                           Office of tly !&tornep @merat
                                        %tate of ?Ifexae
DAN MORALES
 ATTORNEY
       GENERAL                              March 29,1994

     Ms. Clema D. Sanders                            Opinion No. DM-287
     Executive Director
     Texas Board of Private Investigators            Re: Whether section 3(a)(3) of article
       and Private Security Agencies                 4413(29bb), V.T.C.S.. exempts a tbll-time
     P.O. Box 13509                                  peace officer working as a private
     Austin, Texas 78711                             patrolman, guard, or watchman from the
                                                     requirements of the Texas Board of Private
                                                     Investigators and Private Security Agencies
                                                     Act when the entity receiving the private
                                                     services is not directly employing the peace
                                                     05c.e-r (RQ-488)

     Dear Ms. Sanders:

              Your request for an opinion asks us to construe section 3 of the Texas Board of
     Private Investigators and Private Security Agencies Act (“act”). V.T.C.S. article
     4413(29bb). In the act the legislature created the Texas Board of Private Investigators
     and Private Security Agencies, V.T.C.S. art. 4413(29bb) $4(a), and imposed a licensing
     requirement for “any person.     engag[ing] in the business of, or perform[mg] any service
     as an investigations company, guard company, alarm systems company, armored car
     company, courier company or guard dog company or.             offer[mg] his services in such
     capacities or engag[ing] in any business or business activity required to be licensed” by the
     act, id. $ 13(a).

             Section 3 of the act sets forth various exceptions to the act’s application.     The
     relevant portion of section 3 is set forth below:

                    Sec. 3. (a) This Act does not apply to:



                    (3) a person who has fill-time employment as a peace o5cer as
               defined by Article 2.12, Code of Criminal Procedure, who receives
               compensation for private employment on an individual or an
               independent contractor basis as a patrolman, guard, or watchman if
               such person is:

                    (A) employed in an employee-employer relationship; OY

                    @) employed on an individual contracrual basis;


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Ms. Clema D. Sanders - Page 2             (DM-287)




               (C) not in the employ of another peace officer; and

               (D) not a reserve peace officer.

Id. 5 3(a)(3) (emphasis added).

        Your request letter notes the ambiguity of tire emphasii  language in the above-
quoted provision. That language is in passive voice, so there is no expression of the
identity of the person with whom an employee or independent contractor must be in an
employment or contractual relationship in order to be exempted from the act. You ask us
whether the above-quoted subsections (A) and (B) exempt from the act only those persons
who are employed directly by security recipients (for example, supermarkets that need
night-time security guards) or, additionally, those persons who are employed by
intermediaries who contract with secmity recipients.

         We have found a clear expression of the meaning of the ambiguous language in the
legislative debate of the bill that added that language to the act. The 64th Legislature in
1975, by enactment of House BiU 43 1, added the original version of the current subsection
(a)(3) to section 3. See Acts 1975,64th Leg., ch. 494.5 1, at 1314. The author of House
Bii 43 1, t&n-Representative Carl Parker, answered questions from the floor during the
second reading of the bill, clarifying that the exemption applied only to persons employed
directly by the security recipient.

               Q: How does this [House Bii 43 l] affect the polkeman who, in
          off-duty hours, serves as a guard at a 7-Eleven, or grocery store, or
          whatever it may be?

               A: Ifhe’s just working on his own and hired to do security work
          for one employer and he doesn’t employ any people under him, it
          doesn’t touch him top, side, or bottom, he is specifically exempted by
          language that was drafted in conjunction with me and the
          representatives of the Texas Municipal Police Association.



               Let’s take a police officer-Austin police officer--and they
          [organixem of a big fiesta at Fiesta Gardens] call down there [the
          police station] and say, “We need 15 police officers off-duty tonight,
          and we want to pay them to act as security for this function.” If all
          15 of them show up down there, fine, they can all work-they’re not
          touched by this act--they’re specifrcahy exempted by the act.
               Now, if they do it as a business, if they hire people--if you have a
          sergeant who hires a bunch of patrolmen and he gets a cut of what
          they do, he has to be licensed under this act.




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Ms. ClemaD. Sanders - Page 3                (DM-287)




               Q: mf the chief of police or the sheriff is called and they
          just say to the chief of police or the sheriff, “Send 15 deputies out
          there”-
               A: If he’s not charging for that sendce-

               Q: If he’s not getting a cut off the top-
               A: That’s right.

               Q: --them that’s exempt, isn’t it? Right?
               A: That’s right.
Debate on H.B. 431 on the Floor of the House of Representatives, 64th Leg. (May 5,
1975) (tape recording available from House Video/Audio Services Of&e).

         The abovequoted colloquy shows the legislature’s intention that subsections (A)
and (B) exempt from the act only those persons who are employed (as an employee or an
independent contractor) directly by security recipients for the individual rendering of
security services. We therefore conclude that those provisions apply only to a person who
is “employed in an employee-employer relationship” or “on an individual contractual basis”
directly by the security recipient.

                                   SUMMARY

                Section 3, subsection (a)(3), of article 4413(29bb), V.T.C.S.,
          applies only to a person who is “employed in an employee-employer
          relationship” or “on an individual contracmal basis” directly with the
          security recipient, for the individual rendering of security services.




                                                      DAN      MORALES
                                                      Attorney General of Texas




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Ms. Clema D. Sanders - Page 4             (DM-287)




JORGE VEGA
First Assistant Attorney General

DREW T. DURHAM
Deputy Assistant Attorney General for Criminal Justice

WILL PRYOR
special Counsel

RENEA HICKS
State Solicitor

SAR4H J. SHIRLEY
Chair, Opinion Committee

Prepared by James B. Pinson
Assistant Attorney General




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