              EAm           NEY      GENERAL
                       OFTEXAS


                          October 16, 1964

Mrs. Bess Blackwell                 Opinion No. C-333
Executive Secretary
State Board,of Hairdressers         Re:    Whether the proposed rules
   and Cosmetologists                      are within the authority
Austin, Texas                              of the Board of Hairdressers
                                           and Cosmetologists to
                                           promulgate under Article
Dear Mrs. Blackwell:                       73&b, Vernon's Penal Code,
     You have requested the opinion of this office as to whether
the Board of Hairdressers and Cosmetologists may lawfully pro-
mulgate the following rules:

       (1) "Each school, day student may be absent for
    non-extenuating circumstances during the six (6) months
    trainin period for a period aggregating not more than
    five (57 days. Each school, night student may be
    absent for non-extenuating circumstances during the
    twelve (12) month trainin period for a period aggre-
    gating not more than ten 710) days. The Board will,
    in the event of extenuating circumstances and where
    the period of interruption is for more than thirty
    (30) school days and upon written application duly
    verified setting such circumstances, permit a school
    student, upon reregistration, to re-enter and continue
    training, and in such event such school student may
    receive credit for two-thirds (2/y) of the hours of
    training completed prior to such interruption of
    training, but no such school student may attend
    school less than sixty days upon such reregistration,
    nor shall such school student be permitted to re-
    enter and reregister in a school more than one time.
    An application will only be considered if filed
    within one year from the date of such interruption.
    In those cases where the interruption of training
    is due to extenuating circumstances, the school and
    the school student shall immediately notify the
    board of such interruption, and failure to give such
    notice shall preclude reregistration.

        (2) "Any student who wishes to remain in school
    longer than the required time, (six months for Day
    Students---twelve months for Night Students) may
                                  -1583-
Mrs. Bess Blackwell, page 2 (C-333)


    make application for additional training and remain
    in school for a period not to exceed one month.
        (3) "Nothing in these Board'rulings should be
     construed toinclude cosmetology students enrolled
     in a tax supported school, provided further that
     where a student is enrolled in a licensed beauty
     school, the course of instruction may be extended
     beyond the regular training period.
        (4) "The Board may authorize transfer from one
     school to another for the purpose of completing the
     training period upon application and written permission
     of schools involved and for good cause shown.

        (5) ".      Enrollment date for the cosmetology
     schools shail'be the first Tuesday and third Tuesday
     of each month.
        (6) "Each school shall keep a daily attendance
     and performance record on each student, which will
     be available for inspection by Inspectors or members
     of the Board at all times, showing in detail the
     theoretical instruction and practice training and
     the work performed and accomplished by each student
     each day during the course of study.
        (7) "Any person, firm or corporation may estab-
     lish a school for the teaching of cosmetology upon
     complying with the rules and specifications set up
     by the Board and filing a financial statement showing
     the applicant to possess property of a minimum value
     of $20,000.00 over and above all legal exemptions
     and liabilities."
     Primary responsibility for fixing requirements for a license
is in the Leaislature. Once the Leaislature has urescrlbed the
standardsa b;ard is limited to promulgation of the rules that
implement such standards. Margolin v. State 151 Tex.Cr1m.R.
132. 205 S.W.2d 775 (1947). In the case of the Cosmetology
Board the Legislature designated the total number of hours,
maximum hours per day, maximum days per week, and minimum
number of months to qualify for a license to practice cosmeto-
logy.
     Section 5(b) of Article 73&b, Vernon's Penal Code reads as
follows:



                            -1584-
Mrs. Bess Blackwell, page 3 (c-333)


       "No school of beauty culture shall be,granted a
    license or certificate of registration unless'it shall
    maintain a sanitary establishment and employ and main-
    tain on its staff not less than two'(2) full-time
    instructors who have been duly'licensed~as instructors
    by the Texas State Board, and shall keep a daily record
    of attendance of students, and shall maintain a
    regular class and regular instruction hours, establish
    grades and hold examinations before issuing diplomas,
    and shall require a school term of not less than six
    (6) months, and not less than one thousand (1,000)
    hours of instruction for a complete course of the
    practice of hairdressing and cosmetology, and shall
    require a school term of not less than six (6) weeks,
    and not less than one hundred and fifty (150) hours
    instruction for a complete course in manicuring; and
    no student shall work or be instructed or receive
    credit for more than eight (8) hours of instruction
    in any one (1) day, exclusive of the lunch eriod,
    or for more than six (6) days in any one (1P calendar
    week, and no public high school student shall be
    instructed or receive credit for more than six (6)
    hours of instruction in any one (1) day, exclusive
    of the lunch eriod    or for more than five (5) days
    in any one (1P cale;dar week."
     The Act is not broad enough to permit the Board the discre-
tion to authorize the proposed rules; the Legislature set forth
the criteria wherein it drew explicit boundaries within which the
Board must operate. To do otherwise would violate Section 1,
Article 2 of the Constitution of the State of Texas. Quoting
from Reynolds v. Dallas County, 203 S.W.2d 320 (Tex.Clv.App.,
1947):
               It is a long and well-settled rule of consti-
     tutional'law that the legislature cannot delegate to
     the people or any board, bureau commissioners court
     or other administrative or legal body or institution
     its authority to make laws; . . . ,'
    Your last proposed rule is as follows:
        "Any person, firm or corporation may establish a
     school for the teaching of cosmetology upon complying
     with the rules and specifications set up by the Board
     and filing a financial statement showing the applicant
     to possess property of a minimum value of $20,000.008
     over and above all legal exemptions and liabilities.


                            -1585.
Mrs. Bess Blackwell, page 4 (C-333)


     Section 5(a) of Article 73&b, Vernon's Penal Code readsas
follows:
        "Any person, firm, association or corporation
    applying to the Board for an original certificate
    of registration or license; as a school of beauty
    culture, shall make such application In the form
    prescribed by the Board, giving data'and information
    required by the Board. The Board shall; in such
    applications require such data, information and
    facts as it deems necessary to determine such appli-
    cant's compliance with this Act and his or its flt-
    ness to conduct and maintain such school. No
    applicant for an original.school license shall here-
    after be granted an original certificate of registra-
    tion or license unless it shall have a building
    approved by the Board,        and shall have not less
    than two (2) modern, sani%y    toilets....and shall
    possess and have installed the minimum equipment
    and apparatus....and such schools shall thereafter
    maintain the premises and minimum equipment and
    apparatus; and such applicants shall furnish a good
    and sufficient surety bond payable to the State of
    Texas,  conditioned to refund any unused portion of
    tuition paid if such school closes or ceases operation
                                                                 I,
    before courses of instruction have been completed. . .   .



     The recent case of Kelly v. Industrial Accident Board, 358
S.W.2d 874 (Tex.Civ.App. 1962, error ref., n.r.e.) held:
        t1
               It is recognized that the Leglslature may
     delegate'to State officers agencies or administrative
     bodies the power to enact & promulgate rules and
     regulations in aid of statutory authority conferred
     upon such administrative body, 1 Tex.Jur.2d "Administra-
     tive Law" Sec. 11. But the rules and regulations
     so enacted by the administrative body may not impose
     additional burdens. conditions or restrictions in
     excess of or inconiistent with the statutory pro-
     visions. . . .'
     No financial statement is required In Section 5(a) of Article
734b, Vernon's Penal Code. To add such a requirement would usurp
the Legislature's function and impose an additional burden on the
applicant.
     It is therefore the opinion of this office that the proposed
rules are beyond the authority of the Board with the exception of
daily attendance records. The latter are required by the specific
                             -1586-
Mrs. Bess Blackwell, page 5 (C-333)


language of Section 5(b) of Article 73&b, Vernon's Penal Code:
        "No school of beauty culture shall be,granted a
     license or certificate of registration unless it
     shall ....keep a daily record of attendance of
     students. . . ."

                          SUMMARY
       The Board of Hairdressers and Cosmetologists are
    without authority to pass the proposed rules concerning
    absenteeism, reregistration, transfers from one school
    to another, performance records or financial state-
    ments as a prerequisite for a license.
        The Board is under a positive duty to see that
     daily attendance records are maintained under Section
     5(b) of Article 734b, Vernon's Penal Code.
                            Very truly yours,
                            WAGGONER CARR
                            Attorney General

                           9- aAL-
                            BY
                                 Wade Anderson
                                 Assistant
WA:ml
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Malcolm Quick
Gordon Houser
Bill Allen
Wayne Rodgers
APPROVED FOR THE ATTORNEY GENERAL
By: Roger Tyler




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