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                                               November      18, 1970
        Hon. 0. W. McStay                                       Opinion    No. M- 730
        Executive   Secretary,
        State Board of Barber Examiners                         Re:     Is the Texas Barber Law
        512 Sam Houston Building                                        violated  when the hair of
        Austin,   Texas   78701                                         a male customer Is cut or
                                                                        trimmed while fitting  him
                                                                        fork a wig by a person without
        Dear Mr. McStay:                                                a license  under that law?

                              In your recent   letter     you requested     an a’nswer to the
         following            question:

                          “Is there a violation   of the Texas Barber
               Law       where a person cuts or trims the hair of a
               male       customer while fitting   the customer for a
               wig       when the person cutting    the hair does not
               have       a license  under the act?”

                  Your letter   further   offered   the fact that it is normally
        necessary  for the person fitting      the wig to cut and trim the natural
        hair of the customer in order to properly       fit the wig.

                   We have also been informed by your board that they construe
        the act of cutting  or trimming hair while fitting    a wig or hairpiece
        to be a violation  of the laws concerning  barbering.

                  Our answer to your question    Is “yes,”                    there Is a violation
        of the Texas Barber Law under the facts     stated,                   and we are in agree-
        ment with your administrative construction.

                          In Volume 10 American Jurisprudence   2nd 816, Barbers and
        @;;,;ologists,           Section 1, the reason and basis for such a rule Is
                  :

                       “While the occupation     of barbering    Is a,
               lawful one, it is an occuption        which,   because
               of its Intimate    relation    to the public     health,
               may be regulated     by law without depriving        a.
               citizen    of his natural   rights   and privileges
               guaranteed    by fundamental    law; those who are
               engaged therein    are subject     to reasonable
               regulation    which require    barbershops    to be operated
               in a clean and sanitary       manner and by competent

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Hon.   0. W. McStay,        page      2               (M-730)



       operators,    to     the end that the public  may be pro-
       tected   against      the spread of communicable  diseases.”

               The Texas        Penal     Code,     Article       728,     reads,     In part,   as
follows:

              “In this chapter,             unless      the      context     requires
       a different    definition,

              “(1)     ‘barbering’   includes    any of the follow-
       ing practices       or combinations     of practices when
       performed upon persons        above the seventh cervical
       vertebra    for cosmetic     purposes    and not for the
       treatment     of disease    or physical    or mental illness
       or deformity,       and when performed     for the public.
               I,
                 .   .’ . (B)     cutting     the hair;
               II . . (C) (LV)            styling     or processing            the
                 .
       hair    of males only.

              “(4)    ‘barber  shop 1 means a place where bar-
       bering    Is practiced   except when said place Is owned
       or operated     In whole or in part by the State of
       Texas or any political       subdivision   thereof  and ex-
       cept when said place is duly licensed          as a barber
       school    or colle   e.  Amended by Acts 1967, 60th Leg.,
       p. 2018, Ch. 74 2 , Sec. 1, Eff.       Aug. 28, 1967.”

               This Article     also states             such acts          performed     on females
will   not    constitute    barbering,
          Further,  Texas Penal                   Code, Article            734a,     of the Texas
Barber Law, Section  4, entitled                   Definitions,            reads,      In part, as
follows:

               “Sec. 4.    The practice   of barbering     Is hereby
       defined     to be the following    practices    when not done
       in the practice      of medicine,   surgery,    osteopathy,
       or necessary     treatments    of healing    the body by one
       authorized     by law to do so; and when not done by a
       relative     who cuts only the hair of those In his or
       her iFmediate      family;  and when done on living       per-
       sons,
               II. .   , (A)(l)         Cutting      the      hair;


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Hon. 0.    W. McStaY,      Page 3                   (M-730)



                “(2)   Styling     or processing         the hair        of
        males    only. ”

                Article   73&a,    Penal    Code,      Section     1,    reads      as follows:

               “Sec.   1. It shall    be unlawful   for any per-
        son to engage In the practice        or attempt to practice
        barbering    in the State of Texas without a certificate
        or registration     as a registered    barber issued pursuant
        to the provision     of this Act, by the Board of Barber
        Examiners hereinafter      created .‘I

                Section   3(A)    of   the Texas       Penal     Code,    Article      73&a, reads
as follows:

              'Sec. 3(A).  No person            may own, operate, or
        manage a barber shop,,wlthout            a barber shop permit
        issued by the board.

           There are certain    exceptions    listed    in Articles  728 and
734a, Texas Penal Code; however,       the facts    related   do not come
without  such exceptions.    A court has no authority         to add an ex-
ception by construction.     In State v. Richards,         157 Tex. 166, 301
S.W.2d 597, 600 (1957),    then Court said :’ “. ‘. . an exception      makes
plain the inte;t   that the statute     should apply In all cases not ex-
cepted.   . . .

              The Legislature    could exempt wig fitting       from the applica-
 tion of the act, however,       has not done so In the present        act.    It
 Is therefore     our opinion   that, under the facts     related,    a person
 cutting    the hair would be “barbering”      as defined    by the above
 articles    and would further    be operating   or managing a barber shop.
 If no barber shop permit is held by such person,            and no certlflcate
 or registration     as a registered    barber has been Issued to such per-
 son, then such party would be in violation          of the act on two counts.
;Texas Penal Code, Article       734a, Sec. 1 and 3(A).       Furthermore,     the’
 courts   will give weight to an administrative        interpretation       of such
 a statute,      53 Texas Jurisprudence     2d 259, 263, Statutes,      Sec. 177.

                             SUMMARY

             When a person,  while fitting a wig or hairpiece,
        on a male, cuts or trims the natural  hair of the male,
        there is a violation  of the Texas Barber Law, Texas
        Penal Code, Articles  728 and 73&a, if the person



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Hon.   0. W. McStay,        page   4,.             (M-730)     ,,           .~



       doing the.;w$tlng:.is     not licensed,               as a barber         and
       If he performs     the act in a place                 not licensed         as
       a barber shop.                   R

                                         y?
                                         fl,    truly        yours,




 Prepared     by Melvin     E. Corlei      "
:,Assistant    Attorney     General

APPROVED:
OPINION COMMJTTEE,.

 Kerns Taylor,   ci-iaiiman
 W. E. Allen,  Co-Chairman
,Malcolm Quick        '.:. ,. I
 R,., D. Green :       ",
 Fisher Tyler    ~.    :        : ..
 Dick Chote         __       ..~.        ,,..
MEADEF. GRI@IEj
Staff Legal Assistant

ALFRED WALKER ',:
Executive Assistant

NOLA WHITE
First Assistant




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