November 30, 1973
The Honorable Joe Max Shelton Opinion No. H- 168
County Attorney
Grayson County Re: Whether security guard
Sherman, Texas 75090 employed by store has
authority to arrest per-
*on committing crime on
store premises or to
detain such per,sons for
subsequent, arrest by
local law enforcement
Dear Mr. Sheldon: agency
You have~asked this office for an opinion as to whether private security
guards have legal authority to arrest and detain persons violating criminal
laws, particularly shoplifting and theft, on the premises of retail stores
where such security guards are employed. The broad answer to your questions
is that they do have such authority,based upon and limited by statute.
Article 1436e, Vernon’s Texas Penal Code, defines and prohibits shop-
lifting. Sections 2 and 3 of this Article provide:
“Sec. 2. All persons have a right to prevent the
consequences of shoplifting by seizing any goods, edible
meat or ,other corporeal property which has been so taken,
and bringing it, with the supposed offender, if he can be
taken, before a magistrate for examination, or delivering
the same to a peace officer for that purpose. To justify
such seizure, there must, however, be reasonable ground
to suppose the crime of shoplifting to have been committed
and the property so taken, and the seizure must be openly
made and the proceeding had without delay.
p. 771
The Honorable Joe Max Shelton, page 2 (H-168)
“Sec. 3. Any merchant, his agent or employee,
who has reasonable ground to believe that a person has
wrongfully taken or has wrongful possession of mer-
chandise, may detain such person in a reasonable man-
ner and for a reasonable length of time for the purpose
of investigating the ownership of such merchandise.
Such reasonable detention shall not constitute an arrest
nor shall it render the merchant, his agent or employee,
liable to the person detained. ”
The limitations imposed by Article 1436e are that (1) there must be
reasonable grounds to suppose the crime has been committed, (2) the seizure
must be openly made and (3) any detention shall be upon reasonable grounds
in a reasonable manner and for a reasonable length of time. Article 1436e
has been repealed by the new Penal Code effective January 1, 1974. (See
Section 31.02, Acts 1973, 63rd Legislature, ch. 399, p. 929).
Section (a) of Article 14.01, Texas Code of ‘Criminal Procedure, provides:
“A peace officer or any other pe.rson, may;~
without a warrant, arrest an offender when the offense
is committed in his presence or within his view, if
the offense is one classed as a felony or as an offense
against the public peace. ”
However, this provision is applicable only to felonies or offenses against
the public peace. At the present time, Article 1436e, V. T. P. C., makes it a
felony to shoplift goods of a value over ‘$50. After January 1, 1974, the felony
amount will be a value over $200. (5 31.03, new Penal Code, supra).
Article 18.22, Texas Code of Criminal Procedure, provides:
“All persons have a right to prevent the conse-
quences of theft by seizing any personal property which
has been stolen, and bringing it, with the supposed offen-
der, if he can be taken, before a magistrate for exami-
nation, or delivering the same to a peace officer for that
p. 772
The Honorable Joe Max Shelton, page 3 (H-168)
purpose. To justify such seizure, there must,
however, be reasonable ground to suppose the
property to be stolen, and the seizure must be
openly made and the proceedings had without delay. ”
This Article has been reenacted as a conforming amendment in connection
with the new Penal Code. (See Article 18.16, Laws 1973, 63rd Leg., ch.
399, p. 985). It applies to any “theft, ” whether felony or misdemeanor.
It requires bringing the accused before a magistrate or peace officer and
requires “reasonable ground, ” open seizure and proceedings without delay.
The. new Penal Code, supra, also contains at p. 988 a conforming
amendment which adds Article Id to Vernon’s Texas Civil Statutei providing:
“A person reasonably believing another has
stolen or is attempting to steal property is privileged
to detain the person in a reasonable manner and for
a reasonable period of time for the purpose of inves-
tigating ownership of the property.”
The limitations contained in these various statutes are recognized and
enforced by the courts. In J. C. Penney Co. v. Duran. 479 S. W. 2d 374
(Tex. Civ. App. , San Antonio, 1972, ref’d n. r. e.), a suit for false arrest and
imprisonment growing out of an alleged shoplifting incident, the court, in
upholding a judgment and verdict for the plaintiff, stated:
“Defendants contend that under the terms and
provisions of Article 1436e, Vernon’s Tex. Penal Code
Ann. (1965). and Article 18.22, Vernon’s Tex. Code
Crim. P. Ann. (1965), they had an unqualified legal
right to detain plaintiffs for the purpose of investigating
the circumstances and ownership of the package which
Mrs. Duran was carrying; and that in the exercise of
their legal right of detention they acted reasonably and
did not detain plaintiffs in an unreasonable manner or
for an unreasonable length of time.” (479 S. W. 2d at 379)
p. 773
The Honorable Joe Max Shelton, page 4 (H-168)
“Although the right to detain a person under
certain circumstances exists under both statutes,
plaintiffs assert, and we agree, that before such
right of detention exists, there must be reasonable
grounds to suppose the property to be stolen [Article
18.22, Code of Criminal Procedure], or that shop-
lifting has been committed [Article 1436e, Penal
Code] ; and in both cases, the detention must be
reasonable and for a reasonable length of time. ”
(479 S. W. 2d at 379)
This opinion has been focused primarily on arrests and detentions
for, shoplifting and theft because we believe this is the crime for which
most persons are apprehended by.private security guards in retail stores.
You should notice, however, that Article 14. 01(a); cited and quoted above,
applies to any felony, provided the guards have reasonable grounds to
,suppose that property is stolen.
SUMMARY
Private security guards, upon the existence of
reasonable grounds, may arrest and detain persons
supposedly guilty of crime in retail stores, provided
reasonable grounds exist to suppose the crime has
been committed; the seizure is made openly; and the
detention is upon reasonable grounds, in a reasonable
manner and for a reasonable time.
ery truly yours,
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 774