Case Information
*1 The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General
Gary E. Miller, M.D. Opinion No. MW-526 Supreme Court Building Commissioner P. 0. BOY 12546 Texas Department of Mental Health Re: Whether barber and beauty Austin, TX. 76711.2546 and Mental Retardation shops in Texas Department of 5121475-2501 P. 0. Box 12668 Mental Health and Mental T&x Q101674~1367 Austin, Texas 78711 Retardation must be licensed Telecopier 512/475-0266 under the Barber and Cosme- tology Acts 1607 Main St., Suite 1400 Dallas, TX. 75201-4709 Dear Dr. Miller: 214/742+3944
You have requested our opinion as to whether barber and beauty 4624 Alberta Ave., Suite 160 shops located in facilities of the Department of Mental Health and El Paso. TX. 79905.2793 Mental Retardation [hereinafter MHMR] must be licensed under the 915/533c3464 barber and cosmetology statutes. We presume that only licensed barbers and cosmetologists practice in such facilities. Section 2(a) 1220 Dallas Ave.. Suite 202 of article 8407a. V.T.C.S., the Texas Barber Law, prohibits the Houston. TX. 77002-6966 practice of barbering by any person "unless duly licensed and 7131650.0666 registered in accordance with all laws of this state regulating the
practice of barbering." Likewise, section 9(a) of article 8451a, V.T.C.S., the Cosmetology Regulatory Act, provides that no person may 806 Broadway. Suite 312 Lubbock, TX. 79401.3479 "perform any practice of cosmetology without first obtaining a license 806/747-5236 or certificate to perform that practice." Section 3(a) of article 8407a states that "[n]o person may own, 4309 N. Tenth, Suite 6 operate, or manage a barber shop without a barber shop permit issued McAllen. TX. 78501-1685 by the board [of barber examiners]." Section 3(b) directs every 5121682.4547 "firm, corporation, or person who opens a new barber shop" to apply for a temporary barber shop permit and pay an inspection fee of 200 Main Plaza. Suite 400 $25.00. An annual renewal fee of $25.00 is also required. section 19 San Antonio, TX. 78205.2797 of article 8451a specifies the requirements for obtaining a beauty 5121225-4191 shop license and also requires a license fee of $25.00. An Equal Opportunity/ It might be argued that neither statute contemplates that an MHMR Affirmative Action Employer facility must obtain a license to operate a barber or beauty shop.
Section 19(d) of article 8451a provides, however:
(d) In order that the public may fix responsibility for services, acts, or treatments performed by persons licensed by the State Board of Barber Examiners vis-a-vis those performed by *2 persons licensed by the Texas Cosmetology Commission, to promote the efficient and orderly administration of laws regulating barbers and the practice of barbering and the laws regulating cosmetologists and the practice of cosmetology, and to avoid confusion of the public as well as avoiding conflicts of jurisdiction between such board and commission which might impede effective administration or enforcement of the laws under their respective jurisdictions, from and after January 31, 1980:
(1) a person licensed by the barber board may practice barbering only at a location for which the board has issued a barber shop permit, barber school or college permit, or any other permit. If the State Board of Barber Examiners and the Texas Cosmetology Commission license the same facility, the board may not adopt rules restricting or prohibiting the practice by a Class A barber in the facility; and a person licensed by the cosmetology (2)
commission may practice cosmetology only at a location for which the commission has issued a beauty shop license, private beauty culture school license, or any other license, If the State Board of Barber Examiners and the Texas Cosmetology Commission license the SallIe facility, the commission may not adopt rules restricting or prohibiting the practice by a cosmetologist in the facility.
Thus, the statute clearly indicates that licensed barbers and cosmetologists may practice their professions only in licensed facilities. Although both article 8407a, section 6, and article 8451a, section 39, exempt certain "persons" from the provisions of the two statutes, neither excepts persons who practice in state facilities, and neither provides any exception to the licensing of barber or beauty shops.
Furthermore, in Attorney General Opinion H-769 (1976). this office held that a person employed as a psychologist by a hospital licensed by MIIMR is not thereby exempt from the licensing requirements of article 4512c, V.T.C.S., the Psychologists' Certification and Licensing Act. The opinion indicated that the lack of a specific statutory exception for MHMR facilities implies that psychologists employed therein are not exempt from the licensing requirements for psychologists. In our opinion, the absence of similar exceptions for
p. 1907 *3 barber and beauty shops in MHMR facilities, together with the specific prohibition against the practice of barbering and cosmetology in unlicensed facilities, obliges us to conclude that barber/beauty shops located in MHMR facilities must be licensed under the barber and cosmetology statutes. Section 19 of article 8451a clearly contemplates dual licensing in any facility where both barbering and cosmetology are practiced.
SUMMARY Barber/beauty shops located in facilities of the Department of Mental Health and Mental Retardation are required to be licensed under the barber and cosmetology statutes, articles 8407a and 8451a. V.T.C.S.
MARK WHITE Attorney General of Texas JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood