r-. December 5, 1988

Ms. Jo King **McCrorey** : Executive Director State Board of Barber Examiners 1300E. Anderson Lane Building C, Suite 275 Austin, Texas 78752
DearMs. McCrorey: OpinionNo. JR-990
Re: Whether a cosmetologist is authorized to trim beards and mustaches (RQ-1525)

You askwhether a cosmetologisthas authority to trim beards andmustaches. An examinationof the recent history of the statutesgoverning barbers and cosmetologists helps to put your question in context.
In 1972 a federal district court issued a judgment holding unconstitutional parts of the Texas barber and cosmetology statutes. At the time of that court case the act governingbarbers provided:

The practice of barbering is hereby defined to be the followingpractices when not done in the practice of medicine, surgery, osteopathy,or necessary treatments of healing the body by one authorizedby law to do so; andwhen not done by a relativewho cuts only the hair of those in his or her immediate family; and when done on living male versons. (A)Shavina or trimmina the beard. (1)Cutting thehair: (2)Stvlina or wrocessina the hair of pales onlv. (B) ~By giving any of the following treatmentsby any person 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; (2)Singeing, shampooing,or dyeing the hair or applyinghair 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 nothina contained in this Act shall be construed to include those wersons lawfully enaaaed in beautv culture. hairdressina or cosmetoloov **as** provided bv law, when so enaaaed in aivinq treatments or awwlicationsto female wersons onlv.but suchwersons shall not be wermitted to shave. trim the beard. stvle. wrocess, color or cut the hair of male wersons excewt in accordance with the wrovisions and reouirements of this Act relatina to barberinq. (Emphasisadded.)
Acts 1971, 62d beg., ch. 1036, § 51, at 3402. The statutory provisions governing cosmetologistscontained the definition of "cosmetology18: following

\Cosmetoloov means the beautifvinq treatment~of a female'shair or skin, or nails of a male or female and includes the followinswractices: (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 cosmeticpreparation, antiseptic, tonic, lotion, or cream; (C)removing superfluous hair from the body by use of depilatories or tweezers;

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(D)manicuring; and (E)servicing a wig or artificial hairpiece

. . . . (Emphasisadded.) Id. 5 1, at 3389. The federal district court held unconstitutional those provisions of the barbering and cosmetology statutes that allowed licensees to perform certain.orocedureson members of one sex only. Bolton v. Texas Bd: of Barber Examiners, 350 F.Supp. 494 (N.D. ,Tex.), aff'd, 409U.S. 807 (1972).
A 1972 opinion of this office addressed a number of questions about the proper interpretationof the barbering and cosmetology statutes in light of Bolton. Attorney General Opinion M-1270 (1972). In regard to the permissible practices for barbers and cosmetologists, the opinion stated: The provisions of the Barber Law and the

Cosmetology Act defining the respective practices of eachwith 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 shouldersare permittedunder either law. However, only a licensed barber may perform the services of shavina and trimminq the beard; and, only a cosmetologist may remove suwerfluous hair bv the use of depilatories or tweezers, or massage the arms and busts. (Emphasisadded.)
In other words, the opinion clarified that barbers and cosmetologistscouldperform thoseprocedures forwhich they had specific authority, regardless of the sex of the recipient of the services. Because cosmetologistshad no authority to shave and trim beards before Bolton, Bolton did nothing to change the authority of cosmetologists in regard to shaving and trimmingbeards. If the legislatureconsideredAttorney General Opinion M-1270 to be incorrector to reach an undesirable result, it could have changed that resultwhen it revised the statutes

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governing cosmetologistsand barbers in 1975.1 Acts 1975, 64th Leg., ch. 691, at 2132 (barberstatutenow codified as article 8407a,V.T.C.S.: cosmetology statutenow codified as article 8451a,V.T.C.S.). It did not do so. The revised barbering statute states that "barbering" includes "arranging,beautifying, coloring,processing, shaving, styling, or trimming the mustache or beard by anymeans or method." V.T.C.S. art. 8407a, § 4(b)(1). The revised definition of ,*~cosmetology"contains no reference to the shaving or trimming of beards. V.T.C.S. art. 8451a, 5 l(3). The revised barber statute provides that persons practicing under the cosmetology statute are exempt from the provisions of the barber statute Itsolong as such persons practice within the scope of the license or permit duly issuedby the Texas Cosmetology Commission.~~V.T.C.S. art. 8407a, § 6(c). The legislaturehas amended the cosmetology statute a number of times since 1975,but ithas made no changes that could be interpretedas giving cosmetologiststhe authority to shave and trim beards. & aenerallv Acts 1985, 69th Leg., ch. 483, at 2051:Acts 1983, 68th Leg., ch. 81, at 355 (settingfeesunder the cosmetology statute): Acts 1983, 68th Leg., ch. 557, at 3236 (continuing education for cosmetologists):Acts 1981, 67th Leg., ch. 279, at 747 (relatingto exemptions under cosmetology statute): Acts 1979, 66th Leg., ch. 606, at 1340 (relatingto licensing of cosmetologists); Acts 1977, 65th Leg., ch. 356, at 946 (relatingto examinationsand blood tests for cosmetologists);Acts 1977, 65th Leg., ch. 419, at 1123 (relating to private beauty culture schools): Acts 1977, 65th Leg., ch. 666, at 1685 (relating to certification forhair cleansing and scalp conditioning). Nonetheless, ithas been suggested that cosmetologists have authority to trim beards by virtue of their authority to trim "thehair." See V.T.C.S. art. 8451a, 91(3)(A). We disagree. The statute governingbarbers refers to "the hair" and "thebeard" separately, indicating that "the hair" does not include "the beard." Acts 1971, 62d Leg., ch. 1036, 5 51, at 3402;Acts 1975, 64th Leg., ch. 691, 5 4, at 2133 (codified as article 8407a, 5 4). That same legislation is the source for the current cosmetology

1. The legislaturemade numerousminor changes in the cosmetology statute in 1973, none of which had to do with shaving or trimmingbeards. Acts 1973, 63d Leg., ch. 136, at 290; ch. 250, at 581; ch. 270, at 637; ch. 536, at 1388.

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statute,which gives cosmetologists authority to trim "the hair," but makes no mention of "the beard." Id., § 28 (codifiedas article 8451a, § l(3)). Also, a cosmetologist has authority to remove superfluous "bodyhair" by the use of depilatories or mechanical tweezers. A cosmetologisthas no authority to remove "bodyhair" by shaving. In light of those provisions,we cannot conclude that a cosmetologist's authority to trim "thehair" can be construed to include the authority to trim beards.
SUMMARY
A licensed cosmetologist has no statutory authority to shave and trim beards.

JIM MATTOX Attorney General of Texas
MARY KELLER FirstAssistantAttorney General
LOU MCCREARY ExecutiveAssistantAttorney General
JUDGE ZOLLIE STEAKLKY SpecialAssistant Attorney General
RICK GILPIN Chairman, Opinion Committee Preparedby SarahWoelk Assistant Attorney General

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