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
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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:
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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
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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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