We are in receipt of your letter of recent date requesting an opinion from this department on the above subject matter. in quote from said request as follows:

"I have been asked by the State Board of Haird dressers and Cosmetologists to make a refund of money now on deposit in the Departmental Suspense Fund for the following reasons:

"I. Applied for a non-resident license while her husband was stationed in Texas. Then he was transferred to another State, she requested a refund of the amount of license. She was not ihqued a Texas license.

"2. Cans to this State for her health and applied for a non-resident license. she has left the State and does not desire a Texas license.

"3. Applied for a license prior to the effective license date. The shop was closed and unoperated during the life of the requested license.

"4. I urdised a top and applied for license. the sale of the shop failed to be con- pleted.

"1. lease advise as to whether or not I may legally make these requested refunds."

*2 HOn. George ". Sheppard - Page 2

It is apporent from the fore roing facte that a lloense was never, in fact, issued to the apj 11 eants in the f our instanoes set out in your request. Tils being true, we believe the following rules atated in our Opinion No. 0-801 are apolicable to your present request. To quote the following from said opinion: "The above eited sot "(Art. 734b, F.C.) is regulatory, based upon the state police power to safeguard the public health and the foes provided are license foes and not in the nature of an occupation tax. Gerard va. Smith (T. C. A. 1932) 52 S.i. (2nd) 347; Hart va. Cooper (Sup. Ct. 1937) 110 S.i. (2nd) 896. "To call attention to 3eotion 14 which provides for the payment of both an oxamination and a license fee by applioants for an operator's license or certificate. 3eotion 17 provides that an application for a oortificate to oond not a beauty parlor shall be acoozpanled with a $\backslash$ 10.00 $payment.Thispaymentisnotdesignatedbytheetatuteasaninspectionfeeoroxaminationfee,andwethinkitwastheintentionoftheLegislaturothatthe$ \ $10.00$ payment required should be for the oortificate or license issued. Since the payment is for the oortificate, until the oortificate is granted, no consideration has been received therefor, and the state would not be entitled to retain the money upon rejection of the application. "The same considerations apply to the annual payments which in various sections of the eat are called 'renewal fees', 'annual license fees' and 'annual rogistrution foes." ("Parenthesis ours)

Since the licorices in the instances here have never been issued, and in view of the fore roing, you are respectfully advised that it is the opinion of this department that you are authorized to issue warrants on the Juspense fund of the state Board of biirdressers and cosmetolo: iate for refund of each of the items listed by you.

Yours very truly

JR:djm

JOHN Reevea