The opinion
Mrs. Frances Havins Opinion No. M-905
Executive Secretarv
State Board of Hairdressers Re: Effect of enactment of
and Cosmetologists H. B. No. 156 by the 62nd
1111 Rio Grande Legislature, Regular
Austin, Texas 78701 Session, 1971, upon various
provisions of Article 73413,
Bear Mrs. Havins: Vernon's Penal Code.
In your recent letter you requested the opinion of this
office on the following questions:
"1. Is August 31, 1972, the expiration date of
a renewal 1972 license issued or applied for in
accordance with the provisions of Article 734b during
the period June 2 - August 29, 19711
"2. Are license fees for renewal applications
filed prior to August 30, 1971, and received in our
office at a later date determined by Article 73433
under the Penal Code or by House Bill 156?
"3. Are license fees for applications filed after
August 29 midnight determined by House Bill 156 or
Article 734b of the Penal Code?
"4. Please rule on the correct remittance for
the September State Board examination and subsequent
license provided the applicant is successful in passing
the examination."
In connection with your request you advised us as
follows:
"The practice of the Board for many years has
been to consider an application for a renewal license
timely filed if postmarked before the deadline for
renewal.'
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,
Mrs. Frances Havins, page 2 (M-905)
House Bill 156, enacted by the 62nd Legislature,
Regular Session, 1971, will be effective August 30, 1971. That
Bill repeals the present Article 73413,Vernon's Penal Code.
(Acts 44th Leg., R. S., 1935, as amended, and hereinafter referred
to as Article 73413.)Effective August 30, 1971, therefore, the
State Board of Hairdressers and Cosmetologists will be abolished
and the Texas Cosmetology Commission will be created. The Com-
mission will in large measure perform those functions formerly
performed by the Board.
Our answer to your first question is in the affirmative.
Section 8 of Article 734b provides, in part as follows:
"(a) No certificate or license shall be issued
for a longer period than one (1) year, and shall ex-
pire on the 31st day of August following the date of
issuance. Applications for renewal may be filed at
any time after June 1st preceding the expiration date
of the license. . . ."
Until August 30, 1971, Article 7341,is the controlling
law. That statute provides that an application for a renewal
license may be filed at any time after June 1st. Clearly the
legislature intended that a renewal license issued following
such application would be effective at the expiration of the
applicant's current license. Hence a renewal license issued be-
tween June 2nd and August 29th of 1971 would be effective Sep-
temb(:r1, 1971. It would expire, under Section 8 of Article 734b,
on August 31, 1972. The Board has the power during the life of
Article 734b to approve such renewal even though the term of the
license runs beyond the life of that statute. This is provided
for under Section 48 of House Bill No. 156, which reads, in part,
as follows:
"(a) On the effective date of this Act, any
license issued by the State Board of Hairdressers
and Cosmetologists remains valid but is subject to
the renewal procedures established by this Act."
'We note from your inquiry that the practice of the Board
for many years has been to consider an application for a renewal
license timely filed if postmarked before the deadline for renewal.
This administrative practice is accorded considerable weight in
the construction of Article 73433. 53 Tex.Jur.Znd. 259, Statutes,
Sec. 177. We are of the opinion, therefore, that an applicant who
files a renewal application in time to have it postmarked not later
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Mrs. l?ances Havins, page 3 (M-905)
than August 29, 1971, is entitled to have his renewal license
made effective September 1, 1971, and to expire August 31, 1972,
conditioned, however, on his application being complete, proper-
ly-made in every respect, and accompanied by a good remittance
of the renewal fee prescribed by Article 73413,and on his being
otherwise qualified.
What has been written to this point concerns a re-
newal license for 1972. On the other hand, a new license, i.e.,
the first issued to a particular holder, if issued by the Board
prior to August 30, 1971, would necessarily,expire on August 31,
1971.
The power of the Board to issue a new license ends at
midnight August 29, 1971. Merely filing anapplication for a
new license prior to that time does not, therefore, entitle the
applicant to a new license under the conditions and fees pre-
scribed by Article 73435. The Board may issue a'new license only
after it is satis,fiedthat the applicant is qualified, has passed
any required examination, and has met all requirements of the
applicable statute. Hence any application for a new license
filed on or before August 29, 1971, and not actually issued by
the Board before the end of,that day, must 1ay'~overand be issued,
if sat,~all, by theCbmmission under the conditions and fees pre-
scribed by House Bill 156.
In reply to your second question, license fees for re-
newal appl.ications properly filed and postmarked prior to August
30, 1971, are governed by Article 73433. This applies even
though the applioation is not actually received until August 30th
or later. An application is not properly filed unless it is
complete, properly made in every respect, and accompanied by a
good remittance for the proper fee.
We have discussed in our answer to your,'firstquestion
the fact that under administrative practice followed by the
Board an applicant who files under the conditions'prescribed in
the above paragraph is deelnedto have timely filed his applica-
tion. Having timely filed his application for a renewal license
during the life of Article 734b we think he is entitled to pay
the lower fee prescribed by the same statute. He has done every-
thing required of him. He should not be penalized because office
procedure involved in actually issuing the:renewal license might
require a week or more. We think this holding~follcws the prac-
tice authorized by statute for other State agencies in connection
with the collection of taxes.
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Mrs. Frances Havins, page 4 (M-905)
In answer to your third question, license fees for all
applications filed after midnight,August 29, 1971, or postmarked
after that time, are governed by House Bill 156. Section 48 of
House Bill ,156provides, ,in part, as follows:
"(a) On the effective date of this Act, any
license issued by the State Board of Hairdressers
and Cosmetologists remains valid but is subject to
the renewal procedures established by this'Act."
Your fourth question concerns the,correct fee payable
for the September 1971 State Board examination and license.
Both Article 734b and House Bill 156 provide for the
examination to be given on the first Tuesday in each month. The
September examination in 1971 will fall on the.fth day of that
month. .Both Acts provide for filing an application ten days
prior to the date set for the examination. The,,applicationwill
therefore be filed under Article 734b, as House Bill 156 is not
effective until August 30, 1971.
The problem arises because Article 734b; in Section 4
(a) (4) provides that an applicant for an operator's license
shall accompany the application with a $15.00 fee. No further
fee is required for the license. On the otherhand, Section 15
(c) of House Bill 156 provides for a $5.00 fee with the applica-
tion, and Section 15(d) provides for an additional $15.00 fee
for the license.
We are of the opinion that an application for a new
license filed 10 days prior to the September,7;1971, examination
must be accompanied by a $15.00 fee. Article 734b will still be
in effect. A new license issued following that,examination will
be issued, however, under authority of House Bill 156. That
statute prescribes a total of $20.00 for filing fee and examina-
tion fee. We are of the opinion that the requirements of both
statutes will be wt if the~applicant pays a $15;80 filing fee
inAugust and an additional $5.00 fee after,passing the examina-
tion. It is clearly the intention of the 62nd Legislature that
the total cost to the applicant should be only $28.00.
The filing fee and license fee required in connection
with all examinationrtfollowingthe one in September 1971 will be
governed in all respects by House Bill 156.
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Mrs. Frances Havins, page 5 (M-t&)
SUMMARY
A renewal license issued by the.,StateBoard of.
Hairdressers and Cosmetologists during'the period
June 2 through August 29, 1971, expires on August 31,
1972. An applicant whose proper application, with
fee, is postmarked not later than August 29, 1971,
is entitled to a renewal license to expire on August
31, 1972, if he is otherwise qualified.
The power of the Board to issue a new license
expires at midnight August 29, 1971. Any n'ev'license
actually issued by the Board prior to that time will
expire August 31, 1971. Any application for a new
license upon which a license has not bean .issuedby
the Board prior to August 30, 1971, must lay over for
action by the Commission under H. B. No. 156.
License fees for renewal applications properly
filed and postmarked prior to August 30, 1971, are
governed by Article 734b.
License fees for all applioations postmarked or
filed after midnight August 29, 1971, are governed by
H. B. No. 156.
An applicant for the September 7, 1971, Board
examination will pay a $15.00 filing fee with the
application and an additional $5.00 license fee.
Fees for all examinations after the September
1971 examination will be by H. B. No. 156.
General of Texas
Prepared by James S. Swearingen
Assistant Attorney General
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I. .,
Mrs. Frances Havins, page 6 (M-905)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Ch&hIian
Malcolm Quick
S. J. Aronson
Tom Sedberry
Austin Bray
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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