                              ATTORNEY            GENERAL          OF TEXAS
                                           GREG        ABBOTT




                                             September 25,2006



The Honorable Chris ~Taylor                            Opinion No. GA-0465
Tom Green County Attorney
122 West Harris Avenue                                 Re: Whether a county jailer who is a certified
San Angelo, Texas 76903                                peace officer is required to obtain a commission
                                                       from the Texas Commission on Private Security to
                                                       work as a private security guard (RQ-0464-GA)

Dear Mr. Taylor:

        You ask whether a county jailer who is a certified peace officer and who has been appointed
as a deputy sheriff is exempt from the requirements of the Private Security Act.’

         While the job of jailer does not require certification as a.peace offricer, you inform us that
some Tom Green County jailers have received peace officer certification from the Texas
Commission on Law Enforcement Officer Standards and Education (“TCLEOSE”). Request Letter,
supra note 1, at 3. When a jailer is also certified as a peace officer, it is the Tom Green County
Sheriffs practice to appoint that person as a deputy sheriff. See id. You inform us that while such
jailers may occasionally be asked to transport prisoners or patrol an area of the county outside the
jail facility, a jailer’s main duty is to guard the county jail. See id. at 4.

        Some jailers may wish to also obtain private employment as a security guard. A private
security guard position is governed by the Private Security Act which requires a private security
guard who carries a firearm while on duty to hold a commission issued by the Texas Commission
onPrivate Security. S’eeTEx.OCC.CODEANN.8 1702.161 (Vemon2004). ThePrivate Security Act
contains an exemption for:

                 (1) a person who has full-time employment as a peace officer and
                 who receives compensation for private employment on an individual
                 or an independent contractor basis as a patrolman, guard, extra job
                 coordinator, or watchman if the officer:



          ‘See Letter from Honorable Chris Taylor, Tom Green County Attorney, to Honorable Greg Abbott, Attorney
General ofTexas, at 1 (Mar. 17,2006) (onfilewiththeopinioncommittee,   also available athttp://~w.oag.state.tx.us)
[herein&r    Request Letter].
The Honorable Chris Taylor - Page 2             (GA-0465)



                      (A) is employed in an employee-employer relationship or
                employed on an individual contractual basis;

                        (B) is not in the employ of another peace officer;

                        (C) is not a reserve peace officer; and

                        (D) works as a peace officer on the average of at least 32
                hours a week, is compensated by the state or a political subdivision
                of the state at least at the minimum wage, and is entitled to all
                employee benefits offered to a peace officer by the state or political
                subdivision;

Id. § 1702.322(l).

         A county jailer and a deputy sheriff are statutorily distinct positions. The Local Government
Code authorizes, a sheriff to “employ a sufficient number of guards to ensure the safekeeping of
prisoners and the security of a jail.” TEX.Lot. GOV’TCODEANN. 5 85.005(a) (Vernon 1999). To
be employed as a jailer, an individual must hold ajailer license issued by TCLEOSE. See TEX.Oct.
CODEANN. $5 1701.301, ,310 (Vernon 2004). A jailer must complete a different set of training
courses and pass a different examination from those required to be a licensed peace officer. See 37
TEX.ADMIN.CODE §§ 217.1 (2006) (TCLEOSE, Minimum Standards for Initial Licensure), 221.5
(TCLEOSE, Jailer Proficiency). A “county jailer” is not included in the list of people who “are
peace officers.” TEX. CODEGRIM.PROC.ANN.art. 2.12(l) (Vernon Supp. 2006). In addition, the
legislature demonstrated its intention that the term “peace officer” does not include a “jailer”
by regularly referring to the two terms separately in statute. See, e.g., TEX.OCC.CODE ANN.
 $5 1701.001 (Vernon 2004) (defining “peace officer” and “county jailer” separately); 1701.15 1
 (referring to “officer, county jailer, or ,public security officer”), 1701.25 1 (referencing officer and
jailer as distinctpositions), 1701.301 (same), 1701.303 (same), 1701.306 (same), 1701.312 (same),
 1701.352 (same); TEX. GOV’TCODEANN. 5 607.001 (Vernon Supp. 2006) (same). This view is
 confirmed by the Court of Criminal Appeals, which found that “the legislature’s failure to designate
jailers as peace officers as well~as the distinctions the legislature made between jailers and peace
 officers in many pieces of legislation indicates the legislature’s intent that jailers not be considered
peace officers.” Deltenre v. State, 808 S.W.2d 97, 102 (Tex. Crim. App. 1991).

        In contrast, deputy sheriffs are peace officers and must hold a peace officer license issued by
TCLEOSE. See TEX. CODE GRIM.PR~c.ANN.art. 2.12(l) (Vernon Supp. 2006); ‘I&x. Oct. CODE
ANN. § 1701.301 (Vernon 2004). To obtain a peace officer license, an applicant must complete a
training course, pass a licensing examination, undergo psychological and physical evaluations, and
demonstrate weapons proficiency. See TEX. Oct. CODEANN. $5 1701.304, .306-,307 (Vernon
2004). In addition, a peace officer must meet continuing education requirements and demonstrate
weapons proficiency atleastammally. See id. 55 1701.351 (Vernon Supp. 2006), 1701.355 (Vernon
2004).
The Honorable Chris Taylor - Page 3            (GA-0465)



        While the positions ofjailer and deputy sheriff are distinct in statute, they are not mutually
exclusive-many counties employ one person in both positions. Yet the legislature has chosen
to exempt only@l-time peace officers from the requirements of the Private Security Act. See id.
§ 1702.322 (Vernon 2004) (exemption for full-time peace officers); cf Garay v. State, 940 S.W.2d
2 11,2 18 (Tex. App.-Houston [ 1st Dist.] 1997, writ ref d) (upholding the application of the Act to
part-time peace officers); Tex. Bd. ofprivate Investigators &Private Sec. v. Bexar County Sherzf’s
Reserve, 589 S.W.2d 135 (Tex. Civ. App.-San Antonio 1979, no writ) (upholding the application
of the Act to reserve peace officers). Part-time peace officers and reserve peace officers who wish
to carry a firearm in the course of a job as a private security officer must comply with training
requirements and obtain a commission if they wish to carry a firearm in the course of a job as a
private security officer. See TEx. OCC. CODEANN. 5s 1702.161 (Vernon 2004) (security officer
commission required), 1702.1675 (training requirements), 1702.322 (exemption for full-time peace
officers). Thus, the pertinent question is whether a person who is both a county jailer and a deputy
sheriff “has full-time employment as apeace officer.” Id. 5 1702.322(l) (emphasis added).

        Section 1702,322(1)(D) provides guidance for howto determinewhat full-time employment
as a peace officer entails, by requiring that the individual:

               work[] as apeace oficer on the average of at least 32 hours a week,
               is compensated by the state or a political subdivision of the state at
               least at the minimum wage, and is entitled to all employee benefits
               offered to a peace officer by the state or political subdivision[.]

Id. $ 1702.322(1)(D). A person who works full-time as a jailer and is only nominally a deputy
sheriff would not meet the requirement to work 32 hours a week as a peace officer and so would be
subject to the Act. Another person might work full-time as a deputy sheriff while also serving as
a jailer and would thus be exempt from the Act. Determining whether an individual meets the
requirements of subsection (D) is necessarily fact-intensiveit depends upon the nature and terms
of the individual’s employment and how the employer views and treats the position.

        Because your question depends on the factual nature of a particular individual’s employment,
we camrot determine whether certain Tom Green County employees are exempt from the Private
Security Act. See, e.g., Tex. Att’y~Gen. Op. No. GA-0139 (2004) at 3 (stating that the attorney
general’s office does not determine facts). Instead, we must leave the determination in the first
instance to the employer, subject to judicial review. See Tex. Att’y Gen. Op. No. GA-0086 (2003);
~~~~~~~TEx.Loc.Gov’TCODEA~~N.$152.071 (Vernon 1999)(discussingclassificationandduties
of sheriffs department employees).
The Honorable Chris Taylor - Page 4         (GA-0465)



                                     SUMMARY

                      Whether a peace officer who is both a jailer and a deputy
              sheriff is “employed full-time as a peace officer,” and thus exempt
              from the provisions of the Private Security Act by section 1702.322,
              Texas Occupations Code, is a question of fact that will vary with the
              nature of the employment.

                                            Very truly yours,




                                            Attorney Metal      of Texas


RENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
