DAN MORALES 

ATTORNEY GENERAL 

Office of tly !&tornep @merat 

%tate of ?Ifexae 

March 29,1994 

Ms. Clema D. Sanders 

Executive Director 

Opinion No. DM-287 

Texas Board of Private Investigators 

and Private Security Agencies 

P.O. Box 13509 

Austin, Texas 78711 

Re: Whether section 3(a)(3) of article 

4413(29bb), V.T.C.S.. exempts a tbll-time 

peace officer working as a private 

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 abovequoted 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 sendceQ: If he’s not getting a cut off the topA: 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 

p. 1532