Untitled Texas Attorney General Opinion

A.l-lvmzSKY a3acNRRAx. November 18, 1970 Hon. 0. W. McStay Opinion No. M- 730 Executive Secretary, State Board of Barber Examiners Re: Is the Texas Barber Law 512 Sam Houston Building violated when the hair of Austin, Texas 78701 a male customer Is cut or trimmed while fitting him fork a wig by a person without Dear Mr. McStay: a license under that law? In your recent letter you requested an a’nswer to the following question: “Is there a violation of the Texas Barber Law where a person cuts or trims the hair of a male customer while fitting the customer for a wig when the person cutting the hair does not have a license under the act?” Your letter further offered the fact that it is normally necessary for the person fitting the wig to cut and trim the natural hair of the customer in order to properly fit the wig. We have also been informed by your board that they construe the act of cutting or trimming hair while fitting a wig or hairpiece to be a violation of the laws concerning barbering. Our answer to your question Is “yes,” there Is a violation of the Texas Barber Law under the facts stated, and we are in agree- ment with your administrative construction. In Volume 10 American Jurisprudence 2nd 816, Barbers and @;;,;ologists, Section 1, the reason and basis for such a rule Is : “While the occupation of barbering Is a, lawful one, it is an occuption which, because of its Intimate relation to the public health, may be regulated by law without depriving a. citizen of his natural rights and privileges guaranteed by fundamental law; those who are engaged therein are subject to reasonable regulation which require barbershops to be operated in a clean and sanitary manner and by competent -3543- Hon. 0. W. McStay, page 2 (M-730) operators, to the end that the public may be pro- tected against the spread of communicable diseases.” The Texas Penal Code, Article 728, reads, In part, as follows: “In this chapter, unless the context requires a different definition, “(1) ‘barbering’ includes any of the follow- ing practices or combinations of practices when performed upon persons above the seventh cervical vertebra for cosmetic purposes and not for the treatment of disease or physical or mental illness or deformity, and when performed for the public. I, . .’ . (B) cutting the hair; II . . (C) (LV) styling or processing the . hair of males only. “(4) ‘barber shop 1 means a place where bar- bering Is practiced except when said place Is owned or operated In whole or in part by the State of Texas or any political subdivision thereof and ex- cept when said place is duly licensed as a barber school or colle e. Amended by Acts 1967, 60th Leg., p. 2018, Ch. 74 2 , Sec. 1, Eff. Aug. 28, 1967.” This Article also states such acts performed on females will not constitute barbering, Further, Texas Penal Code, Article 734a, of the Texas Barber Law, Section 4, entitled Definitions, reads, In part, as follows: “Sec. 4. 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 iFmediate family; and when done on living per- sons, II. . , (A)(l) Cutting the hair; -3544- . - Hon. 0. W. McStaY, Page 3 (M-730) “(2) Styling or processing the hair of males only. ” Article 73&a, Penal Code, Section 1, reads as follows: “Sec. 1. It shall be unlawful for any per- son to engage In the practice or attempt to practice barbering in the State of Texas without a certificate or registration as a registered barber issued pursuant to the provision of this Act, by the Board of Barber Examiners hereinafter created .‘I Section 3(A) of the Texas Penal Code, Article 73&a, reads as follows: 'Sec. 3(A). No person may own, operate, or manage a barber shop,,wlthout a barber shop permit issued by the board. There are certain exceptions listed in Articles 728 and 734a, Texas Penal Code; however, the facts related do not come without such exceptions. A court has no authority to add an ex- ception by construction. In State v. Richards, 157 Tex. 166, 301 S.W.2d 597, 600 (1957), then Court said :’ “. ‘. . an exception makes plain the inte;t that the statute should apply In all cases not ex- cepted. . . . The Legislature could exempt wig fitting from the applica- tion of the act, however, has not done so In the present act. It Is therefore our opinion that, under the facts related, a person cutting the hair would be “barbering” as defined by the above articles and would further be operating or managing a barber shop. If no barber shop permit is held by such person, and no certlflcate or registration as a registered barber has been Issued to such per- son, then such party would be in violation of the act on two counts. ;Texas Penal Code, Article 734a, Sec. 1 and 3(A). Furthermore, the’ courts will give weight to an administrative interpretation of such a statute, 53 Texas Jurisprudence 2d 259, 263, Statutes, Sec. 177. SUMMARY When a person, while fitting a wig or hairpiece, on a male, cuts or trims the natural hair of the male, there is a violation of the Texas Barber Law, Texas Penal Code, Articles 728 and 73&a, if the person -3545- Hon. 0. W. McStay, page 4,. (M-730) ,, .~ doing the.;w$tlng:.is not licensed, as a barber and If he performs the act in a place not licensed as a barber shop. R y? fl, truly yours, Prepared by Melvin E. Corlei " :,Assistant Attorney General APPROVED: OPINION COMMJTTEE,. Kerns Taylor, ci-iaiiman W. E. Allen, Co-Chairman ,Malcolm Quick '.:. ,. I R,., D. Green : ", Fisher Tyler ~. : : .. Dick Chote __ ..~. ,,.. MEADEF. GRI@IEj Staff Legal Assistant ALFRED WALKER ',: Executive Assistant NOLA WHITE First Assistant -3,546-