The      Honorable         Bonnie        Griebel                                  Opinion        No.       H-     1.47
Executive           Director
Texas        Cosmetology             Commission                                   Re:         Whether           t.he Texas
1111 Rio      G,rande                                                                         Cosmetology                Commis-
Austin,         Texas     78701                                                               sion     has      the authority
                                                                                              to waive          certain     require-
Dear      Mrs.       Griebel:                                                                 ments        under     Art.    734(c).


           Pursuant        to Article           734c,     Vernon’s         Texas        Penal     Code,          the Act     creat-
ing    the    Texas      Cosmetology               Commission           and providing            for     the licensing            of
cosmetologists             and others,             the   Commission           has       established             minimum
requirements             for     licensing         of beauty      shops,         including       the requirement                 that
they     have       shampoo          bowls    and hair        dryers.


            The     Commission            has      received      an appeal          from      a Licensee           who is engaged
solely       in manicuring             and “eye-tabbing”               (which       you advise          is a process             of
affixing,         by surgical          adhesi,ve,        falseor      human lashes to existing  Lashes) to
waive        the specifi.c        requirement.s.              You    have asked whether   the Commission
has    authorit~y        to grant       the requested            waiver.


           A,rti,clc     734c,        V. T, P. C.,        (hcrcaitcr         “the     Act”)      is   very        comprehensive
in I,ts regulation             of cosmeto,logy            whi,ch it defines             in its    § l(3)     as    including          the
“beautifying            treatment”           of a female’s          hair    or    skin,       or the nails          of a male           or
a female          and includes          (A) hairdressing;               (B) massaging             and other          treatments
of the scalp           and portions           of the body;          (C) the removal              of superfluous             hair;
(D) manicuring;                (E)   the servicing            of wigs,,or        hairpieces.         It provides            for var-
ious      specific      types        of licensing      such as for a manicurist    ($13),  a wig special-
i,st. (5 14),       an operator          (§ 15),    an instruc,tor (§ 16) and a wig instructor   (5 17).
It calls      for    the Licensing           of pri,vate        beauty      culture        schoo,ls        ($ 22) and wig             schools
(§ 25).


It: provides         for two types of shops:      a beauty                       shop     ($ 23) and a wig               salon     ($ 24).
Sec,tion 23,          in its enti~rety, provides:




                                                           p.    690
The   Honorable         Bonnie          Griebel,            page       2      (H-147)




                               “(a)    A person             ho,Lding a beauty                shop     license          may
                 maintain             an establishment                     in which       any practice               of cos-
                 metology             as      defined        in this        Act     is performed              for     com-
                 pensation.


                               “(b)    An applicant                for      a beauty       shop      license          shall
                 submit          an application                on a form            prescribed             by the Com-
                 mission.               The     application                shall    contain        proof       of the par-
                 ticular         requisit.es           for     a beauty            shop    as    established            by the
                 Commission                   and     shall       be verified           by the applicant.


                               “(c)     The     applicant             is    entitled      to a beauty           shop
                 License         if the application                    shows        compliance             with      the     rules
                 and regulations                    of the Commission,                      a $25     license          fee     is
                 paid,         and he has             not committed                 an act       which        constitutes
                 grounds          for      denial          of a License            under        Section       42     of this
                 Act.      ”


        The Act      contains              no provision               for     the licensing          of a shop             devoted            to
manicuring       exclusively               or to one practicing                     the art        of “eye-tabbing.                 ”


       Section      4(a)       of the Act            provides:


                               “The        Commission                 may      issue       rules     and       regulations
                  consi,stent           with        this    Act       after       a public       hearing.            Notice         of
                 the publi,c hearing                       shall be issued   at least                  20 days prior
                 to the date set for                       the hearing.    The rules                   and regulations
                  shall        be published                and furnished               to licensees            under       this     Act.
                 Notwithstanding                     any     other         provisions           of this       Act,     the Com-
                  mission             shall     not have           any power            or authority            to amend             or
                  enlarge         upon         any provision                 of this      Act    by rule        or     regulation
                  or by rule             or    regulation             to change           the meaning               in any man-
                  ner     whatso,ever               of any         provision           of this     Acts,      or to promul-
                  gate     any        rule     or    regulati,on             which      is in any way                contrary            to
                  the underlying                 and fundamental    purposes  of this Act                                     or to
                  make any rule                  or regulation   which is unreasonable,                                       arbi-           ,
                  trary,         capricious,                illegal         or unnecessary.               ”




                                                              p.      691
The       Honorable           Bonnie           Griebel,            page     3 (H-147)




           There       can      be little           question            but that        the regulation            of cosmetology
is    necessary          to the public               health         and is a proper                  subject     for           the exercise
of the police            power.              Compare           Texas            State    Board        of Barber                Examiners            v.
Beaumont           Barber         College,             454     S. W.         2d 729         (Tex.      1970).


           We     believe        it is        equally        clear        that.the         Legislature,              in the exercise
of the police   power  of the State, may declare   the public policy  and delegate
to a Board    or Commission    the authority to adopt ru,les and regu,lations  to
carry       out the details                  of the public              policv     under       the eeneral                nrovisions           of
the    statutes.          Brown          v.        Humble          Oil    & Refg.           Co.,      8;    S. W.         id    935    (Tex.
193%;       Tram         v.    Shell         Oil    Co.,      198 S. W.            2d 424          (Tex.     1946).


           However,             it is        equally        well        established          that     the     rules       and regulations
enacted         or adopted             by the administrative                        body      may      not be in excess                      of or
inconsi.stent          with      the         statutory        provisions.                Bailey        v.     Texas         Indemnity
Insurance          Co. ) ,14 SW.               2d 798        (Tex.        Comm.          1929);       Kelly     v.        Industrial          Acci-
dent      Board,       358      S. We. 2d 874                (Tex.       Civ.App.,            Austin,          1962,       err.        ref’d.).


           Fi.nally,          until     a rule         or regulation               is amended               or repealed,               it is as
binding      upon      the administrative                          agency        issuing       it as        it is upon           the public.
Gulf      Land     Company              v.     Atlantic        Refining            Company,            131 S. W.            2d 73 (Tex.
1939);     State    v.        Martin,          347     S. W.        2d 809         (Tex.      Civ.App.,           Austin,             1961, err.
ref’d.,      n. r.e.).


           With    these         general            statements             in mind,          we are          of the opinion              that,
within      very     strict       limitations               imposed             in $4(a),          supra,       the Commission
has    the right         to i,ssue           rules      and regulations                  consistent           with        the Act.            It may
do thi,s,       however,              only     after       a notice         and a public              hearing.


           We     therefore            conclude            that     the Commission                    may      not “waive”               a specific
requirement            in a parti,cular                    case.         It may,if          it chooses,          amend            or    repeal           a
particular         rule       or regulation                 but this        may         be done       only     after           20 days        notice
and after         a public        hearing.


        WC would caut,ion that, the Act specifies   the licenses                                                      which        may        beissued
and ,, as WC have noted above,    the only licenses   for shops                                                      as    such        are    those          for
beaut,y     shops        and wig             salons.          The        only     license      authorized              by $ 23 for            a beauty




                                                                   p.     692
The    Honorable       Bonnie         Griebel,      page       4     (H-147)




shop    is for   the maintenance              of an establishment                  “in    which     3       practice
of cosmeklogy          as    defined      in this        A,ct is performed               for    compensation.          ”
Should     the requirements             for      such     a license         be modified,          they     will   be
modified     as to all       holders      of beauty           shop    licenses.


                                                        SUMMARY


                            Where       the    Legislature            has    authorized          the
                 Commission             to license           shops     for     the practice         of
                 cosmetology,             defined         to include,          among      other     things,
                 manicuring,            the      Texas       Cosmetology           Commission             is
                 not authorized            to adopt          rules    and regulations              apply-
                 ing particuSar,ly            to manicurists                and is not authorized
                 to waive       any     requirement             of beauty         shops        in general
                 for   a shop       limiting        its      practice        to manicuring              or to
                 any   other      specific        field.


                                                                   V_ery truly      yours,




                                                                                  HILL
                                                                                  General         of Texas


APPF&VED:




                            , First     Ass’stant




                                      ..J-+w
DAVID      M. KENDALL,            Chairman
Opinion    Commit:tee




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