ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

June 8,2006 

The Honorable Charles A. Rosenthal, Jr. 

Harris County District Attorney 

1201 Franklin Street, Suite 600 

Houston, Texas 77002 

Opinion No. GA-0435 

Re: 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 (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. 

‘See Letter frown Honorable 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. CODE ANN. 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. WATER CODE ANN. 

§ 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 

“This opinion relatesolely to resews peace oftic&, and in no way implicates non-reserve peace officers. 
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. CODE ANN. 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