Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
December 13,2005
The Honorable Suzarma Gratia Hupp Opinion No. GA-03 82
Chair, Committee on Human Services
Texas House of Representatives Re: Standards applicable to the State Committee
Post Office Box 2910 of Examiners in the Fitting and Dispensing of
Austin, Texas 78768-29 10 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”).’ See TEX. Oct. CODE ANN. 4 402.051 (Vernon2004). 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. 4 402.05 1(a).’ 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. 5 402.101(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.
‘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,
ulso available at http://www.oag.state.tx.us) [hereinafter Request Letter].
‘Section 402.05 1 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 ofthe Texas Department ofHealth
were transferred to the Department of State Health Services. See Act of June 1, 2003, 78th Leg., R.S., ch. 198, 4 1.19,
2005 Tex. Gen. Laws 611,636 (codified in part as Health and Safety Code ch. 100 1, 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).
The Honorable Suzarma Gratia Hupp - Page 2 (GA-0382)
(c) The examination must be validated by an independent
testing professional.
Id. 9 402.104 (emphasis added).
Section 402.204 provides that “[tlhe examination must consist of written, oral, or practical
tests that are objective in method and applied in a consistent manner.” Id. 0 402.204(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 “[tlhe examination shall consist of a written section and a
practical section.” 22 TEX. ADMIN. CODE 0 141.15(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 “[tlhe 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. Oct. 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 3 14, 3 18 (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) (Vemon2004). Section 402.204(a), quoted above, provides that “[tlhe examination must
consist of written, oral, or practical tests that are objective in method and applied in a consistent
manner.” Id. 5 402.204(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. 6 402.205(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
The Honorable Suzanna Gratia Hupp - Page 3 (GA-0382)
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. 4 402.205(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. 5 402.205(c) (emphasis added). A person who “has never taken the examination
administered under” chapter 402 may be issued a temporary training permit under section 402.25 1.
Id. 0 402.251(l). 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. 9 402.304(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, $5 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 testingprofessionaZ . The examination must cover the
following areas . . . .
Act of May 21, 1993, 73d Leg., R.S., ch. 441, 5 8, 1993 Tex. Gen. Laws 1772, 1776 (formerly
codified as TEX. REV. Crv. STAT. ANN. art. 4566- 1.06(c)) (emphasis added), repealed and reenacted
by Act of May 13, 1999, 76th Leg., R.S., ch. 388, $9 1, 6, 1999 Tex. Gen. Laws 1431, 1788-89,
The Honorable Suzanna Gratia Hupp - Page 4 (GA-03 82)
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).
The Honorable Suzanna Gratia Hupp - Page 5 (GA-03 82)
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 ly yours,
P
/ ®
Attorney
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee