Untitled Texas Attorney General Opinion ( 1971 )

HE ATTOECNEY GENERAL
UBF TEXAS
April 30, 1971
Hon. Joe Christie Opinion No. M- 047
Chairman, Nominations Committee
Senate Chamber Re: Whether an applicant's
Capitol Building part-time barbering practice
Austin, Texas 78711 may be deemed to qualify
him for appointment to the
State Board of Barber Ex-
aminers pursuant to Article
734a, Sec. 26, Texas Penal
Code, and related questions.
Dear Senator Christie:
In your letter requesting an opinion from this office, you
submitted the following facts:
"On September 17, 1969, Governor Smith appointed
Mr. Roy Lee Fowler to the State Board of Barber Ex-
aminers.
"Mr. Fowler served as a licensed barber from
1930 to 1942. In 1947, he renewed his license just
prior to its expiration. He allowed his barber
license to expire subsequent to 1947 but was licensed
again in 1958 after successfully passing the barber
licensing examination.
"From April 1959, until his appointment to the
State Board of Barber Examiners, Mr. Fowler served
as Barber Inspector. He maintains that since 1959,
he has practiced barbering frequently on weekends
for compensation.
-4106-
. .
Hon. Joe Christie, page 2 (M-847)
With regard to these facts you ask whether Mr. Roy Lee
Fowler is qualified under the provisions of Section 26, Article
734a, Vernon's Penal Code (Texas Barber Law) for appointment
as a member of the State Board of Barber Examiners.
The State Board of Barber Examiners consists of three mem-
bers appointed by the Governor. Section 26, Article 734a, Vernon's
Penal Code (Texas Barber Law) which prescribes the qualifications
for appointment as a member of the Board, provides, in part, as
follows:
$9
.Each member of said Board shall be a
. .
practical barber who has followed the occupation of
a barber of this State for at least five (5) years
immediately prior to his appointment. ..."(Emphasis
added.)
In the case of Bell Publishing Co. v. Garrett Engineering
Company, 141 Tex. 51, 170 S.W.2d 197 (1943) the Court held that
the words "practi.cal," "engineer" as used in an alleged libelous
newspaper article, which charged that an engineering company had
no one connected with it who was a practical enqineer, were not
legal terms, were ambiguous and the meaning they conveyed to the
mind of an ordinary reader was a question for the jury to deter-
mine. On the basis of the holding in the Bell Publishinq Company
case, it is our opinion that the term "practical barber" as such
term is used in Section 26, Article 734a, Vernon's Penal Code,
is not a term subject to legal definition, and consequently its
meaning must be factually determined. Under the provisions of
Section 26, Article 734a, Vernon's Penal Code, an individual,
prior to his appointment to the Board, must in addition to being
a "practical barber" have "followed the occupation of a barber
of this State for at least five years immediately prior to his
appointment."
The case of Winters Mutual Aid Association v. Reddin, 31 S.W.2d
1103 (Tex.Civ.App. 1930, reversed on other grounds, 49 S.W.Zd 1095
Comm. App. 1932), the Court interpreted this same language as
applied to a barber as follows:
-4107-
Hon. Joe Christie, page 3 (M-847)
"What does it mean to ,follow an occupation? As
said in Monahan v. Supreme Lodge, 88 Minn. 224, 92
N.W. 972, 974: 'Following any occupation',means
something more than the doing of one or more acts
pertaining thereto. They involve the idea of -con-
tinuity , and involve, also, the doinq of all of those
things which are an essential part of the work or
business in which a party is enqaqed." (Emphasis
added.)
It would follow that some substantial practice of barbering
is required, or distinguished from a purely incidental or de minimis
activity.
Based upon the foregoing interpretation and assuming the facts
submitted to be true as represented, it is our opinion that Mr. Roy
Lee Fowler may be found to have substantially followed the occu-
pation of a barber for at least five years immediately prior to
his appointment as a member of the State Board of Barber Examiners.
Mr. Follower is now and hae been a licensed barber since 1958.
From 1959 until his appointment to the Board in 1969, he served as
a barber inspector for the State Board of Barber Examiners. It is
doubtful he could have performed the function of a barber inspector
without obtaining and utilizing the practical knowledge of the
occupation of barbering as would qualify him as a practical barber
in the occupation in which he is licensed. Also, as a barber
inspector, he was no doubt expected to exercise trained professional
judgment in pursuing his inspection duties. We have been advised in
this connection by the State Board of Barber Examiners that it is
and has been the policy of the Board to require barber inspectors
to possess a Class A barber's license. It would thus appear that an
inspector is engaged in a vital aspect of following the barbering
occupation. In addition, your request states that since 1959,
Mr. Fowler has barbered frequently on weekends. Section 27a of
Article 734a expressly permits and contemplates that barber
inspectors may also so engage in the occupation of barbering. We
have been furnished affidavits by Mr. Fowler and several witnesses
showing some practice of such barbering by Mr. Fowler and also
-4108.
Hon. Joe Christie, page 4 (M-847)
affidavits which tend to discredit this showing. Whether there
has been a substantial practice is a disputed fact question.
Assuming Mr. Fowler's representations to be true, it appears that he
could be found to have continuously followed and practiced the
occupation of a barber since 1958 to the time of his appointment
as a member of the State Board of Barber Examiners.
We cannot, therefore, hold, in the face of this evidence
and of this statute, that Mr. Fowler is disqualified as a matter
of law from appointment to the State Board of Barber Examiners.
On the basis of the foregoing discussion and evidence, it is our
opinion that Mr. Roy Lee Fowler is not disqualified by law from
consideration for the appointment as a barber who has followed
the occupation of a barber for at least five years immediately
prior to his appointment to the State Board of Barber Examiners.
We must point out, however, that this office is without
authority to determine controversial fact questions, and we can-
not make a factual determination here that Mr. Fowler is qualified
factually and undisputably as a matter of law. This is the pre-
rogative of the body passing upon the factual dispute, keeping in
mind the legal guidelines herein discussed.
Statutes declaring qualifications for office, whether by
election or appointment, are to receive a liberal construction,
and any doubt or ambiguity in this connection is to be resolved
in favor of eligibility to office. 42 Am.Jur. 908, Public
Officers, Section 37. A statutory provision restricting the right
to hold office must be strictly construed against ineligibility.
Willis v. Potts, (Tex.Sup. 19641, 377 S.W.2d 622,623.
SUMMARY
A barber inspector who has been a part-time
licensed "Class A" barber may be found to have
been a practical barber who has followed the
occupation of a barber for at least five years
.4109-
. .
Hon. Joe Christie, page 5 (M-847)
immediately prior to his appointment to the
State Board of Barber Examiners if he has
performed substantial practice continuously
and therefore is not disqualified as a matter
of law for appointment to the Board under the
provisions of Section 26, Article 734a, Vernon's
Penal Code. Where the extent of the pursuance of
the occupation of barbering is in dispute, the
question of substantial practice is a fact question
which cannot be determined by this office.
Very truly yours,
CRAWFORD C. MARTIN
Attorney General of Texas
BY
NOLA WHITE
Prepared by Ivan R. Williams, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Bob Lattimore
Ronald Luna
Pat Bailey
Dyer Moore
ALFRED WALKER
Executive Assistant
MEADE F. GRIFFIN
Staff Legal Assistant
-4110.