Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

GERALD C. MANN ATTORNEY GENERAL

Queen Arbuokle, Secretary State Board of Hairdressers & Cosmetologists Austin, Texas

Dear Madam:

Opinion No. 0-1371 Re: Under the circumstances set forth, should the Board issue a shop license for the fiscal year 1939 for the additional remitt- ance made by the owner in 1938?

Your request for an opinion on the above stated question has been received by this department.

Your letter reads, in part, as follows:

"Miss Data Latham of Woodson, Texas, as the end of the 1938 fiscal year remitted five dollars for a shop license. She was issued li- sense numbered 2363. In September of 1938 we through an error requested an additional five dollars, and in so doing issued another shop license for that particular shop numbered 3539. The ten dollars was deposited in the General Fund of the State.

Miss Latham does not request a refund, but asks that we issue a shop license for the fiscal year of 1939 for the additional remittance she made in 1938. May we do this?"

Section 18a of Article 734b of the Penal Code reads, in part, as follows:

"The annual license fee for con- duoting a beauty parlor shall be the

*2

Queen Arbuckle, Page 2

sum of five dollars ( $\$5.00$ ), provided, however, that in event any beauty parlor is conducted and operated by one (1) person only, then and in that event no fee shall be charged for conducting such beauty parlor, but the operator thereof shall be liable for Three Dollars ( $\$3.00$ ) annual registration fee hereinafter provided, and the annual license fee for operators to work at the trade or practice of beauty culture shall be the sum of Three Dollars ( $\$3.00$ ) and the annual registration fee for manicurists shall be Two Dollars and fifty Cents ( $\$2.50$ ), and the annual registration fee for an instructor shall be Ten Dollars ( $\$10.00$ ), and the annual registration fee to conduct a beauty school shall be One Hundred Dollars ( $\$100.00$ ). "It is intended by this Act to levy and gollest from the operator of any beauty parlor conducted and operated by one (1) person only, no tax or fee for examination charge in excess of the Three Dollars ( $\$3.00$ ) fee hereinberore provided, any other section of this Act to the contrary notwithstanding."

Bection 6 of Article VIII of the State Constitution provides: "No money shall be drawn from the Treasurer but in pursuance of specific appropriations made by law; nor shall any appropriation of money be made for a longer term than two years * * **

The case of Manion vs. Lockhart, 114 S.W. (Ed) 216, among other things holds in effect that a judgment creditor who is entitled to payment of money erroneously placed in the General Revenue Fund by the State Treasurer is not entitled to a writ of mandamus compelling payment thereof by such officer to the judgment creditor.

You are respectfully advised that it is the opinion of this department that the State Board of Hairdressers &; Cosmetologists cannot refund the money collected through

*3

Queen Arbuckle, Page 3

an error which has been deposited in the General Revenue Fund of the state, nor issue a shop license for the fiscal year of 1939 for the additional remittance erroneously collected, after such fee has been placed in the General Revenue Fund of the State.

Trmating that the foregoing fully answers your inquiry, we remain

Yours very truly ATTORNEY GENERAL OF TEIAS

By

(a)

Arde11 Williams

Assistant

AW: 10

APPROVED: September 19, 1939 Gerald C. Mann (a) ATTORNEY GENERAL OF TEIAS

APPROVED OPINION COMMITTEE BY B.W.B. CHAIRMAN