May 20, 1939 

Honorable George H. Sheppard 

Comptrollers.of Public Accounts 

Austin, Texas 

Dear Sir: Opinios RJ. O-801 

Re: Refuad of monay fYom suspense 

eooount thrcughState Board of Cosmetology. 

76s are In receipt of your letter of Kay 11, 1939, Ia whioh you 

request the opinion of this department as to whether you tie authorised 

to Issue warrants against the suspense fund for refund of application 

aJld license fees eat out Inthe attached olaim filed bythe State l!oard 

of Hairdressers and Cosmetologists. 

The ItaDs oontained In ihis claimare as follows: 

IiAMEmDADDREss AMODRTOF AlmmoF 

REm DEFGSIT 

(1) Roth, Gertrude, West Columbia t10.00 Decided not to 

(2) Turpen, Mrs. Rvelyn, Cleveland 

open a shop 

10.00 Deaided not to 

open a shop 

(3) Woolley, l&s. Rilday J, 3.00 

Ft. worth 

LIoense expired 

Total - 

Inquiry at the State Board of Cosmetology disclosed the faots up 

on which thuse olaims were based to be as hereinafter set out. We assume 

that the facts given are oorreot. 

ITRb4 1: The applicant forwarded $10.00 to the Board for a shop 

license, which money was not aocompanied by 811 application blank. The 

money was placed in suspense and an application hlenk forwarded to the 

person m&lag peyment requesting that the blank be filled out and returned. The applicant, however, did not fill out and return the application blank but declined to proceed further snd requested a refund of 

the $10.00 which had theretofore ,ben forwarded to the Board. 
r. 

----- . 

Eon. Gee. H. Shepperd, page 2 (o-801) 

ITSM 2: $10.00 was forwarded to the Board with no application 

blank attached. The money vms plaoed in suspense and a blank forwarded 

totha sender requesting that it be properly filled out and returned. 

The request of the Board was complied with tit the Inspector required 

that tno doors be sealed up and closed before a oertificate could be 

Issued. Applicant refused to comply Prith the requirements of the 

Board and requested the return of the registration fee, which had thsretofore been paid. 

ITEM 3: ClaImant held an operator's license which was not renewed 

withInthe time required bylaw. The annual lioense or renewal fee of 

#3.00 mas sent to the Poard after such time had elapsed, and the Board 

notIfIed the sender that the former license having expired, It would lm 

necessary for the operator totake an examination and pay the required 

fee therefor. lhe olaImant refused to take the required sxemination and 

pey the additional fee and requested the return of the #3&O which had 

theretofore been sent to the Board as the annual lioense fee whioh had 

been rejected. 

Article 7S4b, Penal Code, contains the following provisions: 

“Seation 14, Non-resident hairdressers or cosmetologists and graduates 

of lIaensedeohools may only apply for exe&nation under the Ad upon 

the payment of the szaminatioa and lioense fee . . .* 

'Section Mb. Each application for examination to the State Board shall 

be soaompanIed ly a aashier’s oheak or post offioe money order for the 

sum of $10.00." 

sSectIon 17. Each applicant to oonduot a beau* parlor as defined In 

this Act shell aecomw such application with a oashier's oheok Or post 

offIce money order for Ten Dollars (#10&O), . . . and such application 

for registration as an operator to rao* In any beauty parlor shall be 

accompanied by a cashIeris check of post offioe money order for Ten 

Dollars ($10.00). . . .c 

"Section 18(a). The ennual license fee for conducting a beauty parlor 

shall be the sum of Five Dollars ($3.00) . . . and the annual license 

fee for operators to work.at thetrade or praotice of beauty oulture 

shall be the sum of Three Dollars ($3.00) . . .',:dl, 

The above cited act is regulatory, basoi upon the state police 

power to safeguard the public health and the Z'CES provided are license 

fees and not in the nature of an occupation tax. Gerard VS. Smith 

(T.C.A. 1932) 52 S.W. (2nd) 347; Hurt vs. Cooper (Sup. Ct. 1937) 110 

S.W. (2nd) 696. 
-.-. . 

Hon. Gee. H. Shepperd, page 3 (o-801) 

We call your attention to Section 14 whioh provides :or the 

payment of both an exmnination and a lieense fee by applicants for an 

operator's license or certificate. Section 17 provides that an application for a certificate to oonduot a beau* parlor shall be aocompaniad with a $10.00 payment. This payment is not desigated by the statute as an inspection fee or examination fee, and we thing It was the 

intention of the Legislaixre that the $10.00 payment required should be 

for the certificate or license issued. Since the payment Is for the 

certificate, until the certifioate is granted, no consideration has been 

received therefor, and the state would not be entitled to retain the 

money upon rejection of the application. 

The same consideration6 apply to the annual payments which In 

various sections of the act are oplled "renewal fees,! "annual lioenae 

fees" and 6annualregIstration fees*" _ 

You are, therefore, advised that you are authoriced to Issue 

mar-rants on the suspense fund for refund of eaoh of the Items listed In 

tha claim suhaitted. 

Yours verytruly 

4TTOREEY GHiEEAL OF THEAS 

ey /s/ ceai1 C. Cawma& 

Cecil C.'C66siiaek 

AESiShDt 

CCCsCG:egw 

APPmr 

/s/ @mild C. Mann 

ATTORUEY GEliEUL OF TEXAS 

AFPRCVED 

Opinion Co666Ittee 

W-R- E'~~K 

Chairman