Untitled Texas Attorney General Opinion ( 1973 )

The Honorable Bonnie Griebel Opinion No. H- 1.47
Executive Director
Texas Cosmetology Commission Re: Whether t.he Texas
1111 Rio G,rande Cosmetology Commis-
Austin, Texas 78701 sion has the authority
to waive certain require-
Dear Mrs. Griebel: ments under Art. 734(c).
Pursuant to Article 734c, Vernon’s Texas Penal Code, the Act creat-
ing the Texas Cosmetology Commission and providing for the licensing of
cosmetologists and others, the Commission has established minimum
requirements for licensing of beauty shops, including the requirement that
they have shampoo bowls and hair dryers.
The Commission has received an appeal from a Licensee who is engaged
solely in manicuring and “eye-tabbing” (which you advise is a process of
affixing, by surgical adhesi,ve, falseor human lashes to existing Lashes) to
waive the specifi.c requirement.s. You have asked whether the Commission
has authorit~y to grant the requested waiver.
A,rti,clc 734c, V. T, P. C., (hcrcaitcr “the Act”) is very comprehensive
in I,ts regulation of cosmeto,logy whi,ch it defines in its § l(3) as including the
“beautifying treatment” of a female’s hair or skin, or the nails of a male or
a female and includes (A) hairdressing; (B) massaging and other treatments
of the scalp and portions of the body; (C) the removal of superfluous hair;
(D) manicuring; (E) the servicing of wigs,,or hairpieces. It provides for var-
ious specific types of licensing such as for a manicurist ($13), a wig special-
i,st. (5 14), an operator (§ 15), an instruc,tor (§ 16) and a wig instructor (5 17).
It calls for the Licensing of pri,vate beauty culture schoo,ls ($ 22) and wig schools
(§ 25).
It: provides for two types of shops: a beauty shop ($ 23) and a wig salon ($ 24).
Sec,tion 23, in its enti~rety, provides:
p. 690
The Honorable Bonnie Griebel, page 2 (H-147)
“(a) A person ho,Lding a beauty shop license may
maintain an establishment in which any practice of cos-
metology as defined in this Act is performed for com-
pensation.
“(b) An applicant for a beauty shop license shall
submit an application on a form prescribed by the Com-
mission. The application shall contain proof of the par-
ticular requisit.es for a beauty shop as established by the
Commission and shall be verified by the applicant.
“(c) The applicant is entitled to a beauty shop
License if the application shows compliance with the rules
and regulations of the Commission, a $25 license fee is
paid, and he has not committed an act which constitutes
grounds for denial of a License under Section 42 of this
Act. ”
The Act contains no provision for the licensing of a shop devoted to
manicuring exclusively or to one practicing the art of “eye-tabbing. ”
Section 4(a) of the Act provides:
“The Commission may issue rules and regulations
consi,stent with this Act after a public hearing. Notice of
the publi,c hearing shall be issued at least 20 days prior
to the date set for the hearing. The rules and regulations
shall be published and furnished to licensees under this Act.
Notwithstanding any other provisions of this Act, the Com-
mission shall not have any power or authority to amend or
enlarge upon any provision of this Act by rule or regulation
or by rule or regulation to change the meaning in any man-
ner whatso,ever of any provision of this Acts, or to promul-
gate any rule or regulati,on which is in any way contrary to
the underlying and fundamental purposes of this Act or to
make any rule or regulation which is unreasonable, arbi- ,
trary, capricious, illegal or unnecessary. ”
p. 691
The Honorable Bonnie Griebel, page 3 (H-147)
There can be little question but that the regulation of cosmetology
is necessary to the public health and is a proper subject for the exercise
of the police power. Compare Texas State Board of Barber Examiners v.
Beaumont Barber College, 454 S.W. 2d 729 (Tex. 1970).
We believe it is equally clear that.the Legislature, in the exercise
of the police power of the State, may declare the public policy and delegate
to a Board or Commission the authority to adopt ru,les and regu,lations to
carry out the details of the public policv under the eeneral nrovisions of
the statutes. Brown v. Humble Oil & Refg. Co., 8; S. W. id 935 (Tex.
193%; Tram v. Shell Oil Co., 198 S.W. 2d 424 (Tex. 1946).
However, it is equally well established that the rules and regulations
enacted or adopted by the administrative body may not be in excess of or
inconsi.stent with the statutory provisions. Bailey v. Texas Indemnity
Insurance Co. ) ,14 SW. 2d 798 (Tex. Comm. 1929); Kelly v. Industrial Acci-
dent Board, 358 S. We. 2d 874 (Tex. Civ.App., Austin, 1962, err. ref’d.).
Fi.nally, until a rule or regulation is amended or repealed, it is as
binding upon the administrative agency issuing it as it is upon the public.
Gulf Land Company v. Atlantic Refining Company, 131 S.W. 2d 73 (Tex.
1939); State v. Martin, 347 S.W. 2d 809 (Tex. Civ.App., Austin, 1961, err.
ref’d., n. r.e.).
With these general statements in mind, we are of the opinion that,
within very strict limitations imposed in $4(a), supra, the Commission
has the right to i,ssue rules and regulations consistent with the Act. It may
do thi,s, however, only after a notice and a public hearing.
We therefore conclude that the Commission may not “waive” a specific
requirement in a parti,cular case. It may,if it chooses, amend or repeal a
particular rule or regulation but this may be done only after 20 days notice
and after a public hearing.
WC would caut,ion that, the Act specifies the licenses which may beissued
and ,, as WC have noted above, the only licenses for shops as such are those for
beaut,y shops and wig salons. The only license authorized by $ 23 for a beauty
p. 692
The Honorable Bonnie Griebel, page 4 (H-147)
shop is for the maintenance of an establishment “in which 3 practice
of cosmeklogy as defined in this A,ct is performed for compensation. ”
Should the requirements for such a license be modified, they will be
modified as to all holders of beauty shop licenses.
SUMMARY
Where the Legislature has authorized the
Commission to license shops for the practice of
cosmetology, defined to include, among other things,
manicuring, the Texas Cosmetology Commission is
not authorized to adopt rules and regulations apply-
ing particuSar,ly to manicurists and is not authorized
to waive any requirement of beauty shops in general
for a shop limiting its practice to manicuring or to
any other specific field.
V_ery truly yours,
HILL
General of Texas
APPF&VED:
, First Ass’stant
..J-+w
DAVID M. KENDALL, Chairman
Opinion Commit:tee
p. 693