The opinion
March 24. 1976
Mr. 0. W. McStay Opinion No. H-801
Executive Secretary
State Board of Barber Examiners Re: Right of Board of
512 Sam Houston State Office Bldg. Barber Examiners to refuse
Austin, Texas 7070: renewal of barber's
license on grounds of
his incarceration.
Dear Mr. McStay:
You ask:
Does the State Board of Barber Examiners
have the right to refuse a licensee's
application for renewal of his barber's
license if he is incarcerated at the time
the application is made?
Section 21 of article 8407a, V.T.C.S., the Texas Barber
Law, reads:
The board [of barber examiners] shall
either refuse to issue orto renew, or
shall suspend or revoke any certificate
of registration for any one of, or a
combination of the following causes:
(A) Gross malpracticet
(B) Continued practice by a
person knowingly having an infectious
or contagious disease;
(C) Advertising by means of know-
ingly making false or deceptive statements;
(D) Advertising, practicing, or
attempting to practice under another's
trade name or another's name;
p. 3380
The Honorable 0. W. McStay - page 2 (H-801)
(E) Habitual drunkenness or habitual
addiction to the use of morphine, cocaine,
or other habit-forming drugs;
(F) The commission of any of the offenses
described in Section 24 of this Act;
(G) No certificate shall be issued or
renewed, unless and until each applicant
shall present a health certificate from a
regular practicing medical doctor showing
that the applicant is free from any kind of
infectious or contagious diseases, tuber-
culosis, communicable diseases, and free
from the use of any kind of morphine,
cocaine, or other habit-forming drug, or
a habitual drunkard and that said applicant
shall make affidavit to said medical exam-
iner that all of the said facts are true.
"Incarceration" is not a synonym for "conviction." It
can occur when the person incarcerated is guilty of nothing.
See U.S. v. Mills, 434 F.Zd 266 (8th Cir. 1970).
--A
A licensing agency for a business or profession is
not empowered to make standards which are different from or
inconsistent with those of the controlling statute, even
though they may be reasonable and may be administered reason-
ably. Bloom v. Texas State Board of Examiners of Psychologists,
492 S.W~6b(Tex.up.73);urphy v. MitteEtadt, 199
S.W.Zd 470 (Tex.Sup. 1947). Cf. Texas KateBoard Examiners
~ all ~~,4~~~si~~c~~x~~u~~~~l~
z -'Article 8407a specifies the eight broad reason;
the Board of Barber Examiners may assign for refusing to
renew a barber's license and "suffering incarceration" is
not one of the enumerated reasons. Nor is incarceration an
"offense" under section 24 as incorporated by paragraph F of
section 21. Of course, a person's incarceration may provide
notice to the Board that one of the eight may be applicable.
p. 3381