         THE       ATTORNEY               GENERAL
                        OF     TEXAS

                      AUBTIN     ~.TEXAS

                      February 5, 1964


Honorable Robert Barton                Opinion No. C-214
County Attorney
Kerr County                            Re:   Penalty for violating
Kerrville, Texas                             Section 5, Art. 734a,
                                             V.P.C. (Texas Barber
Dear Mr. Barton:                             Law)
         You have requeeted the opinion of this office as to
whether there is a penalty for the violation of Section 5,
Article 734a, Vernon's Penal Code. Your specific problem is
the question of charging an assistant barber with the offense
of practicing barbering while not under the immediate person-
al supervision of a registered barber.
         Articles 728 through 734, Vernon's Penal Code, are
derived from 37th Leg., Acts 1921, ch. 79, p. 155, have been
codified under Chapter 4 of Vernon's Penal Code, and remain
without'change. These articles define barbers, barber shops,
beauty parlors, provide registration, require certain equip-
ment, prohibit employment of those with specified disease,
provide certain cleanliness, and prohibit sleeplng on pre-
miaes. Article 734 provides for the penalty:
             "Whoever   violates any provision of
         this chapter   or fails or refuse8 to com-
         ply with any   provisions thereof shall be
         fined not to   exceed one hundred dollars."
         In 1929, the 4lat Legislature, 1st Called Session,
Page 166, Chapter 65, enacted the Texas Barber Law.   This
Act has been codified under
                          . Chapter 4, Vernon's Penal
                                                .   I Code,
                                                       .
a8 Article 734a.  During tne ensuing years, amenaments nave
been enacted but none specifically apply to the subject
matter of this opinion. Section 5, Article 73ka provides:
             "No registered assistant barber shall
         independently practice barbering, but he
         may aa an assistant barber do any and all
         of the acts constituting the practice of
         barbering under the immediate personal
         supervision of a registered barber."
         The penalty In Article 734a, is set out in Section

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Honorable Robert Parton, page 2 (C-214)


24, providing a fine of not less than $25.00 nor more than
$200.00 for speclfictillyennumerated violations:

             "(a) The violation of any of the pro-
         visions of Sections 1, 2 and 3 of this Act;
            "(b) Permitting any person in one's em-
        ploy, supervision, or control to practice as
        a barber or assistant barber unless that per-
        son has a certificate of registration as a
        registered assistant;
            "(c) Obtaining or attempting to obtain
        a certificate of registration by fraudulent
        representation;
              "(d) The willful failure to display a
         certificate af registration as required by
         Section 19 of this Act. As amended Acts
         1933, 43d Leg.,  p. 802, ch. 235, fl1."
Sections 1, 2 and 3 provide:
             "Section 1. It shall be unlawful for
         any person to engage in the practice or
         attempt to practice barbering in the State
         of Texas without a certificate or regis-
         tration as a registered barber issued pur-
         suant to the provisions of this Act, by the
         Board of Barber Examiners hereinafter created.
            "Sec. 2. It shall be unlawful for any
        person to serve or attempt to serve as an
        assistant barber under a registered barber
        within the State of Texas without a certifi-
        cate of registration as a registered as-
        sistant barber, issued by the Board herein
        provided for.
            "Sec. 3.  It shall be unlawful for any
        person to operate a barber shop within this
        State unless such shop shall at all times
        be under the direct eupervisfon and manage-
        ment of a registered barber.'
         Articles 728 through 734, Vernon's Penal Code, make
no reference to registered assistant barbers or assistant bar-
b,ers. Article 73&a, Vernon's Penal Code, makes no reference
to eald Articles 728-734 nor did the Legislature purport to

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.   .




        Honorable Robert Barton, page 3 (C-214)


        amend Chapter'4 of Vernon's Penal Code. A closer examination
        of Section 5 shows It to be a defense or exception to the of-
        fense&provided in Section8 1 and 3.   A'complalnt charging an
        assistant barber with the offense of practicing barbering while
        not under the direct supervision of a registered barber should
        be made under SectIon, or Section 3, and the"penalty under
        Section 24, Article 73&a, Vernon's Penal Code, is applicable.
        Application of the penalty under Article 734 to Section 5,
        Article 73&a, would do violence to Article 3, Vernon's Penal
        Code.
                                  SUMMARY
                      The penalty provision under Article
                 734, Vernonsl Penal Code, Is not applicable
                 to a violation under Section 5, Article V#a,
                 Vernon's Penal Code; offense of barbering by
                 assistant not under direct supervision of
                 registered barber is punishable, under proper
                 facts, by Section 1 OP Section 3; Article 7$&a,
                 Vernon's Penal Code.
                                     Youra very truly,
                                     WAGGONER CARR
                                     Attorney General of Texas




        VF'J!:ls:br
        APPROVED:
        OPINION COMMITTEE
        W. V. Geppert, Chairman
        John Reeves
        James M. Strock
        Edward R. Moffett
        Robert Flowers
        APPROVED FOR THE ATTORNEY GENERAL
        BY: Stanton Stone




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