EAm 

### NEY GENERAL OFTEXAS

October

Mrs. Bess Blackwell Executive Secretary State Board,of Hairdressers and Cosmetologists Austin, Texas

Dear Mrs. Blackwell: 

### 16, 1964
OpinionNo. 

### C-333
Re: Whether the proposed rules are within the authority of the Board of Hairdressers and Cosmetologists to promulgateunder Article 73&b, Vernon's Penal Code,
You have requested the opinion of this officeas to whether the Board of Hairdressers and Cosmetologistsmay lawfullypromulgate the following rules:

(1) "Each school, day studentmay be absent for non-extenuating circumstancesduring the six 

### (6)months trainin five 

### (5

7 period for a period aggregating notmore than days. Each school,night studentmay be absent for non-extenuating circumstancesduring the twelve (12)month trainin7 period for a period aggregating not more than ten 10) days. The Board will, in the event of extenuating circumstancesand where the period of interruption is for more than thirty 

### (30)school days and upon written applicationduly verified setting such circumstances,permit a school student, training,

upon reregistration, to re-enterand continue and in such event such school studentmay receive credit for two-thirds (2/y) of the hours of training completedprior to such interruption of training,but no such school studentmay attend school less than sixty days upon such reregistration, nor shall such school student be permitted to reenter and reregister in a schoolmore than one time. An applicationwill only be considered if filed within oneyear from the date of such interruption. In those caseswhere the interruption of training is due to extenuating circumstances,the schooland the school student shall immediatelynotify 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, (sixmonths for Day Students---twelvemonths 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 onemonth. 

### (3) "Nothing in these Board'rulings should be construed toinclude cosmetologystudents enrolled in a tax supported school, provided further that where a student is enrolled in a licensedbeauty school, the course of instructionmay be extended beyond the regular training period. (4) "TheBoard may authorize transfer from one school to another for the purpose of completingthe training periodupon application and written permission of schools involvedand for good cause shown. 

### (5) ". Enrollmentdate for the cosmetology schools shail'be the first Tuesday and third Tuesday of eachmonth. 

### (6) "Each school shall keep a daily attendance and performance record on each student,which will be available for inspectionby Inspectors ormembers of the Board at all times, showing in detail the theoretical instructionand practice trainingand the work performed and accomplishedby each student each day during the course of study. 

### (7) "Anyperson, firm or corporationmay establish a school for the teaching of cosmetologyupon complyingwith the rules and specificationsset up by the Board and filing a financial statement showing the applicant to possessproperty 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 standardsab;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 Legislaturedesignated the total number of hours, maximum hours per day, maximum days per week, and minimum number ofmonths to qualify for a license to practice cosmetology. Section 5(b) ofArticle 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 registrationunless'it shall maintain a sanitary establishmentand employ and maintain on its staff not less than two'(2) full-time instructorswho 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 instructionhours, establish grades and hold examinationsbefore 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 hairdressingand 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 Period, 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 Period or for more than five (5)days in any one (1 cale;darweek." The Act is not broad enough to permit the Board the discretion to authorize the proposed rules; the Legislature set forth the criteriawherein it drew explicit boundaries within which the Board must operate. To do otherwisewould 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 commissionerscourt or other administrative or legal body or institution its authority to make laws;

. . . ,'
Your last proposed rule is as follows: "Anyperson, firm or corporationmay establish a school for the teaching of cosmetologyupon complying with the rules and specifications set up by the Board and filing a financial statement showing the applicant to possessproperty 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:"Anyperson, firm, association or corporation applying to the Board for an original certificate of registration or license;as a school of beauty culture, shallmake such application In the form prescribedby the Board, giving data'and information required by the Board. The Board shall; in such applications facts as it require such data, informationand

deems necessary to determine such applicant's compliancewith 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 licenseunless it shall have a building approvedby the Board, and shall have not less than two (2)modern, sani%y toilets....andshall possess and have installed theminimum equipment and apparatus....

and such schools shall thereafter maintain thepremises and minimum equipmentand 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 tuitionpaid if such school closes or ceases operation before courses of instructionhave been completed.

. . The recent case of Kelly v. IndustrialAccidentBoard, S.W.2d 

### 874 (Tex.Civ.App.1962, error ref., n.r.e.) held: I,

. 

### 358

t1 It is recognized that the Leglslaturemay delegate'to State officers agencies or administrative bodies the power to enact & promulgate rules and regulations in aid of statutoryauthority conferred upon such administrativebody, 1 Tex.Jur.2d "Administrative Law" Sec. 11. But the rules and regulations so enacted by the administrativebody may not impose additionalburdens. conditions or restrictions in excess of or inconiistent visions.

. . .' No financial statement is 734b, Vernon's Penal Code. To the Legislature's functionand applicant. with the statutoryprorequired In Section 5(a) of Article add such a requirementwould usurp impose an additionalburden 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) ofArticle 73&b, Vernon's Penal Code:

"No school of beauty culture shall be,granteda license or certificate of registrationunless it shall

....keepa daily record of attendance of students.

. . ."



### SUMMARY The Board of Hairdressersand Cosmetologistsare 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 positiveduty 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 GordonHouser Bill Allen Wayne Rodgers
APPROVED FOR THE ATTORNEY GENERAL By: Roger Tyler

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