Ms. Jo King McCrorey Opinion No. JM-719 

Executive Director 

State Board of Barber Examiners Re: Whether members and employees 

1300 E. Anderson Lane of the State Board of Barber 

Bldg. C, Suite 275 Examiners may engage in certain 

Austin, Texas 78752 activities without creating a 

conflict of interest 

Dear Ms. McCrorey: 

On behalf of the State Board of Barber Examiners, you ask several 

questions about potential conflicts of interest. Your first question 

is whether it would be a conflict of interest for the board to examine 

one of the board members for licensure. 

Article 6252-9b. V.T.C.S., sets standards of conduct for state 

officers and employees. Section 1, of article 6252-9b. provides: 

It is the policy of the State of Texas that no 

state officer or state employee shall have any 

interest, financial or otherwise, direct or 

indirect, or engage in any business transaction or 

professional activity or incur any obligation of 

any nature which is in substantial conflict with 

the proper discharge of his duties in the public 

interest. To implement this policy and to 

strennthen the faith and confidence of the oeoole 

of Texas in their state government, there ire 

provided standards of conduct and disclosure 

requirements to be observed by persons owing a 

responsibility to the people of Texas and the 

government of the State of Texas in the performance of their official duties. It is the intent 

of the legislature that this Act shall serve not 

only as a guide for official conduct of these 

covered persons but also as a basis for discipline of those who refuse to abide by its terms. 

(Emphasis added). 

See also V.T.C.S. art. 6252-9b, 98 (specific standards of conduct); 

art. 8407a, 529B(b) (restrictions on members of the Board of Barber 

Examiners). Whether a particular activity violates article 6252-9b is 

usually a question of fact, which cannot be resolved in the opinion 

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process. See Attorney General Opinion H-1288 (1978). In this case, 

however, weconclude that as a matter of law it would conflict with a 

board member‘s discharge of his duties as a member of the Board of 

Barber Examiners if he took an examination administered by the board. 

The Texas Barber Law, article 8407a, V.T.C.S., provides for a 

six-member Board of Barber Examiners: 

The State Board of Barber Examiners is hereby 

created and shall consist of six members. appointed 

by the governor with the advice and consent of 

the senate. The board shall be composed of the 

following: two members shall be Class A barbers 

actually and actively engaged in the practice of 

barbering for at least five years prior to being 

appointed and while serving as members of the board 

and who are not holders of a barber shop permit 

issued by the board; one member shall be a barber 

shop owner holding a permit issued by the board 

and who is actively and actually engaged in the 

practice of barbering for at least five years prior 

to being appointed and while serving as a member of 

the board; one member shall be a person holding 

a permit from the board to conduct or operate a 

barber school or college; and two members shall be 

representatives of the general public who are not 

regulated under this Act and who do not have, other 

than as consumers, any financial interests in 

barbering. The terms of office shall be for six 

years with terms for two of the six board members 

expiring at the same time every two years. All 

members appointed by the governor to fill vacancies 

in the board caused by death, resignation, or 

removal shall serve during the unexpired term of 

such member's predecessor. Before entering upon 

the duties of office, each member of the board 

shall take the constitutional oath of office and 

file it with the secretary of state. Members of 

the board may be removed from office for cause in 

the manner provided by the statutes of this state 

for public officials who are not subject to impeachment. In case of death, resignation, or 

removal, the vacancy of the unexpired term shall be 

1 

1. Your question raises another issue. Two board members must 

be persons not regulated by the board. If one of those members became 

licensed as a barber, the board would no longer be duly constituted. ? 

See generally Attorney General Opinion JM-578 (1986). 

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Ms. Jo King McCrorey - Page 3 (JM-719) 

filled by the governor in the same manner as other 

appointments. (Emphasis added). 

V.T.C.S. art. 8407a. 626(a). 

The preparation and administration of licensing and certification 

examinations is one of the main duties of the State Board of Barber 

Examiners. The board administers several different types of examinations. It administers examinations to persons who wish to become 

licensed as Class A registered barbers, V.T.C.S. art. 8407a. 57; to 

persons who wish to become certified as barber teachers, V.T.C.S. art. 

8407a, 69(f); and to persons who wish to obtain certain speciality 

licenses, such as manicurist licenses or wig specialist licenses, 

V.T.C.S. art. 8407a. 5915 through 17. 

The purpose of the board's examinations is to determine whether 

the rxaminee has the knowledge and skill necessary to the relevant 

license or certification. See art. 8407a. $97, 9(b), 11(a), 14(b), 

15(d), 16(d), 17(d). The board could not fairly test the competence 

of an examinee who knew in advance the contents of the examination. 

Therefore, if a board member were to take an examination, he would not 

be able to participate in the preparation of the examination. Cf. 

V.T.C.S. art. 6252-9b. 16(a). Furthermore, if the board member had 

participated in the preparation of previous examinations, the board 

would not be able to re-use questions from these examinations. See - 

generally Open Records Decision Nos. 353 (1982); 118 (1976). 

Because taking an examination administered by the board would 

preclude a board member from participating in one of the board's most 

important tasks and could work a hardship on the entire board, it 

would be in substantial conflict with the board member's discharge of 

his public duties. We conclude, therefore, that a board member would 

violate the policy set forth in article 6252-9b by taking a licensing 

or certification examination given by the board. Furthermore. an 

appointed state officer must take an oath promising to faithfully 

execute the duties of his office. Tex. Const. art. XVI, 61. Taking a 

board examination would place a board member in a position in which he 

would not be able to fulfill that oath. See also V.T.C.S. art. 5967 

(state officers may be removed for good cause). Therefore, a member 

of the State Board of Barber Examiners may not take a licensing or 

certification examination given by the board. 

You also ask whether a barber inspector, a board employee, may 

engage in certain activities related to barbering. We must consider 

your questions about board employees not only in light of the policy 

and standards set out in article 6252-9b. but also in light of 

conflict-of-interest provisions in the barber licensing statute, 

article 8407a. Section 27a, which was added to article 8407a in 1967, 

provides: 

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(a) No barber inspector or other employee of 

the State Board of Barber Examiners may sell 

barber supplies or engage in any other business 

which deals directly with barbers, barber shops, 

or barber schools except that he may engage in the 

practice of barbering. 

(b) Violation of this section is a misdemeanor, and upon conviction is punishable by a 

fine of not more than $5.000, or by confinement in 

the county jail for not more than two years, or 

both. 

Section 29B. which was added in 1979, provides in part: 

Sec. 29B. (a) An employee of the State Board 

of Barber Examiners whose duties include the 

administration of the board's functions under this 

Act may not: 

(1) have, other than as a consumer, a 

financial interest in barbering; 

(2) be an officer, employee, or paid consultant of a trade association in the barbering 

industry; or 

(3) be related within the second degree by 

affinity or within the second degree by consanguinity to a person who is an officer, 

employee, or paid consultant of a trade 

association in the barbering industry. 

. . . 4 

(c) An employee who violates this section is 

subject to dismissal. . . . 

Before we can address your specific questions, we must address 

whether section 27a has been impliedly repealed. It has been 

suggested that section 29B impliedly repealed section 27a because 

section 29B(a). the later enactment, is a comprehensive prohibition on 

conflicts of interest and is more restrictive than section 27a. 

Implied repeals are not favored. Standard v. Sadler, 383 S.W.2d 

391 (Tex. 1964). If, by any reasonable construction, two acts can be 

construed so that both can stand, one will not be held to repeal the 

other. Cunningham v. Henry, 231 S.W.2d 1013 (Tex. Civ. App. - 

Texarkana 1950, writ ref'd n.r.e.). We think that the statutes in 

question can be harmonized to some extent, but we conclude that 

section 27a has been impliedly repealed to the extent that it 

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affirmatively allows barber inspectors to. engage in the practice of 

barbering. 

Section 29B applies to any board employee whose duties include 

the administration of the board's functions and provides that such an 

employee may not have any financial interest in barbering other than 

as a consumer. An employee who violates section 29B is subject to 

dismissal. Section 27a applies to all board employees and provides 

that an employee may not "sell barber supplies or engage in any other 

business which deals. directly with barber shops, or barber schools 

except that he may engage in the practice of barbering." An employee 

who violates section 27a is subject to criminal penalties. We 

construe those statutes together to mean that an employee who violates 

the stricter standard of section 29B is subject to dismissal but not 

criminal prosecution. An employee who violates both sections would 

be subject to criminal prosecution under section 27a as well as 

dismissal under section 29B(c). Section 27a affirmatively states, 

however, that a barber inspector "may engage in the practice of 

barbering." That provision conflicts with section 29B(a)(l), which 

prevents a barber inspector from having a financial interest in 

barbering other than as a consumer. Because section 29B is a later 

enactment, we think that it repeals the clause in section 27a that 

provides that a barber inspector may engage in the practice of 

barbering. See Wright v. Broeter, 196 S.W.2d 82. 85 (Tex. 1946). - 

We now turn to your specific questions. You ask whether a barber 

inspector may take a course at a barber college during his off-duty 

hours. You also ask whether an inspector may take a .course at a 

college located in his inspection territory or at a college owned by a 

board member. The prohibitions set out in article 8407a. section 27a, 

are not applicable to your question. Furthermore, although barber 

courses may ultimately lead to employment or other financial rewards, 

enrollment in a barber course is only an indirect and fairly remote 

financial interest in barbering. We conclude that such an indirect 

interest is not within the scope of the prohibition set out in section 

29B. Cf. V.T.C.S. art. 6252-9b, 91 (prohibiting financial interest, 

direct> indirect, that are in substantial conflict, with state 

employment). The remaining issue, then, is whether a barber 

inspector's enrollment in a barber college would be in substantial 

conflict with the discharge of his duties as a barber inspector in 

violation of article 6252-9b. 

Article 6252-9b provides that a state employee shall have no 

interest, financial or otherwise, that would be in substantial 

conflict with the discharge of his duties. Id. §l. We cannot say 

that a barber inspector's enrollment in abarber college would 

necessarily be in substantial conflict with his duties as a barber 

inspector. In this case, then, as in most cases, the determination 

of whether a substantial conflict exists is a question of fact. 

Therefore, the board must examine the facts of the case in question to 

determine whether a substantial conflict exists. We do note, however, 

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that an inspector's enrollment in a barber college that he is 

responsible for inspecting is more likely to create a substantial 

conflict of interest than enrollment in some other barber college. 

See generally V.T.C.S. art. 6252-9b. 

You next ask whether the board may examine for licensure one of 

its own employees -- presumably the barber inspector in question. 

Article 8407a. section 27a. is not applicable to your question. Nor 

do we think section 29B is applicable to your question since taking a 

licensing .examination is not a direct financial interest in barbering. 

Again, then, the issue is whether the conduct in question violates 

article 6252-9b. You do not suggest how taking a board examination 

might be in substantial conflict with a board employee's duties. 

Therefore, we cannot even speculate on whether a conflict exists. For 

employees who have a role in the preparation or administration of the 

examination, a conflict would exist if those employees had access to 

examination questions before the examination. We cannot say, however, 

that there is necessarily a conflict between being a board employee 

and taking a board examination. 

Your final question is whether a barber inspector may be employed 

as a part-time teacher at a barber college. Article 8407a, section 

29B, provides that a board employee whose duties include the administration of the board's functions may not have a financial interest in ? 

barbering other than as a consumer. Inspecting barber schools is 

one of the board's functions. V.T.C.S. art. 8407a. 428(a). Because 

a barber inspector's duties include administration of that board 

function, a barber inspector is subject to che.prohibitions set out in 

section 29B. Teaching barbering leads directly to financial gain 

because a teacher in a barber college receives a salary for teaching 

barbering. We conclude, therefore, that a barber teacher has a 

"financial interest in barbering" for purposes of article 8407a. 

section 29B. Consequently, a barber inspector may not be employed as 

a part-time teacher in a barber college. 

SUMMARY 

A member of the State Board of Barber Examiners 

may not take a licensing or certification examination offered by the board. Board employees subject 

to article 8407a. section 29B, may not work as 

teachers at barber colleges. 

JIM MATTOX 

Attorney General of Texas 

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JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

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