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 and whether 

Austin, Texas 78701 beauty operators may work in 

barber shops, and related 

Dear Mrs. LaFoon: questions. 

We have your request of November 7, 1972, regarding a number of questions 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, for purposes 

of clarity, all questions have been rephrased. The practice of 

barbering is~.governed by Article 734a, Vernon's Penal Code, 

otherwise known as the,"Barber Law.." The practice of cosmetology 

is governed and regulated by Article 734c, Vernon's Penal Code, 

.otherwise known as the "Cosmetology Act." 

tion 

The practice of barbering is defined in Article 734a, Sec4 of the Barber Law and provides as follows: 

,*Sec. 4. The practice of barbering is 

hereby defined to be the following practices 

when not done in the practice of medicine, 

surgery, osteopathy, or necessary treatments 

of hea&ingthe,body by one authorized by law 

to do,,.so; and when not done by a relative,who 

cuts only the hair of those in his or her immediate family; and when 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 any person engaged in shaving 

or trimming the beard and/or cutting 

the hair. 

-6231- 
Mrs. Vera LaFoon, page 2 (M-1270) 

"(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 

that part of the body above the 

shoulders. 

"Provided, however, that nothing contained in 

this Act shall be construed to include those persons 

lawfully engaged in beauty culture, hairdressing or 

cosmetology as provided by law, when so engaged in 

giving treatments or applications to female persons 

only, but such persons shall not be permitted to 

shave, trim the beard, style, process, color or cut 

the hair of male persons except in accordance with 

the provisionsand requirements of this Act relating 

to barbering." (Emphasis added) 

The practice of cosmetology is defined in Article 734c, 

Section l(3) of the Cosmetology Act and provides as follows: 

" (3) 'Cosmetology' means the beautifying 

treatment of a female's hair or skin, or nails 

of a male 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 any method 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; 

-6232- 
Mrs. Vera LaFoon, page 3 " (M-1270) 

'(D) manicuring; and 

"(E) servicing a wig or artificial hairpiece either on a humanhead or on a block 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 a proper 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 the practice of barbering 

to males only and the practice of cosmetology to females only, 

were held unconstitutional and in violation of the Fourteenth 

Amendment of the United States Constitution by judgment entered 

.on January 26, 1972, by a three-judge panel in the United States 

District Court for the Northern 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 such holding 

is that females can get their hair cut and acquire other services 

of barbering in a barber shop if they so desire; 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 to be of either sex. In other words, while 

,most barbers are males and most hairdressers are females, it is 

not uncommon today (and is quite legal) for females to be barbers 

and,males to be hairdressers. 

I. 

Your first and third questions ask whether a beauty operator 

may work in or operate a barber shop, and, if so, to what extent? 

We rephrase the questions as follows: 

Can the holder of a license to practice cosmetology r as that term is defined in Article 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 a barber shop permit as that term is defined 

by Article 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 is prohibited. Any [Beauty Shop] license 

granted under this Act shall permit the licensee 

to practice only in an establishment licensed 

under this Act 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 24 provides in 

part, as follows: 

"Sec. 24. Each of the following offenses 

shall constitute a misdemeanor 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 any person in one's employ, 

supervision or control to practice as a barber 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 a barber shop as is expressly provided in Article 734c, Section 36; and Article 734a, 

Section 24 of the Barber Law does not penalize the holder of a 

barber shop permit for employing a person, so long as that person 

is not practicing as a barber. 

The issuance of a barber shop permit is regulated by Article 

734a, Section 3. The pertinent provisions with regard to the instant question are as follows: 

-6234- 
. 

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

"Sec. 3(A) No person may own, operate, 

or manage a barber shop without a barber shop 

permit issued by the Board. 

w (I) No person may operate a barber 

shop unless the shop is at all times under 

the-general supervision and management of a 

registered,Class A barber." (Emphasis added) 

Accordingly, we find no restrictions in the barber law that 

would require the owner and/or operator thereof to be a licensed 

barber so long as the barber shop covered by the permit is supervised 

and managed by a duly registered Class A barber. 

The holder of a license to practice cosmetology may render the 

services set out in the Cosmetology Act within premises covered by a 

barber shop, permit; and, may own and operate a premises covered by a 

barber shop permit so, long as such premises are at all times under 

the general supervision and management of a Class A barber. 

11. 

Your second and fifth questions ask whether a barber can work 

in or operate a beauty shop, and, if so, to what extent? We rephrase the questions as follows: 

"Is the holder of a license to perform 

barberin& as that term is .defined in Article 

734a, Section 4, Vernon's Penal Code, permitted 

to work in and/or operate a ~beautyshop cove~red 

only by a beauty.shop license as that term is 

defined ,in Article 734c, Section 23, Vernon's 

Penal Code?" 

Article.7.34a, Section 6, provides, in part, as follows: 

"Sec. 6. It shall be unlawful for any 

person to follow the occupation of cutting 

hair, or practice as a hair cutter in any 

beatity shop or hair dressing parlor or elsewhere for hire except hereinbefore provided 

unless excepted by this Act, unless such person shall have first obtained a certificate, 

as herein provided, which certificate shall 

authorize the cutting of hair only in such 

parlor or establishment where such hair 

cutting is for hire or reward. . . ." 

(Emphasis added) 

-6235- 
Mrs. Vera LaFoon, page 6 (M-1270) 

Article 734c, Section 12 provides, in part, as follows: 

"Sec. 12 (b) No person for compensation may conduct or operate a beauty shop, 

beauty culture school, wig salon, wig school, 

or any other place of business in which 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 6 of the Barber Law quoted above (Article 

734a) a barber is permitted to cut hair in a beauty shop provided 

he obtains a certificate from the Barber Board, which certificate 

shall set out the ~premises covered thereby. 

One who would maintain, conduct or operate a beauty shop must 

obtain a beauty shop license as required by Section 12 and 23 of 

Article 734~. A barber who holds only a certificate ~from the Barber 

Board under Section 6 of Article 734a may not conduct, operate or 

maintain a beauty shop. We do not hold that a barber who obtains 

a beauty shop license may perform the services of a cosmetologist 

unless he holds a license to practice cosmetology. 

III. 

Your fourth questionasks whether a barber may teach haircutting 

in a beauty college? We rephrase the question as follows: 

"Is the holder of a license to perform 

barbering, as that term is defined by Article 

734a. Section 4, Vernon's Penal Code, permitted 

to teach barbering services in a premises covered 

only by a private beauty culture school license 

as.that term is defined in Article 734~~ Section 

22, Vernon's Penal Code?" 

A licensed barber may not teach the cutting of hair in a private 

beauty culture school unless he also holds an instructor's license 

for cosmetology as provided for by Article 734~~ Section 16, Vernon's Penal Code, which provides, ins part, as follows: 

-6236- 
Mrs. Vera LaFoon, page 7 (M-1270) 

"Sec. 16(b) An applicant for an instructor's license must be at least 18 years 

of age, have completed the 12th grade or its 

equivalent, have a valid operator's license, 

and have, completed lrOOO hours in instruction 

in cosmetology courses and methods of teaching 

in a licensed private beauty culture school." 

(Emphasis added) 

We find no other provision in either the Cosmetology Act or 

the Barber Law which would permit a licensed barber to teach the 

limited service of haircutting unless he meets the requirements 

set out in Article 734c, Section 16, namely, having a valid instructor's license in cosmetology. See also Sec. 31(a) of Article 

734c. 

IV. 

Your sixth question asks whether it is necessary for a person 

to have a barber license to cut hair? We rephrase the question 

as follows: 

"Does the license to perform cosmetology 

as that term is defined by Article 734c(3), 

Vernon's Penal Code, permit the holder thereof 

to cut the hair of either males or females?" 

As hereinbefore stated, those statutory provisions defining the 

practic,e of 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 

under Article 734~ may cut the hair of 

inquire as to what type of 

shop and who should inspect 

V. 

Your seventh and eighth questions 

permit should be issued for a yunisex" 

same? We rephrase said questions as follows: 

"Must both a beauty shop license as 

provided for by Article 734c, Section 23, 

Vernon's Penal Code, and a barber shop permit 

as provided for by Article 734a, Section 3 Vernon's 

Penal Code, be obtained for premises wherein 

the practices of cosmetology and barbering 

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 in meaning: 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 are permitted 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, or massage the arms and 

busts. 

Accordingly, 

being performed, 

if services of shaving or trimming the beard are 

mit. 

the premises must be covered by a barber shop perIf the services of hair removal by the use of depilatories or 

tweezers or the massaging of the arms and busts are being performed, 

the premises must be covered by a permit issued under the Cosmetology 

Act. Otherwise, 

of the hair, 

for those services regarding the cutting and grooming 

and facial and scalp massages, a premises 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 a barber permit; and Article 

734c, Section 33 of the Cosmetology Act authorizes the Commissioner 

of Cosmetology or his inspector to inspect all premises of licenses 

covered thereunder. Accordingly, 

a barber permit, 

if the premises is covered by only 

same would 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 the beard are 

being performed on or at a premises wherein the removal of hair by 

the use of depilatories or tweezers or the massaging of busts and 

arms are being performed, a permit 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 

-6230. 
i 

, 

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

and scalp massage, may be performed by either a 

barber or a hairdresser on either males or females, 

including the cutting of hair. 

A beauty operator may perform services of cosmetology 

in a barber shop. A beauty operator may operate a 

barber shop if.it is at all times under the general 

supervision and management of a Class A barber. 

A barber may cut hair in a beauty shop if he has 

obtained a certificate therefor covering the 

premises specified; but may not operate a beauty 

shop without a license to practice cosmetology. 

A barber may not teach the cutting of hair in 

a beauty cultural school without obtaining an 

instructor's license in cosmetology. 

If the barbering services of shaving or trimming 

the beard are being performed in or at a premises 

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 from both the Barber Board and Cosmetology Commission and is subject to inspection by 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 

-6239- 
Mrs. Vera LaFoon, page 10 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WRITE. 

First Assistant 

(M-1270) 

-6240-