Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 23,2004
Ms. Helen Quiram, Chair Opinion No. GA-O 168
Texas Cosmetology Commission
Frank Joseph Cosmetology Building Re: Implementing section 1602.267 of the
5717 Balcones Drive Occupations Code, which establishes a one-year
Austin, Texas 7873 l-4203 shampoo apprentice permit (RQ-0118-GA)
Dear Ms. Quiram:
On behalf of the Texas Cosmetology Commission (the “Commission”), you ask several
questions about implementing section 1602.267 of the Occupations Code, which establishes a one-
year shampoo apprentice permit.’ See TEX. Oct. CODEANN. 9 1602.267 (Vernon 2004).
Section 1602.267 was adopted in 2003 as an amendment to chapter 1602, which governs the
practice of cosmetology. See Act ofMay28,2003,78th Leg., R.S., ch. 1282, $9 2-3,2003 Tex. Gen.
Laws 4679, 4679-80. The term “cosmetology” means “the practice of performing or offering to
perform for compensation” any of certain specified services, including “treating a person’s hair
by.. . shampooing” and “shampooing and conditioning a person’s hair.” TEX. OCC. CODEANN.
fj 1602.002(l)(A), (3) (V emon 2004). Section 1602.25 1 prohibits any person from performing or
attempting to perform a cosmetological practice without “a license or certificate to perform that
practice.” Id. 4 1602.25 l(a). Further, no one may “teach cosmetology” without “an instructor
license issued in this state,” and any instruction must take place either “in a private beauty culture
school or a vocational cosmetology program in a public school.” Id. fj 1602.25 1(b).
Various licenses in the cosmetology field are available. In addition to an operator’s license,
authorizing a licensee to “perform any practice of cosmetology,” id. fj 1602.254(a), and an
instructor’s license, authorizing a licensee to “perform any practice of cosmetology and . . . instruct
a person in any practice of cosmetology,” id. 8 1602.255(a), chapter 1602 provides licenses for
manicurists, see id. 8 1602.256, and facialists, see id. 9 1602.257. Section 1602.258 also provides
for a “specialty certificate,” which authorizes a certificate holder to perform one of the following
cosmetological practices:
(2) “weaving or braiding a person’s hair;”
‘Letter from Helen Quiram, Chair, Texas Cosmetology Commission, to Antoinette Humphrey, Executive
Director, Texas Cosmetology Commission, and Jason Ray, Assistant Attorney General, Office of the Attorney General
(Oct. 8,2003) ( on f 11e with Opinion Committee) [hereinafter Request Letter].
Ms. Helen Quiram - Page 2 (GA-0168)
(3) “shampooing and conditioning a person’s hair;”
(4) “servicing a person’s wig or artificial hairpiece . . . ;”
(7) “beautifying a person’s face, neck, or arms using a cosmetic
preparation, antiseptic, tonic, lotion, powder, oil, clay, cream, or
appliance.”
Id. $6 1602.002(2)-(4)’ (7)’ 1602.258(a). An applicant for a specialty certificate must be at least
seventeen years of age; hold a high school diploma or its equivalent, or “have passed a valid
examination. . . that measures the person’s ability to benefit from training”; and have completed any
necessary training. See id. 8 1602.258(b).
Beauty shops, specialty shops, and beauty culture schools also must be licensed. See id.
55 1602.301(a), 1602.302-.305; see also id. 5 1602.306 (providing for booth rental license). No
licensed beauty shop or specialty shop may employ, as an operator or specialist, a person who does
not hold either an appropriate license or a certificate. See id. fj 1602.403(c).
You ask specifically about section 1602.267, adopted in 2003. Although an eligible person
who wishes only to shampoo and condition hair could do so with a specialty certificate issued under
section 1602.258, section 1602.267 establishes the shampoo apprentice permit:
(a) A person holding a shampoo apprentice permit may perform only the
practice of cosmetology defined by Section 1602.002(3) [the shampooing and
conditioning of hair].
(b) The commission shall issue a shampoo apprentice per-r-nitto an applicant
who:
(1) is at least 16 years of age; and
(2) submits a certificate of health as required by Section
1602.253.
(c) A shampoo apprentice permit expires on the first anniversary of the date
of issuance and may not be renewed.
(d) The commission shall adopt rules as necessary to administer this section.
The commission may not require an applicant to:
(1) complete any hours of instruction at a cosmetology
training program as a prerequisite for the issuance of a shampoo
apprentice permit; or
Ms. Helen Quiram - Page 3 (GA-0168)
(2) pay a fee for a shampoo apprentice permit.
(e) A facility licensed under this chapter may employ a person who holds a
shampoo apprentice permit to perform shampooing or conditioning services and shall
pay the person at least the federal minimum wage as provided by Section 6, Fair
Labor Standard Act of 1938 (29 U.S.C. Section 206).
Id. 9 1602.267; see Act of May 28, 2003, 9 2, 2003 Tex. Gen. Laws at 4679-80. The shampoo
apprentice permit allows the shampoo apprentice only to shampoo and condition hair, and not to
engage in any other activity within the practice of cosmetology, such as coloring, styling, or cutting
hair. See TEX. OCC. CODEANN. § 1602.002 (Vernon 2004).
You suggest that section 1602.267 is inconsistent with section 1602.002, which requires a
license to practice cosmetology. You write, “It is in direct conflict to allow an untrained, unlicensed
individual to practice any part of cosmetology.” Request Letter, supra note 1, at 2. Your suggestion
that only license holders may practice cosmetology is, initially, incorrect. Specialists, in particular,
hold certificates, not licenses. See TEX. OCC. CODEANN. 9 1602.258 (Vernon 2004). Moreover,
to the extent section 1602.267 permits a person, other than a “licensed” cosmetologist, to shampoo
and condition hair for compensation, the section specifically authorizes the permit holder to perform
a limited cosmetological practice under section 1602.25 1. Accordingly, a shampoo apprentice
practicing within the terms of the permit acts within the scope of authority that the legislature has
expressly granted.
You ask how a regulatory agency “is able to oversee a non-licensed individual.” Request
Letter, supra note 1, at 2. Section 1602.267 expressly requires the Commission to adopt rules for
administering the shampoo apprentice permit program, although the Commission may not adopt an
education or fee requirement. See TEX. OCC. CODEANN. 9 1602.267(d) (Vernon 2004). In addition,
the Commission’s authority to enforce chapter 1602 and to impose penalties extends to shampoo
apprentices. For example, the Commission is authorized to impose an administrative penalty on
any “licensed or regulated” person who violates chapter 1602. Id. 9 1602.501. The Commission
may bring an action to enjoin any “person” from violating chapter 1602 or a Commission rule. Id.
0 1602.552(a). And any “person” who violates chapter 1602 commits a criminal offense. Id.
4 1602.554(a). Thus, the Commission has ample authority to “oversee” a shampoo apprentice.
Request Letter, supra note 1, at 2.
You also ask how a beauty shop, licensed under section 1602.302, may employ a shampoo
apprentice without violating the statutory requirement that “[a] person holding a beauty shop license
. . . may not employ a person as an operator or specialist . . . unless the person holds a license or
certificate under this chapter. . . .” TEX. Oct. CODEANN. 5 1602.403(c) (Vernon 2004); see Request
Letter, supra note 1, at 2. Because a shampoo apprentice holds a permit as specifically authorized
by section 1602.267, employment of a shampoo apprentice constitutes employment of a person
holding a license or certificate under chapter 1602. A licensed beauty shop does not, accordingly,
violate chapter 1602 by employing a shampoo apprentice.
Ms. Helen Quiram - Page 4 (GA-0168)
You ask two questions about apprentices’ training by persons not licensed as instructors, in
salons that are not licensed as beauty culture schools. See TEX. OCC. CODE ANN. 83 1602.255,
1602.303 (Vernon 2004); Request Letter, supra note 1, at 2. To the extent shampoo apprentices are
instructed in the shampooing and conditioning of hair by cosmetologists who are not licensed
instructors, in salons that are not licensed beauty culture schools, section 1602.267 permits the
instruction. Section 1602.267 creates an exception to the requirement that cosmetology be taught
only by a person who “holds an instructor license . . . in a private beauty culture school or a
vocational cosmetology program in a public school.” TEX. OCC. CODE ANN. 9 1602.25 1(b) (Vernon
2004). Thus, a shampoo apprentice may be trained by a licensed cosmetologist who is not a licensed
instructor, in a licensed facility that is not a licensed beauty culture school or program, but only in
the shampooing and conditioning of hair.
You suggest that the statute “does not require the necessary fees that are reasonable and
necessary to cover the cost of administering this statute.” Request Letter, supra note 1, at 3. Indeed,
the legislature had information before it concerning the costs of the shampoo apprentice permit
program. As the 2003 bill’s fiscal note states,
[T]o process applications from [students applying for a permit], as
well as investigate an anticipated increase in complaints, the
[Commission] estimates 0.5 [full-time employees] will be required,
at a cost of $15,000 per year.
It is assumed the agency would adjust fees to offset any costs or
revenue gains due to the implementation of the bill.
FISCALNOTE, Tex. H.B. 653’78th Leg., R.S. (2003).
While it may be true that section 1602.267 does not establish a fee that will cover the costs
of administering the shampoo apprentice permit program, the statute expressly forbids the
Commission to require an applicant to pay a fee for the permit. See TEX. OCC. CODE ANN.
8 1602.267(d)(2) (V emon 2004). The legislature, not this office, is the proper entity to consider the
fee issue you raise.
Finally, you ask how section.1 602.267 “justiqies] the already licensed shampoo course given
by licensed schools with licensed teachers and who are required to take a state approved exarn and
follow all statutes applying to cosmetology in Texas.” Request Letter, supra note 1, at 3. You refer
here to the specialty certificate, the holder of which may perform only specific hair- or skin-related
practices. See TEX. OCC. CODE ANN. 8 1602.258(a) (Vernon 2004). An applicant is not eligible for
such a specialty certificate unless the applicant has completed the requisite “training through a
[Clornmission-approved training program.” Id. 8 1602.258(b)(3). Commission rules require an
applicant for a shampoo and conditioning specialty license to complete 150 hours of training,
including courses in hygiene; shampooing and conditioning skills; and ethics. See 22 TEX. ADMIN.
CODE 8 89.72(8) (2003) (Texas Cosmetology Commission, Curriculum Posted).
Your question is one of policy that is not appropriate for this office. We accordingly decline
to consider it.
Ms. Helen Quirarn - Page 5 (GA-0168)
SUMMARY
A person practicing within the terms of a shampoo apprentice
permit issued under section 1602.267 of the Occupations Code is
authorized to perform a limited cosmetological practice under chapter
1602. The Cosmetology Commission must adopt rules to administer
the shampoo apprentice permit program and may enforce chapter
1602 against a shampoo apprentice as it may against any other
licensed or certificated cosmetologist. A licensed beauty shop does
not violate chapter 1602 by employing a shampoo apprentice.
Section 1602.267 creates an exception to the requirement that
cosmetology be taught only by a licensed instructor in a licensed
beauty culture school or program. Thus, a shampoo apprentice may
be trained by a licensed cosmetologist who is not licensed as an
instructor, in a licensed facility that is not a licensed beauty culture
school or program, but only in the shampooing and conditioning of
hair.
The Commission may not require an applicant for a shampoo
apprentice permit to pay a fee for the permit.
. .
Attorney &&al of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kyrnberly K. Oltrogge
Assistant Attorney General, Opinion Committee