                                 ATTORNEYGENERAL OF TEXAS
                                            GREG       ABBOTT




                                              March 13,2006



The Honorable Dianne White Delisi                      Opinion No. GA-0409
Chair, Committee on Public Health
Texas House of Representatives                         Re: Authority of the Private Security Board to
Post Office Box 29 10                                  adopt certain rules regulating newly registered
Austin, Texas 78768-2910                               alarm installers (RQ-039 1-GA)

Dear Representative    Delisi:

         You write to inquire about the authority of the Private Security Board to adopt certain rules
regulating newly registered alarm installers.* Specifically, you seek our opinion as to whether the
Private Security Board has the authority to adopt the following two requirements:

                 1. A requirement that newly registered alarm installers work under
                    the direct supervision of an alarm installer who has passed, as a
                    minimum, the Alarm Level 1 test; and

                 2. A requirement that an alarm installer’s activities must be
                    performed to a certain minimum electronics standard, such as the
                    National Electrical Code.

See Request Letter, supra note 1, at l-2.

I.      Legal Backmound

         The Private Security Board (the “Board”) is an administrative agency originally created in
1969 as the Texas Board of Private Investigators and Private Security Agencies. See Act of May 27,
1969, 61 st Leg., R.S., ch. 610, 1969 Tex. Gen. Laws 1807. It was created “to consolidate,
standardize, and strengthen the State’s oversight of the private investigations and private security
industry.” SUNSET ADVISORY COMMISSION, TEXAS BOARD OF PRIVATE INVESTIGATORS AND
PRIVATE SECURITY AGENCIES, STAFF REPORT, at 5 (Sept. 1998) [hereinafter Sunset Report].
Evolving over time to adapt to changes in the security industry, in 1999, it was renamed the Texas



        ‘Letter from Honorable Dianne White Delisi, Chair, Committee on Public Health, Texas House of
Representatives, to Honorable Greg Abbott, Attorney General of Texas (Aug. 3 1, 2005) (on file with the Opinion
Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Dianne White Delisi - Page 2                       (GA-0409)




Commission on Private Security.’ See Act of May 24, 1999,76th Leg., R.S., ch. 974, $ 1-2, 1999
Tex. Gen. Laws 3725. It became part of the Texas Department of Public Safety (“DPS”) in 2003
as the Private Security Boards3 See Act of Oct. 12,2003,78th Leg., 3d C.S., ch. 10, 8 2.02,2003
Tex. Gen. Laws 130, 132 (codified at TEX. OCC. CODE ANN. 8 1702.005(b)).

         The Board is governed by the Private Security Act found in chapter 1702, Texas Occupations
Code. See TEX. OCC. CODE ANN. 0 1702.001 (Vernon 2004). Chapter 1702 establishes a statutory
licensing and regulatory scheme for private investigators and private security companies that is
designed to “assure citizens and consumers that regulated companies and individuals are qualified,
ethical, responsible and professional.”    Sunset Report, supra at 57. The Board also “serves as a
source of standards of conduct and quality to the industry as a whole.” Id. Pursuant to this scheme,
the Board licenses security services contractors, see TEX. OCC. CODE ANN. 6 1702.004( 1) (Vernon
2004), which include alarm systems companies.4 See id. $1702.102(a)( 1). The Board also registers
individuals who are connected with license holders, see id. tj 1702.004(4)(A), such as alarm
installers.5 See id. 5 1702.221. In addition to licensing, the Board regulates those holding licenses
or registrations under chapter 1702. See id. 9 1702.004(5). With its enforcement power, see id.
6 1702.061(d)(4) (“establish and enforce standards”), the Board works to assure the public that
“individuals practicing in the regulated area maintain the qualifications and the standards of conduct
to safely and effectively perform their responsibilities.” Sunset Report, supva at 37.

        To carry out its purpose, the Board is expressly authorized to “adopt rules and general
policies to guide the agency in the administration of [chapter 1702],” TEX. OCC. CODE ANN.
§ 1702.061(b) (Vernon 2004), and has power to “adopt rules necessary to implement [chapter
17021.” Id. 5 1702,061(d)(3).        By statute, the Board has the power and “duty to determine
the qualifications   of license holders, registrants, and commissioned          security officers,” id.
9 1702.06 1(d)(l), and to “investigate alleged violations of [chapter 17021 and of commission rules.”
Id. 3 1702.061 (d)(2). The Board is directed to “establish and enforce standards governing the safety
and conduct of each person licensed, registered, or commissioned under [chapter 17021.” Id.
0 1702.061 (d)(4). In addition, the Board is authorized to adopt by rule “additional qualifications for




        ‘Since 2003, references in chapter 1702 or other Texas statutes to the Texas Commission      on Private Security
mean the Private Security Board. See TEX. OCC. CODE ANN. 3 1702.005(b) (Vernon 2004).

         3We consider the Board’s authority to adopt the proposed rules pursuant to its enabling legislation, the Private
Security Act. We do not here consider any authority the Texas Department of Public Safety might have to adopt the
proposed rules.

          4“A person acts as an alarm systems company for the purpose of [chapter 17021 if the person sells, installs,
services, monitors, or responds to an alarm system or detection device.” Id. 5 1702.105.

          “‘An individual acts as an alarm systems installer for purposes of [chapter 17021 if the individual installs,
maintains, or repairs an alarm system or detection device.” Id. $ 1702.223. We assume that you ask about installation
ofburglar alarms as defined by Occupations Code section 1702.002(l)(A) and not about fire alarm installation regulated
by the Department of Insurance. See id. 5 1702.329; see also TEX. INS. CODE ANN. art. 5.43-2 (Vernon Supp. 2005).
The Honorable Dianne White Delisi - Page 3                   (GA-0409)




an individual to be registered under [subchapter J, Chapter 1702].“‘j Id. 4 1702.229(b). The Board’s
rulemaking power is expressly limited in that “[tlhe rules and policies . . . must be consistent with
[chapter 17021 and other. . . rules adopted under [chapter 17021 and with any other applicable law,
state rule, or federal regulation.” Id. 5 1702.061(c). M oreover, the legislature further limited the
Board’s rulemaking authority by requiring that any proposed rules be approved in advance by the
DPS. See id. 5 1702.0611 (Vernon Supp. 2005).

         An agency can adopt rules that are authorized by and consistent with its statutory authority.
See R.R. Comm ‘n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992). An agency’s
authority to promulgate rules and regulations “may be expressly conferred on it by statute or implied
from other powers and duties given or imposed by statute.” Id. “The rulemaking power . . . does
not permit the enactment of regulations which are inconsistent with the expression of the lawmakers’
intent in statutes other than those under which the regulations are issued.” State v. Jackson, 376
S. W.2d 341,344 (Tex. 1964). The determining factor in whether a particular agency has exceeded
its rulemaking authority is whether the rules are “in harmony with the general objectives of the Act
involved.” Lone Star Gas Co., 844 S.W.2d at 685. An agency rule that imposes additional burdens,
conditions, or restrictions in excess of or inconsistent with the relevant statutory provisions is
invalid. See Hollywood Calling v. Pub. Util. Comm ‘n, 805 S.W.2d 618, 620 (Tex. App.-Austin
1991, no writ). “Specifically, a licensing agency for a business or profession cannot enforce
standards that are more burdensome than those of the controlling statute, even though they may be
reasonable and may be administered reasonably.” Tex. Att’y Gen. Op. No. JC-0049 (1999) at 3
(citing Bloom v. Tex. State Bd. of Exam ‘rs of Psychologists, 492 S.W.2d 460,462 (Tex. 1973)).

II.     Direct SuDervision of Alarm Installer

         With these rules in mind, we first consider the proposed requirement that a newly registered
alarm installer work under the direct supervision of an alarm installer who has passed the Alarm
Level 1 test. See Request Letter, supra note 1, at 1. We first examine the registration scheme for
alarm installers established by the Board’s enabling statute. Under chapter 1702, Occupations Code,
an individual employed as an alarm installer is required to register with the Board. See TEX. OCC.
CODE ANN. 9 1702.22 l(1) (Vernon 2004). The statute requires that an individual be 18 years of age
to register. See id. Q 1702.229(a). An application for registration must be verified and include:

                 (1) the applicant’s full name, residence address, residence telephone
                 number, date and place of birth, and social security number;

                 (2) a statement [regarding names used by applicant];

                 (3) the name and address of the applicant’s                employer    and, if
                 applicable, the applicant’s consulting firm;

                 (4) the date the employment        commenced;


          %ubchapter J, chapter 1702, is entitled “Registration Requirements; Registrant Duties” and includes    the
provision that requires registration of alarm installers. See TEX. OCC. CODE ANN. 5 1702.221(l) (Vernon 2004).
The Honorable Dianne White Delisi - Page 4              (GA-0409)




               (5) a letter from the license holder [for whom registrant        works]
               requesting that the applicant be registered;

               (6) the title of the position occupied       by the applicant     and a
               description of the applicant’s duties; and

               (7) any other information, evidence, statement, or document required
               by the commission.

Id. 8 1702.230(a). In addition to the application, the statute requires a criminal history check on the
registrant. See id. $ 1702.282 (Vernon Supp. 2005). The Board is authorized to establish additional
qualifications for an individual to be registered. See id. $ 1702.229(b) (Vernon 2004). The Board
is also authorized to require continuing education for a registrant, see id. 5 1702.308, and to require
an alarm installer to have met additional training requirements in order to renew an initial
registration. See id. 0 1702.239. A registration is valid for two years. See id. 5 1702.233.

          The proposed requirement about which you ask would apply to a “newly registered alarm
installer.” Request Letter, supra note 1, at 1,4. While you do not define the term, we understand
it to at least mean a person who is already registered. By its plain language, the provision granting
authority to establish additional qualifications applies only to those individuals who have yet to
be registered. See TEX. OCC. CODE ANN. 5 1702.229(b) (Vernon 2004). With respect to alarm
installers who have already registered, the Board has only the authority to require continuing
education and to impose additional training requirements for registration renewal.            See id.
$4 1702.308, .239. Thus, we must determine whether the authority given the Board for continuing
education and training includes the authority to require an alarm installer to work under the direct
supervision of one who has passed the Alarm Level 1 test.

          Section 1702.239 authorizes the Board to “require that an individual employed as an alarm
installer . . . hold a certification by a commission-approved    training program to renew an initial
registration.” Id. 5 1702.239(a). The Board’s authority to approve training programs is limited to
those programs that are nationally recognized and that consist of a minimum of 16 hours of
classroom study. See id. Moreover, a training program suitable to be authorized as a requirement
by the Board must “offer at least two [sufficient] certification programs each year . . . within 100
miles of each county in the state that has a population of more than 500,000.” See id. 6 1702.239(a).
The Board also has authority to “recognize, prepare, or administer continuing education programs”
and to require a registrant to participate in continuing education programs to maintain the
individual’s registration. See id. 3 1702.308(b)-(c). In its exercise of this authority, the Board is
required to “set the minimum number of hours that must be completed and the types of programs that
may be offered.” See id. $ 1702.308(b). Both grants of authority contemplate a formal program or
course of instruction with certain defined parameters. We do not believe a requirement that a newly
registered alarm installer work under the direct supervision of one who has passed the Alarm Level
 1 test falls within the parameters of a nationally recognized training program or of a continuing
education program.
The Honorable Dianne White Delisi - Page 5              (GA-0409)




         Moreover, the proposed requirement imposes on the alarm installer the burden of being
accompanied by a supervisor for every installation activity. Such a requirement, is in essence, an
apprenticeship requirement which we believe is an additional burden beyond the registration scheme
set out by chapter 1702. See supra at 3; see also State v. Pub. Util. Comm ‘n, 13 1 S.W.3d 3 14,321
(Tex. App.-Austin      2004, pet. denied) (administrative agency rules cannot impose additional
burdens, conditions, or restrictions exceeding or inconsistent with statutory provisions).        Texas
statutes contain many examples of apprenticeship or internship requirements in connection with
certain occupations. See TEX. OCC. CODE ANN. $4 402.207 (authorizing apprenticeship permit to
hearing instrument fitter and dispenser), 45 1.153 (Vernon 2004) (establishing apprenticeship
requirements for athletic trainers), 6 6 45 5.159 (authorizing student internship program for massage
therapy students), 502.252 (Vernon Supp. 2005) (authorizing internship prior to issuance ofmarriage
and family therapy license), 66 1102.101 (requiring apprentice inspector license for real estate
inspectors), 1301.354 (Vernon 2004) (requiring drain cleaner-restricted registrant to have worked
as plumber’s apprentice). Clearly, the legislature knows how to give a regulating or licensing agency
the authority to adopt rules establishing or governing an apprenticeship requirement. See Tex. Att’y
Gen. Op. Nos. GA-0271 (2004) at 2 (stating that when “it wishes to require immunizations for
specific categories of persons, the legislature knows how to do so”), GA-0144 (2004) at 5 (stating
that when “the legislature intends to confer on a licensing board [certain] authority . . . , it knows
how to do so”). The fact that the legislature did not do so here leads us to conclude that a rule which
essentially requires an alarm installer to serve as an apprentice is outside the scope of the Board’s
rulemaking authority. We, therefore, conclude the Board does not have the authority to adopt a
requirement that a newly registered alarm installer work under the direct supervision of one who has
passed the Alarm Level 1 test.

III.   Minimum Electronics Standards

         We next consider the proposed requirement regarding minimum electronics standards. We
only address the narrow question of whether the Board is authorized to adopt a requirement that an
“alarm installer’s activities must be performed to a certain minimum electronics standard, such
as the National Electrical Code.” See Request Letter, supra note 1, at 2. In the absence of any
particular minimum electronics standard being specifically identified, however, we can only advise
you in general terms.

         The Board has express authority to “establish and enforce standards governing the safety
and conduct of each person . . . registered , . . under [chapter 17021.” TEX. OCC. CODE ANN.
6 1702.061 (d)(4) (Vernon 2004). In addition, the Board has express authority to establish
qualifications for registrants. See id. 5 $ 1702.06 1(d)(l), .229(b). Chapter 1702 does not define the
terms “safety, ” “conduct,” or “qualifications,” and we find no judicial or attorney general opinion
that provides a suitable definition of these terms. In the absence of a legally defined meaning, a court
will look to the plain meaning of a word as understood by the ordinary person. See Bingham v. State,
915 S.W.2d 9, 15 (Tex. Crim. App. 1994); see also TEX. GOV’T CODE ANN. 4 3 11 .Ol 1 (Vernon
2005) (words and phrases construed according to the rules of common usage). The Oxford English
Dictionary defines “safety” as the “state of being safe; exemption from hurt or injury; freedom from
danger.” XIV THE OXFORDENGLISHDICTIONARY358 (2d ed. 1989). In the context of chapter
The Honorable Dianne White Delisi - Page 6              (GA-0409)




1702, we believe the term “safety” has a broad scope that includes both the person subject to chapter
1702, see TEX. Oct. CODE ANN. 5 1702.06 1(d)(4) (Vernon 2004) (“safety . . . of each person . . .
registered [under chapter 17021,” and the general public. See Sunset Report, supra at 37 (stating that
improved enforcement of minimum standards and qualifications of those working in the industry will
assure “that individuals practicing in the regulated area maintain the qualifications and the standards
of conduct to safely and effectively perform their responsibilities”).   The term “conduct” is defined
as the “action or manner of conducting, directing, managing, or carrying on (any business,
performance, process, course, etc.).” III THE OXFORDENGLISHDICTIONARY690 (2d ed. 1989).
Finally, “qualification” is defined as “a quality, accomplishment, etc., which qualities or fits a person
for some office or function.” Id. at 97 1.

         Pursuant to the ordinary meaning of these terms, we believe the Board has authority to
establish and enforce standards designed to protect a person subject to chapter 1702 and members
of the general public from injury or danger. We believe that the Board also has the authority to
establish and enforce standards that direct the action or manner in which a person subject to chapter
 1702 performs the activities regulated by chapter 1702. Finally, we believe the Board has authority
to define the qualities or accomplishments that are required of a person subject to chapter 1702 in
order for that person to perform the activities regulated by chapter 1702. The Board has authority
to establish and enforce standards designed to protect alarm installers and the general public from
injury or danger as well as the authority to define the qualities or accomplishments that are required
of an alarm installer in order for the alarm installer to be qualified to perform alarm installations.
See supra at p. 5. Therefore, we conclude that to the extent any particular minimum electronics
standard is directly designed to protect the alarm installer or the general public from injury or danger,
the Board has authority to adopt the standard. In the same vein, to the extent a particular minimum
electronics standard defines the qualities or accomplishments that are required of an alarm installer
in order for the alarm installer to be qualified to perform alarm installations, the Board has authority
to adopt the standard. Without a specific standard to consider, we leave it to the Board, subject to
judicial review, see Flores v. Employees Ret. Sys., 74 S.W.3d 532,538 (Tex. App.-Austin             2002,
pet. denied), to determine whether any proposed minimum electronics standard directly pertains to
the safety, conduct, or qualifications of a person subject to chapter 1702, Occupations Code.
The Honorable Dianne White Delisi - Page 7           (GA-0409)




                                       SUMMARY

                        The Private Security Board does not have authority to adopt
               a proposed rule requiring that a newly registered alarm installer work
               under the direct supervision of an alarm installer who has passed
               the Alarm Level 1 test. To the extent that any particular minimum
               electronics standard directly pertains to the safety, conduct, or
               qualifications of a person subject to chapter 1702, Occupations Code,
               the Private Security Board is authorized to adopt the standard.

                                              Very truly yours,




BARRY R. MCBEE
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
