The Honorable Bonnie Griebel Executive Director Texas Cosmetology Commission 1111Rio G,rande Austin, Texas 78701 Dear Mrs. Griebel: Opinion No. H- 1.47
Re: Whether t.heTexas

Cosmetology Commission has the authority towaive certain requirements under Art. 734(c).
Pursuant toArticle 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 aLicensee who is engaged solely in manicuring and“eye-tabbing” (which you advise is aprocess 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 togrant 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” ofafemale’s hair or skin, or the nails ofa male or afemale and includes (A) hairdressing; (B) massaging and other treatments of the scalp and portions ofthe body; (C) the removal of superfluous hair; (D) manicuring; (E) the servicing ofwigs,,or hairpieces. Itprovides for various specific types oflicensing such as for amanicurist ($13), awig speciali,st. (514), an operator (§15), an instruc,tor (§16)and awig instructor (517). It calls for the Licensing ofpri,vate beauty culture schoo,ls ($22) and wig schools (§25). It:provides for two types of shops: abeauty shop ($23) and awig salon ($24). Sec,tion 23, in its enti~rety, provides:

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“(a) A person ho,Lding abeauty shop license may maintain an establishment inwhich any practice of cosmetology as defined in this Act is performed for compensation.

“(b) An applicant for abeauty shop license shall submit an application on aform prescribed by the Commission. The application shall contain proof ofthe particular requisit.es for abeauty 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 ofthe Commission, a $25 license fee is paid, and he has not committed an act which constitutes grounds for denial ofa License under Section 42 ofthis Act. ” The Act contains no provision for the licensing ofa shop devoted to manicuring exclusively or to one practicing the art of “eye-tabbing. ”

Section 4(a) ofthe Act provides:

“The Commission may issue rules and regulations consi,stent with this Act after apublic 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 ofthis Act, the Commission shall not have any power or authority to amend or enlarge upon any provision ofthis Act by rule or regulation or by rule or regulation to change the meaning in any manner whatso,ever ofany provision ofthis Acts, or to promulgate any rule or regulati,on which is in any way contrary to the underlying and fundamental purposes ofthis Act or to make any rule or regulation which is unreasonable, arbi- , trary, capricious, illegal or unnecessary. ”

p. 691The 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 aproper subject for the exercise ofthe 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 ofthe police power ofthe 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. ) ,14SW. 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 arule or regulation is amended or repealed, it is as binding upon the administrative agency issuing it as itis upon the public. Gulf Land Company v. Atlantic Refining Company, 131S.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 toi,ssue rules and regulations consistent with the Act. Itmay do thi,s, however, only after anotice and a public hearing.

We therefore conclude that the Commission may not “waive” a specific requirement in aparti,cular case. Itmay,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.

WCwould caut,ion that,the Act specifies the licenses which may beissued and,,as WChave 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 abeauty

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

shop is for the maintenance ofan 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

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