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DAN MORALES
ATTORNEY
GENERAL March 29,1994
Ms. Clema D. Sanders Opinion No. DM-287
Executive Director
Texas Board of Private Investigators Re: Whether section 3(a)(3) of article
and Private Security Agencies 4413(29bb), V.T.C.S.. exempts a tbll-time
P.O. Box 13509 peace officer working as a private
Austin, Texas 78711 patrolman, guard, or watchman from the
requirements of the Texas Board of Private
Investigators and Private Security Agencies
Act when the entity receiving the private
services is not directly employing the peace
05c.e-r (RQ-488)
Dear Ms. Sanders:
Your request for an opinion asks us to construe section 3 of the Texas Board of
Private Investigators and Private Security Agencies Act (“act”). V.T.C.S. article
4413(29bb). In the act the legislature created the Texas Board of Private Investigators
and Private Security Agencies, V.T.C.S. art. 4413(29bb) $4(a), and imposed a licensing
requirement for “any person. engag[ing] in the business of, or perform[mg] any service
as an investigations company, guard company, alarm systems company, armored car
company, courier company or guard dog company or. offer[mg] his services in such
capacities or engag[ing] in any business or business activity required to be licensed” by the
act, id. $ 13(a).
Section 3 of the act sets forth various exceptions to the act’s application. The
relevant portion of section 3 is set forth below:
Sec. 3. (a) This Act does not apply to:
(3) a person who has fill-time employment as a peace o5cer as
defined by Article 2.12, Code of Criminal Procedure, who receives
compensation for private employment on an individual or an
independent contractor basis as a patrolman, guard, or watchman if
such person is:
(A) employed in an employee-employer relationship; OY
@) employed on an individual contracrual basis;
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Ms. Clema D. Sanders - Page 2 (DM-287)
(C) not in the employ of another peace officer; and
(D) not a reserve peace officer.
Id. 5 3(a)(3) (emphasis added).
Your request letter notes the ambiguity of tire emphasii language in the above-
quoted provision. That language is in passive voice, so there is no expression of the
identity of the person with whom an employee or independent contractor must be in an
employment or contractual relationship in order to be exempted from the act. You ask us
whether the above-quoted subsections (A) and (B) exempt from the act only those persons
who are employed directly by security recipients (for example, supermarkets that need
night-time security guards) or, additionally, those persons who are employed by
intermediaries who contract with secmity recipients.
We have found a clear expression of the meaning of the ambiguous language in the
legislative debate of the bill that added that language to the act. The 64th Legislature in
1975, by enactment of House BiU 43 1, added the original version of the current subsection
(a)(3) to section 3. See Acts 1975,64th Leg., ch. 494.5 1, at 1314. The author of House
Bii 43 1, t&n-Representative Carl Parker, answered questions from the floor during the
second reading of the bill, clarifying that the exemption applied only to persons employed
directly by the security recipient.
Q: How does this [House Bii 43 l] affect the polkeman who, in
off-duty hours, serves as a guard at a 7-Eleven, or grocery store, or
whatever it may be?
A: Ifhe’s just working on his own and hired to do security work
for one employer and he doesn’t employ any people under him, it
doesn’t touch him top, side, or bottom, he is specifically exempted by
language that was drafted in conjunction with me and the
representatives of the Texas Municipal Police Association.
Let’s take a police officer-Austin police officer--and they
[organixem of a big fiesta at Fiesta Gardens] call down there [the
police station] and say, “We need 15 police officers off-duty tonight,
and we want to pay them to act as security for this function.” If all
15 of them show up down there, fine, they can all work-they’re not
touched by this act--they’re specifrcahy exempted by the act.
Now, if they do it as a business, if they hire people--if you have a
sergeant who hires a bunch of patrolmen and he gets a cut of what
they do, he has to be licensed under this act.
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Ms. ClemaD. Sanders - Page 3 (DM-287)
Q: mf the chief of police or the sheriff is called and they
just say to the chief of police or the sheriff, “Send 15 deputies out
there”-
A: If he’s not charging for that sendce-
Q: If he’s not getting a cut off the top-
A: That’s right.
Q: --them that’s exempt, isn’t it? Right?
A: That’s right.
Debate on H.B. 431 on the Floor of the House of Representatives, 64th Leg. (May 5,
1975) (tape recording available from House Video/Audio Services Of&e).
The abovequoted colloquy shows the legislature’s intention that subsections (A)
and (B) exempt from the act only those persons who are employed (as an employee or an
independent contractor) directly by security recipients for the individual rendering of
security services. We therefore conclude that those provisions apply only to a person who
is “employed in an employee-employer relationship” or “on an individual contractual basis”
directly by the security recipient.
SUMMARY
Section 3, subsection (a)(3), of article 4413(29bb), V.T.C.S.,
applies only to a person who is “employed in an employee-employer
relationship” or “on an individual contracmal basis” directly with the
security recipient, for the individual rendering of security services.
DAN MORALES
Attorney General of Texas
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Ms. Clema D. Sanders - Page 4 (DM-287)
JORGE VEGA
First Assistant Attorney General
DREW T. DURHAM
Deputy Assistant Attorney General for Criminal Justice
WILL PRYOR
special Counsel
RENEA HICKS
State Solicitor
SAR4H J. SHIRLEY
Chair, Opinion Committee
Prepared by James B. Pinson
Assistant Attorney General
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