                                                 The Attorney                 General of Texas
                                                                          March 26,         1984
     JIM MATTOX
     Attorney General


     Supreme   Court Building                  Mr. Clayton T. Garrison                                         Opinion      No.       351-140
     P. 0. Box 12548                           Executive   Director
     Austin. TX. 78711. 2548                   Employees Retirement       System       of    Texas             Re:      Whether     a state         law
     512l475~2501                              P. 0. Box 13207                                                 enforcement      officer      injured
     Telex    9101874.1367
                                               Austin.   Texas      78711                                      vhile    working     as a private
     Telecopier       5121475.0266
                                                                                                               security     guard     is    entitled
                                                                                                               to    occupational        disability
     714 Jackson.    Suite 700                                                                                 benefits     from the State            of
     Dallas.   TX. 75202.4508
                                                                                                               Texas
     2141742.8944

                                               Dear Mr. Garrison:
     4824   Alberta      Ave..   Suite   160
     El Paso. TX.        79905.2793                    You have provided        us with the following               information.          You have
     9151533.3484                              received       an    application       for     occupational           disability        retirement
                                               benefits     from a law enforcement            officer       who has been employed by the
f-
     1001 Texas.     Suite 700
                                               Department        of   Public     Safety      for      four     years     and     eight     months.
     ,-lous,on.   TX. 77002-3111               According       to the police         offense       report,       the officer        was working
     7131223-5886                              “off-duty      in plain    clothes    as security”          in a grocery       store    in  Houston
                                               in early September of 1982.              Two persons         robbed the store and shot the
                                               officer     when he tried          to apprehend          them.      Your medical         board   has
     806 Broadway,          Suite 312
     Lubbock.     TX.      79401.3479
                                               determined       that   the applicant         Is now disabled            as a result         of the
     8061747.5238                              injury.     Workers’ compensation          benefits        are being paid to the officer,
                                               with the grocery        store designated         as the employer.
      4309 N. Tenth. Suite B
      McAllen.     TX. 78501.1685
                                                      You request      our   opinion        on the   following       four     questions:
      5121682.4547
                                                                1.   Is a commissioned   peace officer                       considered
                                                             to be on duty     at all     times,  even                      when being
      200 Main Plaza. Suite 400
                                                             compensated by another    employer?
      San An,onio.  TX. 78205-2797
      5121225-4191
                                                                2.  Was   the  applicant                  in       the  course   of
                                                             employment for the grocery                store      or for the state
      A” Equal        OpportunityI                           at the time of his injury?
      Affirmative       Action     Employer

                                                                 3.   Was the          risk    of      the     disabling              Injury
                                                             peculiar    to the         applicant’s          duties    as         a    state
                                                             trooper?

                                                                  4.   If it could be established    that the grocery
                                                              store hired only off-duty     state police  to serve as
                                                              security   guards,  would your answer to the above be
                                                              affected   in any way?




                                                                                       p.    596
Mr. Clayton     T. Garrison      - Page 2               (JM-140)




      The relevant     statutory     language   governing    occupational                 disability
retirement    benefits      is   found   in Title     llOB,   which    sets                forth     the
powers and duties of the Public           Retirement    Systems.     Section                24.207 of
Title   1lOB provides     the following     in pertinent     part:

                  (a)    An     annuity        payable       because        of     an
              occupational      disability       that directly       results    from
              a risk      or hazard        to which       law enforcement          or
              custodial     officers        are    exposed      because      of   the
              nature of law enforcement               or custodial       duties    is
              payable    under the iamemteris             and conditions        that
              apply to other occupational               disability      retirement
              annuities     under     this      subtitle,      except     that    the
              source    and amount of the annuity               are as provided
              by this section.          (Emphasis added).

Section     21.001(12)     of   Title      1lOB declares           that   “occupational      death    or
disability”

              means death      or     disability      from   an injury     or
              disease  that directly        results    from a specific    act
              or occurrence     determinable       by a definite    time and
              place,  and directly       results    from an inherent    risk
              or hazard   peculiar      to a duty that arises       from and
              in the    course     of    state     employment.    (Emphasis
              added).

Section    21.001(g)     ~further       provides        that

              ‘Law enforcement        offfcer’      means a member of the
              retirement     system who has been commissioned                as a
              law enforcement         officer       by   the    Department      of
              Public     Safety,      the     Texas      Alcoholic      Beverage
              Commission.       the    State     Purchasinn        and   General
              Services    Commission,       Capitol    Area Security       Force,
              or the Parks and Wildlife               Department     and who is
              recognized      as    a    commissioned        law    enforcement
              officer     by   the    Commission        on Law Enforcement
              Officer      Standards        and      Education.        (Emphasis
              added).

       An officer       commissioned    by the Department of Public                Safety     is a
peace     officer    whose duty      it   Is “to     preserve      the peace        within      his
jurisdiction.”         Code Grim. Proc.      arts.    2.12(4),     2.13.      Peace officers
must be certified         by the state.      V.T.C.S.    art. 4413(29aa)          $2(c).       They
are vested with privileged           authority     to make arrests,         article      14.03 of
 the Code of Criminal           Procedure,     and to possess          handguns,         sections
46.02 and 46.03 of the Penal Code.                 There is ample authority               for the
proposition        that    a commissioned        peace     officer      is.      unlike      other
employees,       on duty at all times and is therefore              obligated       to exercise




                                                   p.    597
Mr. Clayton     T. Garrison      - Page 3             (JM-140)




his authority       whenever     there      is        a   breach     of   the    peace   within   his
jurisdiction.

      The Texas     Court   of   Criminal        Appeals         has declared:

              It    is . the . law    in  this      state    that   a police
              officer's      'off  duty'   status     is not    a limitation
              upon the discharge         of    police     authority    in the
              presence    of criminal    activity.

Wood V. State,     486 S.W.2d 771.       774 (Tex.     Crim. App. 1972).         citing
Monroe v. State,    465 S.W.2d 757 (Tex.         Crim. App. 1971) and Sitnss v.
State,   319 S.W.2d     717    (Tex.    Grim.   App.     1958).     Accordingly,       we
conclude   that a commissioned      peace officer    is on duty all of the time
insofar   as he is    obligated      to exercise     his    authority    whenever      he
observes   a breach of the peace in his jurisdiction.

       You next ask whether         the injured      officer     was injured     in the
course    of employment for the grocery          store     or for the state      at the
time of his injury.       The mere fact      that a commissioned         peace officer
is on duty at all        times     does not mean that           any injury    which    he
receives    occurs in the course of official          employment.      The determining
factor   appears to be whether the commissioned              peace officer    is acting
in furtherance      of his    official    duties     or is      acting   in a private
capacity    and only incidentally      to his official       duties.

       There is a line        of cases     in which,     under the given         facts,     a
commissioned      peace   officer     was held      to have acted         in a private
capacity    rather than in furtherance        of his official       duties.     In Jaanes
v. State,     132 S.W. 352 (Tex.       Crim. App. 1910).        a constable     requested
the accused to step aside for a private             discussion     of a private      matter
which resulted       in an assault     of the constable.          The court    held that
the constable       was not at the time of his assault                  engaged     in the
performance     of any lawful     duty of his office.          Id. at 353.      In Curlin
v. State,     209 S.W. 666 (Tex. Crim. App. 1919),~ustice                   of the peace
was assaulted       by the defendant       while    the justice      of the peace        was
walking    on the sidewalk      toward his office.        The court held that,          even
though the defendant       knew the status       of the injured       party,    there was
no evidence      that the injured      party was discharging         any official       duty
at the time ore attempting        to discharge     any such duty.

       The case of Hudson v.         St.  Louis   Southvestern     Railway    Co. of
Texas,    293   S.W.   811    (Tex.   Comm'n.   App.   1927,   holding     approved)
concerned    a wrongful    death action   which arose as a result        of a state
ranger   being employed      to protect   the property    of a railway      company.
The court's    opinion   should be quoted in extenso:

                   It seems to be well settled   that a public peace
              officer   may become the private   employee of another
              for the purpose      of guarding  and protecting   such
              other's    property,  and the test of liability  for a




                                                 p.    598
Mr. Clayton     T. Garrison         - Page 4        (JM-140)




              tort    emitted      by such officer         or employee        seems
              to be in what capacity          he was acting         at the time
              the act was done.         One may be both a public              peace
              officer    and a private      employee     as watchman        for an
              individual      or corporation,       at the same time,            and
              it does not of course            follow     that    the official
              character        of   the    individual          would      be     any
              protection      to an action      against      the employer        for
              his acts done in the course             and within        the scope
              of     the   employment.        The    question       is.      ‘Whose
              servant      was he? ’      And,    further,       ‘Uas the        act
              complained      of committed while he was acting within
               the scope       of his    employment.        if   a servant         of
              another?’     . . .

                   .   .    .   .

                  The material    Inquiry           is whether or not at the
              time of the killing         he          was an employee      of the
                     y    acting    within               the    scope   of     such
              employment.      Whether or             not he was at the same
              time a peace officer       is         of little     or no practical
              value in determining      the          issue    . . . .

                  Now. public          peace     officers      are not concerned
              with     the     guarding      of     private      property.       Their
              duties      pertain       primarily       to the public         --    the
              arresting        of offenders           and the suppression           and
              prevention        of crime,       in a measure.            The guarding
              of   nrivate        property       is    not    the function       of    a
              public     official;       and. when he is thus engaged,               he
              has     stepped        aside     from       his    official     duties.
               (Emphasis added).

 Rudson v.      St.        Louis    Southwestern      Railway    Co.    of   Texas,        supra.   at
 812-813.

        In Hudson. there was no evidence          showing that the officer         killed
 the decedent      in furtherance     of his public     duty.    The killing     was not
 incident     to a lawful      arrest     and not    in self-defense.         The court
 concluded     that the officer    was acting,     then, in a private       capacity     as
 an employee      of the company.        The company was accordingly         held to be
 liable   for any tortious      act committed     by such employee who was acting
 within   the scope of his employment.          See Lancaster     v. Carter,    255 S.W.
 392 (Tex.      Conm’n App. 1923, judgmt adopted);            Rucker v. Barker,         192
 S.W. 528 (Tex.       1917);  Texas and New Orleans        Railroad   Co. v. Parsons,
 113 S.W. 914 (Tex. 1908); Morris v. State,              523 S.W.Zd 417 (Tex. Crim.
 App. 1975);      George v. State,      506 S.W.2d 275 (Tex. Civ. App. - Houston
  [lst Dist.]     1974, no writ).




                                               p.    599
Mr. Clayton         T. Garrison         - Page 5          (JM-140)




          Another       line     of cases        has held,         under the facts              given,       that a
 commissioned          peace officer           was acting          in furtherance            of his official
 capacity        and the rights               and duties           which        devolved      upon him were
 determined         accordingly.            In both Monroe v. State,                    supra.      and Wood v.
 State,      m,           the injured          parties       were police           officers.        in uniform,
 who were employed secondarily                      as, respectively,               a security        guard in a
 nightclub         and a parking             lot    attendent.            Both were injured                as they
 attempted       to make lawful arrests                  of defendants.              In Thompson v. State,
 426 S.W.2d          242 (Tex.          Grim. App. 1968).                an “off-duty”            policeman        in
 plain      clothes       who was working              secondarily           as an apartment              security
 guard was attempting                 to break up a rowdy party vhen,                            after       he had
 identified         himself        as a police            officer,        he was ‘assaulted.                 In all
 three of these cases,                 the court held that the particular                            activity      in
 which the peace officers                   were engaged when they were assaulted                             was in
 the lawful         discharge        of their       duties      as peace officers.                 See Moore v.
 State.      562 S.W.2d 484 (Tex. Grim. App. 1978) ; Simms v. State.                                          supra.
 On the basis of the facts which you provide , we conclude                                        that although
 the peace officer               was employed           in a private             capacity      by the grocery
 store      at the time he was injured,                            he was nonetheless                  acting       in
 furtherance           of    his     official        duties        --     specifically,            the duty         to
 apprehend         an armed robbery               suspect.         The moment that he observed                       a
 breach of the peace he was no longer acting                                in a private          capacity.        At
  that moment, his conduct was no longer                              subject      to the control             of the
.manager        of     the     grocery        store.          Rather,        it    was dictated              by his
 obligation         as a peace officer              to apprehend          the suspect.           Had the peace
  officer      been coincidently                in the grocery              store      as a customer,             for
  example,      the duty to apprehend the suspect                         would clearly           have devolved
 upon him.           There is no question                 that,     in such an instance,                the peace
  officer      would be acting              within       the scope         of his employment                for   the
  state     eveu if he’was             “off-duty”          at the time.             In this      instance,        his
  private      duty as an employee to guard and protect                                 private      property       is
  incidental          to     his    public         duty      to    apprehend           suspects        committing
  felonies.

        Your third         question      asks whether          the risk      of   the disability
 injury    was peculiar         to the applicant’s            duties    as the state       trooper.
 We conclude        that it was.           Section      21.001(12)      of Title      IlQB defines
 “occupational        death or disability”             to refer      to a death or disability
 which,    inter     alia.    “directly       results      from an inherent        risk or hazard
 peculiar      to a duty         that     arises      from and in the course              of    state
 employment .I’ We are hard-pressed                 to think of a risk more inherent                or
 a hazard more peculiar              to the duty imposed upon peace officers                      than
 the    risk     or hazard        of    being     injured       or killed       while    acting      in
 furtherance       of official       duties.       Because a commissioned            peace officer
 is obligated         to exercise        his authority         anytime that he witnesses              a
 breach     of    the peace       in his       jurisdiction.         it   is manifest       that    he
 constantly       runs the risk of being                injured    in the line        of duty.      We
 therefore      answer your third question               in the affirmative.

        Your       fourth     question   asks             whether       our answers to any of  the
  preceding         questions      would   be             affected        in any way   if it  were



                                                     p.   600
                                                                                                    .

Mr. Clayton     T. Garrison        - Page 6         (JM-140)




established   that the grocery    store hired only off-duty      state police      to
serve as security    guards.     We conclude    that they would not.       Recause
of the peculiar    duty imposed upon peace officers          to be “on duty” at
all times,   the fact that a peace officer       was injured   in furtherance      of
his duties   while being    secondarily    employed by a ptiv&te      third party
in no way affects     the duty owed by the peace offjcer          to LIX   public.
Accordingly.   we answer your fourth question       in the nepativo.

        We do not here address the issue as to whether the state would be
liable    for damages in a suit brought    by someone injured  by a peace
officer    who was employed by a private  employer at the time the injury
took place.

                                            SUMMARY

                   A conssissioned          peace officer          is on duty at all
              times      insofar       as he has a duty to prevent                       any
              breach       of     the peace        which        he observes         in his
              jurisdiction.               In     an      instance         in    which       a
              commissloned          peace officer          is secondarily        employed
              by a privat~e            third,    party       and is      injured      while
              acting      in furtherance          of his official           duties,     such
              peace officer          is considered           to be injured       while in
               the course         of his employment for the state.                       The
              risk     of     being      disabled       through       injury      incurred
              while     in the course           of attempting           to apprehend        a
              suspected         felon     is a risk          clearly     peculiar      to a
              commissioned           peace     officer's         duties      as a state
               trooper.          Our conclusions              would     in no way be
              affected        by the fact that the private                   third party
              hires     only “off-duty”           state troopers.




                                                        -
                                                              JIM
                                                              JIM        MATTOX
                                                              Attorney    General      of   Texas

TOM GREEN
First Assistant        Attorney       General

DAVID R. RICUARDS
Executive Assistant           Attorney      General

Prepared    by Jim Moellinger
Assistant    Attorney General




                                                   p.   601
Mr. Clayton   T. Garrison   - Page   7    (JM-140)




APPROVED:
OPINION COMMITTEE

Rick Gilpin,   Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




                                         p.   602
