Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OFTEXAS
GREG ABBOTT
October 12,2004
Mr. Glenn Parker Opinion No. GA-0258
Executive Director
State Board of Barber Examiners Re: Whether the State Board of Barber Examiners
5717 Balcones Drive, Suite 217 may participate in the TexasOnline occupational
Austin, Texas 7873 1 licensing system established in Government Code
section 2054.353 in light of the requirement that an
applicant for an original or a renewal barber or
manicurist license present a health certificate from a
physician under sections 1601.264 and 1601.402(d) of
the Occupations Code (RQ-0216-GA)
Dear Mr. Parker:
You ask whether the State Board of Barber Examiners (the “Board”) may participate in the
TexasOnline occupational licensing system established in Government Code section 2054.353 in
light of the requirement under sections 1601.264 and 1601.402(d) of the Occupations Code that an
applicant for an original or a renewal barber or manicurist license present a health certificate from
aphysician _’&~TEx. GOV’T CODE ANN. 5 2054.353(a) (Vernon Supp. 2004-05); TEX. Oct. CODE
ANN. $5 1601.264, .402(d) (Vernon 2004).
Currently, the Board participates in the statutorily required online licensing program and is
able to receive payment of license fees online. See Board Brief, supra note 1, at 1. In addition to
the occupational license or certificate renewal fee, the Board imposes a $6 online services fee for
barbers and a $3 fee for manicurists who renew their licenses, regardless ofwhether the licensee uses
the online services. See id. You further state that each licensee must mail a health certificate to
the Board before the Board will issue a renewal license and that consequently only five percent
of current licensees who are eligible to use the online system do so. See id. The General
Appropriations Act establishes a goal that thirteen percent of the Board’s licensees renew online in
the fiscal year ending August 3 1,2004, and eighteen percent in the fiscal year ending August 3 1,
2005. See General Appropriations Act, 78th Leg., R.S., ch. 1330, art. VIII-g, 2003 Tex. Gen. Laws
5023, 5782-83. The General Appropriations Act also anticipates the Board will issue ten percent
‘See Letter from Glenn Parker, Executive Director, State Board of Barber Examiners, to Nancy Fuller, Chair,
Opinion Committee, Offlice of Attorney General (Apr. 2.9, 2004) (on tile with Opinion Committee, also available af
www.oag.state.tx.us) [hereinafter Request Letter]; see also Attachment to Request Letter entitled “Additional
Information” [hereinafter Board Brief].
Mr. Glenn Parker - Page 2 (GA-0258)
ofnew licenses online in the fiscal year ending August 3 1,2005. See id. You suggest that the barber
and manicurist licensing statutes potentially conflict with the online licensing statutes and seek
guidance on
how [the Board] can be required to both participate in the Texas
Online project for the issuance or renewal of licenses for which a
health certificate is required and at the same time comply with the
statute [providing] that applicants present a health certificate to the
Board before certain licenses can be issued or renewed.
Board Brief, supra note 1, at 1
Chapter 2054, subchapter I of the Government Code creates the TexasOnline Authority
(the “Authority”). See TEX. GOV’T CODE ANN. 5 2054.251(a) (Vernon Supp. 2004-05). Under
chapter 2054, the Authority, assisted by the Department of Information Resources (“DIR”) and
DIR’s TexasOnline Division, must implement a project known as the TexasOnline project. See id.
55 2054.003(4) (department means DIR); ,252 (Texas Online Project); ,264 (TexasOnline Division).
The project is intended to establish a common electronic infrastructure for state agencies and local
governments, including licensing entities, to electronically:
(1) send and receive documents or required payments to and from:
(A) members of the public;
(B) persons who are regulated by the agencies or local
governments; and
(C) the agencies and local governments;
(2) receive applications for original and renewal licenses and
permits, including occupational licenses, complaints about
occupational license holders, and other documents for filing from
members of the public and persons who are regulated by a state
agency or local government that, when secure access is necessary, can
be electronically validated by the agency, local government, member
of the public, or regulated person;
(3) send original and renewal occupational licenses to persons
regulated by licensing entities;
(4) send profiles ofoccupational license holders to persons regulated
by licensing entities and to the public;
(5) store information; and
Mr. Glenn Parker - Page 3 (GA-0258)
(6) provide and receive any other service to and from the agencies
and local governments or the public.
Id. 5 2054.252(a). The Authority is responsible for operating, promoting, and evaluating the project.
See id. 8 2054.259. Also, the Authority must coordinate the project and assist governmental entities
utilizing the project. See id. 5 2054.261. The Authority may prepare rules that DIR’s governing
board may adopt. See id. 5 2054.262.
Under chapter 2054, subchapter K of the Government Code, the Authority must administer
a common electronic system enabling government agencies to use the Internet for occupational
licensing so that the agencies may:
(1) send occupational licenses and other documents to persons
regulated by the authority and to the public;
(2) receive applications for occupational licenses and other
documents for filing from persons regulated by the authority and from
the public, including documents that can be electronically signed if
necessary; and
(3) receive required payments from persons regulated by the
authority and from the public.
Id. 5 2054.353(a). The Authority must charge licensing entities a subscription fee sufficient to cover
the cost of implementing the project with respect to the entities. See id. 5 2054.252(e). Effective
until September 1,2005, the licensing entities must pass on subscription costs as follows:
Each licensing entity shall increase the occupational license issuance
or renewal fees imposed by the licensing entity by an amount
sufficient to cover the cost of the subscription fee imposed on the
licensing entity under Subsection (e) but not to exceed:
. . .
(2) $10 for a biennial occupational license;2 or
(3) the amount necessary to cover the cost of the subscription fee
imposed on the licensing entity under Subsection (e) for permits or
facilities licenses.
Id. 5 2054.252(g); see also Act ofMay 14,2001,77th Leg., R.S., ch. 342,s 7,200l Tex. Gen. Laws
623,628 (stating that section 2054.252(g) expires September 1,2005). The Authority may exempt
%kder section 1601.402(a), a license OTcertificate issued by the Board expires two years from the date of
issuance. See TEX. Oct. CODE ANN. 5 1601.402(a) (Vernon 2004).
Mr. Glenn Parker - Page 4 (GA-0258)
a licensing entity from participating in the system only if the Authority determines (1) that the
licensing entity already has established an Internet portal that performs the same functions described
in section 2054.353(a), or (2) that “online license renewal for the licensing entity would not
be cost-effective or in the best interest of the project.” TEX. GOV’T CODE ANN. 5 2054.353(d)
(Vernon Supp. 2004-05). Section 2054.352 specifies the Board by name as one of the entities that
must participate in the electronic licensing system established in section 2054.353. See id.
5 2054.352(a)( 1) (“The following licensing entities shall participate in the system established under
Section 2054.353 : (1) State Board of Barber Examiners .“).
The Board’s authority to regulate and license barbers and manicurists is located primarily in
chapter 1601 oftheOccupationsCode. S``TEX.OCC.CODEANN. $5 1601.001-,713 (Vemon2004).
The Board has rulemaking authority “necessary for the performance of its duties” and “by rule may
define any term necessary to administer or enforce [chapter 1601].” Id. 3 1601.151(d)(l), (e). The
Boardmust issue the appropriate license or certificate to applicants who meet specified requirements.
See id. $5 1601.253 (Class A barber certificate), ,254 (teacher’s certificate), .256(d) (barber
technician’s license), .257(c) (manicurist’s license).
The Board may not issue or renew “a certificate or license until an applicant presents a health
certificate from a physician stating that the applicant does not have an infectious or contagious
disease.” Id. 3 1601.264, .402(d). You state that participation in the TexasOnline licensing system
potentially conflicts with the requirement that applicants present ahealth certificate because “[sluch
aghysicalpresentution cannot occur electronically.” Request Letter, supra note 1, at 1.
We must harmonize statutes whenever possible. See La Sara Grain Co. v. First Nat ‘1Bank
of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984). Section 2054.352 of the Government Code
unambiguously states that the Board “shall participate” in the online licensing system. TEX. GOV’T
CODE ANN. 9 2054.352(a)(l) (Vernon Supp. 2004-05). Sections 1601.264 and 1601.402 of the
Occupations Code unambiguously state that the Board “maynot” issue an original or renewal license
orcertiticateuntil theapplicantpresentsahealthcertiticate. SeeT~x.Occ. CODEANN. $5 1601.264,
.402(d) (Vernon 2004). Both requirements are mandatory, and compliance with one does not
preclude compliance with the other, as current Board practice illustrates. We note that your agency’s
TexasOnline website currently allows a licensee to update license information and pay the renewal
fee online, but provides a caveat that the license will not issue until a health certificate has been
presented.’ We conclude that section 2054.352 of the Government Code, requiring the Board to
participate in the electronic occupational licensing system established by the TexasOnline Authority,
does not irreconcilably conflict with sections 1601.264 and 1601.402 of the Occupations Code,
which prohibit the Board from issuing a new or renewal license or certificate until the applicant
presents an appropriate health certificate.
No doubt, the health certificate requirement poses practical difficulties for online licensing.
The Authority has recognized that an agency’s need for supporting documentation makes online
licensing difficult, requiring “workaround” procedures such as using agency personnel to match
‘See State Board of Barber Examiners Barber and Manicurist License Renewal, available af
www.texasonline.state.~.us.
Mr. Glenn Parker - Page 5 (GA-0258)
online data with documentation received by maik4 However, while sections 1601.264 and 1601.402
of the Occupations Code require an applicant to present a health certificate, the statutes do not
specify the form ofthe health certificate or the method of its presentment.’ The Board is authorized
to promulgate rules and define terms necessary to accomplish the Board’s oversight responsibilities.
Consequently, the Board has the authority to determine methods ofpresentment consistent with the
purposes and objectives of chapter 1601 of the Occupations Code. You may wish to consult with
the Authority about whether an acceptable method of presenting a health certificate online is
technologically feasible and about other strategies the Board may pursue to encourage your
licensees’ use of Internet services. See TEX. GOV’TCODE ANN. 5 2054.261(2) (the Authority is
required to assist agencies who participate in the TexasOnline project).
‘See TEXAS ONLINEALJTHOFXIY,STATUS REPORTON THE TEXASONLJNECOMMON OCCUPATIONALLKENSMG
SYSTEM, at 18-19, 24 (Jan. 1,2003), nvaiiable at http://www.dir.state.tx.tts/pubs/txo/2003licettsing.pdf.
‘By contrast, this offtce has recently examined the difticulties that electronic filing poses for documents when
statutes specify the documents technical requirements. See Tex. Att’y Gen. Op. No. GA-0228 (2004) (discussing state
statutes concemingrealestatefilings, the FederalElectronic SignatoresinGlobalandNational Commerce Act, 15 U.S.C.
$5 7001.7031 (2000), and the UnifotmElectronic Transactions Act, TEX. BUS. &COMM. CODE ANN. $9 43.001-,021
(Vernon Supp. 2004)).
Mr. Glenn Parker - Page 6 (GA-0258)
SUMMARY
Section 2054.352 of the Government Code requires that
the State Board of Barber Examiners participate in the electronic
occupational licensing system established in connection with the
TexasOnline Authority. That mandate does not irreconcilably
conflict with the requirement that the State Board of Barber
Examiners may not issue a new or renewal license or certificate
until the applicant presents an appropriate health certificate.
Very truly yours,
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee