                              ATTORNEY GENERAL OF TEXAS
                                            GREG       ABBOTT




                                                 June 8,2006



The Honorable Charles A. Rosenthal, Jr.                  Opinion No. GA-0435
Harris County District Attorney
1201 Franklin Street, Suite 600                          Re: Whether a reserve peace officer may wear his
Houston, Texas 77002                                     official uniform and display the insignia of an
                                                         official law enforcement agency while working
                                                         as a private security officer licensed by the Texas
                                                         Private Security Board (RQ-0421-GA)

Dear Mr. Rosenthal:

        You ask whether a reserve peace officer may wear his official uniform and display the
insignia of an official law enforcement agency while working as a private security officer licensed
by the Texas Private Security Board (the “Board’).’

I.      Background

       Article 2.12 of the Texas Code of Criminal Procedure lists 34 categories                       of persons
denominated “peace officers.” Those relevant to your inquiry include the following:

                 (1) sheriffs, their deputies, and those reserve deputies who hold a
                 permanent peace officer license issued under Chapter 1701,
                 Occupations Code;

                 (2) constables,  deputy constables, and those reserve deputy
                 constables who hold a permanent peace officer license issued under
                 Chapter 1701, Occupations Code; [and]

                 (3) marshals or police officers of an incorporated city, town, or
                 village, and those reserve municipal police officers who hold a
                 permanent peace officer license issued under Chapter 1701,
                 Occupations Code.



            ‘SeeLetter frownHonorable Charles A. Rosenthal, Jr., Harris County District Attorney, to Honorable Greg
Abbott, Attorney General of Texas (Nov. 28,2005) (on tile with the Opinion Committee, also mailable at http://www
.oag.state.tx.us).
The Honorable Charles A. Rosenthal, Jr. - Page 2           (GA-0435)




TEX. CODE GRIM. PROC. ANN. art. 2.12(l)-(3)      (Vernon       Supp. 2005). Chapter 1701 of the
Occupations Code defines the term “reserve law enforcement      officer” as “a person designated as a
reservelaw enforcement officerunder Section 85.004,86.012,      or 341.012,Local Government Code,
or Section 60.0775, Water Code.” TEX. Oct. CODEANN. 5          1701.001(6) (Vernon Supp. 2005).

         Section 85.004 ofthe Local Government Code provides that “[t]he commissioners court of
a county may authorize the sheriff to appoint reserve deputy sheriffs,” but “may limit the number of
reserve deputies that may be appointed.” TEX. LOC. GOV’TCODEANN. § 85.004(a) (Vernon Supp.
2005). “A reserve deputy serves at the discretion of the sheriff.” Id. § 85.004(b). “The sheriff may
authorize a reserve deputy who is a peace officer” under article 2.12 of the Code of Criminal
Procedure “to carry a weapon or act as a peace officer at all times, regardless of whether the reserve
deputy is engaged in the actual discharge of official duties, or may limit the authority of the reserve
deputy to carry a weapon or act as a peace officer to only those times during which the reserve
deputy is engaged in the actual discharge of official duties.” Id. Moreover, “[a] reserve deputy,
regardless of whether the reserve deputy is a peace officer” under article 2.12, Code of Criminal
Procedure, “is not     exempt from Chapter 1702, Occupations Code.“* Id.

         Section 86.012 of the Local Government Code uses identical language to describe the
limitations imposed on reserve deputy constables, including the provision that a deputy constable
“is not.    exempt from Chapter 1702, Occupations Code.” Id. § 86.012(b). Section 60.0775 ofthe
Water Code, applicable to navigation districts, provides that “[tlhe commission of a district that has
established a police force may establish avolunteer police reserve force.” TEx. WATERCODEANN.
§ 60,0775(a) (Vernon Supp. 2005). “The chief of the district police force shall appoint volunteers
to serve as reserve force members.” Id. 5 60.0775(d). Furthermore, “[a] reserve force member who
is not a peace officer” under article 2.12, Code of Criminal Procedure, “may act as a peace officer
only during the discharge of official duties: A reserve force member who is a peace officer under
that article must hold a permanent peace officer license issued under Chapter 1701, Occupations
Code.” Id. 5 60.0775(f). As is the case with reserve deputy sheriffs and constables, a reserve peace
officer appointed by a navigation district is not “exempt from Chapter 1702, Occupations Code.”
Id. § 60,0775(i)(2).

         Section 341.012 of the Local Government Code provides that “[tlhe governing body of a
municipality may provide for the establishment of a police reserve force.” TEX. LOC. GOV’T CODE
ANN. 5 341.012(a) (Vernon 2005). The chief of police of the municipality is required to “appoint
the members of the reserve force,” and they serve at his discretion. Id. 8 341.012(d). Members of
a reserve force serve as peace officers “during the actual discharge of official duties,” but they “may
act only in a supplementary capacity to the regular police force and may not assume the full-time
duties of regular police officers without complying with the requirements for regular police offricers.”
Id. § 341.012(f), (h). A reserve officer may not carry a weapon “or otherwise act as a peace officer”
unless the appointment is approved by the governing body. Id. 5 341.012(g). Like the other peace




        “Thisopinion
                   relates
                         solelytoresewspeaceoftic&, andinnowayimplicates
                                                                      non-reserve
                                                                               peaceofficers.
The Honorable Charles A. Rosenthal, Jr. - Page 3                  (GA-0435)




officers described above, a reserve peace officer is not “exempt from Chapter 1702, Occupations
Code.” Id. 5 341.012(h)(2).3

          Chapter 1702 of the Occupations Code relates to “Private Security.” Section 1702.021
creates the Texas Private Security Board consisting of “seven members appointed by the governor
with the advice and consent of the senate.” TEX. Oct. CODE ANN. § 1702.021(a)        (Vernon   2004).
“The board created under Section 1702.021 is a part of the [Department of Public Safety],” and the
Department of Public Safety (the “DPS”) is directed. to “administer this chapter through the board.”
Id. 5 1702.005(a). Prior to 2003, the entity now known as the Board was an independent agency
called the Texas Commission on Private Security. SW Act of Oct. 12,2003,78th Leg., 3d C.S., ch.
10, 5 2.01, 2003 Tex. Gen. Laws 130, 132 (effective Oct. 20, 2003). As a result of this 2003
legislation, “[a] reference in . chapter /1702] or another law to the Texas Commission on Private
Security means the [Private Security] board.” TEX. Oct. CODE ANN. 5 1702.005(b)       (Vemon2004).


         The Board is responsible for issuing various kinds of license. A “license” is “a permit issued
by the commission that entitles a person to operate as a security services contractor or investigations
company.” Id. 3 1702.002(12) (Vernon Supp. 2005). A “license holder” is defined as “aperson to
whom the commission issues a license.” Id. § 1702.002(13). See, e.g., id. $8 1702.101 (Vernon
2004) (licensing of investigations companies),~l702.102 (licensing of security services contractors),
1702.1025 (licensing of electronic access control device companies).          The Board aiso issues a
“security officer commission,” which “means an authorization issued by the commission that entitles
a security officer to carry a firearm.” Id. § 1702.002(21) (V emon Supp. 2005). Section 1702.161
provides, inter ah, that “[a]n individual may not accept employment as a security officer to carry
a firearm in the course and scope of the individual’s duties unless the individual holds a security
officer commission.”      Id, 5 1702.161(a) (Vernon 2004). Nor may a person “hire or employ an
individual as a security officer to carry a firearm in the course and scope of the individual’s duties
unless the individual holds a security officer commission.” Id $ 1702.161(c). Section 1702.163
details the qualifications for obtaining a security officer commission, and section 1702.165 describes
the issuance of a security officer commission to a person who has met each of the qualifications set
forthinsection     1702.163. Id. $5 1702.163 (Vernon Supp. 2005), 1702.165 (Vernon 2004).

II.     Analysis

       Your inquiry concerns reserve peace officers who are employed by a person or company that
holds a “license” from the Board. The question focuses on section 1702.130 of the Occupations
Code, which provides:



          ‘Although you indicate that most members of a reserve force are volunteers, various statutes permit their
compensation.    See, e.g., TEX. Lot. GOV’T CODE ANN. 5 141.007 (Vernon 1999) (municipal gowning             body may
provide for uniform compensation of the municipal police reserve force); id 5 152.075 (commissioners court may
compensate a reserw deputy sheriff as provided by law far the compensation of a deputy sheriff); id 3 152.902
(commissioners court may compensate a reserve deputy constable as provided by law for the compensation of a deputy
constable). On the other hand, the members of a reserve force of a navigation district “are not district employees and
serve without pay and at the chiefs discretion.” TEX. WATERCODE ANN. g 60.0775(d) (Vernon Supp. 2005).
The Honorable Charles A. Rosenthal, Jr. - Page 4                 (GA-0435)




                (a) A license holder, or an officer, director, partner, manager, or
                employee of a license holder, may not:

                       (1) use a title, an insignia, or an identification card, wear a
                uniform, or make a statement with the intent to give an impression
                that the person is connected with the federal government, a state
                government, or a political subdivision of a state government; or

                       (2) use a title, an insignia, or an identification      card or wear a
                uniform containing the designation “police.”

                (b) Subsection (a) does not prohibit a commissioned security officer
                employed by a political subdivision of this state from using a title,
                insignia, or identification card, wearing a uniform, or making a
                statement indicating the employment of that individual by a political
                subdivision.

Id. 5 1702.130 (Vernon 2004). Although subsection (a) describes prohibitions applicable to a
“license holder,” subsection (b) relates to a “commissioned security officer,” defmed as “a security
officer to whom a security officer commission has been issued by the [Board].” In a brief filed with
the Attorney General, the Director of the DPS suggests that subsection (b) may be read in two
distinct ways: (1) subsection (a) does not prohibit a commissioned security officer employed while
performing security services for a political subdivision from using the uniform of the political
subdivision, or (2) subsection (a) does not prohibit a commissioned security officer employed by a
political subdivision from wearing the uniform ofthe political subdivision while performing security
work for an entity other than the political subdivision.’

         The second reading was the one preferred by the Board prior to October 17,2005.                The rule
at issue declared, in relevant part:

                 (e) A reserve law enforcement offrcer who has made application for
                 or who has been issued a registration as a non-commissioned security
                 officer or has been issued a security officer commission by the Texas
                 Private Security Board under a licensed security services contractor
                 or a letter of authority may wear the official uniform of that agency
                 while working private security only when:

                        (1) the chief administrator ofthe appointing law enforcement
                 agency has the authority to appoint reserve peace officers and a
                 reserve peace officer license has been issued by the Texas
                 Commission on Law Enforcement Officer Standards and Education;



        ‘See Brieffrom Colonel Thomas A. Davis, Jr., Director, Texas Department ofPublic Safety, to Honorable Greg
Abbott, Attorney General of Texas (Jan. 5,2006) (on file with the Opinion Committee) [hereinafter DPS Brief].
The Honorable Charles A. Rosenthal, Jr. - Page 5          (GA-0435)




                     (2) the reserve law enforcement offtcer has written permission
              to wear the official uniform of the appointing law enforcement
              agency;

                     (3) the written authorization must be signed and dated by the
              chief administrator of the appointing law enforcement agency and
              shall be maintained for inspection by the Texas Private Security
              Board at the principal place of business or branch office of the
              licensed security service contractor or letter of authority;

                     (4) the reserve peace ofticer is wearing the official uniform of
              the appointing agency that clearly identities that agency and is not
              wearing a generic peace officer uniform;

                      (5) the reserve peace officer meets the definition of the
              Internal Revenue Service as an employee of the licensed security
              service contractor or letter of authority;

                       (6) the licensed security services contractor or letter of
               authority has not accepted any monies or remuneration to allow the
               reserve peace officer to workunder the license of the security services
               contractor or letter of authority;

                      (7) the reserve peace officer has not terminated employment
               with the appointing agency; and

                      (8) the reserve peace officer has not been summar[il]y
               suspended or summar[il]y denied or revoked by the Texas Private
               Security Board.

29 Tex. Reg. 9686 (2004), repealed inpart by 30 Tex. Reg. 6772-73 (2005) (repealing subsection
35,39(e)) (Tex. Dep’t of Pub. Safety). In an issue of the Texas Register dated October 14,2005, the
DPS adopted the amendment to repeal subsection (e). The only published comment regarding the
repeal of the rule is the following:

               Amendments     to the section are necessary in order to delete
               subsections (e) and (t) and reformat current subsection (g) as new(e).
               The deletion of subsections (e) and (f) are necessary in order to
               eliminate a portion of the rule which has created confusion for the
               public and law enforcement.

30 Tex. Reg. 6773 (2005).
The Honorable Charles A. Rosenthal, Jr. - Page 6           (GA-0435)




         Although the repeal of a rule by an administrative agency does not necessarily create the
inference you suggest-“that     the ‘confusion’ mentioned by the Board resulted from the apparent
conflict between subsection[] (e)       and the statutory prohibition set out in section 1702.130(a) of
the Occupations Code”-it      certainly adds a modicum of authority to the argument that the first of
the two constructions of section 1702.130(b), referenced above, is the correct reading. Request
Letter, supra note 1 (Attached Brief at 5). More to the point is the question of why the Board, if it
believed the second construction to be correct, acted to remove the apparent safeguards surrounding
a reserve officer’s wearing of his official uniform while working as a private security guard: the
removal of the “written authorization” requirement from the appointing agency; the removal of the
guarantee that the security services contractor has not accepted remuneration; the removal of the
requirement that the reserve officer’s employment has not been terminated by the appointing agency;
and, the removal of the requirement that the reserve offtcer’s license has not been revoked by the
Board. In our view, the removal of the safeguards, more than the actual repeal of the rule, favors the
first of the two constructions referenced above.

          An even more substantial reason to prefer the first of these two constructions is that it
represents the position of the DPS. As we have indicated, the DPS administers chapter 1702 of the
~Occupations Code through the Board. TEX. OCC. CODEANN. 5 1702.005(a) (Vernon 2004). The
 executive director of DPS suggests the two interpretations referenced above and then makes clear
 that DPS “doubts the reasonableness of interpreting Section 1702.130(b) as permitting the wearing
 of police uniforms by reserve peace officers, while they are working extra jobs as security guards,
 and does not believe that the legislature intended for that provision to be so construed.” DPS Brief,
 sugva note 4, at 3. Colonel Davis explains his views on the provision:

                         Hadthe legislature intended the second interpretation, it could
                easily have used the word “police” when describing the kind of
                uniforms permitted. The statutory context is one in which licensees
                are being told that they cannot wear a “police” uniform, and then, by
                way of clarification, those who happen to work for a governmental
                body are told that it is acceptable for them to wear a uniform that has
                on it the name of the political subdivision: they are not told that they
                can wear a “police” uniform. Furthermore, the legislature expressly
                refers to “peace officers” and “reserve peace officers” when it
                exempts that class of individuals from the application of Chapter
                1702 (in Section 1702.322), yet those terms are conspicuously
                absent in Section 1702.130. The latter section uses only the term
                “commissioned security officer.”

                        Had the legislature intended 1702.130’s exception to the
                uniform prohibition to ,apply to peace officers who are also.
                commissioned security officers, rather than only to those individuals
                who act as security guards for their political subdivisions, it could
                easily have used those terms. The absence of such terms, when they
                appear elsewhere in the statute, offers additional evidence that the
The Honorable Charles A. Rosenthal, Jr. - Page 7           (GA-0435)




               legislature did not intend that 1702.130’s exception to the uniform
               prohibition would apply to reserve peace officers while working extra
               jobs as security guards.

Id. at 2-3.

          In our view, the DPS construction is reasonable.       Moreover, section 311.023 of the
Government Code, part of the Code Construction Act, declares that, “[i]n construing a statute,
whether or not the statute is considered ambiguous on its face, a court may consider among other
matters the       administrative construction of the statute.” TEX. GOV’T CODE ANN. 5 3 11.023(6)
(Vernon 2005). See State v. Pub. Util. Comm’n, 883 S.W.2d 190, 196 (Tex. 1994) (“the
contemporaneous construction of a statute by the administrative agency charged with its enforcement
is entitled to great weight”); f’urrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993)
(“Construction of a statute by the administrative agency charged with its enforcement is entitled to
serious consideration, so long as the construction is reasonable and does not contradict the plain
language of the statute.“) (citing Stanford v. Butler, 181 S.W.2d 269, 273 (Tex. 1944)).

         In our view, the construction placed upon subsection 1702.130(b) of the Occupations Code
by the agency charged with its implementation, together with the repeal of the Board rule that
eliminated the safeguards inherent in a contrary construction of that statute, lead us to conclude that
a reserve peace offtcer who is employed by a sheriff, constable, a navigation district, or a municipal
police department may not wear his offtcial uniform and display the insignia of an official law
enforcement agency while working as a private security officer licensed by the Board.
The Honorable Charles A. Rosenthal, Jr. - Page 8         (GA-0435)




                                       SUMMARY

                       A reserve peace officer who is employed by a sheriff,
               constable, a navigation district, or a municipal police department may
               not wear his official uniform and display the insignia of an official
               law enforcement agency while working as a private security officer
               licensed by the Texas Private Security Board.

                                              Yours very truly,




BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
