# The Attorney General of Texas

December 22, 1982

MARK WHITE Attorney General

Supreme Court Building P. 0. BOY 12546 Austin, TX. 76711.2546 5121475-2501 T&x Q101674~1367 Telecopier 512/475-0266

1607 Main St., Suite 1400 Dallas, TX. 75201-4709 214/742+3944

4624 Alberta Ave., Suite 160 El Paso. TX. 79905.2793 915/533c3464

1220 Dallas Ave.. Suite 202 Houston. TX. 77002-6966 7131650.0666

806 Broadway. Suite 312 Lubbock, TX. 79401.3479 806/747-5236

4309 N. Tenth, Suite 6 McAllen. TX. 78501-1685 5121682.4547

200 Main Plaza. Suite 400 San Antonio, TX. 78205.2797 5121225-4191

An Equal Opportunity/ Affirmative Action Employer Gary E. Miller,M.D. Commissioner Texas Department ofMental Health andMental Retardation P. 0. Box 12668 Austin, Texas 78711 OpinionNo. MW-526

Re: Whetherbarber and beauty shops in Texas Department of Mental Health and Mental Retardation must be licensed under the Barber and CosmetologyActs

Dear Dr. Miller:

You have requested our opinion as to whether barber and beauty shops located in facilities of the Department of Mental Health and Mental Retardation [hereinafter MHMR] must be licensed under the barber and cosmetology statutes. We presume that only licensed barbers and cosmetologistspractice in such facilities. Section 2(a) of article 8407a. V.T.C.S., the Texas Barber Law, prohibits the practice of barbering by any person "unless duly licensed and registered in accordancewith all laws of this state regulating the practice of barbering." Likewise, section 9(a) of article 8451a, V.T.C.S., the CosmetologyRegulatoryAct, provides that no person may "performany practiceof cosmetologywithout first obtaininga license
or certificatetoperform thatpractice."

Section 3(a) of article 8407a states that "[n]o person may own, operate, or manage a barber shop without a barber shop permit issued by the board [of barber examiners]." Section 3(b) directs every "firm, corporation, or person who opens a new barber shop" to apply for a temporary barber shop permit and pay an inspection fee of $25.00. An annual renewal fee of $25.00 is also required. section 19 of article 8451a specifies the requirements for obtaining a beauty shop licenseand also requiresa license fee of $25.00.

Itmight be argued thatneither statute contemplatesthat an MHMR facility must obtain a license to operate a barber or beauty shop. Section 19(d)of article 8451aprovides,however:

(d) In order that the public may fix responsibility for services, acts, or treatments performed by persons licensed by the State Board of Barber Examiners vis-a-vis those performed by

p. 1906Dr. Gary E.Miller - Page 2 (MW-526)

persons licensed by the Texas Cosmetology Commission, to promote the efficient and orderly administrationof laws regulatingbarbers and the practice of barbering and the laws regulating cosmetologists and the practice of cosmetology, and to avoid confusion of the public as well as avoiding conflicts of jurisdiction between such board and commissionwhich might impede effective administration or enforcement of the laws under their respective jurisdictions, from and after January 31, 1980:

(1) a person licensedby the barber board may practice barbering only at a location for which the board has issued a barber shoppermit,barber schoolor collegepermit, or any otherpermit. If the State Board of Barber Examiners and the Texas Cosmetology Commission license the same facility, the board may not adopt rules restricting or prohibiting the practice by a Class A barber in the facility;and
(2) a person licensed by the cosmetology commission may practice cosmetology only at a location for which the commission has issued a beauty shop license,privatebeauty culture school license,or any other license, If the StateBoard of Barber Examiners and the Texas Cosmetology Commission license the **SallIe** facility, the commission may not adopt rules restricting or prohibiting thepracticeby a cosmetologistin the facility.
Thus, the statute clearly indicates that licensed barbers and cosmetologists may practice their professions only in licensed facilities. Although both article 8407a, section 6, and article 8451a, section 39, exempt certain "persons" from theprovisionsof the two statutes, neither excepts persons who practice in state facilities, and neither provides any exception to the licensing of barber or beautyshops.
Furthermore, in Attorney General Opinion H-769 (1976). this office held that a person employed as a psychologist by a hospital licensedby MIIMRisnot thereby exempt from the licensingrequirements of article 4512c, V.T.C.S., the Psychologists' Certification and Licensing Act. The opinion indicated that the lack of a specific statutory exception for MHMR facilities implies that psychologists employed therein are not exempt from the licensing requirements for psychologists. In our opinion, the absence of similar exceptions for

p. 1907Dr. Gary E. Miller - Page 3 (MW-526)

barber and beauty shops inMHMR facilities,togetherwith the specific prohibition against the practice of barbering and cosmetology in unlicensed facilities,obligesus to conclude thatbarber/beautyshops located in MHMR facilities must be licensed under the barber and cosmetology statutes. Section 19 of article 8451a clearly contemplatesdual licensing in any facilitywhere both barbering and cosmetologyare practiced.

SUMMARY

Barber/beauty shops located in facilities of the Department of Mental Health and Mental Retardationare required to be licensedunder the barber and cosmetology statutes, articles 8407a and 8451a.V.T.C.S.

MARK WHITE Attorney General of Texas

JOHNW. FAINTER,JR. FirstAssistantAttorney General

RICHARD E. GRAY III ExecutiveAssistantAttorney General
Preparedby Rick Gilpin AssistantAttorneyGeneral

APPROVED: OPINION COMMITTEE

SusanL. Garrison,Chairman Jon Bible Rick Gilpin PatriciaHinojosa Jim Moellinger BruceYoungblood

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