THE ATTORNEY GENERAL
OF TEXAS
July 9, 1987
Mr. Fred Toler Opinion No. .lM-742
Executive Director
Commission on Law Enforcement Re: Whether the Port of Houston
Officer Standards and Education Authority may employ armed
1606 Headway Circle, Suite 100 security officers who are not
Austin, Texas 78754 commissioned peace officers
Dear Mr. Toler:
You ask whether the Port of Houston Authority may employ armed
security personnel who have not been commissioned as peace officers.
We conclude that the authority may not employ such persons.
The authority, formerly known as the Barris County - Eouston Ship
Channel Navigation District, is a "navigation district" organized
pursuant to article XVI, section 59, of the Texas Constitution. See
generally Attorney General Opinion H-137 (1975) (for a discussion7
the origin and evolution of the authority in the law). The authority
is a political subdivision of the state. Guaranty Petroleum Corpora-
tion v. Armstrong, 609 S.W.2d 529, 530 (Tex. 1980); Smith v. Harris
County - Eouston Ship Channel Navigation District, 330 S.W.2d 672
(Tex. Civ. ADO. - Fort Worth 1959. no writ). The authority derives
its powers at large from the cqnsktution and specifically-from the
statutes governing the discharge of its duties. Attorney General
Opinion Nos. JM-258 (1984); M-171 (1967). The authority may exercise
either those powers which are expressly delegated to it or are clearly
implied from the express powers.. Tri-City Fresh Water Supply District
No. 2 of Barris County v. Manor, 142 S.W.2d 945, 946 (Tex. 1940);
Lower Nueces River Water Supply District v. Cartnight, 274 S.W.2d
199, 207 (Tex. Civ. App. - San Antonio 1954, writ ref'd n.r.e.).
Implied powers are those that are "indispensable to the accomplishment
of the purpose" for which the political subdivision was created;
powers "merely convenient" or "u&ful" cannot be implied and may not
be assumed by the subdivision. Tri-City Freshwater Supply District
No. 2 of Harris County, supra, at 946. (Emphasis added).
Several chapters of the Water Code furnish the authority with the
express powers necessary to fulfill its constitutional mandate. As an
article XVI, section 59, navigation district, the authority operates
under chapter 60 (navigation district - general provisions) and
chapter 62 (article XVI, section 59, navigation districts - specific
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Mr. Fred Toler - Page 2 (JM-742)
duties and powers). Additionally, because the authority originally
was organized pursuant to article III, section 52, of the constitution
before conversion to its present constitutional status, it retains
certain of the specified powers granted to navigation districts of
that ilk in chapter 61 of the Water Code. Water Code 5560.246.
A survey of the Water Code demonstrates that the authority has
broad express powers to arrange for the conduct of its vital business.
Several provisions in the Water Code specifically authorize the
authority to hire employees capable of performing, a wide range of
duties in the ordinary course of its business. See, e.g., Water Code
1561.174(a) (a navigation district may employ all persons necessary
for the construction, maintenance, operation, and development of the
business and facilities of the district); 62.077a (the navigation
district may employ an assistant engineer and other employees as may
be necessary); see, e.g., Attorney General Opinion O-4140 (1941)
(authority may contract for medical personnel to provide for the
medical care of its employees.)
The deployment of an armed security force composed exclusively of
persons who are not commissioned, certified peace officers stands on
an entirely different footing. Although the use of such employees may
be exceedingly convenient, mere convenience is not a permissible
factor in the calculus of fixing the implied powers of a political ?
subdivision. Tri-City Fresh Water Supply District No. 2 of Barris
County v. Manor, supra, at 946.
The Water Code grants the authority general rulemaking power to
protect its property and persons using that property, when the
facilities are not within the boundaries of an incorporated city,
town, or village:
The commission of a district which owns,
operates, and maintains wharves, docks, piers,
sheds, warehouses, and other similar terminal
facilities which are not located inside the
boundaries of any incorporated city, town, or
village may pass, amend, and repeal any ordinance,
rule, or police regulation which is not contrary
to the constitution or laws of this state and
which is necessary to protect the property and to
promote the health, safety,,and general welfare of
persons using the property.1_ (Emphasis added).
1. We take no position on the exact reach of this provision in
the case of the Port of Houston Authority, because we have no way of
knowing which of the authority's facilities are outside incorporated --.
municipalities.
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Mr. Fred Toler - Page 3 (JM-742)
Water Code 060.071. Moreover, the authority has very specific powers
to carry out section 60.071:
To accomplish the purposes stated in Section
60.071 of this code, the commission may exercise
the following powers:
(1) control the operation of all types of
vehicles using the roads maintained by the
district, other than roads dedicated to public
use by formal dedication, and prescribe the
speed, lighting, and other requirements of
these vehicles;
(2) prohibit loitering on docks, wharves,
piers, warehouses, sheds, or other properties
of the district;
(3) control the operation of all types of
vessels using harbors, turning basins, basins,
or navigable channels of the district and
prescribe the speed, lighting, and other
requirements of these vessels;
C
(4) prohibit smoking and the use of
flares, open fires, and inflammable, highly
combustible, or explosive substances and
materials on docks, wharves, piers, warehouses,
sheds, and other properties of the district, or
on those parts of the properties and at those
times or during those periods as may, in the
judgment of the commission, be determined to be
dangerous to any of the property or inimical to
the safety or general welfare of persons'using
the property or parts of it;
(5) prevent on any of the property all
trespasses, breaches of the peace and good
order, assaults and batteries, fighting,
quarrels, use of abusive. profane, or insulting
language, disorderly conduct, and misdemeanor
theft and punish offenders;
(6) suppress and prevent any riot,
affray, disturbance, or disorderly assembly on
any of the property; and
(7) license and regulate or suppress and
prevent hawkers and peddlers utilizing or
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Mr. Fred Toler - Page 4 (JM-742)
attempting to utilize the roads and other
property of the district.
Water Code 960.072. See also 960.073.
The statutes clearly direct the authority to use commissioned,
certified peace officers to protect the interests of the authority in
enforcing the law within its precincts:
In prosecutions involving the enforcement of [the
relevant provisions of the Water Code] or the
enforcement of any ordinance, rule, or regulation
of the district, any sheriff, constable, or other
duly constituted peace officer of the state of
Texas or any peace officer employed or appointed
by the [navigation district] may make arrests,
serve criminal warrants, subpoenas, or writs, and
perform any other service or duty which may be
performed by a sheriff, constable or other duly
constituted peace officer of the State of Texas in
enforcing other laws of this state.
Water Code 160.077. This provision of the Water Code clearly empowers
a navigation district to employ commissioned, certified peace
officers. Attorney General Opinion E-549 (1977). Thus, the law
enforcement activities of the authority, including measures necessary
to assure the security of the authority's property and that of its
customers, can be discharged by authority employees who are the w
and functional equivalents of duly constituted peace officers.
Security guards are not the legal and functional equivalent of
duly constituted peace officers. Peace officers must be certified by
the state, article 4413(19aa), V.T.C.S., after meeting stringent
educational, character, and fitness requirements, and they have a
specific duty to preserve the peace within their jurisdictions. Code
Crim. Proc. arts. 2.12, 2.13. Peace officers are vested with a
privileged authority to make arrests, see article 14.03 of the Code of
Criminal Procedure, and to possess handguns in a wide range of
circumstances where such implements are denied to everyone else, -see
sections 46.02 and 46.03 of the Penal Code.
By contrast, security guards are agents of the sovereign for "law
enforcement" purposes to an extent no greater than a loyal citizen or
mere bystander. They may not make arrests, except in the limited
circumstances ordinary persons can. Code Crim. Proc. art. 14.01(a)
(an)t person may arrest an offender when the offense is committed
"in . . . view or presence" and is classified as a felony or an
offense against the public peace). Security guards may not serve
warrants or issue citations for misdemeanor offenses, or perform any
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Mr. Fred Toler - Page 5 (JM-742)
of the other w enforcement functions of a commissioned, certified
%?
peace officer. Water Code art. 60.077, B. Security guards may
not be armed, except in an extremely limited set of circumstances. and
they may not take their weapons off of the property of their employer.
Penal Code 046.03(2); Attorney General Opinion E-185 (1973); see also
Robinson v. State, 280 S.W. 776 (Tex. Crim. App. 1926). We note that
a brief submitted on behalf of the authority argues that in Attorney
General Opinion H-549 this office approved the hiring of security
guards by the authority. The question was never raised directly, and
that opinion only considered the general circumstances in which 2
security guard could carry a handgun.
Thus, the broad law enforcement powers granted to commissioned,
certified peace officers employed by the authority, but unavailable
to security guards, indicates that the legislature intended for law
enforcement activities necessary to the operation of the authority to
be exercised by commissioned, certified peace officers. To find
implied power for the authority to hire security guards is an
impermissible enlargement of the express powers of the authority.
SUMMARY
The Port of Houston Authority, a navigation
district organized under article XVI, section 59,
of the Texas Constitution, has no authority to
hire armed security guards. Rather, the legisla-
ture specifies that law enforcement activities on
the authority's property, and necessary to its
functions, are to be'carried out by commissioned
peace officers, who are to act with all of the
authority of a commissioned peace officer, such
as a county sheriff or constable. Water Code
560.077.
2. Because the authority is a political subdivision. security
guards employed by it need not be licensed under the terms of the
Private Investigators and Private Security Agencies Act. See V.T.C.S.
art. 4413(29bb), 53(a)(2). A political subdivision may seeklicensing
for security guards if it chooses. V.T.C.S. art. 4413(29bb), 03(e).
Licensing adds nothing to the power of security guards -- it does not
convert them into the functional or legal equivalent of duly consti-
tuted peace officers.
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Mr. Fred Toler - Page 6 (m-742)
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE ST!&W.EY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Donald Bustion
Assistant Attorney General
p. 3457
Untitled Texas Attorney General Opinion
Combined Opinion