Untitled Texas Attorney General Opinion ( 1988 )

December 5, 1988
Ms. Jo King McCrorey : Opinion No. JR-990
Executive Director
State Board of Barber Examiners Re: Whether a cosmetologist
1300 E. Anderson Lane is authorized to trim beards
Building C, Suite 275 and mustaches (RQ-1525)
Austin, Texas 78752
Dear Ms. McCrorey:
You ask whether a cosmetologist has authority to trim
beards and mustaches. An examination of the recent history
of the statutes governing barbers and cosmetologists helps
to put your question in context.
r-. In 1972 a federal district court issued a judgment
holding unconstitutional parts of the Texas barber and
cosmetology statutes. At the time of that court case the
act governing barbers provided:
The practice of barbering is hereby
defined to be the following practices when
not done in the practice of medicine,
surgery, osteopathy, or necessary treatments
of healing the body by one authorized by law
to do so; and when not done by a relative who
cuts only the hair of those in his or her
immediate family; and when done on living
male versons.
(A) Shavina or trimmina the beard.
(1) Cutting the hair:
(2) Stvlina or wrocessina the hair of
pales onlv.
(B) ~By giving any of the following
treatments by any person engaged in shaving
or trimming the beard and/or cutting the
hair.
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Ms. Jo King McCrorey - Page 2 (JM-990)
(1) Giving facial and scalp massages, or
applications of oils, creams, lotions, or
other preparations, either by hand or
electrical appliances;
(2) Singeing, shampooing, or dyeing the
hair or applying hair tonics:
(3) APPlYing cosmetic preparations,
antiseptics, powders, oils, clays, or lotions
to the scalp, face, neck or that part of the
body above the shoulders.
Provided, however. that nothina contained
in this Act shall be construed to include
those wersons lawfully enaaaed in beautv
culture. hairdressina or cosmetoloov as
provided bv law, when so enaaaed in aivinq
treatments or awwlications to female wersons
onlv. but such wersons shall not be w ermitted
to shave. trim the beard. stvle. wrocess,
color or cut the hair of male wersons excewt
in accordance with the wrovisions and
reouirements of this Act relatina to
barberinq. (Emphasis added.)
Acts 1971, 62d beg., ch. 1036, § 51, at 3402. The statutory
provisions governing cosmetologists contained the following
definition of "cosmetology18:
\Cosmetoloov means the beautifvinq
treatment~of a female's hair or skin, or
nails of a male or female and includes the
followins wractices:
(A) arranging, dressing, curling, waving,
cleansing, singeing, bleaching, tinting,
coloring, cutting, trimming, shaping, or
straightening the hair by any method or
means ;
(B) massaging, cleansing, beautifying, or
stimulating the scalp, face, neck, arms,
bust, or upper portion of the body by the use
of a cosmetic preparation, antiseptic, tonic,
lotion, or cream;
(C) removing superfluous hair from the
body by use of depilatories or tweezers;
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Ms. Jo King McCrorey - Page 3 (JM-990)
(D) manicuring; and
(E) servicing a wig or artificial
hairpiece . . . . (Emphasis added.)
Id. 5 1, at 3389. The federal district court held
unconstitutional those provisions of the barbering and
cosmetology statutes that allowed licensees to perform
certain.orocedures on members of one sex only. Bolton v.
Texas Bd: of Barber Examiners, 350 F. Supp. 494 (N.D. ,Tex.),
aff'd, 409 U.S. 807 (1972).
A 1972 opinion of this office addressed a number of
questions about the proper interpretation of the barbering
and cosmetology statutes in light of Bolton. Attorney
General Opinion M-1270 (1972). In regard to the permissible
practices for barbers and cosmetologists, the opinion
stated:
The provisions of the Barber Law and the
Cosmetology Act defining the respective
practices of each with regard to the treat-
ment of hair are virtually synonymous in
meaning: and, the holder of a license under
either statute may cut, style, process,
shampoo, color, singe and perform those
services necessary to groom the hair of
either sex. Likewise, facial and scalp
massages and the applying of creams, lotions,
tonics, antiseptics, etc. to the scalp, face,
neck and shoulders are permitted under either
law. However, only a licensed barber may
perform the services of shavina and trimminq
the beard; and, only a cosmetologist may
remove suwerfluous hair bv the use of
depilatories or tweezers, or massage the arms
and busts. (Emphasis added.)
In other words, the opinion clarified that barbers and
cosmetologists could perform those procedures for which they
had specific authority, regardless of the sex of the
recipient of the services. Because cosmetologists had no
authority to shave and trim beards before Bolton, Bolton did
nothing to change the authority of cosmetologists in regard
to shaving and trimming beards.
If the legislature considered Attorney General Opinion
M-1270 to be incorrect or to reach an undesirable result, it
could have changed that result when it revised the statutes
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MS. Jo King McCrorey - Page 4 (JM-990)
governing cosmetologists and barbers in 1975.1 Acts 1975,
64th Leg., ch. 691, at 2132 (barber statute now codified as
article 8407a, V.T.C.S.: cosmetology statute now codified as
article 8451a, V.T.C.S.). It did not do so. The revised
barbering statute states that "barbering" includes "arrang-
ing, beautifying, coloring, processing, shaving, styling, or
trimming the mustache or beard by any means or method."
V.T.C.S. art. 8407a, § 4 (b)(1). The revised definition of
,*~cosmetology" contains no reference to the shaving or
trimming of beards. V.T.C.S. art. 8451a, 5 l(3). The
revised barber statute provides that persons practicing
under the cosmetology statute are exempt from the provisions
of the barber statute Itsolong as such persons practice
within the scope of the license or permit duly issued by the
Texas Cosmetology Commission.`` V.T.C.S. art. 8407a, § 6(c).
The legislature has amended the cosmetology statute a
number of times since 1975, but it has made no changes that
could be interpreted as giving cosmetologists the authority
to shave and trim beards. & aenerallv Acts 1985, 69th
Leg., ch. 483, at 2051: Acts 1983, 68th Leg., ch. 81, at 355
(setting fees under the cosmetology statute): Acts 1983,
68th Leg., ch. 557, at 3236 (continuing education for
cosmetologists): Acts 1981, 67th Leg., ch. 279, at 747
(relating to exemptions under cosmetology statute): Acts
1979, 66th Leg., ch. 606, at 1340 (relating to licensing of
cosmetologists); Acts 1977, 65th Leg., ch. 356, at 946
(relating to examinations and blood tests for cosmetolo-
gists); Acts 1977, 65th Leg., ch. 419, at 1123 (relating to
private beauty culture schools): Acts 1977, 65th Leg., ch.
666, at 1685 (relating to certification for hair cleansing
and scalp conditioning).
Nonetheless, it has been suggested that cosmetologists
have authority to trim beards by virtue of their authority
to trim "the hair." See V.T.C.S. art. 8451a, 91(3)(A). We
disagree. The statute governing barbers refers to "the
hair" and "the beard" separately, indicating that "the hair"
does not include "the beard." Acts 1971, 62d Leg., ch.
1036, 5 51, at 3402; Acts 1975, 64th Leg., ch. 691, 5 4, at
2133 (codified as article 8407a, 5 4). That same
legislation is the source for the current cosmetology
1. The legislature made numerous minor changes in the
cosmetology statute in 1973, none of which had to do with
shaving or trimming beards. Acts 1973, 63d Leg., ch. 136,
at 290; ch. 250, at 581; ch. 270, at 637; ch. 536, at 1388.
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Ms. Jo King McCrorey - Page 5 (JM-990)
statute, which gives cosmetologists authority to trim "the
hair," but makes no mention of "the beard." Id., § 28
(codified as article 8451a, § l(3)). Also, a cosmetologist
has authority to remove superfluous "body hair" by the use
of depilatories or mechanical tweezers. A cosmetologist has
no authority to remove "body hair" by shaving. In light of
those provisions, we cannot conclude that a cosmetologist's
authority to trim "the hair" can be construed to include the
authority to trim beards.
SUMMARY
A licensed cosmetologist has no
statutory authority to shave and trim beards.
JIM MATTOX
Attorney General of Texas
MARY KELLER
-. First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
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