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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