Mrs. Frances Havins

Executive Secretarv Opinion No. M-905 State Board of Hairdressers Re: Effect of enactment of and Cosmetologists H. B. No. 156 by the 62nd 1111 Rio Grande Legislature,Regular Austin, Texas 78701 Session, 1971, upon various provisions of Article 73413, Bear Mrs. Havins: Vernon's Penal Code.

In your recent letteryou requested the opinion of this office on the followingquestions:

"1. Is August 31, 1972, the expirationdate of a renewal 1972 license issued or applied for in accordancewith the provisionsof Article 734b during the period June 2 - August 29, 19711 "2. Are license fees for renewal applications filed prior to August 30, 1971, and received in our office at a later date determinedby Article 73433 under the Penal Code or by House Bill 156? "3. Are license fees for applications filed after August 29midnight determinedby House Bill 156 or Article 734b of the Penal Code? "4. Please rule on the correct remittance for the September State Board examination and subsequent licenseprovided the applicant is successful in passing the examination." In connectionwith your requestyou advised us as follows: "Thepractice of the Board formany years has been to consider an application for a renewal license timely filed if postmarkedbefore the deadline for renewal.'

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Mrs. Frances Havins, page 2 (M-905)

House Bill 156, enactedby the 62nd Legislature, Regular Session, 1971,will be effectiveAugust 30, 1971. That Bill repeals the presentArticle 73413, Vernon's Penal Code. (Acts44th Leg., R. S., 1935, as amended, and hereinafter referred to as Article 73413.) EffectiveAugust 30, 1971, therefore, the State Board of Hairdressersand Cosmetologistswill be abolished and the Texas Cosmetology Commissionwill be created. The Commissionwill in largemeasure perform those functions formerly performedby the Board.

Our answer to your first question is in the affirmative. Section 8 of Article 734b provides, in part as follows: "(a)No certificateor license shall be issued for a longerperiod than one (1)year, and shall expire on the 31st day of August following the date of issuance. Applications for renewal may be filed at any time after June 1st preceding the expiration date of the license.

. . ." Until August 30, 1971,Article 7341,is the controlling law. That statuteprovides that an application for a renewal licensemay be filed at any time after June 1st. Clearly the legislature intended that a renewal license issued following such applicationwould be effective at the expiration of the applicant's current license. Hence a renewal license issuedbetween June 2nd and August 29th of 1971would be effective Septemb(:r1, 1971. It would expire, under Section 8 of Article 734b, on August 31, 1972. The Board has the power during the life of Article 734b to approve such renewal even though the term of the license runs beyond the life of that statute. This is provided for under Section 48 of House Bill No. 156,which reads, in part, as follows:

"(a) On the effective date of this Act, any license issued by the State Board of Hairdressers and Cosmetologistsremainsvalid but is subject to the renewalprocedures establishedby this Act."
'We note fromyour inquiry that the practice of the Board formany years has been to consider an application for a renewal license timely filed if postmarkedbefore the deadline for renewal. This administrativepractice is accorded considerableweight in the constructionof Article 73433. 53 Tex.Jur.Znd. 259, Statutes, Sec. 177. We are of the opinion, therefore, that an applicantwho files a renewal application in time to have it postmarked not later
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than August 29, 1971, is entitled to have his renewal **license** made effective September 1, 1971, and to **expire** August 31, 1972, conditioned,however, on his applicationbeing complete,properly-made in every respect, and accompaniedby a good remittance of the renewal fee prescribedby Article 73413, and on his being otherwisequalified.

What has been written to this point concerns a **re** newal license for 1972. On the other hand, a new license, i.e., the first issued to a particularholder, if issued by the Board prior to August 30, 1971,would necessarily,expireon August 31, 1971. The power of the Board to issue a new license ends at midnightAugust 29, 1971. Merely filing anapplication **for** a **new** licenseprior to that time does not, therefore, entitle the applicant to a new licenseunder the conditions and fees prescribedby Article 73435.The Board may issue a'new licenseonly **after** it is satis,fied that the applicant is qualified,has passed any required examination, and has met all requirements **of** the applicable statute. Hence any application for a new license filed on or before August 29, 1971, and not actually issued by the Board before the end of,that day,must 1ay'~over and be issued, if **sat,~** all, by theCbmmissionunder the conditions and fees prescribedby House Bill 156.

In reply to your secondquestion, license fees for **re** newal appl

.icationsproperly filed and postmarkedprior to August 30, 1971, though the

are governedby Article 73433.This applies even applioation is not actually received until August 30th or later. An application is not properly filed unless it is complete,properly **made** in **every** respect, and accompaniedby a good remittance for the proper fee.

We have discussed in our answer to your,'first question the fact that under administrativepractice followedby the Board an applicantwho files under the conditions' prescribed in the above paragraph is deelnedto have timely filedhis application. Having timely filedhis application for a renewal license during the life of Article 734bwe think he is entitled to pay the lower fee prescribedby the same statute. He has done everything required of him. He should not be penalizedbecause office procedure involved in actually issuing the:renewal licensemight require a week or more. We think this holding~follcws the practice authorizedby statute for other State agencies in connection with the collection of taxes.

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In answer toyour third question, license fees **for** all applications filed aftermidnight,August 29, 1971, or postmarked after that time, are governedby House Bill 156. Section 48 of House Bill ,156

provides, ,inpart, as follows: "(a)On the effective date of thisAct, any license issuedby the State Board of Hairdressers and Cosmetologists remainsvalid but is subject to the renewalprocedures establishedby this' Act."
Your fourth question concerns the,correct fee payable for the September 1971 State Board examination and license.

Both Article 734b and House Bill 156 provide for the examination to be given on the first Tuesday in eachmonth. The September examination in 1971will fall on the.fth day of that month. .BothActs provide for filing an application ten days prior to the date set for the examination. The,,application will thereforebe filed under Article 734b, as House Bill 156 is not effective until August 30, 1971.

The problem arises because Article 734b; in Section 4 (a) (4)provides that **an** applicant for an operator's license shall accompany the applicationwith a $15.00 fee. No further fee is required for the license. On the otherhand, Section 15 (c)of House Bill 156 provides for a $5.00 feewith the application, and Section 15(d)provides for an additional $15.00 fee for the license.

We **are** of the opinion that an application for a new license filed 10 days prior to the September, 7;1971, examination must be accompaniedby a $15.00 fee. Article 734bwill still be in effect. A new license issued following that,examinationwill be issued,however, under authority of House Bill 156. That statuteprescribes a total of $20.00 for filing **fee** and examination fee. We are of the opinion that the requirementsof both statuteswill be wt if the~applicantpays a $15;80 filing fee inAugust and an additional $5.00 fee after,passingthe examination. It is clearly the intention of the 62nd Legislature that the total cost to the applicant should be only $28.00.

The filing **fee** and license fee required in connection with all examinationrtfollowing the one in September 1971will be governed in all respectsby House Bill 156.

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SUMMARY **A** renewal license issuedby the.,State Board of. Hairdressers and Cosmetologistsduring'theperiod June 2 throughAugust 29, 1971, expires on August 31, 1972. An applicantwhose proper application,with fee, is postmarked not later than August 29, 1971, is entitled to a renewal license to expire on August 31, 1972, if he is otherwise qualified. The power of the Board to issue a new license expires at midnight August 29, 1971. Any n'ev'license actually issued by the Board prior to that timewill expire August 31, 1971. Any application for a new licenseupon which **a** licensehas not bean .issued by the **Board** prior to August 30, 1971,must lay over for actionby the Commissionunder H. B. No. 156. License fees for renewal applicationsproperly filed and postmarked prior to August 30, 1971, are governedby Article 734b. License fees for all applioationspostmarked **or** filed **after** midnight August 29, 1971, are governed by H. B. No. 156.
An applicant for the September 7, 1971, Board examinationwill pay a $15.00 filing feewith the application and an additional $5.00 license fee.
Fees **for** all examinations after the September 1971 examinationwill be by H. B. No. 156.

General of Texas Prepared by James S. Swearingen Assistant Attorney General

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Mrs. Frances Havins, page 6 (M-905)

APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Ch&hIian Malcolm Quick S. J. Aronson Tom Sedberry Austin Bray
MEADE F. GRIFFIN Staff LegalAssistant
ALFRED WALKER ExecutiveAssistant **NOLA**WHITE First Assistant

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