OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Say 20, 1939 

Lb. W. J. Ddrtez, Secretary 

State E3oard of Barber EXamlnare 

Austin, Texas 

Denr'Slr: 

ae to whettior or not 

only a health 

die tools, uupplies, or et&- 

iII Said 8hOpB Qr~~lOPll, 

them to,work in aaid &@pa 

re unless said barber or 

logist or ODhm person has 

1004 test showing freedom from 

otta or oommudoable biosaeo 

and he6 in h.ia poaseeeion a R&etration aa Identiiioation GertifY.oate 

mentioned in aaid Health~Certiri,oate 

Ordinanoe; nor shall any barber, mmmetologiet or suoh other person work 

in a barber shop OF beauty parlor or 
Zr. it. J. Dartez, Xay 2C, 1939, Page 2 

pursue his trade in connection with 

barbering or cosmetology in said Cit,y 

unless he has had said blood..test 

and has'in hXs possession. such registration and Ideatiiicat%on Certificate. Such certificate shall be *alid 

for six months only fromdate of lssuarnce .” 

We assIMI) your doubt.ot.the forge of 

the'above section rests on the ~aonetltutloneIi~y 

or the attempted regulation. 

The power to re@ate~*r the protqatfon of publio health in this day of prophylaxis 

is established beyond doubt. The aonetltutlonal 

authorlty.of a- munialpal borparatlon in Tenw 

to regulate the profession of barbers from a~ 

ea@itary or health etaudpolnt: has been eetablfehed 

lntbe case of Eenzal v. city of San Antonlo, 221 

SW 237, Cot& of Civil Appeals (error rerueed). 

See also 20 A.L.R., page 1108. 

In the instant qplmlon we have before 

us the right of a aanialpal aarparation to regu' 

late'aa oaaupatlon after the state hm3 exeralsed 

tbs le&&etlve control over that oaaupatlon, 

The aourts or thiri state have held that a business 

ar oaaupatiti lloensed by state law mss be remlate4 rith5.n I reasonable Unit, by munlaipal 

ordisnnaa, it the regulation does not impids the 

right under the state license, &s "ExPart.e 

Rrwer,a I.52 SY 106S, a Texas case. 

Let us omsiiler~kur etate regulation 

ot barbers and aoexmtologlsts with referenaa to 

phyaiaal examlnatlon. Our ~Tera8 Barber Lau, artihle 734a, eeotion 21, subseotion (1) of our'Pena1 

Code reads as fol~ws: 

"No certificate shall be isauad or 
I&-. Ii. Jo. Dartez, &.y 20, 1939, Psge 3 

renewed unless and until each applicant shall'present a health certifioate rrozn a regular practicing medical 

doctor showing that the applicant Is 

free from any kind of Itieotious or 

contagious diseases, tuberaulosls, 

oommunicable diseases, free from the 

use of euy kind of mDrphIne, cooaine, 

or other habit-farming drw, or a 

habitual drunkard and that said applioant shall make affidavit to said 

medical examinetion that all of said 

fact6 are true." 

The above section requires an ereminatlon onae a yeer and a health certificate is the 

require-t of'tha eppliaent. Thus, a blood test 

Is not necessary to oolpgly with tlm state statute, 

however, a aertiticete evldemaimga blood test 

would satisfy the statsrequirement. The alty 

of Midland, a homrs rule alty, has attempted to 

etrengthen the requirement as ta the~physiael 

aondition or barb&s and aosnmtologists. In 

order to comply with the aity ordinenea It will 

be necesssry for a barber to have two or not 

more than three blood tests a year, oae of dish 

may also be uaed'to qualiry for a state liaense. 

Our state law on haird8eseara snd oosmstologists, art&ale 734b, seotion 10, aubseation 

(b) of our Penal Code reads ae tollomr: 

*All appliaatione for examinstion and for llaanee shall be acaompanied by a health certificate by a 

regularly liaensed doctor of medicine, 

showing the applicant to be free from 

any crontagious or Infectious diseasea 

as determIned by a general examInation and Wasserman blood test.* 
tir. X. J. Dartez, IGay 20, 19S9, ?age 4 

The persons following that profession 

tire presently required to hjve a Kasseraan blood 

test once a year. The Xidland Ordinance will 

require another such test six months frox the 

dnte of the last one. 

The oourts of this and other states 

are wont ti sustain any reasonable munioipal 

regulation for the protection of health and the 

preservjtion of the lives of our citizens. This 

is true, thou&h the municipal regulation goes 

further than state regulation. See 43 Corpus 

Suris p. 220 axxl Gulf C. k. 9. P. R'. Co. v. Calvert, 

32 SK 246, e-or refused. For other authorities 

holding that.a city may enlarge the requirements 

of a statute where the regulation moves In the 

same direction ati not oounter to the state.law, 

and that suoh regulation ie consistent wit&the 

state law, see Olson v. Plattville 91 A.L.R. 308 

and Spitler v. 'km of b¶uneter 115 A.L.R. 1395. 

lkour o 

Iv 

lkonthe attempted regulation Is oonsistent ,ith the purpose of'the legislature to proteot ihe publIa health from the 

'. 

dangers of.skin inieotione, scalp dletiases or 

any other oontagioue diseases. It go68 further 

than the state law, but moves in the same direation, ndt.oouuter to it,. axl has a co&mendable 

purpose. 

taken to 

sietents 

physical 

Wails our state law& have not Uderregulate portera, they *'regulate asto barbers and aometologists and. require 

examinations of those peraom. This _ . . . _ -._ attemptea regulation 18 a Ilealth meaeure ana tne 

requiremat of blood teeta of porters handling 

the tools or supplies of a .ahop.Is a reasonable 

one. It should be a ~timulue to the present efforts of State Health Authorities, to eradicate 

social diseases. 
Sr. X. J. Dartez, 6tay 20, 1939, Page 5 

~.e are faced with another test of 

this atteropted regulation. Does it invade a 

field reserved to itself by our legislature by 

reason of state legislation upon this mtter? 

The ordinance under consideration is 

designed as a health measure. The power of a 

city to pass ordinances for the protection of 

health after the state has passed similar laws 

seems to rest upon their conformity with the 

state law upon the m+~ subject. See Mantel v. 

State, 117 SW 855. 

The aity or Mldland has *posed no sort 

of tax upon the barbers Or cosmetologists$ it 

Zlk8S PO f'8~Uir8IU8at OfmDY?al Character Op Of 

th8~trad8 name Used and it does not~att8m& to 

PSS UpOU.the GOIQeteUOy Of the per&Xl tO~mCtiO8 

the prOi8SsiOL Those matters 'are left to the 

controlling State Boards authorized by statute 

to determine those facts. w8 do IlOt b8li8V8 

that the 18gi8latU8 by 8MOting al-tic18 734a 

and aI%iOle 734b Of Our &HLa) COf38~iUt8ild8d t0 

or did usurp the exolussivs power to protsot the 

publio health in barber and beauty shops. 98 

attempted regulation is not ~violative Of stat8 

regulation, but is in harmon8yrith it. 

.It la the opinfoa of this depar$ment 

that seotlon 4a or the City Ordinance or Midland, 

Texas as submitted lx& yoUr letter or April 27, 

1939 is a valid regulation and IP obligatory 

Up&l the p8rtXOUEi WIRd therein. 

Toum vary truly 

ATTOBKgY GEt?XRAL OF TECAS 

(signed) 

BY