Do Texas nail salons have to sterilize tools in an autoclave?

TX AG Opinion GA-0432: Must salon nail tools be sterilized in an autoclave?

Plain-English summary

In 2005 the Texas Legislature passed two different bills that both set sterilization rules for barbers and cosmetologists who work on nails, hands, and feet, and the two bills said different things. The Texas Department of Licensing and Regulation, which had just taken over barbering and cosmetology regulation, asked the Attorney General which rule controlled. The answer in 2006 was that the autoclave-only rule won.

Senate Bill 411 created Occupations Code section 1603.352, which required a barber or cosmetologist to "disinfect and sterilize with an autoclave" each nondisposable instrument used on nails, hands, or feet, and required the shop or school owner to provide an autoclave registered with the federal Food and Drug Administration and used per the manufacturer's instructions. House Bill 1304 added parallel provisions to the barbering and cosmetology chapters (sections 1601.506 and 1602.408) but gave a choice: an autoclave "or a dry heat, ultraviolet, or other board-approved sterilizer." Neither bill defined "autoclave."

The Attorney General first tried to harmonize the two under the Code Construction Act, which directs that same-session amendments be reconciled if possible. Some forms of dry heat and ultraviolet sterilization can themselves qualify as autoclaves, but House Bill 1304's catch-all "other approved sterilizer" was open-ended and could not be squared with Senate Bill 411's autoclave-only command. Finding the two in irreconcilable conflict, the opinion applied the rule that the statute latest in date of enactment prevails. House Bill 1304 was enrolled May 18, 2005; Senate Bill 411 was enrolled May 28, 2005. Because Senate Bill 411 passed later, it controlled, so the autoclave requirement governed: nondisposable instruments used on nails, hands, or feet had to be sterilized in an FDA-registered autoclave used per the manufacturer's instructions, and owners had to provide one.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The barbering and cosmetology sterilization statutes in chapters 1601, 1602, and 1603 of the Occupations Code, and the Department's rules carrying them out, have been amended since 2006. Anyone running or working in a Texas salon today should check the current Occupations Code provisions and the current TDLR rules, not the 2006 conflict this opinion resolved.

Who this opinion affected (as of 2006)

Barbers and cosmetologists working on nails, hands, and feet: The opinion told them that, despite House Bill 1304's apparent choice of sterilizers, the controlling rule required sterilizing nondisposable instruments in an autoclave.

Salon and school owners and managers: The opinion meant the owner or manager of a barber shop, beauty shop, specialty shop, or school had to provide an FDA-registered autoclave used per the manufacturer's instructions, not merely a dry heat or ultraviolet device.

The Texas Department of Licensing and Regulation: The opinion gave the agency, which had just absorbed the abolished State Board of Barber Examiners and Texas Cosmetology Commission, a definite answer on which sterilization standard to enforce.

Common questions

Could a salon use a UV or dry-heat sterilizer instead of an autoclave?
Not under the controlling rule. The opinion concluded Senate Bill 411's autoclave requirement prevailed over House Bill 1304's broader menu, so an autoclave was required for nondisposable nail, hand, and foot instruments.

Why did Senate Bill 411 win over House Bill 1304?
The opinion explained the two bills were in irreconcilable conflict and that the Code Construction Act makes the later-enacted statute prevail. Senate Bill 411 was enrolled May 28, 2005, after House Bill 1304's May 18, 2005 enrollment.

Did the autoclave have to meet any standard?
Yes. The opinion noted the autoclave had to be registered and listed with the federal Food and Drug Administration and used in accordance with the manufacturer's instructions.

Who took over regulating barbers and cosmetologists?
The opinion explained that Senate Bill 411 abolished the State Board of Barber Examiners and the Texas Cosmetology Commission as of January 1, 2006, and transferred their functions to the Texas Department of Licensing and Regulation.

Background and statutory framework

Senate Bill 411 abolished the State Board of Barber Examiners and the Texas Cosmetology Commission effective January 1, 2006, and transferred their functions to the Texas Department of Licensing and Regulation, continuing the former agencies' rules in effect and providing that references to the old agencies mean the Department (Act of May 28, 2005, 79th Leg., R.S., ch. 798, § 6.01, 2005 Tex. Gen. Laws 2734, 2759). Chapter 1603 of the Occupations Code directs the Department to administer the barbering provisions (chapter 1601) and cosmetology provisions (chapter 1602), with the Commission of Licensing and Regulation adopting rules (Tex. Occ. Code Ann. §§ 1603.002, 1603.101 (Vernon Supp. 2005)). Senate Bill 411 enacted section 1603.352, requiring a person performing a barbering service under section 1601.002(1)(E) or (F) or a cosmetology service under section 1602.002(a)(10) or (11) (the nail, hand, and foot services) to "disinfect and sterilize with an autoclave" each nondisposable instrument, and requiring shop and school owners to provide an FDA-registered autoclave used per the manufacturer's instructions (id. §§ 1603.352, 1601.002(1)(E)-(F) (Vernon 2004), 1602.002(a)(10)-(11)). The statute did not define "autoclave."

House Bill 1304, enacted by the same Legislature and effective January 1, 2006, added section 1601.506 to the barbering chapter and section 1602.408 to the cosmetology chapter, each allowing sterilization with "an autoclave or a dry heat, ultraviolet, or other board-approved [or commission-approved] sterilizer," subject to the same FDA-registration and manufacturer's-instructions conditions (Act of May 18, 2005, 79th Leg., R.S., ch. 562, §§ 1-2, 2005 Tex. Gen. Laws 1495; Tex. Occ. Code Ann. §§ 1601.506, 1602.408 (Vernon Supp. 2005)). It also did not define "autoclave."

The Code Construction Act directs that same-session amendments to the same statute be harmonized if possible (Tex. Gov't Code Ann. § 311.025(b) (Vernon 2005)). The opinion noted some dry-heat and ultraviolet devices can constitute an autoclave, but House Bill 1304's open-ended "other approved sterilizer" could not be reconciled with Senate Bill 411's autoclave-only requirement, so the bills were in irreconcilable conflict. Under section 311.025(a), the statute latest in date of enactment prevails, with the date of enactment being the date of the last legislative vote (id. § 311.025(d)). Senate Bill 411 was enrolled May 28, 2005, after House Bill 1304's May 18, 2005 enrollment, so Senate Bill 411 controlled and the autoclave requirement governed.

Citations

Statutes:

• Tex. Occ. Code Ann. §§ 1601.002(1)(E)-(F) (Vernon 2004); 1601.506, 1602.002(a)(10)-(11), 1602.408, 1603.002, 1603.101, 1603.352 (Vernon Supp. 2005)
• Tex. Gov't Code Ann. § 311.025(a), (b), (d) (Vernon 2005)

Session laws:

• Act of May 28, 2005, 79th Leg., R.S., ch. 798, 2005 Tex. Gen. Laws 2734 (Senate Bill 411)
• Act of May 18, 2005, 79th Leg., R.S., ch. 562, 2005 Tex. Gen. Laws 1495 (House Bill 1304)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0432
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0432.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 18, 2006

Mr. William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
Post Office Box 12157
Austin, Texas 78711-2157

Opinion No. GA-0432

Re: Whether there is an irreconcilable conflict between portions of two bills enacted by the Seventy-ninth Legislature with regard to sterilization requirements for certain barbering and cosmetology services (RQ-0415-GA)

Dear Mr. Kuntz:

You ask whether there is an irreconcilable conflict between portions of Senate Bill 411 and House Bill 1304, both of which were enacted by the Seventy-ninth Legislature, and both of which provide sterilization requirements for certain barbering and cosmetology services.[1]

Before we examine the potentially conflicting provisions, we will provide some background. In Senate Bill 411, the Seventy-ninth Legislature abolished the State Board of Barber Examiners and the Texas Cosmetology Commission, effective January 1, 2006, and transferred their functions to the Texas Department of Licensing and Regulation (the "Department"). See Act of May 28, 2005, 79th Leg., R.S., ch. 798, § 6.01(a), 2005 Tex. Gen. Laws 2734, 2759. In doing so, the legislature specifically provided that "[all] rules of the State Board of Barber Examiners and the Texas Cosmetology Commission are continued in effect as rules of the Texas Commission of Licensing and Regulation until superseded by a rule of the Texas Commission of Licensing and Regulation." Id. § 6.01(b). Moreover, "a reference in another law or administrative rule to the State Board of Barber Examiners or the Texas Cosmetology Commission means the Texas Department of Licensing and Regulation." Id. § 6.01(c). Chapter 1603 of the Occupations Code, providing for the regulation of barbering and cosmetology, directs the Department to administer the provisions of chapter 1601 relating to barbers and chapter 1602 relating to cosmetologists. TEX. OCC. CODE ANN. § 1603.002 (Vernon Supp. 2005). The Commission of Licensing and Regulation (the "Commission") is responsible for adopting rules for the administration of chapters 1601 and 1602 and for the operations of the Department in regulating barbering and cosmetology. Id. § 1603.101.

Senate Bill 411 enacted section 1603.352 of the Occupations Code, which applies to both barbers and cosmetologists. That statute provides, in relevant part:

(a) A person who holds a license, certificate, or permit issued under this chapter, Chapter 1601, or Chapter 1602 and who performs a barbering service described by Section 1601.002(1)(E) or (F) or a cosmetology service described by Section 1602.002a or (11):

(1) shall, before performing the service, disinfect and sterilize with an autoclave each nondisposable instrument used to perform the service;

. . . .

(b) The owner or manager of a barber shop, barber school, beauty shop, specialty shop, or beauty culture school is responsible for providing an autoclave for use in the shop or school as required by Subsection (a). An autoclave used as required by Subsection (a) must be:

(1) registered and listed with the federal Food and Drug Administration; and

(2) used in accordance with the manufacturer's instructions.

Id. § 1603.352. The services described by section 1603.352 relate to treating nails, hands, and feet. Section 1601.002, adopted prior to the Seventy-ninth legislative session, defines "barbering," inter alia, to include

(E) treating a person's nails by:

(i) cutting, trimming, polishing, tinting, coloring, cleansing, manicuring, or pedicuring; or

(ii) attaching false nails;

(F) massaging, cleansing, treating, or beautifying a person's hands.

Id. § 1601.002(1)(E)-(F) (Vernon 2004). Section 1602.002 defines "cosmetology," inter alia, as

(10) treating a person's nails by:

(A) cutting, trimming, polishing, tinting, coloring, cleansing, or manicuring; or

(B) attaching false nails; or

(11) massaging, cleansing, treating, or beautifying a person's hands or feet.

Id. § 1602.002(a)(10)-(11) (Vernon Supp. 2005). Thus, Senate Bill 411, codified as section 1603.352, requires that a person performing a barbering or cosmetology service on the nails, hands, or feet "disinfect and sterilize with an autoclave each nondisposable instrument used to perform the service." Id. § 1603.352(a)(1) (emphasis added). In addition, the statute directs that the owner of a shop or school that performs barbering and cosmetology services must provide for use in the shop or school an autoclave that is "registered and listed with the federal Food and Drug Administration" and "used in accordance with the manufacturer's instructions." Id. § 1603.352(b)(1)-(2). The statute fails, however, to define the term "autoclave."

House Bill 1304, also enacted by the Seventy-ninth Legislature and effective January 1, 2006, added provisions to both chapter 1601 (barbering) and chapter 1602 (cosmetology) of the Occupations Code. See Act of May 18, 2005, 79th Leg., R.S., ch. 562, §§ 1-2, 2005 Tex. Gen. Laws 1495, 1495-96. Section 1601.506 now provides, in relevant part:

(e) A person who holds a license, certificate, or permit issued under this chapter and who performs a barbering service described by Section 1601.002(1)(E) or (F):

(1) shall, before performing the service, disinfect and sterilize with an autoclave or a dry heat, ultraviolet, or other board-approved sterilizer each nondisposable instrument used to perform the service;

. . . .

(f) The owner or manager of a barbershop, specialty shop, or barber school is responsible for providing an autoclave or a dry heat, ultraviolet, or other board-approved sterilizer for use in the shop or school as required by Subsection (e). An autoclave or a dry heat, ultraviolet or other board-approved sterilizer used as required by Subsection (e) must be:

(1) registered and listed with the federal Food and Drug Administration; and

(2) used in accordance with the manufacturer's instructions.

TEX. OCC. CODE ANN. § 1601.506 (Vernon Supp. 2005). Section 1602.408 also declares, in relevant part:

(a) A person who holds a license, certificate, or permit issued under this chapter and who performs a cosmetology service described by Section 1602.002a or (11):

(1) shall, before performing the service, disinfect and sterilize with an autoclave or a dry heat, ultraviolet, or other commission-approved sterilizer each nondisposable instrument used to perform the service;

. . . .

(b) The owner or manager of a beauty shop, specialty shop, or beauty culture school is responsible for providing an autoclave or a dry heat, ultraviolet, or other commission-approved sterilizer for use in the shop or school as required by Subsection (a). An autoclave or a dry heat, ultraviolet, or other commission-approved sterilizer used as required by Subsection (a) must be:

(1) registered and listed with the federal Food and Drug Administration; and

(2) used in accordance with the manufacturer's instructions.

Id. § 1602.408. House Bill 1304 thus offers a choice in the sterilization of nondisposable instruments used by barbers and cosmetologists on nails, hands, and feet: either an autoclave "or a dry heat, ultraviolet, or other [board or commission] approved sterilizer." See Act of May 18, 2005, 79th Leg., R.S., ch. 562, §§ 1-2, 2005 Tex. Gen. Laws 1495, 1495-96. Furthermore, an owner or manager of a shop or school that performs barbering or cosmetology services is also offered a choice of providing either "an autoclave or a dry heat, ultraviolet, or other [board or commission]-approved sterilizer," so long as it is "registered and listed with the federal Food and Drug Administration" and "used in accordance with the manufacturer's instructions." See id. As is the case with Senate Bill 411, House Bill 1304 does not define the term "autoclave."

A provision of the Code Construction Act states that "if amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each." TEX. GOV'T CODE ANN. § 311.025(b) (Vernon 2005). Senate Bill 411 provides that nondisposable instruments shall be sterilized with an autoclave. House Bill 1304 also provides that nondisposable instruments shall be sterilized with an autoclave, but in addition, further provides that a dry heat, ultraviolet or other Commission-approved sterilizer can be used to perform the same service.[2] Dry heat, ultraviolet, and various other kinds of sterilization have been recognized in some instances to constitute an "autoclave."[3] But the term "other . . . sterilizer" approved by the Commission is open-ended. As a result, we do not believe that the two bills can be harmonized in this regard and that they are in fact in irreconcilable conflict.

Another provision of the Code Construction Act provides that "if statutes enacted at the same or different sessions are irreconcilable, the statute latest in time prevails."[4] TEX. GOV'T CODE ANN. § 311.025(a) (Vernon 2005). House Bill 1304 was enrolled on May 18, 2005. See Act of May 18, 2005, 79th Leg., R.S., ch. 562, 2005 Tex. Gen. Laws 1495, 1496. Senate Bill 411 was enrolled on May 28, 2005. See Act of May 28, 2005, 79th Leg., R.S., ch. 798, 2005 Tex. Gen. Laws 2734, 2760. Thus, Senate Bill 411 prevails with the result that a barber or cosmetologist who treats nails, hands, or feet must sterilize nondisposable instruments with an autoclave that is registered and listed with the federal Food and Drug Administration and is used in accordance with the manufacturer's instructions. Likewise, the owner or manager of a shop or school that performs barbering and cosmetology services must provide for use in the shop or school an autoclave that is registered and listed with the federal Food and Drug Administration and used in accordance with the manufacturer's instructions.

SUMMARY

A barber or cosmetologist who treats nails, hands, or feet under chapter 1601 or chapter 1602 of the Occupations Code must sterilize nondisposable instruments with an autoclave. Likewise, the owner or manager of a barber or cosmetology shop or school must provide an autoclave for the sterilization of nondisposable instruments.

BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter from William H. Kuntz, Jr., Executive Director, Texas Department of Licensing and Regulation, to Honorable Greg Abbott, Attorney General of Texas (Nov. 8, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. As we have previously noted, section 6.01(c) of Senate Bill 411 provides that a "reference in another law or administrative rule to the State Board of Barber Examiners or the Texas Cosmetology Commission means the Texas Department of Licensing and Regulation." Act of May 28, 2005, 79th Leg., R.S., ch. 798, § 6.01(c), 2005 Tex. Gen. Laws 2734, 2759.

3. Dorland's Illustrated Medical Dictionary defines autoclave as "[a]n apparatus for effecting sterilization by steam under pressure; it is fitted with a gauge that automatically regulates the pressure and therefore the degree of heat to which the contents are subjected." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 180 (30th ed. 2003). Likewise, an article in "GlobalSpec: The Engineering Search Engine," provides the following information: The majority of autoclaves function using some form of heat. Both dry heat and steam heat autoclaves are available. Steam autoclaves are far more common, using heated, vaporized water to kill pathogens. Dry heat autoclaves use dry heat to sterilize instruments. Chemical sterilizers can be broken down into two major groups, cold sterilizers and gas autoclaves. Cold sterilization autoclaves use a cold sterilization liquid to sterilize the contents. Gas autoclaves, often called chemiclaves, use a vapor solution to sterilize its contents. Ultraviolet autoclaves and sterilizers produce UV light exerting a lethal effect on unwanted disease causing organisms. See http://autoclaves.globalspec.com (last visited May 18, 2006).

4. "[T]he date of enactment is the date on which the last legislative vote is taken on the bill enacting the statute." TEX. GOV'T CODE ANN. § 311.025(d) (Vernon 2005).