ATTORNEY GENERAL OFTEXAS 

GREG ABBOTT 

October 12,2004 

Mr. Glenn Parker 

Executive Director 

State Board of Barber 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 a health 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 of Barber Examiners (the “Board”) may participate in the 

TexasOnline occupational licensing system established in Government Code section 2054.353 in 

light of the requirement under sections 1601.264 and 1601.402(d) of the Occupations Code that an 

applicant for an original or a renewal barber or manicurist license present a health certificate from 

aphysician _’ &~TEx. GOV’T CODE ANN. 5 2054.353(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 $3 fee for manicurists who renew their licenses, regardless ofwhether the licensee uses 

the online services. See id. You further state that each licensee must mail a health 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 a goal that thirteen percent of the Board’s licensees renew online in 

the fiscal year ending August 3 1,2004, and eighteen percent in the fiscal year ending August 3 1, 

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 

‘See Letter from Glenn Parker, Executive Director, State Board of Barber 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 in the fiscal year ending August 3 1,2005. 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 a health certificate to the 

Board before certain licenses can be issued or renewed. 

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 a project known as the TexasOnline project. See id. 

55 2054.003(4) (department means DIR); ,252 (Texas Online Project); ,264 (TexasOnline Division). 

The project is intended to establish a common electronic infrastructure for state agencies and local 

governments, including licensing entities, to electronically: 

(1) send and receive documents or required payments to and from: 

(A) members of the 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 or local government that, when secure access is necessary, can 

be electronically validated by the agency, local government, member 

of the public, or regulated person; 

(3) send original and renewal occupational licenses to persons 

regulated by licensing entities; 

(4) send profiles ofoccupational license holders to persons regulated 

by licensing entities and to the public; 

(5) store information; and 
Mr. 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. 5 2054.252(a). The Authority is responsible for operating, promoting, and evaluating the project. 

See id. 8 2054.259. Also, the Authority must coordinate the project and assist governmental entities 

utilizing the project. See id. 5 2054.261. The Authority may prepare rules that DIR’s governing 

board may adopt. See id. 5 2054.262. 

Under chapter 2054, subchapter K of the 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 for filing from persons regulated by the 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. 5 2054.353(a). The Authority must charge licensing entities a subscription fee sufficient to cover 

the cost of implementing 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 a biennial occupational license;2 or 

(3) the amount necessary to cover the cost of the subscription fee 

imposed on the licensing entity under Subsection (e) for permits or 

facilities licenses. 

Id. 5 2054.252(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 OT certificate issued by the Board expires two years from the date of 

issuance. See TEX. Oct. CODE ANN. 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 an Internet 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’T CODE ANN. 5 2054.353(d) 

(Vernon Supp. 2004-05). Section 2054.352 specifies the Board by name as one of the entities that 

must participate in the electronic licensing system established in section 2054.353. See id. 

5 2054.352(a)( 1) (“The following licensing entities shall participate in the system established under 

Section 2054.353 : (1) State Board of Barber Examiners .“). 

The Board’s authority to regulate and license barbers and manicurists is located primarily in 

chapter 1601 oftheOccupationsCode. S~~TEX.OCC.CODEANN. $5 1601.001-,713 (Vemon2004). 

The Board has rulemaking authority “necessary for the performance of its duties” and “by rule may 

define any term necessary to administer or enforce [chapter 1601].” Id. 3 1601.151(d)(l), (e). The 

Boardmust issue the appropriate license or certificate to applicants 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 or renew “a certificate or license until an applicant presents a health 

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. See La Sara Grain Co. v. First Nat ‘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” in the online licensing system. TEX. GOV’T 

CODE ANN. 9 2054.352(a)(l) (Vernon Supp. 2004-05). Sections 1601.264 and 1601.402 of the 

Occupations Code unambiguously state that the Board “maynot” issue an original or renewal 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, as current Board practice illustrates. We note that your agency’s 

TexasOnline website currently allows a licensee to update license information and pay the renewal 

fee online, but provides a caveat that the license will not issue until a health certificate has been 

presented.’ We conclude that section 2054.352 of the Government Code, requiring the Board to 

participate in the electronic occupational licensing system established by the TexasOnline Authority, 

does not irreconcilably conflict with sections 1601.264 and 1601.402 of the Occupations Code, 

which prohibit the Board from issuing a new 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 data with 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 or the method of its presentment.’ The Board is authorized 

to promulgate 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 of the 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’T CODE ANN. 5 2054.261(2) (the Authority is 

required to assist agencies who participate in the TexasOnline project). 

‘See TEXAS ONLINE ALJTHOFXIY, STATUS REPORTON THE TEXASONLJNE COMMON OCCUPATIONALLKENSMG 

SYSTEM, at 18-19, 24 (Jan. 1,2003), nvaiiable at 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, the FederalElectronic SignatoresinGlobalandNational Commerce Act, 15 U.S.C. 

$5 7001.7031 (2000), and the UnifotmElectronic Transactions Act, TEX. BUS. &COMM. CODE ANN. $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 of Texas 

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