                                    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
