                              ATTORNEY GENERAL                    OF   TEXAS
                                           GREG       ABBOTT




                                               May l&2006



Mr. William H. Kuntz, Jr.                                  Opinion No. GA-0432
Executive Director
Texas Department of Licensing and Regulation               Re: Whether there is an irreconcilable conflict
Post Office Box 12157                                      between portions of two bills enacted by
Austin, Texas 78711-2157                                   the Seventy-ninth Legislature with regard to
                                                           sterilization requirements for certain barbering
                                                           and cosmetology services (RQ-0415-GA)

Dear Mr. Kuntz:

        You ask whether there is an irreconcilable contlict between portions of Senate Bill 411 and
House Bill 1304, both of which were enacted by the Seventy-ninth Legislature, and both of which
provide sterilization requirements for certain barbering and cosmetology services.’

         Before we examine the potentially conflicting provisions, we will provide some background.
In Senate Bill 411, the Seventy-ninth Legislature abolished the State Board of Barber Examiners and
the Texas Cosmetology Commission, effective January 1, 2006, and transferred their functions to
the Texas Department of Licensing and Regulation (the “Department”). See Act of May 28,2005,
79th Leg., R.S., ch. 798, 5 6.01(a), 2005 Tex. Gen. Laws 2734,2759. In doing so, the legislature
specifically provided that “[allI, rules of the State Board of Barber Examiners and the Texas
Cosmetology Commission are continued in effect as rules of the Texas Commission of Licensing
and Regulation until superseded by a rule of the Texas Commission of Licensing and Regulation.”
Id 5 6.01(b). Moreover, “a reference in another law or administrative rule to the State Board of
Barber Examiners or the Texas Cosmetology Commission means the Texas Department of Licensing
and Regulation.” Id. 5 6.01 (c). Chapter 1603 ofthe Occupations Code, providing for the regulation
of barbering and cosmetology, directs the Department to administer the provisions of chapter 1601
relating to barbers and chapter 1602 relating to cosmetologists. TEX. OCC. CODE ANN. 5 1603.002
 (Vernon Supp. 2005). The Commission of Licensing and Regulation (the “Commission”) is
 responsible for adopting rules for the administration of chapters 1601 and 1602 and for the
 operations of the Department in regulating barbering and cosmetology. Id. 5 1603.101.

        Senate Bill 411 enacted section 1603.352 of the Occupations             Code, which applies to both
barbers and cosmetologists.   That statute provides, in relevant part:


         ‘See Letter from William H. Kuntz, Jr., Executive Director, Texas Department ofLicensing and Regulation,
to Honorable Greg Abbott, Attorney General of Texas (Nov. 8, 2005) (on file with the Opinion Committee, also
available af http://www,oag.state.tx.us) [hereinafter Request Letter].
Mr. William H. Kuntz, Jr. - Page 2                 (GA-0432)




                       (a) A person who holds a license, certificate, or permit issued
               under this chapter, Chapter 1601, or Chapter 1602 and who performs
               a barbering service described by Section 160 1.002(l)(E) or (F) or a
               cosmetology service described by Section 1602.002[a](lO) or (11):

                             (1) shall, before performing the service, disinfect and
               sterilize with an autoclave each nondisposable instrument used to
               perform the service;




                       (b) The owner or manager of a barber shop, barber school,
               beauty shop, specialty shop, or beauty culture school is responsible
               for providing an autoclave for use in the shop or school as required
               by Subsection (a). An autoclave used as required by Subsection (a)
               must be:

                            (1) registered and listed with the federal Food and Drug
               Administration; and

                                (2) used    in   accordance      with      the     manufacturer’s
               instructions.

Id. 5 1603.352. The services described by section 1603.352 relate to treating nails, hands, and feet.
Section 1601.002, adopted prior to the Seventy-ninth legislative session, defines “barbering,” inter
dia. to in&de

                         (E) treating a person’s nails by:

                           (i) cutting, trimming,             polishing,     tinting,       coloring,
               cleansing, manicuring, or pedicuring;          or

                                (ii) attaching false nails;

                         (F) massaging, cleansing, treating, or beautifying a person’s
               hands.

Id. 5 1601,002(1)(EKF)         (Vernon 2004). Section 1602.002 defines “cosmetology,”                   infer al& as

                         (10) treating a person’s nails by:

                              (A) cutting, trimming,          polishing,         tinting,   coloring,
                cleansing, or manicuring; or

                                 (B) attaching false nails; or
Mr. William H. Kuntz, Jr. - Page 3               (GA-0432)




                      (11) massaging, cleansing, treating, or beautifying a person’s
               hands or feet.

Id. 5 1602.002(a)(lO)-(11)       (Vernon Supp. 2005). Thus, Senate Bill 411, codified as section
1603.352, requires that aperson performing a barbering or cosmetology service on the nails, hands,
or feet “disinfect and sterilize with an autoclave each nondisposable instrument used to perform the
service.” Id. 5 1603.352(a)(l) (emphasis added). In addition, the statute directs that the owner of
a shop or school that performs barbering and cosmetology services must provide for use in the shop
or school an autoclave that is “registered and listed with the federal Food and Drug Administration”
and “used in accordance with the manufacturer’s instructions.” Id. 8 1603.352(b)(1)-(2).          The
statute fails, however, to define the term “autoclave.”

       House Bill 1304, also enacted by the Seventy-ninth Legislature and effective January 1,2006,
added provisions to both chapter 1601 (barbering) and chapter 1602 (cosmetology) of the
Occupations Code. See Act ofMay 18,2005,79thLeg.,R.S.,       ch; 562, $5 l-2,2005 Tex. Gen. Laws
1495, 1495-96. Section 1601.506 now provides, in relevant part:

                       (e) A person who holds a license, certificate, or permit issued
               under this chapter and who performs a barbering service described by
               Section 1601.002(1)(E) or (F):

                             (1) shall, before performing the service, disinfect and
               sterilize with an autoclave or a dry heat, ultraviolet, or other board-
               approved sterilizer each nondisposable instrument used to perform
               the service;




                         (t) The owner or manager of a barbershop, specialty shop,
                or barber school is responsible for providing an autoclave or a dry
                heat, ultraviolet, or other board-approved sterilizer for use inthe shop
                or school as required by Subsection (e). An autoclave or a dry heat,
                ultraviolet or other board-approved sterilizer used as required by
                Subsection (e) must be:

                             (1) registered and listed with the federal Food and Drug
                Administration; and

                                (2) used   in   accordance   with   the   manufacturer’s
                instructions.

TEX. Oct.   CODE ANN. 5 1601.506 (Vernon Supp. 2005). Section 1602.408 also declares, inrelevant
part:
Mr. William H. Kuntz, Jr. - Page 4                    (GA-0432)




                         (a) A person who holds a license, certificate, or permit issued
                 under this chapter and who performs a cosmetology service described
                 by Section 1602.002[a](lO) or (11):

                              (1) shall, before performing the service, disinfect and
                 sterilize with an autoclave or a dry heat, ultraviolet, or other
                 commission-approved     sterilizer each nondisposable instrument used
                 to perform the service;




                          (b) The owner or manager of a beauty shop, specialty shop,
                 or beauty culture school is responsible for providing an autoclave or
                 a dry heat, ultraviolet, or other commission-approved sterilizer for use
                 in the shop or school as required by Subsection (a). An autoclave or
                 a dry heat, ultraviolet, or other commission-approved   sterilizer used
                 as required by Subsection (a) must be:

                              (1) registered and listed with the federal Food and Drug
                 Administration: and

                                 (2) used      in. accordance       with    the   manufacturer’s
                 instructions.

Id. 3 1602.408. House Bill 1304 thus offers a choice in the sterilization of nondisposable
instruments used by barbers and cosmetologists on nails, hands, and feet: either an autoclave “or
a dry heat, ultraviolet, or other [board or commission] approved sterilizer.” See Act of May 18,
2005,79thLeg., R.S., ch. 562, $$j l-2,2005 Tex. Gen. Laws 1495,1495-96. Furthermore, anowner
or manager of a shop or school that performs barbering or cosmetology services is also offered a
choice of providing either “an autoclave or a dry heat, ultraviolet, or other [board or commission]-
approved sterilizer,” so long as it is “registered and listed with the federal Food and ‘Drug
Administration” and “used in accordance with the manufacturer’s instructions.” See id. As is the
case with Senate Bill 411, House Bill 1304 does not define the term “autoclave.”

        A provision of the Code Construction Act states that “if amendments to the same statute are
enacted at the same session of the legislature, one amendment without, reference to ‘another, the
amendments shall be harmonized, if possible, so that effect may be given to each.” TEX. GOV’T
CODE ANN. 5 3 11.025(b) (Vernon 2005). Senate Bill 411 provides that nondisposable instruments
shall be sterilized with an autoclave. House Bill 1304 also provides that nondisposable instruments
shall be sterilized with an autoclave, but in addition, further provides that a dry heat, ultraviolet
or other Commission-approved        sterilizer can be used to perform the same service.2 Dry heat,


         ‘As we have previously noted, section 6.01(c) of Senate Bill 4 11 provides that a “reference in another law or
administrative rule to the State Board of Barber Examiners or the Texas Cosmetology Commission means the Texas
                                                                                                          (continued...)
Mr. William H. Kuntz, Jr. - Page 5                      (GA-0432)




ultraviolet, and various other kinds of sterilization have been recognized in some instances to
constitute an “autoclave.“3 But the term “other.    sterilizer” approved by the Commission is open-
ended. As a result, we do not believe that the two bills can be harmonized in this regard and that
they are in fact in irreconcilable conflict.

         Another provision ofthe Code Construction Act provides that “if statutes enacted at the same
or different sessions are irreconcilable, the statute latest in time prevails.“4 TEx. GOV’T CODE ANN.
§ 311.025(a) (Vernon 2005). House Bill 1304~was enrolled on May l&2005. See Act of May IS,
2005,79th Leg., R.S., ch. 562,2005 Tex. Gen. Laws 1495, 1496. Senate Bill 411 was enrolled on
May 28,2005. See Act ofMay 28,2005,79th Leg., R.S., ch. 798,2005 Tex. Gen. Laws 2734,276O.
Thus, Senate Bill 4 11 prevails with the result that a barber or cosmetologist who treats nails, hands,
or feet must sterilize nondisposable instruments with an autoclave that is registered and listed with
the federal Food and Drug Administration and is used in accordance with the manufacturer’s
instructions.   Likewise, the owner or manager of a shop or school that performs barbering and
cosmetology services must provide for use in the shop or school an autoclave that is registered and
listed with the federal Food and Drug Administration                and used in accordance with the
manufacturer’s instructions.



        ‘(-continued)
Department of Licensing and Regulation.” Act of May 28,2005,79tb Leg., R.S., ch. 798, 9 6.01(c), 2005 Tex. Gen.
Laws 2734,2759.

          ‘Dorland’s Illustrated Medical Dictionary defmes autoclave as “[a]n apparatus for effecting sterilization by
steam under pressure; it is fitted with a gauge that automatically regulates the pressure and therefore the degree of heat
to which the contents are subjected.” DORLAND’ILLUSTRATED
                                                     S             MEDICAL   DICTIONARY    180 (30th ed. 2003). Likewise,
an article in “GlobalSpec: The Engineering Search Engine,” provides the following information:

                  The majority of autoclaves function using some form ofheat.     Both dry heat and
                  steam heat autoclaves are available.      Steam autoclaves are far more common,
                  using heated, vaporized water to kill pathogens. Dry heat autoclaves use dry heat
                  to sterilize instruments.

                  Chemical sterilizers can be broken down into two major groups, cold sterilizers and
                  gas autoclaves.

                   Cold sterilization autoclaves use a cold sterilization liquid to sterilize the contents


                   Gas autoclaves, often called chemiclaves, use a vapor solution to sterilize its
                   contents.

                   Ultraviolet autoclaves and sterilizers produce UV light exerting a lethal effect on
                   unwanted disease causing organisms.

See http://autoclaves.globalspec.com (last visited May l&2006),

      “‘[T]he date of enactment is the date on which the last legislative vote is taken on the bill enacting the statute.”
TEX.GOV’TCODEANN.5 3 11.025(d) (Vernon 2005).
Mr. William H. Kuntz, Jr. - Page 6          (GA-0432)




                                     SUMMARY

                       A barber or cosmetologist who treats nails, hands, or feet
              under chapter 1601 or chapter 1602 of the Occupations Code must
              sterilize nondisposable instruments with an autoclave. Likewise,
              the owner or manager of a barber or cosmetology shop or school
              must provide an autoclave for the sterilization of nondisposable
              instruments.




BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
