                                  The Attorney General of Texas
                                                       O::tober   26,        1984
JIM MATTOX
Attorney General



Supreme Coufl Building
P. 0. BOX 12549                 Honorable   Margaret :3oore                         Opinion    No. JM-222
Austin. TX. 78711. 2549         Travis County Attorwy
512/475-2501                    P. 0. Box 1748                                      RS:     Whether    article       4413(29bb)
Telex 9101874-1367
                                Austin,   Texas    787 5’7                          requires      warned       security      per-
Telecopier   5121475026l3
                                                                                    sonnel     who     are      employees       of
                                                                                    individual     retailers      to register
714 Jackson. Suite 700                                                              with    the Texas Board of Private
Dallas. TX. 752024506.                                                              Investigators     and Private       Security
214/742~9944
                                                                                    Agents

4824 Alberta Ave., Suite 160    Dear Ms. Moore:
El Paso. TX. 79305.2793
91515333494                            You ask whether      article     4413(29bb).    V.T.C.S.,     requires     unarmed
                                security     personnel    who are      employees    of    Individual      retailers     to
vW1 Texas,     Suite 700
                                register     with the Texas Board of Private            Investj~gators      and Private
Hous~c.~. TX. 77002.3111        Security    Agents.    It is our opinion       that registration       is not required
713,223-5886                    for such unarmed sezurity         personnel   when they are employed exclusively
                                and regularly      by or.e employer     In connection    with the affairs         of only
                                that    employer    and rhe relationship       of the retailer       and the security
no6 Broadway. Suite 312
                                personnel     is that of an employer and employee.
Lubbock. TX. 79401.3439
0061747~5238
                                        Prior   to the enactment       of chapter    523, Sixty-eighth      Legislature,
                                article     4413(29bb)     required   only employees     of the licensees     under that
4309 N. Ter,lh. Suite B
                                act who were employ4sd as private             investigators,     managers.     or branch
McAllen. TX. 7S501-1685
5 ! 21682.4547
                                managers      to register       with   the Board of Private         Investigators        and
                                Private      Security    Ag’ents.     Section   32(a),    as amended by Acts         1983,
                                Sixty-eighth       Legislature.      chapter   523,    page 3047,    now provides        the
 200 Main Plaza. Suite 400      folloving:
 ssn Anlonio. TX. 18205.2797
 512l2254191
                                                 (a)    Al individual       who is employed as a private
                                             investigator,          manager,   branch     off ice   manager,
 An Equal Opportunityl                       alarm syr,tems installer,           noncozmnissioned     private
 A,,irma,ive Action E~‘plovc-                security      officer,     or private    security    consultant
                                             must regis,ter       with the board within        10 days after
                                             the commewement of such employment.

                                “Noncommissioned      pl:%vate    security       officer”      is not     defined   but we
                                believe    that unarmed security       personnel       are included     in that category.
                                However,     section  318,) of the act excludes             numerous persons      from -all
                                provisions     of the a:~:.    Section    3(a)(l)      provides   that:




                                                                        P.    998
honorable      Margaret     hoore     - Page 2         (JM-222)




                    (a)    This     Act   does   not    apply     to:

                    (1)   a     person      employed        exclusively         and
               regularly     by one I:alployer in connection             with the
               affairs    of an empl,oyer only and where there exists
               an      employer-empl,J:ree       relationship;          provided,
               however,     any perscsn, who shall        carry    a firearm      in
               the course     of his employment shall           be required       to
               obtain a private        saN:urity officer      commission     under
               the provisions       of this Act.

        Section         3(s) (1)      has       ,not    been      expressly        repealed       by    the
legislature.            Although        it     wss re-enacted          by both        chapter     654 and
chapter       969 of the Sixty-eighth                Legislature,       it has remained unchanged
in substance           since     the oriI:lnal          enactment       of article        4413(29bb)      in
1969.      It     is well established             that a provision          which is not expressly
repealed       may be repealed           by i!nplication         to the extent         of a conflict      by
a subsequent           enactment       that clearly          conflicts       in such a manner that
both cannot be enforced.                   See Cillam v. Matthews,              122 S.W.2d 348 (Tex.
Civ.     App.       - Fort      Worth 7538,            writ     dism’d).        Rowever,       repeal     by
Implication          is not favored            or presumed and is supportable                   only when
the conflicting            provisions         are so repugnant            that both cannot          stand.
See Dendy v. Wilson,               179 S.II.2d 269 (Tex.             1944);    Townsend v. Terrell,
16S.W.2d           1063 (Tex. Comm’n App. 1929. opinion                      adopted);      Hunnicutt     v.
Lee,     16 S.W.Zd 968 (Tex.                C~V. App. - Dallas              1929, no writ).           Since
repeal      by implication           is not favored,            old and new statutes             that are
not positively            repugnant        wil:l each be construed             so as to give effect
to both,        if possible.          See Cole v. State,             170 S.W. 1036 (Tex.           1914);
Bank of Texas v. ChilK;?15                           S.W.2d 810 (Tex.            Civ.    App. - Dallas
 1981).    rehearing        denied,       634 S.W.Zd 2 (Tex. Civ. App. - Dallas                    1982).
rev’d     on other grounds,              103 S. Ct. 3369 (1983).               reh’g     denied,     104 S.
ct. 39 (1983).
         In our opinion,            the c,urrent       provisions       of    section       32(a)       and
 section     3(s)(l)     of article         4413(29bb)     are not sufficiently               repugnant
 to each other         to invoke       tha doctrine       of implied       repeal.       Chapter 523
 added three additional              categories      of individuals         who are required              to
 register       under     section       32 (a),     namely,      alarm      systems       install~ers.
 noncommissioned          private        security      officers,        and     private        security
 consultants.          Assuming       that     the added category             of noncommissioned
 private     security      officers       includes     the unarmed security            personnel          in
 question       and otherwise           would     require      their     registration,            section
 3(a)(l)     applies     to and exemI1t.s the limited            group in that category               that
 are unarmed security             personnel      employed exclusively            and regularly            by
 one employer in connection               wl.th only that employer’s            affairs,        if their
 relationship        is that of an employer              and employee.          Any other         unarmed
 security     personnel,        such as those who are not employed exclusively                            or
 regularly       by one employer           or who perform         services       on a contractual
 basis     instead      of an employer-employee               basis,      are not        exempt        from
 article     4413(29bb)       by the exception         provided      by section      3(a)(l).




                                                  D.    999
Honorab1.e   Margaret   Moore    - Page 3       (JM-222)




        We conclude     that  thti! amendment      to  section   32(a)     does  not
impliedly     repeal  the longstanding     exemption   from the act provided      by
section    3(a)(l)   and that the provisions       of both sections    continue   to
have effect      and meaning.   Wr? note that,    if this construction      does not
reflect    the intent   of the l&slature,       that body may effect     its intent
by means of a simple amendwnt          to the statute.

                                      SUMMARY

                 The exclusiou         from   the provisions       of article
             4413(25’bb)     grante,l     to certain    persons     by section
             3(a)(l)    of that act was not expressly            or lmplledly
             repealed       by     tt it:   regular      session       of     the
             Sixty-eighth      Legi:!I,ature.     Therefore,     registration
             with the Texas Bos:rd of Private             Investigators       and
             Private     Security       Agencies     is  not    required      for
             unarmed security         ?r?rsonnel    employed by individual
             retailers     when they are employed            exclusively      and
             regularly     by one employer         in connection      with the
             affairs    of only that employer and the relationship
             of the retailer       and the security       personnel      is that
             of an employer ant: employee.




                                                         Attorney   General   of   Texas

TOM GREEN
First Assistant      Attorney    Ger.eral

DAVID R. RICHARDS
Executive Assistant       Attorne),    General

RICK GILPIN
Chairman, Opinion       Committee

Prepared     by Nancy Sutton
Assistant     Attorney General


APPROVED :
@PINION COMKITTEE
Rick Gilpin,   Chairman
Susan Garrison
Jjm Moellinger
Nancy Sutton
Bruce Youngblood




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