May 20, 1939

Honorable

George H. Sheppard Comptrollers.of

PublicAccounts Austin,

Texas Dear Sir: OpiniosRJ. O-801 Re: Refuad of monay fYom suspense eooountthrcughState Board of Cosmetology. 76s are In receiptof your letter of Kay 11, 1939, Ia whioh you requestthe opinionof this department as to whetheryou tie authorised to Issuewarrantsagainst the suspense

fund for refund of application aJld licensefees eat out Inthe attached olaim filedbythe 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 LIoenseexpired 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 peymentrequesting that the blank be filled out and returned. The applicant, however,

did not fill out and return the application blank but declined

to proceedfurther snd requested a refund of the $10.00which had theretofore ,ben forwarded

to the Board.r. ----- .

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

ITSM 2: $10.00

was forwarded

to the Boardwith 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 requestof **the** Board was complied

with tit the Inspector required that tno doorsbe sealedup and closed before a oertificate could be Issued. Applicant

refusedto comply

Prith the requirements

of the Board and requested the return of the registration fee, which had thsretoforebeen paid. ITEM 3: ClaImant

held an operator's license

whichwas not renewed withInthe time required bylaw. The annual lioenseor renewalfee of #3.00mas sent to the Poardafter such time had elapsed, and the Board notIfIed

the sender that the formerlicense having expired,It would lm necessary

for the operator

totake an examination and pay the required fee therefor. lhe olaImant refusedto take the required sxemination

and pey the additional fee and requested

the return of the #3&O which had theretofore

been sent to the Boardas the annual lioensefee whiohhad 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 paymentof the szaminatioa and lioensefee . . .* '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 offIcemoney order for Ten Dollars (#10&O), . . . and such application for registration

as an operator

to rao* In any beautyparlor shall be accompanied

by a cashIeris

check of post offioemoney order for Ten Dollars ($10.00).
. . .c "Section

18(a). The ennuallicensefee for conducting a beautyparlor shall be the sum of Five Dollars ($3.00)
. . . and the annuallicense fee for operators

to work.atthetrade or praotice of beauty oulture shallbe the sum of Three Dollars ($3.00)
. . .',:dl, The above citedact is **regulatory,** basoi upon the statepolice power to safeguard

the public

health and the Z'CES provided

are license fees and not in the nature of an occupation tax. GerardVS. 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 Section14 whioh provides :or the payment of both an exmnination and a lieensefee by applicants for an operator's

licenseor certificate. Section17 provides that an applicationfor a certificate to oonduot

a beau* parlor shall be aocompaniad with a $10.00payment. 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 $10.00paymentrequired shouldbe for the certificate or licenseissued. Since the paymentIs 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 annualpayments which In various sections

of the act are oplled "renewal fees,! "annual

lioenae fees" and 6annualregIstration fees*"

_ You are, therefore, advisedthat you are authoriced to Issue mar-rants

on the suspense

fund for refundof eaoh of the Items listed In tha claim suhaitted. Yoursverytruly 4TTOREEY

GHiEEAL

OF THEAS ey /s/ ceai1 C. Cawma&

Cecil C.'C66siiaek AESiShDt CCCsCG:egw APPmr /s/ @mild C. Mann ATTORUEY

GEliEULOF TEXAS AFPRCVED OpinionCo666Ittee W-R- E'~~K Chairman