    OW,CEOFTHEATTORNEY
                    GENERAL.
                          STATE
                              OFTEXAS
    JOHN    CORNYN




                                            April 20,200O



The Honorable Bob Hunter                            Opinion No. JC-0211
Chair, Committee on State, Federal
  and International Relations                       Re: Distinction between “the hair” and “the
Texas House of Representatives                      beard” for purposes   of the barber statute
P.O. Box 2910                                       (RQ-0130-JC)
Austin, Texas 78768-2910


Dear Representative   Hunter:

         You have asked this office to distinguish between “the hair” and “the beard” for the purpose
ofthe statutes regulating barbers and cosmetologists. As you explain the situation giving rise to your
request, a barber who is one of your constituents, and who employs licensed cosmetologists in his
shop, is concerned that the cosmetologists in his employ may be subject to discipline by the State
Board of Barber Examiners (the “Board’) should their trimming of sideburns, for example, be
construedastrimming      abeardinviolationofwhat    isnow section 1601,002(1)(A) oftheOccupations
Code. You note that in Attorney General Opinion JM-990, this office stated that “[a] licensed
cosmetologist has no statutory authority to shave and trim beards.” Tex. Att’y Gen. Op. No. JM-990
(1988) at 5. However, as you further suggest, “no definition exists for ‘hair’ and ‘the beard’ in either
the statutes or attorney general opinions.” Letter from Honorable Bob Hunter, State Representative,
to Honorable John Comyn, Attorney General, at 1 (Oct. 11,1999) (on file with Opinion Committee).
Accordingly, you seek clarification of this distinction.

         Pursuant to title 9 of the Occupations Code, licensed barbers and licensed cosmetologists
may perform many of the same services on the hair of individuals. Each, for instance, may “treat[]
a person’s hair” in a variety of enumerated ways, provide certain preparatory or ancillary services
for these treatments, or “cut[] the person’s hair as a separate and independent service.     .” See TEX.
Oct. CODEANN. $5 1601,002(1)(B), 1602.002(1)(A-C)(Vemon2000).                However, under thecode’s
definitions, the practice of barbering includes “treating a persons’s mustache or beard by arranging,
beautifying, coloring, processing, shaving, styling or trimming, ” id. 5 1601,002(1)(A), while the
practice of cosmetology does not. This office does not have the expertise to make the decision as
to whether a particular act is being done to “hair” or “beard.” Since the trimming of beards is
entirely within the practice of barbering, such a decision is within the sole jurisdiction of the Board,
which has authority to “regulate any area of the practice or teaching of barbering to implement the
purposes and intent of’chapter 1601 of the Occupations Code, id. 5 1601,151(d)(3), as well as the
power to “define any term necessary to administer or enforce”chapter        1601, id. 5 1601.151(e). In
view of the possibility that, absent such a rule, cosmetologists may be uncertain in some cases how
The Honorable Bob Hunter     - Page 2            (JC-0211)




to regulate their conduct so as to avoid possible sanction, the Board would be well-advised to make
such a formal clarification.   Otherwise, the possibility remains that the statute might be void for
vagueness as applied in cases such as the one which occasioned your request. See Texas Antiquities
Comm. v. Dallas County Community College Dist., 554 S.W.2d 924, 928 (Tex. 1977) (statutory
language must not be so broad and vague that persons “of common intelligence must necessarily
guess at its meaning and differ as to its application,” quoting Connally v. General Constr. Co., 269
U.S. 385,391 (U.S. 1926)).

         Some historical review is necessary in order to explain the context in which your question
is presented. Prior to the 1960s and 197Os, a rigid sexual segregation existed between barbers and
cosmetologists    or beauticians, and between barber shops and beauty parlors. By custom and
sometimes by law, barbering was a profession in which men engaged and a service which men
received; cosmetology was a profession in which women engaged and a service which women
received. See Banghart v. Walsh, 171 N.E. 154,156-57 (Ill. 1930). Both custom and law changed
in this regard, as a relatively minor feature of the more libertarian temper of the times. The vogue
ofwhat were called “unisex” hair salons began, as men in particular sought different tonsorial styles
than the familiar crewcut and “short back and sides.” In a series of cases from the late 1960s through
the 1970s courts invalidated state statutes which had in effect given a monopoly on the cutting of
men’s hair to barbers. See, e.g., Mains v. Board ofBarber Exam ‘rs, 57 Cal. Rptr. 573 (Cal. App.-3d
Dist. 1967); Bolton v. Texas Bd. ofBarber Exam ‘rs, 350 F. Supp. 494 (N.D. Tex. 1972), aff’d, 409
U.S. 807 (1972); Pavane v. Louisiana State Bd. of Barber Exam ‘rs, 364 F. Supp. 961 (E.D. La.
 1973), a#‘d, 505 F.2d 1022 (5th Cir. 1974); Maryland State Bd. of Barber Exam ‘r-sv. Kuhn, 3 12
A.2d 216 (Md. App. 1973); New York State Hairdressers & Cosmetologists Ass’n v. Cuomo, 369
N.Y.S.2d 965 (N.Y. Sup. 1975); People v. Taylor, 540 P.2d 320 (Colo. 1975); People v. McDonald,
240 N.W.2d 268 (Mich. App. 1976); but see, e.g., Bone v. State Bd. of Cosmetology, 80 Cal. Rptr.
 164 (Cal. App.-2d Dist. 1969); Green v. Shama, 217 N.W.2d 547 (Iowa 1974); Panico v. Robinson,
320N.E.2d 101 (Ill. App.-1st Dist. 1974); Laufenbergv. CosmetologyExaminingBd.,            274N.W.2d
618 (Wis. 1979).

        For the purposes of this opinion, the most important of these opinions is Bolton v. Texas
Board of Barber Examiners, in which a three-judge panel in the United States District Court held
that those portions of the Texas statutes regulating barbers and cosmetologists which prohibited
cosmetologists    from cutting men’s hair “violate[d] the equal protection clause of the 14th
Amendment to the United States Constitution.”          Bolton, 350 F. Supp. at 494. As this office
explained the Bolton holding in Attorney General Opinion M-1270, “In essence, the net effect of
such holding is that females can get their hair cut and acquire other services ofbarbering in a barber
shop if they so desire; and, males can get their hair cut, trimmed and shaped and acquire other
services of cosmetology in a beauty shop, if they so desire.” Tex. Att’y Gen. Op. No. M-1270
(1972) at 3.

        Attorney General Opinions M-1270 and IM-990 both deal with the Bolton decision, and
concern the question you raise. Attorney General Opinion M- 1270 notes, in deciding whether a shop
in which both barbering and cosmetological services are offered must be covered by both licensing
The Honorable Bob Hunter       - Page 3            (JC-0211)




agencies, that under the statutes “only a licensed barber may perform the services of shaving and
trimming the beard.” Id. at 8. This question was considered, at more length, in JM-990, which
summarizes the Bolton holding and notes the language in M-1270. While Opinion JM-990 notes
the legislative distinction between “hair” and “the beard,” it fails to define these terms. Tex. Att’y
Gen. Op. No. JM-990 (1988).

          The cases which, in the words of People v. Taylor, “leave to the market place the choice
which individual males will exercise as to their hair cutting preference,” 540 P.2d at 322, do not deal
 specifically with the issue of the trimming of beards and mustaches. Thus, for example, the. three
judge panel in Pavone said of its general effect on the Louisiana statutory scheme that “[alpart from
the provisions discussed in this opinion, the system of regulation of these professions remains
 undisturbed.” Puvone, 364 F. Supp. at 964. Similarly, Judge Goldberg wrote in a clarification of
the Bolton panel judgment that “[i]t is the intent and holding of the Court that the judgment entered
herein declare unconstitutional only those parts of the Texas law . . . [as] prohibit or limit a person
 licensed as a cosmetologist to perform cosmetology work on females only, and a person licensed as
 a barber to perform work on males only. No other parts, sections or provisions         are affected by
the judgment and remain in full force and effect.” Bolton, 350 F. Supp. at 494. We agree with
 Attorney General Opinion M-990 that Bolton, like Pavone, did not attempt a wholesale reworking
 of the regulatory schemes involving barbers and cosmetologists.         Accordingly, the definitional
 question remains to be considered.

         The determination of the boundary between hair and the beard beyond which a licensed
cosmetologist may not pass, requires technical expertise which this office does not purport to
possess. In certain past opinions regarding jurisdictional boundary disputes between regulatory
bodies, this office has held that such definitional matters were the responsibility of both entities.
Thus in Attorney General Opinion DM-423, this office found that insofar as hyperbaric oxygen
therapy was the practice of medicine it was subject to regulation by the Board ofMedical Examiners,
but that if and insofar as it was within the practice of podiatry, it was subject to regulation by the
Board of Podiatric Examiners. Tex. Att’y Gen. Op. No. DM-423 (1996). Similarly, in Attorney
General Opinion DM-443, we held that the development of general rules regulating the practice of
needle electromyography     “would require the cooperation of both [the Board of Medical Examiners
and the Board of Physical Therapy Examiners], and is not within the province of either board
exclusively.”    Tex. Att’y Gen. Op. No. DM-443 (1997) at 3. In those instances, however, the
practices to be regulated were within the jurisdiction ofboth licensing bodies. Here, the cutting and
trimming of the beard is exclusively within the practice of barbering. Since the Board is given
authority under section 1601 .15 l(d)(3) of the Occupations Code to “regulate any area of the practice
of.     barbering” and under section 1601.151(e) to “define any term necessary to administer or
enforce” its statutory authority, it is within its province to determine, in effect, where hair leaves off
and beard begins. Such a determination is, of course, subject to judicial review.

        As the incident giving rise to your request suggests, a formal determination of this sort will
permit licensed cosmetologists to know the extent of their rights and the boundaries beyond which
they may not pass. Such notice to licensees is of great importance given the doctrine of “void for
The Honorable   Bob Hunter    - Page 4            (JC-0211)




vagueness,” under which a statute must not be so vague that persons “of common intelligence must
necessarily guess at its meaning and differ as to its application.” Connally v. General Constr. Co.,
269 U.S. 385, 391 (1926) (quoted in Texas Antiquities Comm., 554 S.W.2d at 928) (plurality
opinion).

         The doctrine of void-for-vagueness    is derived from the requirement of due process. “A
vague statute offends due process in two ways. First, it fails to give fair notice ofwhat conduct may
be punished, forcing people to guess at the statute’s meaning,          . and threatening to trap the
innocent.    . . Second, it invites arbitrary and discriminatory enforcement by failing to establish
guidelines for those charged with enforcing the law, ‘allow[ing] policemen, prosecutors, and juries
to pursue their personal predilections.“’ Commission for Lawyer Discipline Y. Benton, 980 S.W.2d
425,437 (Tex. 1998) (citations omitted).

         It is by no means always required that a person of ordinary intelligence guess whether what
he or she is cutting is “a beard” or hair. A goatee such as those now in vogue, for instance, is
certainly a beard. Difficulties arise, however, particularly with reference to sideburns. We think it
likely that most observers would consider the sideburns worn by the late Elvis Presley at the time
of his early success in 1956 as part of his hair. On the other hand, whether the muttonchops which
adorned his face at the time of his death were hair which a cosmetologist might trim, or a partial
beard which could be serviced only a barber, is a question which in the absence of any articulated
standard might well present difficulties to a cosmetologist who wished to remain within his or her
licensed practice.

         “To survive a vagueness challenge, a statute need not spell out with perfect precision what
conduct it forbids. ‘Words inevitably contain germs ofuncertainty.’        . Due process is satisfied if
the prohibition is ‘set out in terms that the ordinary person exercising ordinary common sense can
sufficiently understand and comply with.“’ Id. The courts of Texas have found that a regulation of
the Liquor Control Board requiring licensed private clubs to provide “regular food service” and
“complete meals” was not unconstitutionally vague, Texas Liquor Control Board v. Attic Club, 457
S.W.2d 41,45 (Tex. 1970); that a regulation of the State Board of Insurance, deeming a “pattern of
action” as prima facie evidence of the violation of the regulation was not vague, Nunley v. State
Board oflnsurance, 552 S.W.2d 624 (Tex. Civ. App.-Eastland 1977, writ ref d n.r.e.); that a statute
under which a nurse was disciplined for “unprofessional or dishonorable conduct which, in the
opinion of the Board [ofNurse Examiners] is likely to injure the public” was not vague, Murphy v.
Rowland, 609 S.W.2d 292 (Tex. Civ. App.-Corpus Christi 1980, writ ref d n.r.e.); that ordinances
or county regulations forbidding the owning or operating of a sexually oriented business without a
 license were not vague, State Y. Garcia, 823 S.W.2d 793 (Tex. App.-San Antonio 1992, writ ref d),
Mayo v. State, 877 S.W.2d 385 (Tex. App.-Houston [lst Dist.] 1994, no writ), Memet v. State, 642
 S.W.2d 518 (Tex. App.-Houston        [14th Dist.] 1982, writ ref d); that the term “useful life” in a
billboard amortization statute was not vague, City ofHouston v. Harris County Outdoor Advertising
Ass ‘n, 732 S.W.2d 42 (Tex. App.-Houston [14th Dist.] 1987, no writ); and that, while a disciplinary
 rule forbidding a lawyer to send a post-verdict communication to a juror calculated to “embarrass”
 the juror was fatally vague, the language in the same regulation forbidding such conduct if it was
The Honorable Bob Hunter      - Page 5             (X-0211)




calculated to “harass” the juror was not, Commission for Lawyer Discipline v, Benton, 980 S.W.2d
425 (Tex. 1998). In light of these cases, we cannot conclude that the distinction between “beard”
and “hair” is so vague on its face as to fail the test of constitutionality.

         Generally, the courts have been less stringent in applying the void for vagueness doctrine in
regulatory or licensing cases than in the criminal context. See State Bar of Texas v. Tinning, 875
S.W.2d 403,409 (Tex. App.Xorpus        Christi 1994, writ denied); Harris County OutdoorAdvertising
Ass’n, 732 S.W.2d at 50; Benton, 980 S.W.2d at 437. Accordingly, a situation involving the
imposition of administrative discipline upon a cosmetologist for practicing outside the scope of his
or her license would excite less concern than a criminal prosecution for the misdemeanor of
practicing barbering without a license. TEX. OCC. CODEANN. 4 1601.652 (Vernon 2000). Even in
the criminal context, however, “[a] provision need not         be cast in terms that are mathematically
precise; it need only give fair warning of the conduct prescribed, in light of common understanding
and practice.” Garcia, 823 S.W.2d at 798.

          Though the statutory distinction is not void for vagueness on its face, it may in certain
instances be too vague as applied. As we have noted before, the difficulty which may arise in this
context relates to the application of the statutory distinction at the margins. However, “[sltatutes are
not automatically invalidated as vague simply because difficulty is found in determining whether
certain marginal offenses fall within their language,” Harris County OutdoorAdvertising Ass ‘n, 732
 S.W.2d at 50. In this instance, the statute does not define the distinction between “hair” and “beard.”
But it would be disingenuous for this office to assert that such terms, known to every speaker ofthe
English language, are recondite or recherchb. The legislature has delegated to the Board the
authority to “define any term necessary to administer and enforce” chapter 1601 of the Occupations
Code. TEX. Oct. CODEANN. 5 1601.151(e) (Vernon 2000). Such a determination, of course, is
 subject to review, particularly when as here the rule determines a boundary between the Board’s
jurisdiction and that of another regulatory body. But the initial determination belongs to the Board.

        Accordingly, we conclude that the power to determine the boundary between hair and the
beard is that ofthe Board ofBarber Examiners, subject to judicial review. An explicit demarcation
of this boundary by the Board of Barber Examiners is necessary to allow licensed cosmetologists
to conform their behavior to the statute, particularly in marginal cases.
The Honorable   Bob Hunter   - Page 6           (X-0211)




                                        SUMMARY

                         The power to distinguish “hair” from “the beard” for the
                purposes     of determining     possible  violations  of section
                 1601.002(1)(A) of the Occupations Code is given by the legislature
                to the Board of Barber Examiners. An explicit demarcation of this
                boundary by the Board of Barber Examiners is necessary to allow
                licensed cosmetologists   to conform their behavior to the statute,
                particularly in marginal cases.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVJN
Deputy Attorney General - General Counsel

ELIZABETH ROBWSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
