                               December 5, 1988




      Ms. Jo King McCrorey    :          Opinion No. JR-990
      Executive Director
      State Board of Barber Examiners    Re: Whether a cosmetologist
      1300 E. Anderson Lane              is authorized to trim beards
      Building C, Suite 275              and mustaches (RQ-1525)
      Austin, Texas 78752
      Dear Ms. McCrorey:
           You ask whether a cosmetologist has authority to trim
      beards and mustaches. An examination of the recent history
      of the statutes governing barbers and cosmetologists helps
      to put your question in context.

r-.        In 1972 a federal district court issued a judgment
      holding unconstitutional parts of the Texas barber and
      cosmetology statutes. At the time of that court case the
      act governing barbers provided:
                 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
              immediate family; and when done on living
              male versons.
                 (A) Shavina or trimmina the beard.
                 (1) Cutting the hair:
                 (2) Stvlina   or   wrocessina    the   hair   of
              pales onlv.
                 (B) ~By giving   any of the     following
              treatments by any person engaged in shaving
              or trimming the beard and/or cutting the
              hair.




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Ms.   Jo King McCrorey - Page 2    (JM-990)




             (1) Giving facial and scalp massages,      or
          applications of oils, creams, lotions,        or
          other preparations,    either by   hand       or
          electrical appliances;
             (2) Singeing, shampooing, or     dyeing   the
          hair or applying hair tonics:

             (3)   APPlYing   cosmetic    preparations,
          antiseptics, powders, oils, clays, or lotions
          to the scalp, face, neck or that part of the
          body above the shoulders.
            Provided, however. that nothina contained
         in this Act shall be construed to include
         those wersons lawfully enaaaed in beautv
         culture. hairdressina    or cosmetoloov     as
         provided bv law, when so enaaaed in aivinq
         treatments or awwlications to female wersons
         onlv. but such wersons shall not be w ermitted
         to shave. trim the beard. stvle. wrocess,
         color or cut the hair of male wersons excewt
         in accordance    with the    wrovisions    and
         reouirements of    this   Act   relatina    to
         barberinq. (Emphasis added.)
Acts 1971, 62d beg., ch. 1036, § 51, at 3402. The statutory
provisions governing cosmetologists contained the following
definition of "cosmetology18:
             \Cosmetoloov    means the    beautifvinq
          treatment~of a female's hair or skin, or
          nails of a male or female and includes the
          followins wractices:
            (A) arranging, dressing, curling, waving,
         cleansing, singeing,    bleaching,  tinting,
         coloring, cutting, trimming, shaping,     or
         straightening the hair by any method or
         means ;
            (B) massaging, cleansing, beautifying, or
         stimulating the scalp, face, neck, arms,
         bust, or upper portion of the body by the use
         of a cosmetic preparation, antiseptic, tonic,
         lotion, or cream;
            (C) removing superfluous hair from         the
         body by use of depilatories or tweezers;




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Ms. Jo King McCrorey - Page 3    (JM-990)




           (D) manicuring; and
           (E) servicing    a   wig   or    artificial
        hairpiece . . . .   (Emphasis added.)
Id. 5 1, at 3389.       The federal district court     held
unconstitutional those provisions of the barbering and
cosmetology statutes that allowed licensees to perform
certain.orocedures on members of one sex only. Bolton v.
Texas Bd: of Barber Examiners, 350 F.Supp. 494 (N.D. ,Tex.),
aff'd, 409 U.S. 807 (1972).
     A 1972 opinion of this office addressed a number of
questions about the proper interpretation of the barbering
and cosmetology statutes in light of Bolton.       Attorney
General Opinion M-1270 (1972). In regard to the permissible
practices for barbers and cosmetologists, the       opinion
stated:
           The provisions of the Barber Law and the
        Cosmetology Act    defining the    respective
        practices of each with regard to the treat-
        ment of hair are virtually synonymous in
        meaning: and, the holder of a license under
        either statute may cut, style,       process,
        shampoo, color, singe and perform       those
        services necessary to groom the hair of
        either sex.    Likewise, facial and     scalp
        massages and the applying of creams, lotions,
        tonics, antiseptics, etc. to the scalp, face,
        neck and shoulders are permitted under either
        law. However, only a licensed barber may
        perform the services of shavina and trimminq
        the beard; and, only a cosmetologist may
        remove suwerfluous hair     bv the use     of
        depilatories or tweezers, or massage the arms
        and busts. (Emphasis added.)
In other words, the opinion clarified that barbers and
cosmetologists could perform those procedures for which they
had specific authority, regardless of the sex of the
recipient of the services. Because cosmetologists had no
authority to shave and trim beards before Bolton, Bolton did
nothing to change the authority of cosmetologists in regard
to shaving and trimming beards.
     If the legislature considered Attorney General Opinion
M-1270 to be incorrect or to reach an undesirable result, it
could have changed that result when it revised the statutes




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MS. Jo King McCrorey - Page 4   (JM-990)




 governing cosmetologists and barbers in 1975.1 Acts 1975,
 64th Leg., ch. 691, at 2132 (barber statute now codified as
 article 8407a, V.T.C.S.: cosmetology statute now codified as
 article 8451a, V.T.C.S.).   It did not do so. The revised
 barbering statute states that "barbering" includes "arrang-
 ing, beautifying, coloring, processing, shaving, styling, or
 trimming the mustache or beard by any means or method."
 V.T.C.S. art. 8407a, § 4 (b)(1). The revised definition of
,*~cosmetology" contains no reference to the shaving or
 trimming of beards.    V.T.C.S. art. 8451a, 5 l(3).      The
 revised barber statute provides that persons practicing
 under the cosmetology statute are exempt from the provisions
 of the barber statute Itsolong as such persons practice
 within the scope of the license or permit duly issued by the
 Texas Cosmetology Commission.~~ V.T.C.S. art. 8407a, § 6(c).
     The legislature has amended the cosmetology statute a
number of times since 1975, but it has made no changes that
could be interpreted as giving cosmetologists the authority
to shave and trim beards.    &   aenerallv Acts 1985, 69th
Leg., ch. 483, at 2051: Acts 1983, 68th Leg., ch. 81, at 355
(setting fees under the cosmetology statute): Acts 1983,
68th Leg., ch. 557, at 3236 (continuing education for
cosmetologists): Acts 1981, 67th Leg., ch. 279, at 747
(relating to exemptions under cosmetology statute): Acts
1979, 66th Leg., ch. 606, at 1340 (relating to licensing of
cosmetologists); Acts 1977, 65th Leg., ch. 356, at 946
(relating to examinations and blood tests for cosmetolo-
gists); Acts 1977, 65th Leg., ch. 419, at 1123 (relating to
private beauty culture schools): Acts 1977, 65th Leg., ch.
666, at 1685 (relating to certification for hair cleansing
and scalp conditioning).
     Nonetheless, it has been suggested that cosmetologists
have authority to trim beards by virtue of their authority
to trim "the hair." See V.T.C.S. art. 8451a, 91(3)(A).    We
disagree. The statute governing barbers refers to "the
hair" and "the beard" separately, indicating that "the hair"
does not include "the beard." Acts 1971, 62d Leg., ch.
1036, 5 51, at 3402; Acts 1975, 64th Leg., ch. 691, 5 4, at
2133 (codified    as article    8407a, 5 4).     That   same
legislation is the source for the current cosmetology


   1. The legislature made numerous minor changes in the
cosmetology statute in 1973, none of which had to do with
shaving or trimming beards. Acts 1973, 63d Leg., ch. 136,
at 290; ch. 250, at 581; ch. 270, at 637; ch. 536, at 1388.




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     Ms.   Jo King McCrorey - Page 5 (JM-990)




     statute, which gives cosmetologists authority to trim "the
     hair," but makes no mention of "the beard." Id., § 28
     (codified as article 8451a, § l(3)). Also, a cosmetologist
     has authority to remove superfluous "body hair" by the use
     of depilatories or mechanical tweezers. A cosmetologist has
     no authority to remove "body hair" by shaving. In light of
     those provisions, we cannot conclude that a cosmetologist's
     authority to trim "the hair" can be construed to include the
     authority to trim beards.
                              SUMMARY
                    A   licensed   cosmetologist   has    no
               statutory authority to shave and trim beards.




                                          JIM     MATTOX
                                          Attorney General of Texas
     MARY KELLER
-.   First Assistant Attorney General
     LOU MCCREARY
     Executive Assistant Attorney General
     JUDGE ZOLLIE STEAKLKY
     Special Assistant Attorney General
     RICK GILPIN
     Chairman, Opinion Committee
     Prepared by Sarah Woelk
     Assistant Attorney General




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