## THE ATTUX~CNEY GENEIXAI. OF TEXAS

Mrs. Vera LaFoon Opinion No. M-1270 Acting Executive Director Texas Cosmetology Commission Re: Whether barbers may work in 1111 Rio Grande beauty shops andwhether Austin, Texas 78701 beauty operators maywork in barber shops, and related Dear Mrs. LaFoon: questions.
We have your request of November 7, 1972, regarding anumber ofquestions involving the Barber Law and the Cosmetology Act., For purposes of this.opinion, some of your questions have been combined since the subject matter involved is contained in similar provisions.~ of the pertinent statutes; and, forpurposes of clarity, all questions have been rephrased. The practice of barbering is~.governedbyArticle 734a,Vernon's Penal Code, otherwise known as the,"Barber Law.." The practice of cosmetology isgoverned and regulated byArticle 734c,Vernon's Penal Code, .otherwiseknown as the "Cosmetology Act."

tion The practice of barbering isdefined inArticle 734a, Sec4of the Barber Law andprovides as follows: ,*Sec. 4. The practice of barbering is hereby defined to be the following practices when not done in the practice ofmedicine, surgery, osteopathy, or necessary treatments of hea&ingthe,body by one authorized by law to do,,.so;

andwhen not done by a relative,who cuts only the hair of those in his or her immediate family; andwhen done on living male persons. "(A) Shaving or trimming the beard. "(1) Cutting the hair; "(2) Styling or processing the hair of males only. "(B) By giving any of the following treatments by anyperson engaged in shaving or trimming the beard and/or cutting the hair.

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"(1) Giving facial and scalp massages, or applications of oils, creams, lotions, or other preparations, either by hand or electrical appliances; 11 (2) Singeing, shampooing, or dyeing the hair of applying hair tonics; "(3) Applying cosmetic preparations, antiseptics, powders, oils, clays, or lotions to the scalp, face, neck or thatpart of the body above the shoulders. "Provided, however, that nothing contained in thisAct shall be construed to include those persons lawfully engaged inbeauty culture, hairdressing or cosmetology asprovided by law,when so engaged in giving treatments or applications to female persons only, but such persons shall not be permitted to shave, trim thebeard, style, process, color or cut thehair ofmale persons except in accordance with theprovisionsand requirements of thisAct relating tobarbering." (Emphasis added) The practice of cosmetology is defined inArticle 734c, Section l(3) of the Cosmetology Act andprovides as follows:

"(3) 'Cosmetology' means the beautifying treatment of a female's hair or skin, or nails of amale or female and includes the following practices: "(A) arranging, dressing, curling, waving, cleansing, singeing, bleaching, tinting, coloring, cutting, trimming, shaping, or straightening the hair by anymethod or means; "(B) massaging, cleansing, beautifying, or stimulating the scalp, face, neck, arms, bust, or upper portion of the body by the use of a cosmetic preparation, antiseptic, tonic, lotion or cream: VI (C) removing superfluous hair from the body by use of depilatories or tweezers;

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'(D) manicuring; and "(E) servicing awig or artificial hairpiece either on ahumanhead or on ablock subsequent to the initial retail sale and servicing by any of the.practices enumerated in Paragraph (A)of this subsection. (Emphasis added) II 8,

. . . The regulation of the occupations of barbering and cosmetology is necessary to the public health and is aproper subject for the exercise of the police power of the State. Texas State Board of Barber Examiners v. Beaumont Barber College, Inc., 654 S.p.Zd 729 (Tex.Sup. 1970). However, the Barber Law and the Cosmetology Act, insofar as either of same attempt to limit thepractice of barbering tomales only and thepractice of cosmetology to females only, were held unconstitutional and inviolation of the Fourteenth Amendment of theUnited States Constitution by judgment entered .onJanuary 26, 1972, by a three-judge panel in the United States District Court for theNorthern District of Texas at Dallas in Civil Action No. CA-3-5298-B, Bolton, et al v. Texas~Board of Barber Examiners, et al, decision affirmed by U. S. Supreme Court on October 10, 1972. In essence, the net effect of suchholding is that females can get their hair cut and acquire other services of barbering in abarber shop if they sodesire; and, males can get their hair cut, trimmed and shaped and acquire other services of cosmetology in a,beauty shop, if they so desire. Neither the Barber Law nor the Cosmetology Act requires licensees thereunder tobe of either sex. In other words, while ,mostbarbers aremales andmost hairdressers are females, it is not uncommon today (andisquite legal) for females tobe barbers and,males tobe hairdressers.
I. Your first and third questions askwhether abeauty operator may work in or operate abarber shop, and, if so, towhat extent? We rephrase thequestions as follows:

Can the holder of a license topractice cosmetologyras that term is defined inArticle 734c, Section l(3),Vernon's Penal Code, perform cosmetology

-6233-Mrs. Vera LaPoon, page 4 (M-1270)

services within or operate premises covered only by abarber shop permit as that term is defined byArticle 734a, Section 3,Vernon's Penal Code? The Cosmetology.Act, Article 734~ at Section 36,provides as follows:

"Sec. 36. The establishment of itinerent shops isprohibited. Any [Beauty Shop] license granted under thisAct shall permit the licensee topractice only in an establishment licensed under thisAct or an establishment licensed under Chapter 65,Acts of the 41st Legislature, 1st Called Session, 1929, as amended (Article 734a, Vernon's Texas Penal Code.)" The Barber Law,Article 734a, at Section 24provides in part, as follows:

"Sec. 24. Each of the following offenses shall constitute amisdemeanor punishable upon conviction in a court of competent jurisdiction by a fine of not less than $25.00 nor more than $200.00. II

. . . "(B) Permitting anyperson in one's employ, supervision or control topractice as abarber or as an assistant barber, unless thatperson has a current certificate of registration issued by the Board:
. . ." (Emphasis added)
As noted at the beginning of the opinion, some of the services of cosmetology and barbering overlap. Therefore, a licensed hairdresser may practice cosmetology in abarber shop as is expressly provided in Article 734c, Section 36; andArticle 734a, Section 24of the Barber Law does not penalize the holder of a barber shop permit for employing aperson, so long as that person is not practicing as abarber. The issuance of abarber shop permit is regulated byArticle 734a, Section 3. The pertinent provisions with regard to the instant question are as follows:

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**MIS.** Vera LaFoOn, page 5 (M-1270)

"Sec. 3(A) No person may own, operate, ormanage abarber shopwithout abarber shop permit issued by the Board.



## w(I)No person may operate abarber shop unless the shop is at all times under the-general supervision andmanagement of a registered,Class A barber." (Emphasis added) Accordingly, we findno restrictions in the barber law that would require the owner and/or operator thereof to be a licensed barber so long as thebarber shop covered by the permit is supervised andmanaged by a duly registered Class A barber. The holder of a license topractice cosmetology may render the services set out in the Cosmetology Act within premises covered by a barber shop,permit; and, may own and operate apremises covered by a barber shop permit so,long as such premises are at all times under the general supervision and management of aClass A barber. 11.
Your second and fifth questions askwhether abarber can work inor operate abeauty shop, and, if so, towhat extent? We rephrase the questions as follows:

"Isthe holder of a license toperform barberin& as that term is .definedinArticle 734a, Section 4,Vernon's Penal Code, permitted towork in and/or operate a~beautyshop cove~red only by abeauty.shop license as that term is defined ,inArticle 734c, Section 23,Vernon's Penal Code?" Article.7.34a,Section 6,provides, inpart, as follows: "Sec. 6. It shall be unlawful forany person to follow the occupation of cutting hair, or practice as ahair cutter in any beatity shop orhair dressing parlor or elsewhere forhire except hereinbefore provided unless excepted by thisAct, unless such person shall have first obtained a certificate, asherein provided, which certificate shall authorize the cutting of hair only in such parlor or establishment where such hair cutting is forhire or reward.
. . ." (Emphasis added) -6235-Mrs. Vera LaFoon, page 6 (M-1270)

Article 734c, Section 12provides, inpart, as follows: "Sec. 12 (b) No person for compensation may conduct or operate abeauty shop, beauty culture school, wig salon, wig school, or any other place of business inwhich the practice of cosmetology, as defined in Section 1, is taught or practiced without first obtaining a license." (Emphasis added) One of the services covered by both the Barber Law and the Cosmetology Act is the cutting of hair. Therefore, under the decision in the Bolton case, supra, the cutting.of hair may be performed by either,barbers or hairdressers upon either males or females. Under Section 6of the Barber Law quoted above (Article 734a) abarber ispermitted to cuthair in abeauty shop provided he obtains a certificate from the Barber Board, which certificate shall set out the~premisescovered thereby. Onewho would maintain, conduct or operate abeauty shopmust obtain abeauty shop license as required by Section 12 and 23of Article 734~. A barber who holds only a certificate ~fromthe Barber Board under Section 6ofArticle 734a may not conduct, operate or maintain abeauty shop. We do not hold that abarber who obtains abeauty shop license may perform the services of a cosmetologist unless he holds a license to practice cosmetology.
III. Your fourth questionasks whether abarber may teach haircutting in abeauty college? We rephrase the question as follows:

"Is the holder of a license to perform barbering, as that term isdefined byArticle 734a. Section 4,Vernon's Penal Code, permitted to teach barbering services in apremises covered only by aprivate beauty culture school license as.that term isdefined inArticle 734~~ Section 22,Vernon's Penal Code?"
A licensed barber may not teach the cutting of hair inaprivate beauty culture school unless he also holds an instructor's license for cosmetology as provided forbyArticle 734~~ Section 16,Vernon's Penal Code, which provides, inspart, as follows:

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"Sec. 16(b) An applicant for an instructor's license must be at least 18years of age, have completed the 12th grade or its equivalent, have avalid operator's license, andhave,completed lrOOO hours in instruction in cosmetology courses and methods of teaching in a licensed private beauty culture school." (Emphasis added)
We findno other provision in either theCosmetology Act or the Barber Law which would permit a licensed barber to teach the limited service of haircutting unless hemeets the requirements set out inArticle 734c, Section 16, namely, having avalid instructor's license in cosmetology. See also Sec. 31(a) ofArticle 734c. IV.
Your sixth question asks whether it isnecessary for aperson tohave abarber license to cut hair? We rephrase the question as follows:

"Does the license to perform cosmetology as that term is defined byArticle 734c(3), Vernon's Penal Code, permit theholder thereof to cut the hair of either males or females?"
As hereinbefore stated, those statutory provisions defining the practic,eof cosmetology and the services of,barbering both include the cutting of hair; and, in view of the Bolton decision, supra, 734a or a licensed cosmetolosist either males or females. either a licensed barber~under Article underArticle 734~may cut the hair of

inquire as towhat type of shop and who should inspect V. 

### Your seventh and eighth questions permit should be issued for 

### ayunisex" same? We rephrase said questions as follows:

"Mustboth abeauty shop license as provided for byArticle 734c, Section 23, Vernon's Penal Code, and abarber shoppermit asprovided forbyArticle 734a, Section 3 Vernon's Penal Code, be obtained forpremises wherein thepractices of cosmetology andbarbering are both being performed?" -6237-Mrs. Vera LaFoon, page 

### a (M-1270)

The provisions of the Barber Law and the Cosmetology Act defining the respective practices of each with regard to the treatment of hair are virtually synonymous inmeaning: and, the holder of a license under either statute may cut, style, process, shampoo, color, singe and perform those services necessary to groom the hair of either sex. Likewise, facial and scalp massages and the applying of creams, lotions, tonics, antiseptics, etc. to the scalp, face, neck and shoulders arepermitted under either law. However, only a licensed barber may perform the services of shaving and trimming the beard: and, only a cosmetologist may remove superfluous hair by the use of depilatories or tweezers, ormassage the arms and busts. Accordingly, being performed, if services of shaving or trimming the beard are mit. the premises must be covered by abarber shop perIf the services of hair removal by the use of depilatories or tweezers or themassaging of the arms and busts are being performed, the premises must be covered by apermit issued under the Cosmetology Act. Otherwise, of thehair, for those services regarding the cutting and grooming

and facial and scalp massages, apremises covered by a permit or license issued under either statute would be adequate. Article 734a, Section 20, grants the Board of Barber Examiners authority to inspect premises covered by abarber permit; andArticle 734c, Section 33of the Cosmetology Act authorizes the Commissioner of Cosmetology or his inspector to inspect all premises of licenses covered thereunder. Accordingly, abarber permit, if the premises is covered by only samewould be subject to inspection under the Barber Law. Likewise, license, if the premises is covered only by a cosmetology

such premises would be subject to inspection under the Cosmetology Act. However, if the services of shaving or trimming thebeard are being performed on or at apremises wherein the removal of hair by the use ofdepilatories or tweezers or themassaging of busts and arms arebeing performed, apermit from both the Barber Board and Cosmetology Commission must be obtained and such premises would accordingly be subject to inspection under the provisions of each law as therein provided. Attorney General's Opinion No. C-532 (1965) is overruled and superseded by this opinion. SUMMARY All of those services necessary for or incidental to the grooming of the hair, together with facial

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,

Mrs. Vera LaFoon, page 9 (M-1270)

and scalp massage, may be performed by either a barber or ahairdresser on either males or females, including the cutting of hair.
A beauty operator may perform services of cosmetology in abarber shop. A beauty operator may operate a barber shop if.it is at all times under the general supervision and management of aClass A barber.
A barber may cut hair in abeauty shop ifhe has obtained acertificate therefor covering the premises specified; but may not operate abeauty shopwithout a license topractice cosmetology.
A barber may not teach the cutting of hair in abeauty cultural school without obtaining an instructor's license in cosmetology. If thebarbering services of shaving or trimming the beard are being performed in or at apremises wherein the cosmetology services of hair removal by the use of depilatories or tweezers or the massage of busts and arms are being performed, such premises must be covered by permits or licenses fromboth the Barber Board and Cosmetology Commission and is subject to inspectionby both.

ORD C. MARTIN General of Texas Prepared by Bill Campbell Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E:Allen, Co-Chairman Melvin Corley Dan Green Harriet Burke John Banks
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SAMUEL D. MCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WRITE. First Assistant (M-1270)

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