          -.   -



         THE       ATHBRNEY              GENERAL
                         OF-XAS




Senator Joe Christie                 Opinion No.   M-1163
Chairman, Senate Nominations
   Committee                         Re:   Whether certain named
Senate Chamber, State Capitol              persons qualify for
Austin, Texas 78711                        appointment as members
                                           of the Texas Cosmetology
Dear Senator Christie:                     Commission.

          Your request for an opinion reads as follows:

          "The Senate Nominations Committee requests an
     opinion from your office regarding the qualifica-
     tions of Mrs. LaVonne Daniel, Mr. Herbie Cohen,
     Mr. Frank Joseph, and Mr. Harold Grace to be mem-
     bers of the Cosmetology Commission.

          "Under section 2(a) of H.B. 156 (62nd Legis-
     lature, Regular Session, 1971), the Governor is
     empowered to appoint representatives of certain
     facets of the beauty industry to positions on the
     Commission.  Section 2(b) of the Act requires that
     each appointee shall have been actively engaged
     in his respective area for a period of five years
     prior to his appointment.

          "Mrs. LaVonne Daniel was appointed as a holder
     of a valid operator license. In fact, Mrs. Daniel
     has been employed as a Cosmetology Vocational In-
     structor at Smiley High School in Houston for the
     last several years.

          "Mr. Herbie Cohen was appointed as the holder
     of a valid private beauty culture school license
     who has no direct or indirect interest in a beauty
     shop. Mr. Cohen is alleged to have owned and oper-
     ated a beauty shop in Marshall, Texas until April,
     1971. Since that time, Mr. Cohen has been co-owner
     with his father-in-law of a beauty school in Long-
     view, Texas.



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Senator Joe Christie, page 2       (M-1163)



          "Mr. Frank Joseph was appointed as the holder
     of a valid beauty shop license who has no direct or
     indirect affiliation or interest in a private beauty
     school. Mr. Joseph was the holder, at the time of
     his appointment of a Cosmetology Instructor's License
     as well as a beauty shop license.

          "Mr. Harold Grace was appointed as the holder
     of a wig salon license. Under the facts presented,
     do the above named persons qualify as members of
     the Texas Cosmetology Commission?"

          Subdivision (a) and (b) of Section 2 of House Bill 156,
Acts,of the 62nd Leg., Regular Session 1971, Chapter 1036, Page
3389 , provides:

         "The Texas Cosmetology Commission is created.
    The commission shall be composed of one member
    holdi,ng a valid beauty shop license who has no
    direct or indirect affiliation with or interest,
    financial or otherwise, in a private beauty cul-
    ture school: one member holding a valid private
    beauty culture school license who has no direct
    or indirect affiliation with or interest, financial
    or otherwise, in a beauty shop: one member holding
    a valid operator license; one member holding a
    valid wig specialist, wig instructor, wig salon,
    or wig school license who has no direct or indirect
    affiliation with or interest, financial or other-
    wise, in a private beauty culture school or beauty
    shop; and two members of the general public who are
    not licensees under this Act and who have no
    direct or indirect affiliation with or interest,
    financial or otherwise, in any facet of the beauty
    industry.   The Associate Commissioner for Occupa-
    tional Education and Technology of the Texas Educa-
    tion Agency or his authorized representative shall
    as part of his duties serve as an ex officio member
    of the commission with voting privileges. Members




*Codified by Vernon as Art. 734c, Vernon's Penal Code.

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Senator Joe Christie, page 3      (M-1163)



     shall be appointed without consideration of race,
     color, religion, sex, or national origin.

          "(b) To qualify as a member, a person must
     be a citizen of the United States and a resident
     of Texas, at least 25 years of age, and actively
     engaged in the area which he represents for a
     period of five years immediately preceding
     appointment."

          The qualifications for membership on the Cosmetology
Commission are therefore prescribed by the above quoted pro-
visions and, under the facts stated in your request, these
qualifications are applied as follows:

           (1) Mrs. LaVonne Daniel -- You state in your request
Mrs. Daniel was appointed as a holder of a valid operator
license. Subdivision (b) of Section 2 above quoted requires
such appointee to be "actively engaged in the area which he
represents for a period of five years immediately preceding
appointment".  Section 15 states that a holder of an operator
license may perform for compensation "any practice of cos-
metology" with certain exceptions not applicable here.

           We assume under the facts submitted that Mrs. Daniel
is a holder of a valid operator license and, as a cosmetology
vocational instructor at Smiley High School, has been perform-
ing "the practice of cosmetology", as defined, for a period of
five years immediately preceding the appointment.

           (2) Mr. Herbie Cohen -- You state in your request that
Mr. Cohen was appointed as a holder of a valid beauty culture
school license. You further state in your request that Mr.
Cohen. "is alleged to have owned and operated a beauty shop in
Marshall, Texas until April, 1971. Since that time, Mr. Cohen
has been co-owner with his father-in-law of a beauty school in
Longview, Texas".

          Subdivision (a) of Sec. 2 prohibits such a member from
having any direct or indirect affiliation with or interest,
financial or otherwise, in a beauty shop. The facts stated in
your request show an affiliation with and an interest in a beauty
school but does not show an affiliation or interest in a beauty
shop since April, 1971. These facts do not show Mr. Cohen to have
any direct or indirect affiliation with or interest, financial or
otherwise, in a beauty shop.



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Senator Joe Chri~stie, page 4      (M-1163)



           (3) Mr. Frank Joseph -- You state in your request that
Mr. Joseph was appointed as a holder of a valid beauty shop
license. We do not find any provision in Sec. 2 prohibiting
such appointee from also holding an instructor's license. Such
appointee has no direct or indirect affiliation with or interest,
financial or otherwise, in a private beauty culture school. There
is no fact stated in your request which disqualifies Mr. Joseph
under the provisions of Sec. 2 of House Bill 156.

           (4) Mr. Harold Grace -- You state that Mr. Grace
was appointed as the holder of a wig salon license. No other
facts are stated with regard to Mr. Grace's qualifications in
your request. The qualifications for such an appointee under
Sec. 2(a) are that such appointee have no direct or indirect
affiliation with or interest, financial or otherwise, in a
private beauty culture school or beauty shop.

          The facts presented by you do not preclude the quali-
fication of any person named; on the other hand, neither are
the facts before us conclusive of their statutory qualification.
This office is without authority to determine such fact questions.
Attorney General's Opinion No. M-847 (1971).

                         SUMMARY

           Qualifications of members of the Cosmetology
     Commission are prescribed in Sec. 2 of House Bill
     156, Acts of the 62nd Leg., Regular Session, Chapter
     1036, page 3389. Whether an individual meets these
     qualifications presents primarily questions of
     fact.

                                     Ver@ruly   yours,




Prepared by John Reeves
Assistant Attorney General

APPROVED:
OPINION COMMITTEE




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        Senator Joe Christie, page 5      (M-1163)




        Kerns Taylor, Chairman
        W. E. Allen, Co-Chairman
        Bob Lattimore
        Bob Gauss
        Charles Lind
        James Quick

        SAMUEL D. MCDANIEL
        Staff Legal Assistant

        ALFRED WALKER
        Executive Assistant

        NOLA WHITE
        First Assistant




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