The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General
Gary E. Miller, M.D. Opinion No. MW-526
Supreme Court Building Commissioner
P. 0. BOY 12546
Texas Department of Mental Health Re: Whether barber and beauty
Austin, TX. 76711.2546
5121475-2501
and Mental Retardation shops in Texas Department of
T&x Q101674~1367 P. 0. Box 12668 Mental Health and Mental
Telecopier 512/475-0266 Austin, Texas 78711 Retardation must be licensed
under the Barber and Cosme-
tology Acts
1607 Main St., Suite 1400
Dallas, TX. 75201-4709
214/742+3944 Dear Dr. Miller:
You have requested our opinion as to whether barber and beauty
4624 Alberta Ave., Suite 160
El Paso. TX. 79905.2793
shops located in facilities of the Department of Mental Health and
915/533c3464 Mental Retardation [hereinafter MHMR] must be licensed under the
barber and cosmetology statutes. We presume that only licensed
barbers and cosmetologists practice in such facilities. Section 2(a)
1220 Dallas Ave.. Suite 202
of article 8407a. V.T.C.S., the Texas Barber Law, prohibits the
Houston. TX. 77002-6966
7131650.0666
practice of barbering by any person "unless duly licensed and
registered in accordance with all laws of this state regulating the
practice of barbering." Likewise, section 9(a) of article 8451a,
806 Broadway. Suite 312 V.T.C.S., the Cosmetology Regulatory Act, provides that no person may
Lubbock, TX. 79401.3479
"perform any practice of cosmetology without first obtaining a license
806/747-5236
or certificate to perform that practice."
4309 N. Tenth, Suite 6 Section 3(a) of article 8407a states that "[n]o person may own,
McAllen. TX. 78501-1685 operate, or manage a barber shop without a barber shop permit issued
5121682.4547 by the board [of barber examiners]." Section 3(b) directs every
"firm, corporation, or person who opens a new barber shop" to apply
200 Main Plaza. Suite 400 for a temporary barber shop permit and pay an inspection fee of
San Antonio, TX. 78205.2797 $25.00. An annual renewal fee of $25.00 is also required. section 19
5121225-4191 of article 8451a specifies the requirements for obtaining a beauty
shop license and also requires a license fee of $25.00.
An Equal Opportunity/
Affirmative Action Employer It might be argued that neither statute contemplates that an MHMR
facility must obtain a license to operate a barber or beauty shop.
Section 19(d) of article 8451a provides, however:
(d) In order that the public may fix
responsibility for services, acts, or treatments
performed by persons licensed by the State Board
of Barber Examiners vis-a-vis those performed by
p. 1906
Dr. Gary E. Miller - Page 2 (MW-526)
persons licensed by the Texas Cosmetology
Commission, to promote the efficient and orderly
administration of laws regulating barbers and the
practice of barbering and the laws regulating
cosmetologists and the practice of cosmetology,
and to avoid confusion of the public as well as
avoiding conflicts of jurisdiction between such
board and commission which might impede effective
administration or enforcement of the laws under
their respective jurisdictions, from and after
January 31, 1980:
(1) a person licensed by the barber board may
practice barbering only at a location for which
the board has issued a barber shop permit, barber
school or college permit, or any other permit. If
the State Board of Barber Examiners and the Texas
Cosmetology Commission license the same facility,
the board may not adopt rules restricting or
prohibiting the practice by a Class A barber in
the facility; and
(2) a person licensed by the cosmetology
commission may practice cosmetology only at a
location for which the commission has issued a
beauty shop license, private beauty culture school
license, or any other license, If the State Board
of Barber Examiners and the Texas Cosmetology
Commission license the SallIe facility, the
commission may not adopt rules restricting or
prohibiting the practice by a cosmetologist in the
facility.
Thus, the statute clearly indicates that licensed barbers and
cosmetologists may practice their professions only in licensed
facilities. Although both article 8407a, section 6, and article
8451a, section 39, exempt certain "persons" from the provisions of the
two statutes, neither excepts persons who practice in state
facilities, and neither provides any exception to the licensing of
barber or beauty shops.
Furthermore, in Attorney General Opinion H-769 (1976). this
office held that a person employed as a psychologist by a hospital
licensed by MIIMRis not thereby exempt from the licensing requirements
of article 4512c, V.T.C.S., the Psychologists' Certification and
Licensing Act. The opinion indicated that the lack of a specific
statutory exception for MHMR facilities implies that psychologists
employed therein are not exempt from the licensing requirements for
psychologists. In our opinion, the absence of similar exceptions for
p. 1907
Dr. Gary E. Miller - Page 3 (MW-526)
barber and beauty shops in MHMR facilities, together with the specific
prohibition against the practice of barbering and cosmetology in
unlicensed facilities, obliges us to conclude that barber/beauty shops
located in MHMR facilities must be licensed under the barber and
cosmetology statutes. Section 19 of article 8451a clearly
contemplates dual licensing in any facility where both barbering and
cosmetology are practiced.
SUMMARY
Barber/beauty shops located in facilities of
the Department of Mental Health and Mental
Retardation are required to be licensed under the
barber and cosmetology statutes, articles 8407a
and 8451a. V.T.C.S.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood
p. 1908