EAm NEY GENERAL 

OFTEXAS 

October 

Mrs. Bess Blackwell 

Executive Secretary 

State Board, of Hairdressers 

and Cosmetologists 

Austin, Texas 

Dear Mrs. Blackwell: 

16, 1964 

Opinion No. C-333 

Re: Whether the proposed rules 

are within the authority 

of the Board of Hairdressers 

and Cosmetologists to 

promulgate under Article 

73&b, Vernon's Penal Code, 

You have requested the opinion of this office as to whether 

the Board of Hairdressers and Cosmetologists may lawfully promulgate the following rules: 

(1) "Each school, day student may be absent for 

non-extenuating circumstances during the six (6) months 

trainin 

five (5 7 

period for a period aggregating not more than 

days. Each school, night student may be 

absent for non-extenuating circumstances during the 

twelve (12) month trainin 

7 

period for a period aggregating not more than ten 10) days. The Board will, 

in the event of extenuating circumstances and where 

the period of interruption is for more than thirty 

(30) school days and upon written application duly 

verified setting such circumstances, permit a school 

student, 

training, 

upon reregistration, to re-enter and continue 

and in such event such school student may 

receive credit for two-thirds (2/y) of the hours of 

training completed prior to such interruption of 

training, but no such school student may attend 

school less than sixty days upon such reregistration, 

nor shall such school student be permitted to reenter and reregister in a school more than one time. 

An application will only be considered if filed 

within one year from the date of such interruption. 

In those cases where the interruption of training 

is due to extenuating circumstances, the school and 

the school student shall immediately notify the 

board of such interruption, and failure to give such 

notice shall preclude reregistration. 

(2) "Any student who wishes to remain in school 

longer than the required time, (six months for Day 

Students---twelve months for Night Students) may 

-1583- 
Mrs. Bess Blackwell, page 2 (C-333) 

make application for additional training and remain 

in school for a period not to exceed one month. 

(3) "Nothing in these Board'rulings should be 

construed toinclude cosmetology students enrolled 

in a tax supported school, provided further that 

where a student is enrolled in a licensed beauty 

school, the course of instruction may be extended 

beyond the regular training period. 

(4) "The Board may authorize transfer from one 

school to another for the purpose of completing the 

training period upon application and written permission 

of schools involved and for good cause shown. 

(5) ". Enrollment date for the cosmetology 

schools shail'be the first Tuesday and third Tuesday 

of each month. 

(6) "Each school shall keep a daily attendance 

and performance record on each student, which will 

be available for inspection by Inspectors or members 

of the Board at all times, showing in detail the 

theoretical instruction and practice training and 

the work performed and accomplished by each student 

each day during the course of study. 

(7) "Any person, firm or corporation may establish a school for the teaching of cosmetology upon 

complying with the rules and specifications set up 

by the Board and filing a financial statement showing 

the applicant to possess property of a minimum value 

of $20,000.00 over and above all legal exemptions 

and liabilities." 

Primary responsibility for fixing requirements for a license 

is in the Leaislature. Once the Leaislature has urescrlbed the 

standardsa b;ard is limited to promulgation of the rules that 

implement such standards. Margolin v. State 151 Tex.Cr1m.R. 

132. 205 S.W.2d 775 (1947). In the case of the Cosmetology 

Board the Legislature designated the total number of hours, 

maximum hours per day, maximum days per week, and minimum 

number of months to qualify for a license to practice cosmetology. 

Section 5(b) of Article 73&b, Vernon's Penal Code reads as 

follows: 

-1584- 
Mrs. Bess Blackwell, page 3 (c-333) 

"No school of beauty culture shall be,granted a 

license or certificate of registration unless'it shall 

maintain a sanitary establishment and employ and maintain on its staff not less than two'(2) full-time 

instructors who have been duly'licensed~as instructors 

by the Texas State Board, and shall keep a daily record 

of attendance of students, and shall maintain a 

regular class and regular instruction hours, establish 

grades and hold examinations before issuing diplomas, 

and shall require a school term of not less than six 

(6) months, and not less than one thousand (1,000) 

hours of instruction for a complete course of the 

practice of hairdressing and cosmetology, and shall 

require a school term of not less than six (6) weeks, 

and not less than one hundred and fifty (150) hours 

instruction for a complete course in manicuring; and 

no student shall work or be instructed or receive 

credit for more than eight (8) hours of instruction 

in any one (1) day, exclusive of the lunch 

or for more than six (6) days in any one (1 P 

eriod, 

calendar 

week, and no public high school student shall be 

instructed or receive credit for more than six (6) 

hours of instruction in any one (1) day, exclusive 

of the lunch 

P 

eriod or for more than five (5) days 

in any one (1 cale;dar week." 

The Act is not broad enough to permit the Board the discretion to authorize the proposed rules; the Legislature set forth 

the criteria wherein it drew explicit boundaries within which the 

Board must operate. To do otherwise would violate Section 1, 

Article 2 of the Constitution of the State of Texas. Quoting 

from Reynolds v. Dallas County, 203 S.W.2d 320 (Tex.Clv.App., 

1947): 

It is a long and well-settled rule of constitutional'law that the legislature cannot delegate to 

the people or any board, bureau commissioners court 

or other administrative or legal body or institution 

its authority to make laws; . . . ,' 

Your last proposed rule is as follows: 

"Any person, firm or corporation may establish a 

school for the teaching of cosmetology upon complying 

with the rules and specifications set up by the Board 

and filing a financial statement showing the applicant 

to possess property of a minimum value of $20,000.008 

over and above all legal exemptions and liabilities. 

-1585. 
Mrs. Bess Blackwell, page 4 (C-333) 

Section 5(a) of Article 73&b, Vernon's Penal Code readsas 

follows: 

"Any person, firm, association or corporation 

applying to the Board for an original certificate 

of registration or license; as a school of beauty 

culture, shall make such application In the form 

prescribed by the Board, giving data'and information 

required by the Board. The Board shall; in such 

applications 

facts as it 

require such data, information and 

deems necessary to determine such applicant's compliance with this Act and his or its fltness to conduct and maintain such school. No 

applicant for an original.school license shall hereafter be granted an original certificate of registration or license unless it shall have a building 

approved by the Board, and shall have not less 

than two (2) modern, sani%y toilets....and shall 

possess and have installed the minimum equipment 

and apparatus.... and such schools shall thereafter 

maintain the premises and minimum equipment and 

apparatus; and such applicants shall furnish a good 

and sufficient surety bond payable to the State of 

Texas, conditioned to refund any unused portion of 

tuition paid if such school closes or ceases operation 

before courses of instruction have been completed. . . 

The recent case of Kelly v. Industrial Accident Board, 

S.W.2d 874 (Tex.Civ.App. 1962, error ref., n.r.e.) held: 

I, 

. 

358 

t1 It is recognized that the Leglslature may 

delegate'to State officers agencies or administrative 

bodies the power to enact & promulgate rules and 

regulations in aid of statutory authority conferred 

upon such administrative body, 1 Tex.Jur.2d "Administrative Law" Sec. 11. But the rules and regulations 

so enacted by the administrative body may not impose 

additional burdens. conditions or restrictions in 

excess of or inconiistent 

visions. . . .' 

No financial statement is 

734b, Vernon's Penal Code. To 

the Legislature's function and 

applicant. 

with the statutory prorequired In Section 5(a) of Article 

add such a requirement would usurp 

impose an additional burden on the 

It is therefore the opinion of this office that the proposed 

rules are beyond the authority of the Board with the exception of 

daily attendance records. The latter are required by the specific 

-1586- 
Mrs. Bess Blackwell, page 5 (C-333) 

language of Section 5(b) of Article 73&b, Vernon's Penal Code: 

"No school of beauty culture shall be,granted a 

license or certificate of registration unless it 

shall . . ..keep a daily record of attendance of 

students. . . ." 

SUMMARY 

The Board of Hairdressers and Cosmetologists are 

without authority to pass the proposed rules concerning 

absenteeism, reregistration, transfers from one school 

to another, performance records or financial statements as a prerequisite for a license. 

The Board is under a positive duty to see that 

daily attendance records are maintained under Section 

5(b) of Article 734b, Vernon's Penal Code. 

Very truly yours, 

WAGGONER CARR 

Attorney General 

9- aALBY 

Wade Anderson 

Assistant 

WA:ml 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Malcolm Quick 

Gordon Houser 

Bill Allen 

Wayne Rodgers 

APPROVED FOR THE ATTORNEY GENERAL 

By: Roger Tyler 

-1587- ’