ATTORNEY GENERAL OFTEXAS GREG ABBOTT

October 12,2004

Mr. Glenn Parker Executive Director State Board ofBarber Examiners 5717 Balcones Drive, Suite 217 Austin, Texas 7873 1 Opinion No. GA-0258
Re: Whether the State Board of Barber Examiners may participate in the TexasOnline occupational licensing system established in Government Code section 2054.353 in light of the requirement that an applicant for an original or a renewal barber or manicurist license present ahealth certificate from a physician under sections 1601.264 and 1601.402(d) of the Occupations Code (RQ-0216-GA)
Dear Mr. Parker: You ask whether the State Board ofBarber Examiners (the “Board”) may participate in the TexasOnline occupational licensing system established in Government Code section 2054.353 in light ofthe requirement under sections 1601.264 and 1601.402(d) ofthe Occupations Code that an applicant for an original or arenewal barber or manicurist license present ahealth certificate from aphysician

_’&~TEx. GOV’T CODE ANN. 52054.353(a) (Vernon Supp. 2004-05); TEX. Oct. CODE ANN. $5 1601.264, .402(d) (Vernon 2004). Currently, the Board participates in the statutorily required online licensing program and is able to receive payment of license fees online. See Board Brief, supra note 1,at 1. In addition to the occupational license or certificate renewal fee, the Board imposes a$6 online services fee for barbers and a$3fee formanicurists who renew their licenses, regardless ofwhether the licensee uses the online services. See 

### id. You further state that each licensee must mail ahealth certificate to the Board before the Board will issue a renewal license and that consequently only five percent of current licensees who are eligible to use the online system do so. See 

### id. The General Appropriations Act establishes agoal that thirteen percent ofthe Board’s licensees renew online in the fiscal year ending August 31,2004, and eighteen percent in the fiscal year ending August 31, 2005. See General Appropriations Act, 78th Leg., R.S., ch. 1330, art. VIII-g, 2003 Tex. Gen. Laws 5023, 5782-83. The General Appropriations Act also anticipates the Board will issue ten percent

‘SeeLetter from Glenn Parker, Executive Director, State Board ofBarber Examiners, to Nancy Fuller, Chair, Opinion Committee, Offlice of Attorney General (Apr. 2.9,2004) (on tile with Opinion Committee, also available af www.oag.state.tx.us) [hereinafter Request Letter]; see also Attachment to Request Letter entitled “Additional Information” [hereinafter Board Brief].Mr. Glenn Parker - Page 2 (GA-0258)

ofnew licenses online inthe fiscal year ending August 31,2005. See 

### id. You suggest that the barber and manicurist licensing statutes potentially conflict with the online licensing statutes and seek guidance on how [the Board] can be required to both participate in the Texas

Online project for the issuance or renewal of licenses for which a health certificate is required and at the same time comply with the statute [providing] that applicants present ahealth certificate to the Board before certain licenses can be issued orrenewed. Board Brief, supra note 1,at 1 Chapter 2054, subchapter I of the Government Code creates the TexasOnline Authority (the “Authority”). See TEX. GOV’T CODE ANN. 5 2054.251(a) (Vernon Supp. 2004-05). Under chapter 2054, the Authority, assisted by the Department of Information Resources (“DIR”) and DIR’s TexasOnline Division, must implement aproject known asthe TexasOnline project. See 

### id. 552054.003(4) (department means DIR); ,252 (Texas Online Project); ,264 (TexasOnline Division). The project is intended to establish acommon electronic infrastructure for state agencies and local governments, including licensing entities, to electronically:

(1) send and receive documents orrequired payments to and from: (A) members ofthe public; (B) persons who are regulated by the agencies or local governments; and (C) the agencies and local governments; (2) receive applications for original and renewal licenses and permits, including occupational licenses, complaints about occupational license holders, and other documents for filing from members of the public and persons who are regulated by a state agency orlocal government that, when secure access isnecessary, can be electronically validated bythe agency, local government, member ofthe public, orregulated person; (3) send original and renewal occupational licenses to persons regulated by licensing entities; (4) send profiles ofoccupational license holders topersons regulated by licensing entities and to the public; (5) store information; andMr. Glenn Parker - Page 3 (GA-0258)

(6) provide and receive any other service to and from the agencies and local governments or the public. 

### Id.52054.252(a). The Authority isresponsible foroperating, promoting, and evaluating the project. See 

### id. 82054.259. Also, the Authority must coordinate the project and assist governmental entities utilizing the project. See 

### id. 52054.261. The Authority may prepare rules that DIR’s governing board may adopt. See 

### id.52054.262. Under chapter 2054, subchapter K ofthe Government Code, the Authority must administer a common electronic system enabling government agencies to use the Internet for occupational licensing so that the agencies may:

(1) send occupational licenses and other documents to persons regulated by the authority and to the public; (2) receive applications for occupational licenses and other documents forfiling from persons regulated bythe authority and from the public, including documents that can be electronically signed if necessary; and (3) receive required payments from persons regulated by the authority and from the public. 

### Id.52054.353(a). The Authority must charge licensing entities asubscription fee sufficient tocover the cost ofimplementing the project with respect to the entities. See 

### id. 5 2054.252(e). Effective until September 1,2005, the licensing entities must pass on subscription costs as follows:

Each licensing entity shall increase the occupational license issuance or renewal fees imposed by the licensing entity by an amount sufficient to cover the cost of the subscription fee imposed on the licensing entity under Subsection (e) but not to exceed:

. . . (2) $10 for abiennial occupational license;2 or (3) the amount necessary to cover the cost ofthe subscription fee imposed on the licensing entity under Subsection (e) forpermits or facilities licenses. 

### Id. 52054.252(g); see also Act ofMay 14,2001,77th Leg., R.S., ch. 342,s 7,200l Tex. Gen. Laws 623,628 (stating that section 2054.252(g) expires September 1,2005). The Authority may exempt

%kder section 1601.402(a), a license OTcertificate issued by the Board expires two years from the date of issuance. See TEX. Oct. CODEANN. 5 1601.402(a) (Vernon 2004).Mr. Glenn Parker - Page 4 (GA-0258)

a licensing entity from participating in the system only if the Authority determines (1) that the licensing entity already has established anInternet portal that performs the same functions described in section 2054.353(a), or (2) that “online license renewal for the licensing entity would not be cost-effective or in the best interest of the project.” TEX. GOV’TCODEANN. 5 2054.353(d) (Vernon Supp. 2004-05). Section 2054.352 specifies the Board by name as one ofthe entities that must participate in the electronic licensing system established in section 2054.353. See 

### id. 52054.352(a)( 1)(“The following licensing entities shall participate inthe system established under Section 2054.353 :(1) State Board ofBarber Examiners .“). The Board’s authority toregulate and license barbers and manicurists is located primarily in chapter 1601oftheOccupationsCode. S~~TEX.OCC.CODEANN. $5 1601.001-,713 (Vemon2004). The Board has rulemaking authority “necessary for the performance ofits duties” and “byrule may define any term necessary to administer or enforce [chapter 1601].” 

### Id. 3 1601.151(d)(l), (e). The Boardmust issue the appropriate license orcertificate toapplicants who meet specified requirements. See 

### id. $5 1601.253 (Class A barber certificate), ,254 (teacher’s certificate), .256(d) (barber technician’s license), .257(c) (manicurist’s license). The Board may not issue orrenew “acertificate orlicense until an applicant presents ahealth certificate from a physician stating that the applicant does not have an infectious or contagious disease.” 

### Id. 3 1601.264, .402(d). You state that participation in the TexasOnline licensing system potentially conflicts with the requirement that applicants present ahealth certificate because “[sluch aghysicalpresentution cannot occur electronically.” Request Letter, supra note 1,at 1.
We must harmonize statutes whenever possible. 

### SeeLaSara Grain Co.v.FirstNat ‘1 Bank of

### Mercedes, 673 S.W.2d 558, 565 (Tex. 1984). Section 2054.352 of the Government Code unambiguously states that the Board “shall participate” inthe online licensing system. TEX.GOV’T CODEANN. 92054.352(a)(l) (Vernon Supp. 2004-05). Sections 1601.264 and 1601.402 of the Occupations Code unambiguously state that the Board “maynot” issue anoriginal orrenewal license orcertiticateuntil theapplicantpresentsahealthcertiticate. SeeT~x.Occ. CODEANN. $5 1601.264, .402(d) (Vernon 2004). Both requirements are mandatory, and compliance with one does not preclude compliance with the other, ascurrent Board practice illustrates. We note that your agency’s TexasOnline website currently allows alicensee toupdate license information and pay the renewal fee online, but provides a caveat that the license will not issue until ahealth certificate has been presented.’ We conclude that section 2054.352 of the Government Code, requiring the Board to participate inthe electronic occupational licensing system established bythe TexasOnline Authority, does not irreconcilably conflict with sections 1601.264 and 1601.402 of the Occupations Code, which prohibit the Board from issuing anew or renewal license or certificate until the applicant presents an appropriate health certificate. No doubt, the health certificate requirement poses practical difficulties for online licensing. The Authority has recognized that an agency’s need for supporting documentation makes online licensing difficult, requiring “workaround” procedures such as using agency personnel to match

‘See State Board of Barber Examiners Barber and Manicurist License Renewal, available af www.texasonline.state.~.us.Mr. Glenn Parker - Page 5 (GA-0258)

online datawith documentation received by maik4 However, while sections 1601.264 and 1601.402 of the Occupations Code require an applicant to present a health certificate, the statutes do not specify the form ofthe health certificate orthe method ofitspresentment.’ The Board isauthorized topromulgate rules and define terms necessary to accomplish the Board’s oversight responsibilities. Consequently, the Board has the authority to determine methods ofpresentment consistent with the purposes and objectives of chapter 1601 ofthe Occupations Code. You may wish to consult with the Authority about whether an acceptable method of presenting a health certificate online is technologically feasible and about other strategies the Board may pursue to encourage your licensees’ use of Internet services. See TEX.GOV’TCODE ANN. 5 2054.261(2) (the Authority is required to assist agencies who participate in the TexasOnline project).

‘See TEXASONLINEALJTHOFXIY, STATUSREPORTONTHETEXASONLJNE COMMONOCCUPATIONALLKENSMG SYSTEM,at 18-19, 24 (Jan. 1,2003), nvaiiableat http://www.dir.state.tx.tts/pubs/txo/2003licettsing.pdf.

‘By contrast, this offtce has recently examined the difticulties that electronic filing poses for documents when statutes specify the documents technical requirements. See Tex. Att’y Gen. Op. No. GA-0228 (2004) (discussing state statutes concemingrealestatefilings, theFederalElectronic SignatoresinGlobalandNational Commerce Act, 15U.S.C. $5 7001.7031 (2000), and the UnifotmElectronic Transactions Act, TEX.BUS. &COMM. CODEANN. $9 43.001-,021 (Vernon Supp. 2004)).Mr. Glenn Parker - Page 6 (GA-0258)

SUMMARY Section 2054.352 of the Government Code requires that the State Board of Barber Examiners participate in the electronic occupational licensing system established in connection with the TexasOnline Authority. That mandate does not irreconcilably conflict with the requirement that the State Board of Barber Examiners may not issue a new or renewal license or certificate until the applicant presents an appropriate health certificate. Very truly yours,

Attorney General ofTexas

BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S.FULLER Chair, Opinion Committee William A. Hill Assistant Attorney General, Opinion Committee