--=               ,-.,                              -.




            THE          A-BXORNEY        GENERAL,
                            OF   TEXAS




Honorabla M. Q. Clpttir,
                       President
State Board of Barber Examiners
Austin, Texas

Dear Sir:                          Opinion No. O-2620
                                   Rer Interpretation of Article 734a,
                                       V.A.F.C., regarding schools train-
                                       ing applicants for "Class A' pnd
                                       "Class EN barber lioansea.

       This will acknowledge reosipt of your btter of August 9, 1940,
upon the above stated matter, which reads in part as follows:

"In view of the fact that we are confronted with a situation which hars-
tofore has not presented itself with regard to schools, Principally
Class B. Therefore,we suErnitthe following questioner

 "1. Wat prerequisite requirements can be made before examination is
 given to applicant for Class A permit? Class B? mat examination can bs
 given Class B?

 "2. What does Class B license entitle holder to do, and what restrict-
 ions can be made by Board?

 "3. Pleatminlrmzmrequlrwents can be made hafore granting lioense to
 school? On what grounds'cen license be revoked? Class A and Class B.

 "4. Can license be granted to schools teaohing Class B only? Vhat re-
 quirements can be made and what courses must Be taught2     ,

"5. Can school license be granted to beauty schools7 What requirements
must be met, for Class A? Class B? Can a barber and beauty course b+ com-
bined? If so, what requirements must be met withmference to a months
and 1,000 hours provision.

 "6. What requirements can be made of a person teaching in a school?
 Must such person hold a Class A or Class B license?

        We shall endeavor to answer your questions in the order in whioh
 they are presented.

        After carefully examining the provisions of Article 734a of the
 Penal Code, the Texas Barber Law, it is apparent that tm classes of bar-
 ber licenses are contemplatedr i.e., "Class A" and "Class B." "Cl&ss B"
Hon. M. G. Speir, page 2 (o-2620)



licenses differ from "Class A” in that the former under Seation 6 are granted
only to those following the ocoupation of cutting hair, or practicing hair out-
ting in 8~' beauty shop or hairdressing parlor; and Class B oertificates auth-
arise their holders to out the hair only -- in such establislments.

            In this connection we desire to call your attention to the appar-
ent conflict bstvwsn Section 3 and Section 6. Seotion 4 providestfiatoperat-
ors in beauty shops or hairdressing parlors, although otherwise exempt under
the Aot, must if they desire to cut the hair for hire or rewards.in such se+
tablishments obtain a "Class B" oertifiaate whioh will authorize the holder
to do all of the things set forth in Section 4 under the definition of "bar-
bering" exoept shaving and triwing the beard" Section 6, however, provides
that a "Class B" oertifiaate shall authoriee the outting of hair only in auoh
establislrments..We subnit that this apparent colifiiotmay be avoided. Seation
4 defines barbering as follows:
I . . . the practice of barbering is hereby defined to be the following prao-
tioes for hire or reward when not done in the praotioe of medicine, surgery,
osteopathy, or necessary treatments of healing the body by one authorized by
law to do 801

            "(a) Shaving or trirmningthe beard or cutting the hair.
            "~(b) By giving any of the following treatients by any person
engaged in shaving or trimming the beard and/or cutting the hair:
                      "(1) Giving facial and soalp massages, or applications
            of oils, oreama, lotions, or other preparations, either by hand
            or electrinal appliances;
                      "(2) Singeing, shampooing, or dyeing the hair or apply-
            ing hair tcnios;
                      "(3) Applying cosmetic preparations, antiseptios, pow-
            ders, oils, olaye, or lotions to the scalp, face, neck, or that
            part of the body above the shoulders."

            It is readily apparent that all of the operations desoribed sx-
oept shaving or trimsing the bsard and cutting the hair are operations oom-
monly performed in beauty establiskrmenta,as well as barber shops. A beauty
operator license holder therefore Is already entitled under her beauty
license to do all of the things set forth under the definition of barbering
except the operations mentioned; i.e., shaving or trimming the beard or cut-
ting the hair. It follows that Section 6 must control over Section 4 and a
beauty operator holding "Class B" license is authorized under said license
to perform only the practice of cutting hair. This mnclusion is strength-
ened by looking to other provisions of the Aof, among which isthat in Sec-
tion 6 providing that applicants for "Class B" licenses shall bs eramined by
the Board only (1) as to their skill, ability and knowledge of properly per-
forming the art or science of hair cutting, and (2) their knowledge of hy-
giene and sanitation pertaining thereto"

           mth this in mind, your first questions is: What prerequisite
requirements can be made before examination is given to applicant for "Class
Hon. M. G. Speir, page 3 (-2620)



A” license? -Class B" 7 Section 6 of Artiale 734a provides that "applica-
tions for such certifioatea styled 'Class B' must possess tikequalifications
tequired of others made amenable to the provisions of this sot, and the ap-
plication shall be made likewise and the same fees paid."   Sections 7 and 6
set forth the prerequisite qualifications for both "Class A" and "Class B"
applicants, These sections read as follews:

"Sec. 7. Any person is qualified to x'eoeivea certificate of registration
to praotice barberingr

         "(a) who is qualified under the provisions of Seotion 6 ofthis Aat*
         F(b) Who is at least eighteen (18) years of age and who has practiced
         as an assistant barber under authority of a oertificate issued by the
         Board of Barber Examiners, as suah, for at least eighteen (16) months.
         "(b) Who is of good moral character and temperate habits3 and
         "(d) who has passed a satisfactory examination oonducted bytie Board
         to determine his fitness for practicing barbering.

      "Provided, however, that an applicant for a certificate of registration
to practice as a registered barber who fails to pass a satisfactory examina-
tion conducted by the Board must continue to practioe as an assistant barber
for an additional six (6) months before he is again entitled to take the sx-
aminationsas a registered barber. (As amended Acts 1933, 43rd Leg., p. 602,
oh. 235, s 1.)

"Sec. 6. Any person is qualified to receive a certificate of registration as
a registered assistant barber

         s(a) Who 8s at laast sixteen and one-half years of age1 and
         ?(b '@IOis of good moral character and temperate habits; and
         "iid
            I IIhohas graduated from a school of barbering appoved by the Board;
         "(d) llhohas passed a satisfactory examination oonducted by the Board to
         determine his fitness to practice as a registered assistant barber*"

      Under Sea. l,Cthe application isln be in such form and to contain such
matters as may be required by the Board to determine whether or not the appli-
cant p&sesses the qualifications presoribed in Sections 7 and 6 and other
sections such as 21 and 24. These sections read as follows?

 "Sec.   21.The Board shall either refuse to issue or to renew, or shall SUS-
 pend or revoke any certificate of registration for any one of, or a oombina-
 tion of the following causes~

         s(a) Conviction of a felony shown by a certificate copy of the record
         of the trial wherein the conviction was had:

         "(b) Gross malpractice of gross incompetencyi

         iccj cont inued practice by a person knowingly having an infectious or
         oontagious or communicable disease;
:'a-;.
     M. G. Speir, page 4 (o-2620)



     "(2) Advertising by means of knowinglJimaking false or deceptiw
     statements;
     "(e) Advertising, practicing, or attempting to practice under another's
     trade name or another's name3
     "(f) Habitual drunkeness or habitualaddiction'~? the use of morphine,
     cooaine, or other habit forminT drugs3
     "(g) Immoral conducts and
     "(h) TF:scanmission of'any of the offenses described in Section 24 of
     this Act.
     "(1) 110certifioate shall be issued or renewed unless and until eaoh
     applicant shall present a health certificate from a regular practicing
     meiical doctor showing that the applicant is free from any kind of
     in?ecticus or contagious diseases, tuberculosis, communicable diseases,
     free fran the use of morphine, cocaine, or other habit-forming drug,
     or a habj~l;ual
                   drunkard and that said applicant shall make affidavit
     to said medical exwnination that all of said facts are true."

"Sec. 24. That each of the following offenses shall constitute a misdemeanor
punishable upor,conviction in a court of competent jurisdiction by a fine of
not less Ban twen@-five dollars ($25.00)nor more than two hundred dollars
($206.00j#

     "(F) T$e violation af any of the provisions of Sections 1, 2 and 3 of
     this Act3
     "(b) permitting *ny person in one's employ, supervision, or control to
     practice as a barber or assistant barber unless that person has a oar-
     tilioate of registration as a registeted,.-ELssistant3
     "(c) Obtaining or attempting to obtain a certificate of registration
     by fraudulent representation3
     "(d) The ,,ilfullfailure to display a certificate of registration as
     required by Section 19 of this Act."

      1;:answer to your first question, therefore, it is the opinion of this
daT'P~Pt!TIBrit
            ar,:!
                'gnuare respectfully advised, that applicants for license 88
eii:rera "&::   ,A" or "Class B" barber must meet all of the qualifications
prc.;cribztd
           in sections 7 and 8 and be eligible under Sections 21and 24 of
the:Texas Barber Law to take the examination.

      % have previously answered your question as to what examination can be
                               licenses. They may be examined by the Board only
given appl.icaatsfor "Class ill'
on tm subjects:

      (i) Their skill, ability and knowledge of properly perfoming the art
or sricnc-:,f !:ajrcutting, and

      (2) Their knowledge of hyeione and sanitation pertaining thereto.

      Your second question has also been answered. Under Sections 4 and 6
the holder of a "Class p' “%cen.seis entitled only to cut hair rlnderthat
license ix a beauty parlor or a hairdressing establishment. The Board may,
and it is its duty, to restrict the licensee accordingly.
                    h.




Hon. M. G. Speir, page 5 (o-2620)



      You inquire next as to the minimum requirements that oan be made by the
Board before granting a license to operate a barber school, and the grounds
upon which a lionese so granted may be revoked.

      The only prerequisites to the issuanoe of a permit by the Board for the
operation of a barber school are those set forth in Seotion 9 of &ticle 7348.
That is to say, the school must (1) require as a prerequisite to graduation a
course in instruction of'not less than 1,000 hours to be completed within a
period of not less than six months3 (2) require as a prerequisite for the ad-
mission thereto, applicants to demonstrate their ability to read intelligently
and write olearlythe English language and (3) instruot students in such sub-
jects as may be necessary and beneficial in the practice of barbering includ-
ing the following subjeots: soientifio fundamentals of barbering3 hygienic
bacteriology; histologyof the hair, skin, musales and nerves3 structure of
the head, face and neok;elementary chemistry relating to sterilisation and
antiseptics3 diseases uf the skin and hair, massaging and manipulating
muscles of the scalp, faoe, and neok$ hair outting, shaving (if teaching
applicants for Class A 1iosnse)f and bleaohing and dyeing the hair.

      Article 734a of the Penal Code makes no provision for a distinotion as
to a "Class II"and "Class Bs barber school. Any esohools must meet the re-
quirements of Section 9 to obtain a permit. Howwer, as provided in Se&ion
9 'if such school does not care to teach peltsonswho apply for 'Class A’ but
only 'Class B' oertifioates, shaving need not be taught."

      plbpass to your question as to the grounds for revoking of a barber
school permit. Section 9 provides for the revocation of permits issued to
barber schools in the following language:

      "In the event such school or college after a permit is issued
      to it violates any of the requirements of this law, either di-
      rectly or indireotly, then said Board shall suspend or revoke
      the permit of any suoh sohool or college. , . .a (Undersoor-
      ing ours)

      Aspreviously stated three requirements are made of a barber school in
Seotion 9 of Article 734a. That is, the school must maintain a oourse of in-
struotion prerequisite to graduation of not less than 1,000 hours to be OOIIL-
pleted within a period of not less than six months3 it must require as a pre-
requisite to admission that applicants demonstrate their ability to read in-
telligently and write clearly the English language3 and thirdly, the school
must instruct its students in such subjects as may be necessary and beneficial
in teaching the practioe of barbering including the subjects specified in
Section 9.

      It is clear that a permit to operate a barber sohoolmay be revoked
upon failure to maintain after the issuance of permit any of the requirements
set out in Section 9. In Dendy v. Darter,(CCA) 108 S.W. (2d) 264, the court
held that an additional ground for revocation of permit lies whsn the karber
school fails to comply with Article 732 of the Penal Code or teaches its
students practices inconsistent with such article.
Hon. M. G. Speir, page 6 (O-2620)



      In that case the specific holding leasthat the Board was authorized to
cancel a permit to operate a barber school on the ground of "violation of the
law" when the school taught its pupils to use towels upon customers that had
previously been used on other customers and not in the meantime sterilized
when there were no sterilieed towels available.

      Your fourth question is *ether or not permit may be granted to schools
teaching applicants for "Class B" licenses only and what requirements can be
made and what courses can be taught, Section9 specifically provides that bar-
ber schools may teach persons applying only for "Class Be certificates. It
logically follows that the Board may grant permits to such schools. As before
stated, the only distinction is that as to schools teaching such applicants,
shaving need not be taught. In all other respects, Section 9 applies as to
schools teaching applicants for either "Class A" or "Class Be license.

      In answer to question No. 5, there are no prohibitions in Article 734a
of Vernon's Annotated Penal Code to the granting of a barber school permit by
the Board to a school operating as a beauty school; provided, the requirements
of Section 9 or Article 734a are met. This applies to all such schools whether
training applicants for only Vlass B" or teaching applicants for "Class A”
and "Class B" barber licenses. Such combined barber and beauty schools or
colleges must maintain as a prerequisite to graduation (insofar as barbsring
is concerned) a course of instruction of not less than 1,000 hours, to be
completed within a period of not lessthan six months. In addition, all of
the required courses specified in Section 9 must be taught with the excep-
tion of shaving if the school proposes to teach applicants for "Class B"
lioenses only. T he fact that a school is licensed as a beauty school by
the State Board of Hairdressers and Cosmetologists or is recognized as such
by that Board will not prevent the school from also being licensed as a bar-
ber school, and the Barber Board must license suah school if the requirements
of Section 9 of the Act are met. -?% prerequisites to licensing of schools
set forth in Section 9 are the Board's only criterion. It may not prescribe
additional requirements by rule or regulation.

      Your final question is as to the requirements that may be made of a
person teaching in a tarter school and whether or not such'person may be
required to hold a Class A or B lioense. Article 734a makes no provisions
relative to the qualifications of persons teaching in barber schools, nor
is the Board authorieed to presoribe qualifications. However, Section 4
defines the practice of barbering as follows:
*    . the practice of barbering is hereby defined to be the following prac-
tIcis for hire or reward~when not done in the practice cfmedioine   surgery,
osteopathy, or neoessary treatments of healing the body by one autiorised by
law to do SOS etc." (See page 2 of this opinion for complete quotation of
this provision ofthe Act).
                         h




Hon.   IL G. Speir, page 7   (o-2620)



      As to those teachers aotually engaged im teaching or demonstrating
any phase of the barber school curricula either upon students or upon cus-
tomers of the school for hire or remrd, lnhiohmuld fall within the above
definition of abrbering," we believe a barber license must be obtained -
"Class A" if engaged in shavimg as well PI ether inoidents Ibfbarbering,
and aClass B" if en(;agedin incidents of barbering other than shaving.

                                            very truly yours

                                        ATTORNEYGERERALOF    TEXAS


                                        By /s/James   D. Smullen

                                               James D. Mullen
                                                      Assistant
APPROVED RUG 31, 1940
/s/ GROVER SELLERS
FIRST AS6ISTART
ATPORNEY GEXERhC



JDS:Z-W:egW                                       Approved
                                              Opinion Comittee
                                                  ByBWB
                                                  Chairman
