                                                  May 20, 1939




HonorableGeorge H. Sheppard
Comptrollers.of
             PublicAccounts
Austin,Texas

Dear Sir:                          OpiniosRJ. O-801
                                   Re: Refuad of monay fYom suspense
                                   eooountthrcughState Board of Cos-
                                   metology.

      76sare In receiptof your letter of Kay 11, 1939, Ia whioh you
requestthe opinionof this departmentas to whetheryou tie authorised
to Issuewarrantsagainstthe suspensefund for refund of application
aJldlicensefees eat out Inthe attachedolaim filed bythe State l!oard
of Hairdressersand Cosmetologists.

      The ItaDs oontainedIn ihis claimare as follows:



IiAMEmDADDREss                      AMODRTOF             AlmmoF
                                    REm                   DEFGSIT

(1) Roth, Gertrude,West Columbia        t10.00        Decidednot to
                                                      open a shop
(2) Turpen,Mrs. Rvelyn, Cleveland       10.00         Deaidednot to
                                                      open a shop

(3) Woolley,l&s. Rilday J,               3.00         LIoenseexpired
                   Ft. worth
Total                               -


       Inquiryat the State Board of Cosmetologydisclosedthe faots up
on which thuse olaimswere based to be as hereinafterset out. We assume
that the facts given are oorreot.

       ITRb41: The applicantforwarded$10.00 to the Board for a shop
license,which money was not aocompaniedby 811applicationblank. The
money was placed in suspenseand an applicationhlenk forwardedto the
personm&lag peymentrequestingthat the blank be filled out and re-
turned. The applicant,however,did not fill out and return the appli-
cationblank but declinedto proceedfurthersnd requesteda refund of
the $10.00which had theretofore,ben forwardedto the Board.
               r.
                                               -----   .




Eon. Gee. H. Shepperd,page 2 (o-801)



       ITSM 2: $10.00was forwardedto the Board with no application
blank attached. The money vms plaoed in suspenseand a blank forwarded
totha  senderrequestingthat it be properlyfilled out and returned.
The requestof the Boardwas compliedwith tit the Inspectorrequired
that tno doors be sealedup and closedbefore a oertificatecouldbe
Issued. Applicantrefusedto complyPriththe requirementsof the
Board and requestedthe return of the registrationfee, which had thsre-
tofore been paid.

       ITEM 3: ClaImantheld an operator'slicensewhich was not renewed
withInthe time requiredbylaw. The annual lioenseor renewalfee of
#3.00 mas sent to the Poard after such time had elapsed,and the Board
notIfIedthe sender that the formerlicensehaving expired,It would lm
necessaryfor the operatortotake an examinationand pay the required
fee therefor. lhe olaImantrefusedto take the requiredsxeminationand
pey the additionalfee and requestedthe return of the #3&O which had
theretoforebeen sent to the Board as the annuallioensefee whioh had
been rejected.

      Article7S4b, Penal Code, containsthe followingprovisions:

“Seation 14, Non-resident hairdressersor cosmetologistsand graduates
of lIaensedeohoolsmay only apply for exe&nation under the Ad upon
the paymentof the szaminatioaand lioensefee . . .*

'SectionMb. Each applicationfor examinationto the State Board shall
be soaompanIedly a aashier’s oheak or post offioemoney order for the
sum of $10.00."

sSectIon17. Each applicantto oonduota beau* parloras definedIn
this Act shell aecomw    such applicationwith a oashier'soheok Or post
offIcemoney order for Ten Dollars(#10&O), . . . and such application
for registration as an operatorto rao* In any beauty parlor shallbe
accompaniedby a cashIerischeck of post offioemoney order for Ten
Dollars ($10.00). . . .c

"Section18(a). The ennuallicensefee for conductinga beauty parlor
shall be the sum of Five Dollars($3.00). . . and the annuallicense
fee for operatorsto work.atthetrade or praoticeof beauty oulture
shall be the sum of Three Dollars ($3.00). . .',:dl,

       The above cited act is regulatory, basoi upon the state police
power to safeguardthe publichealth and the Z'CESprovidedare license
fees and not in the nature of an occupationtax. Gerard VS. Smith
(T.C.A.1932) 52 S.W. (2nd) 347; Hurt vs. Cooper (Sup. Ct. 1937) 110
S.W. (2nd) 696.
             -.-.   .




Hon. Gee. H. Shepperd,page 3   (o-801)



       We call your attentionto Section14 whioh provides:or the
payment of both an exmninationand a lieensefee by applicantsfor an
operator'slicenseor certificate. Section17 providesthat an appli-
cationfor a certificateto oonduota beau* parlor shall be aocompan-
iad with a $10.00payment. This paymentis not desigated by the stat-
ute as an inspectionfee or examinationfee, and we thing It was the
intentionof the Legislaixrethat the $10.00paymentrequiredshouldbe
for the certificateor licenseissued. Since the paymentIs for the
certificate, until the certifioateis granted, no considerationhas been
receivedtherefor,and the state would not be entitledto retainthe
money upon rejectionof the application.

       The same consideration6apply to the annualpaymentswhich In
various sectionsof the act are oplled "renewalfees,! "annuallioenae
fees" and 6annualregIstration fees*" _

      You are, therefore,advisedthat you are authoricedto Issue
mar-rants
        on the suspensefund for refundof eaoh of the Items listed In
tha claim suhaitted.

                                            Yours verytruly

                                         4TTOREEYGHiEEALOF THEAS

                                         ey /s/ ceai1 C. Cawma&

                                                 Cecil C.'C66siiaek
                                                        AESiShDt

CCCsCG:egw

APPmr                                             AFPRCVED
/s/ @mild C. Mann                             OpinionCo666Ittee
ATTORUEYGEliEULOF TEXAS                           W-R- E'~~K
                                                  Chairman
