ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

September 25,2006 

The Honorable Chris ~Taylor 

Tom Green County Attorney 

122 West Harris Avenue 

San Angelo, Texas 76903 

Opinion No. GA-0465 

Re: Whether a county jailer who is a certified 

peace officer is required to obtain a commission 

from the Texas Commission on Private Security to 

work as a private security guard (RQ-0464-GA) 

Dear Mr. Taylor: 

You ask whether a county jailer who is a certified peace officer and who has been appointed 

as a deputy sheriff is exempt from the requirements of the Private Security Act.’ 

While the job of jailer does not require certification as a.peace offricer, you inform us that 

some Tom Green County jailers have received peace officer certification from the Texas 

Commission on Law Enforcement Officer Standards and Education (“TCLEOSE”). Request Letter, 

supra note 1, at 3. When a jailer is also certified as a peace officer, it is the Tom Green County 

Sheriffs practice to appoint that person as a deputy sheriff. See id. You inform us that while such 

jailers may occasionally be asked to transport prisoners or patrol an area of the county outside the 

jail facility, a jailer’s main duty is to guard the county jail. See id. at 4. 

Some jailers may wish to also obtain private employment as a security guard. A private 

security guard position is governed by the Private Security Act which requires a private security 

guard who carries a firearm while on duty to hold a commission issued by the Texas Commission 

onPrivate Security. S’eeTEx. OCC. CODEANN. 8 1702.161 (Vemon2004). ThePrivate Security Act 

contains an exemption for: 

(1) a person who has full-time employment as a peace officer and 

who receives compensation for private employment on an individual 

or an independent contractor basis as a patrolman, guard, extra job 

coordinator, or watchman if the officer: 

‘See Letter from Honorable Chris Taylor, Tom Green County Attorney, to Honorable Greg Abbott, Attorney 

General ofTexas, at 1 (Mar. 17,2006) (onfilewiththeopinioncommittee, also available athttp://~w.oag.state.tx.us) 

[herein&r Request Letter]. 
The Honorable Chris Taylor - Page 2 (GA-0465) 

(A) is employed in an employee-employer relationship or 

employed on an individual contractual basis; 

(B) is not in the employ of another peace officer; 

(C) is not a reserve peace officer; and 

(D) works as a peace officer on the average of at least 32 

hours a week, is compensated by the state or a political subdivision 

of the state at least at the minimum wage, and is entitled to all 

employee benefits offered to a peace officer by the state or political 

subdivision; 

Id. § 1702.322(l). 

A county jailer and a deputy sheriff are statutorily distinct positions. The Local Government 

Code authorizes, a sheriff to “employ a sufficient number of guards to ensure the safekeeping of 

prisoners and the security of a jail.” TEX. Lot. GOV’T CODE ANN. 5 85.005(a) (Vernon 1999). To 

be employed as a jailer, an individual must hold ajailer license issued by TCLEOSE. See TEX. Oct. 

CODE ANN. $5 1701.301, ,310 (Vernon 2004). A jailer must complete a different set of training 

courses and pass a different examination from those required to be a licensed peace officer. See 37 

TEX. ADMIN. CODE §§ 217.1 (2006) (TCLEOSE, Minimum Standards for Initial Licensure), 221.5 

(TCLEOSE, Jailer Proficiency). A “county jailer” is not included in the list of people who “are 

peace officers.” TEX. CODE GRIM. PROC. ANN. art. 2.12(l) (Vernon Supp. 2006). In addition, the 

legislature demonstrated its intention that the term “peace officer” does not include a “jailer” 

by regularly referring to the two terms separately in statute. See, e.g., TEX. OCC. CODE ANN. 

$5 1701.001 (Vernon 2004) (defining “peace officer” and “county jailer” separately); 1701.15 1 

(referring to “officer, county jailer, or ,public security officer”), 1701.25 1 (referencing officer and 

jailer as distinctpositions), 1701.301 (same), 1701.303 (same), 1701.306 (same), 1701.312 (same), 

1701.352 (same); TEX. GOV’T CODE ANN. 5 607.001 (Vernon Supp. 2006) (same). This view is 

confirmed by the Court of Criminal Appeals, which found that “the legislature’s failure to designate 

jailers as peace officers as well~as the distinctions the legislature made between jailers and peace 

officers in many pieces of legislation indicates the legislature’s intent that jailers not be considered 

peace officers.” Deltenre v. State, 808 S.W.2d 97, 102 (Tex. Crim. App. 1991). 

In contrast, deputy sheriffs are peace officers and must hold a peace officer license issued by 

TCLEOSE. See TEX. CODE GRIM. PR~c. ANN. art. 2.12(l) (Vernon Supp. 2006); ‘I&x. Oct. CODE 

ANN. § 1701.301 (Vernon 2004). To obtain a peace officer license, an applicant must complete a 

training course, pass a licensing examination, undergo psychological and physical evaluations, and 

demonstrate weapons proficiency. See TEX. Oct. CODE ANN. $5 1701.304, .306-,307 (Vernon 

2004). In addition, a peace officer must meet continuing education requirements and demonstrate 

weapons proficiency atleastammally. See id. 55 1701.351 (Vernon Supp. 2006), 1701.355 (Vernon 

2004). 
The Honorable Chris Taylor - Page 3 (GA-0465) 

While the positions ofjailer and deputy sheriff are distinct in statute, they are not mutually 

exclusive-many counties employ one person in both positions. Yet the legislature has chosen 

to exempt only@l-time peace officers from the requirements of the Private Security Act. See id. 

§ 1702.322 (Vernon 2004) (exemption for full-time peace officers); cf Garay v. State, 940 S.W.2d 

2 11,2 18 (Tex. App.-Houston [ 1 st Dist.] 1997, writ ref d) (upholding the application of the Act to 

part-time peace officers); Tex. Bd. ofprivate Investigators &Private Sec. v. Bexar County Sherzf’s 

Reserve, 589 S.W.2d 135 (Tex. Civ. App.-San Antonio 1979, no writ) (upholding the application 

of the Act to reserve peace officers). Part-time peace officers and reserve peace officers who wish 

to carry a firearm in the course of a job as a private security officer must comply with training 

requirements and obtain a commission if they wish to carry a firearm in the course of a job as a 

private security officer. See TEx. OCC. CODE ANN. 5s 1702.161 (Vernon 2004) (security officer 

commission required), 1702.1675 (training requirements), 1702.322 (exemption for full-time peace 

officers). Thus, the pertinent question is whether a person who is both a county jailer and a deputy 

sheriff “has full-time employment as apeace officer.” Id. 5 1702.322(l) (emphasis added). 

Section 1702,322(1)(D) provides guidance for howto determinewhat full-time employment 

as a peace officer entails, by requiring that the individual: 

work[] as apeace oficer on the average of at least 32 hours a week, 

is compensated by the state or a political subdivision of the state at 

least at the minimum wage, and is entitled to all employee benefits 

offered to a peace officer by the state or political subdivision[.] 

Id. $ 1702.322(1)(D). A person who works full-time as a jailer and is only nominally a deputy 

sheriff would not meet the requirement to work 32 hours a week as a peace officer and so would be 

subject to the Act. Another person might work full-time as a deputy sheriff while also serving as 

a jailer and would thus be exempt from the Act. Determining whether an individual meets the 

requirements of subsection (D) is necessarily fact-intensiveit depends upon the nature and terms 

of the individual’s employment and how the employer views and treats the position. 

Because your question depends on the factual nature of a particular individual’s employment, 

we camrot determine whether certain Tom Green County employees are exempt from the Private 

Security Act. See, e.g., Tex. Att’y~Gen. Op. No. GA-0139 (2004) at 3 (stating that the attorney 

general’s office does not determine facts). Instead, we must leave the determination in the first 

instance to the employer, subject to judicial review. See Tex. Att’y Gen. Op. No. GA-0086 (2003); 

~~~~~~~TEx.Loc.Gov’TCODEA~~N. $152.071 (Vernon 1999)(discussingclassificationandduties 

of sheriffs department employees). 
The Honorable Chris Taylor - Page 4 (GA-0465) 

SUMMARY 

Whether a peace officer who is both a jailer and a deputy 

sheriff is “employed full-time as a peace officer,” and thus exempt 

from the provisions of the Private Security Act by section 1702.322, 

Texas Occupations Code, is a question of fact that will vary with the 

nature of the employment. 

Very truly yours, 

Attorney Metal of Texas 

RENT C. SULLIVAN 

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