The Honorable Bonnie Griebel 

Executive Director 

Texas Cosmetology Commission 

1111 Rio G,rande 

Austin, Texas 78701 

Dear Mrs. Griebel: 

Opinion No. H- 1.47 

Re: Whether t.he Texas 

Cosmetology Commission has the authority 

to waive certain requirements under Art. 734(c). 

Pursuant to Article 734c, Vernon’s Texas Penal Code, the Act creating the Texas Cosmetology Commission and providing for the licensing of 

cosmetologists and others, the Commission has established minimum 

requirements for licensing of beauty shops, including the requirement that 

they have shampoo bowls and hair dryers. 

The Commission has received an appeal from a Licensee who is engaged 

solely in manicuring and “eye-tabbing” (which you advise is a process of 

affixing, by surgical adhesi,ve, falseor human lashes to existing Lashes) to 

waive the specifi.c requirement.s. You have asked whether the Commission 

has authorit~y to grant the requested waiver. 

A,rti,clc 734c, V. T, P. C., (hcrcaitcr “the Act”) is very comprehensive 

in I,ts regulation of cosmeto,logy whi,ch it defines in its § l(3) as including the 

“beautifying treatment” of a female’s hair or skin, or the nails of a male or 

a female and includes (A) hairdressing; (B) massaging and other treatments 

of the scalp and portions of the body; (C) the removal of superfluous hair; 

(D) manicuring; (E) the servicing of wigs,,or hairpieces. It provides for various specific types of licensing such as for a manicurist ($13), a wig speciali,st. (5 14), an operator (§ 15), an instruc,tor (§ 16) and a wig instructor (5 17). 

It calls for the Licensing of pri,vate beauty culture schoo,ls ($ 22) and wig schools 

(§ 25). 

It: provides for two types of shops: a beauty shop ($ 23) and a wig salon ($ 24). 

Sec,tion 23, in its enti~rety, provides: 

p. 690 
The Honorable Bonnie Griebel, page 2 (H-147) 

“(a) A person ho,Lding a beauty shop license may 

maintain an establishment in which any practice of cosmetology as defined in this Act is performed for compensation. 

“(b) An applicant for a beauty shop license shall 

submit an application on a form prescribed by the Commission. The application shall contain proof of the particular requisit.es for a beauty shop as established by the 

Commission and shall be verified by the applicant. 

“(c) The applicant is entitled to a beauty shop 

License if the application shows compliance with the rules 

and regulations of the Commission, a $25 license fee is 

paid, and he has not committed an act which constitutes 

grounds for denial of a License under Section 42 of this 

Act. ” 

The Act contains no provision for the licensing of a shop devoted to 

manicuring exclusively or to one practicing the art of “eye-tabbing. ” 

Section 4(a) of the Act provides: 

“The Commission may issue rules and regulations 

consi,stent with this Act after a public hearing. Notice of 

the publi,c hearing shall be issued at least 20 days prior 

to the date set for the hearing. The rules and regulations 

shall be published and furnished to licensees under this Act. 

Notwithstanding any other provisions of this Act, the Commission shall not have any power or authority to amend or 

enlarge upon any provision of this Act by rule or regulation 

or by rule or regulation to change the meaning in any manner whatso,ever of any provision of this Acts, or to promulgate any rule or regulati,on which is in any way contrary to 

the underlying and fundamental purposes of this Act or to 

make any rule or regulation which is unreasonable, arbi- , 

trary, capricious, illegal or unnecessary. ” 

p. 691 
The Honorable Bonnie Griebel, page 3 (H-147) 

There can be little question but that the regulation of cosmetology 

is necessary to the public health and is a proper subject for the exercise 

of the police power. Compare Texas State Board of Barber Examiners v. 

Beaumont Barber College, 454 S. W. 2d 729 (Tex. 1970). 

We believe it is equally clear that.the Legislature, in the exercise 

of the police power of the State, may declare the public policy and delegate 

to a Board or Commission the authority to adopt ru,les and regu,lations to 

carry out the details of the public policv under the eeneral nrovisions of 

the statutes. Brown v. Humble Oil & Refg. Co., 8; S. W. id 935 (Tex. 

193%; Tram v. Shell Oil Co., 198 S. W. 2d 424 (Tex. 1946). 

However, it is equally well established that the rules and regulations 

enacted or adopted by the administrative body may not be in excess of or 

inconsi.stent with the statutory provisions. Bailey v. Texas Indemnity 

Insurance Co. ) ,14 SW. 2d 798 (Tex. Comm. 1929); Kelly v. Industrial Accident Board, 358 S. We. 2d 874 (Tex. Civ.App., Austin, 1962, err. ref’d.). 

Fi.nally, until a rule or regulation is amended or repealed, it is as 

binding upon the administrative agency issuing it as it is upon the public. 

Gulf Land Company v. Atlantic Refining Company, 131 S. W. 2d 73 (Tex. 

1939); State v. Martin, 347 S. W. 2d 809 (Tex. Civ.App., Austin, 1961, err. 

ref’d., n. r.e.). 

With these general statements in mind, we are of the opinion that, 

within very strict limitations imposed in $4(a), supra, the Commission 

has the right to i,ssue rules and regulations consistent with the Act. It may 

do thi,s, however, only after a notice and a public hearing. 

We therefore conclude that the Commission may not “waive” a specific 

requirement in a parti,cular case. It may,if it chooses, amend or repeal a 

particular rule or regulation but this may be done only after 20 days notice 

and after a public hearing. 

WC would caut,ion that, the Act specifies the licenses which may beissued 

and ,, as WC have noted above, the only licenses for shops as such are those for 

beaut,y shops and wig salons. The only license authorized by $ 23 for a beauty 

p. 692 
The Honorable Bonnie Griebel, page 4 (H-147) 

shop is for the maintenance of an establishment “in which 3 practice 

of cosmeklogy as defined in this A,ct is performed for compensation. ” 

Should the requirements for such a license be modified, they will be 

modified as to all holders of beauty shop licenses. 

SUMMARY 

Where the Legislature has authorized the 

Commission to license shops for the practice of 

cosmetology, defined to include, among other things, 

manicuring, the Texas Cosmetology Commission is 

not authorized to adopt rules and regulations applying particuSar,ly to manicurists and is not authorized 

to waive any requirement of beauty shops in general 

for a shop limiting its practice to manicuring or to 

any other specific field. 

V_ery truly yours, 

APPF&VED: 

, First Ass’stant 

..J-+w 

DAVID M. KENDALL, Chairman 

Opinion Commit:tee 

HILL 

General of Texas 

p. 693