otolaryngologist who sells hearing instruments through his office thereby has a financial interest in a "retail hearing instrument company."

The opinion could not give a flat answer, and it explained why. Chapter 402 defines "hearing instrument," but it does not define "retail" or "company." Those words could be read narrowly, to cover only businesses whose primary pursuit is selling hearing instruments, or broadly, to cover any business that ever sells one at retail. With no statutory definition or court guidance to settle which reading the Legislature intended, the Attorney General declined to fix the scope of the prohibition. Instead, the opinion concluded that the board itself, as the agency with regulatory authority over the field and the power to adopt rules and oversee its members' qualifications, was authorized to determine how far subsection 402.053(d) reaches, as long as its interpretation does not contradict the statute's plain language.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The House committee chair (as the opinion described it): The opinion did not resolve whether a particular otolaryngologist is disqualified. It identified the prohibition and assigned the interpretive call to the board.

The State Committee of Examiners (as the opinion held for them): The board was authorized to determine the scope of "retail hearing instrument company" in subsection 402.053(d), within the limit that its reading cannot contradict the plain statutory language.

Otolaryngologists who sell hearing instruments (as the opinion described it): The opinion recognized that a doctor has a financial interest in his or her own medical practice, but it left open whether selling hearing instruments through that practice creates a financial interest in a "retail hearing instrument company," treating that as a question for the board.

Common questions

Can an ENT physician who sells hearing aids serve on the state hearing-instrument board?
The opinion did not decide. It concluded that the answer turns on how the board interprets subsection 402.053(d), which it was authorized to do so long as the reading does not contradict the statute.

What does the conflict-of-interest rule actually prohibit?
According to the opinion, the physician member may not have a financial interest in a hearing instrument manufacturing company or in a wholesale or retail hearing instrument company.

Why didn't the Attorney General just answer the question?
The opinion explained that the statute does not define "retail" or "company," and that neither the Legislature nor Texas courts had given guidance on the phrase "retail hearing instrument company," so it could not definitively discern the Legislature's intent.

Who gets to decide how far the prohibition reaches?
The opinion concluded that the board, as the administrative agency with regulatory authority over the fitting and dispensing of hearing instruments, was authorized to determine the scope, provided its interpretation does not contradict the plain language of the statute.

Background and statutory framework

The State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments helps administer and enforce chapter 402 of the Occupations Code. One of its nine seats is reserved for an actively practicing physician who specializes in otolaryngology. Tex. Occ. Code Ann. § 402.051(a)(2). Subsection 402.053(d) bars that physician member from holding a financial interest in a manufacturing, wholesale, or retail hearing instrument company.

The opinion applied ordinary statutory-construction principles, looking to plain language and common usage, see Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009), Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010), Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009), and City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010), each a Texas Supreme Court decision, along with Tex. Gov't Code Ann. § 311.011(a) (West 2005). Chapter 402 defines "hearing instrument," id. § 402.001(5), but not "retail" or "company," and a prior opinion, Tex. Att'y Gen. Op. No. DM-18 (1991), had construed "financial interest" to mean an interest equated with money or its equivalent. Because courts give serious consideration to a regulating agency's interpretation of its enabling statute when that reading does not contradict the plain language, see State v. Pub. Util. Comm'n, 883 S.W.2d 190, 197 (Tex. 1994), and R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011), the opinion left the scope of subsection 402.053(d) to the Committee, which administers chapter 402 and may adopt rules. Tex. Occ. Code Ann. § 402.101 (West Supp. 2011); id. § 402.102.

Citations

Cases:

• Ketter v. ESC Med. Sys., Inc., 169 S.W.3d 791, 795 (Tex. App.-Dallas 2005, no pet.)
• Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009)
• Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010)
• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)
• City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010)
• Sw. Bell Telephone Co. v. Pub. Util. Comm'n, 863 S.W.2d 754, 758 (Tex. App.-Austin 1993, writ denied)
• State v. Pub. Util. Comm'n, 883 S.W.2d 190, 197 (Tex. 1994)
• R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011)

Statutes:

• Tex. Occ. Code Ann. § 402.053(d)
• Tex. Occ. Code Ann. § 402.051(a)(2)
• Tex. Occ. Code Ann. § 402.001(5) (West Supp. 2011)
• Tex. Occ. Code Ann. § 402.101 (West Supp. 2011)
• Tex. Occ. Code Ann. § 402.102
• Tex. Gov't Code Ann. § 311.011(a) (West 2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0921
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0921.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 7, 2012

The Honorable Aaron Peña 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 Peña:

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]."[1] 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. § 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 Gulf States, Inc. v. Summers, 282 S.W.3d 433, 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. § 311.011(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 of the 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 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. Citizens for a Safe 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. OCC. 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.

SUMMARY

Subsection 402.053(d) of the 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).

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Aaron Pena, Chair, House Comm. on Technology, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (July 11, 2011), https://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] The 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.).