The Attorney General of Texas 

March 16, 1978 

JOHN L. HILL 

Attorney General 

Honorable D. R. “Tom” Uher, Chairman 

State Affairs Committee 

House of Representatives 

Austin, Texas 

Opinion No. H-1137 

Re: Separation of barber shop 

and beauty shop housed in the 

same building. 

Dear Mr. Uher: 

You ask for an opinion on the constitutionality of article 8402, V.T.C.S., 

which relates to the jurisdiction of the State Board of Barber Examiners and 

the Cosmetology Commission. It provides in part: 

In order that the public may fix responsibility for 

services, acts, or treatments performed by persons 

licensed by the State Board of Barber Examiners vis-avis those performed by persons licensed by the Texas 

Cosmetology Commission, to promote the efficient 

and orderly administration of laws regulating barbers 

and the practice of barbering and the laws regulating 

cosmetologists and the practice of cosmetology and to 

avoid confusion of the public as well as avoiding 

conflicts of jurisdiction between such board and 

commission which might impede effective administration or enforcement of the laws under their respective 

jurisdictions, from and after January 31, 1976, no 

person licensed by the barber board shall perform, 

offer, or attempt to perform any act, service, or 

treatment by authority of any such license on the 

premises of any beauty parlor, beauty salon, specialty 

salon, beauty culture school or college, or any location 

under the jurisdiction of the Texas Cosmetology 

Commission, and no person licensed by the cosmetology commission shall perform, offer, or attempt to 

perform any act, service, or treatment by authority of 

any such license on the premises of any barber shop, 

specialty shop, barber school or college, or any 

location under the jurisdiction of the State Board of 

Barber Examiners. 

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Honorable D. R. “Tom” Uher - Page 2 (H-1137 ) 

The Barber Board and the Cosmetology Commission have interpreted this provision 

to require a solid partition separating a beauty salon from a barber shop housed in 

the same building. You ask whether the Legislature may constitutionally place this 

restriction on business ventures. 

The regulation of barbering and cosmetology is necessary to the public health 

and a prope; subject for the exercise of the pc%ce power. Texas State Board of 

Barber Examiners v. Beaumont Barber College, Inc., 454 S.W.2d 729 (Tex. 1970); 

Gerard v. Smith, 52 S.W.2d 347 (Tex. Civ. App. - El Paso 1932, writ ref’d). In 

determin ling whether a police power regulation violates the due process clause, U.S. 

Const. amend. XIV: Tex. Const. art. 1, § 19, the court considers whether it bears a 

rational relation to the protection of .the public health and safety. See Pavone v. 

Louisiana State Board of Barber Examiners. 364 F. SUDD. 961 (E.D. La.973), ,aff’d, 

505 F.2d 1023 (5th Cir. 1974). See also Williamson v. Lee Optical of Oklahoma, Inc., 

348 U.S. 483 (1955); State v. Spartan’s Industries, 447 S.W.2d 407 (Tex. 1969). There 

is a strong presumotion in favor of the VI nlidity of police power enactments. Texas 

State Board of Barber Examiners v. Beaumont Barbers College, Inc., w. 

With these principles in mind, we consider the relation between this provision 

and the public health and safety. Barbers and cosmetologists are licensed to 

perform substantially identical services. See V.T.C.S. art. 8407a, S 4(b); art. 8451a, 

- 

S l(3); Bolton v. Texas Board of Barber Examiners, 350 F. Supp. 494 (N.D. Tex.), 

aff’d D, 409 U.S. 807 (1972). Arguably, there are minor differences between the 

aces the two licenses authorize their holders to perform. Attorney General 

Opinion M-1270 (1972); see Attorney General Opinion H-1066 (1977). In addition, the 

statutory standards for licensing barber shops differ slightly from those for beauty 

parlors. Compare art. 8407a, S 3, with art. 8451a, SS 23, 42. Thus there are still 

differences between the two profans and possibly between the premises in 

which each is practiced. 

Article 8402 reflects a legislative determination that separation of cosmetology premises from barbering premises will aid the enforcement of each licensing 

system. In view of the differences between the two vocations, we cannot say that 

the separation of premises bears no relation to this goal. The enforcement of such 

licensing systems is of course related to the public health and safety. See Lackey 

v. State Board of Barber Examiners, 113 S.W.2d 968 (Tex. Civ. App. - Austm 1938, 

no writ). “The necessity or reasonableness of particular regulations imposed under 

the police power is a matter addressed to the legislative department whose 

determination in the exercise of a sound discretion is conclusive upon the courts.” 

Texas State Board of Barber Examiners v. Beaumont Barbers College, Inc., s at 

732. 

A California Court of Appeals upheld a statute providing that a COsmetolo~ 

license did not authorize the holder to work in a barber shop. Bone v. State Board 

of Cosmetology, 80 Cal. Rptr. 164 (Ct. App. 1969). It found that California 

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Honorable D. R. “Tom” Uher - Page 3 (H-1137) 

maintained separate licensing systems with separate standards for barbers and 

cosmetologists. and concluded that the statute had a reasonable basis in the 

legislative~determination that the two vocations remain distinct. Contra, Mains v. 

Board of Barber Examiners, 57 Cal. Rptr. 573 (Ct. App. 1967) (dicta). See also Mans 

Look, Inc. v. Florida Barbers’ Sanitary Comm’n, 292 So.2d 387 (Fla. Dist. Ct.% 

19741. In our opinion, the courts would probably uphold article 8402, V.T.C.S., as 

construed to require the separation of barber’s premises from cosmetologist’s 

premises. 

SUMMARY 

The courts would probably find article 8402, V.T.C.S., 

requiring the separation of a beauty salon from a barber 

shop housed in the same building, to be a valid police power 

regulation. 

_Very truly yours, 

Attorney General of Texas 

APPROVED: 

C. ROBERT HEATH, Chairman 

Opinion Committee 

jst 

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