Case Information
*1 The Honorable Bonnie Griebel Opinion No. H- 1.47 Executive Director
Texas Cosmetology Re: Whether t.he Texas 1111 Rio G,rande Cosmetology Commis- sion has the authority Texas 78701
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 and providing 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 (which you advise is a process solely in manicuring and “eye-tabbing” affixing, by surgical adhesi,ve, falseor human lashes to existing Lashes) to You have asked whether waive the specifi.c requirement.s.
has authorit~y to grant the requested waiver. “the Act”) is very comprehensive
A,rti,clc 734c, V. T, P. C., (hcrcaitcr in I,ts regulation of cosmeto,logy whi,ch it defines in its § l(3) as including “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; It provides for var- (D) manicuring; (E) the servicing of wigs,,or hairpieces. ious specific types of licensing such as for a manicurist ($13), a wig special- (§ 15), an instruc,tor (§ 16) and a wig instructor (5 17). i,st. (5 14), an operator It calls for the Licensing of pri,vate beauty culture schoo,ls ($ 22) and wig schools (§
It: provides for two types of shops: a beauty shop ($ 23) and a wig salon ($ 24). Sec,tion 23, in its enti~rety, provides: *2 page 2 (H-147)
“(a) A person ho,Lding a beauty shop license may maintain an establishment in which any practice of cos- metology 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 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 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 the underlying and fundamental purposes of this Act or to make any rule or regulation which is unreasonable, arbi- , trary, capricious, illegal or unnecessary.
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 carry out the details of the public policv under the eeneral nrovisions 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.
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., 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,
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 *4 shop is for the maintenance of an establishment “in which 3 practice of cosmeklogy 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 to license shops for the practice cosmetology, defined to include, among other things, manicuring, the Texas Cosmetology 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