JIMMATTOX

AttorneyGeneral

Supreme Court Building P.0. Box 12548 Austin. TX. 78711. 2548 512l475~2501 Telex 9101874.1367 Telecopier 5121475.0266

714Jackson. Suite 700 Dallas. TX. 75202.4508 2141742.8944

4824 Alberta Ave.. Suite 160 ElPaso. TX. 79905.2793 9151533.3484

f1001 Texas. Suite 700

,-lous,on. TX. 77002-3111 7131223-5886

806 Broadway, Suite 312 Lubbock. TX. 79401.3479 8061747.5238 

# TheAttorney General ofTexas
March 26, 1984

Mr. Clayton T. Garrison Executive Director Employees Retirement System of Texas P. 0. Box 13207 Austin. Texas 78711 Opinion No. 351-140

Re: Whether a state law enforcement officer injured vhile working as a private security guard is entitled to occupational disability benefits from the State of Texas

DearMr.Garrison:

You have provided us with the following information. You have received an application for occupational disability retirement benefits from a law enforcement officer whohas been employed by the Department of Public Safety for four years and eight months. According to the police offense report, the officer was working

“off-duty in plain clothes as security” in agrocery store in Houston in early September of 1982. Twopersons robbed the store andshot the officer when he tried to apprehend them. Your medical board has determined that the applicant Is now disabled as a result of the 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 5121682.4547 Yourequest our opinion onthe following four questions:

200 Main Plaza. Suite 400 San An,onio. TX. 78205-2797 5121225-4191 1. Is acommissioned peace officer considered to be on duty at all times, even when being compensated byanother employer?

2. Was the applicant in the course of

A” Equal OpportunityI Affirmative Action Employer employment for the grocery store or for the state at the time of his injury?

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

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

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

Therelevant statutory language governing occupational disability retirement benefits is found in Title llOB, which sets forth the powers andduties of the Public Retirement Systems. Section 24.207 of Title 1lOBprovides 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 bythis section. (Emphasis added).

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

means death or disability from an injury or

disease that directly results from aspecific act or occurrence determinable by adefinite time and place, and directly results from an inherent risk
**or** hazard peculiar to aduty that arises from and in the course of state employment. (Emphasis added).

Section 21.001(g) ~further provides that

‘Law enforcement offfcer’ means amember of the retirement system whohas 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 whois recognized as a commissioned law enforcement officer by the Commission on Law Enforcement Officer Standards and Education. (Emphasis added).

Anofficer 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 mustbe certified by the state. V.T.C.S. art. 4413(29aa) $2(c). They
are vested with privileged authority tomakearrests, article 14.03 of the Code of Criminal Procedure, and to possess handguns, sections 46.02 and46.03 of the Penal Code. There is ample authority for the proposition that a commissioned peace officer is. unlike other employees, onduty at all times andis therefore obligated toexercise

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

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

TheTexas 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.
WoodV. 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 acommissioned peace officer is onduty all of the time insofar as he is obligated to exercise his authority whenever he observes abreach 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. Themere fact that acommissioned peace officer is on duty at all times does not mean that any injury which he receives occurs in the course of official employment. Thedetermining factor appears tobewhether the commissioned peace officer is acting in furtherance of his official duties or is acting in a private capacity andonly incidentally tohis 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. InJaanes
v. State, 132S.W. 352 (Tex. Crim. App. 1910). aconstable requested the accused tostep aside for aprivate discussion of aprivate matter which resulted in anassault of the constable. The court held that the constable was not at the time of his assault engaged in the performance of anylawful duty of his office. Id. at 353. InCurlin
v. State, 209S.W. 666 (Tex. Crim. App. 1919),~ustice of the peace was assaulted by the defendant while the justice of the peace was walking onthe sidewalk toward his office. Thecourt held that, even though the defendant knewthe status of the injured party, there was noevidence that the injured party was discharging anyofficial duty at the time oreattempting todischarge anysuch 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 awrongful death action which arose as aresult of astate ranger being employed to protect the property of a railway company. Thecourt's opinion should bequoted in extenso:

It seems tobewell settled that apublic peace officer maybecome the private employee of another for the purpose of guarding and protecting such other's property, and the test of liability for a

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

tort emitted by such officer or employee seems to be inwhat capacity hewas acting at the time the act wasdone. Onemaybe both apublic peace officer andaprivate employee as watchman for an individual or corporation, at the sametime, and it does not of course follow that the official character of the individual would be any protection to anaction 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 hewasacting within the scope of his employment. if a servant of another?’

. . .

. . . . Thematerial 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 apeace officer is of little or nopractical 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 ameasure. The guarding of nrivate property is not the function of a public official; and. whenhe 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.

InHudson. there wasnoevidence showing that the officer killed the decedent in furtherance of his public duty. The killing wasnot incident to a lawful arrest and not in self-defense. The court concluded that the officer wasacting, then, in aprivate capacity as an employee of the company. The company was accordingly held to be liable for any tortious act committed bysuch employee whowasacting within the scope of his employment. SeeLancaster v. Carter, 255S.W. 392 (Tex. Conm’n App. 1923, judgmt adopted); Rucker v. Barker, 192 S.W. 528 (Tex. 1917); Texas and NewOrleans Railroad Co. v. Parsons, 113S.W. 914 (Tex. 1908); Morris v. State, 523S.W.Zd 417 (Tex. Crim. App. 1975); George v. State, 506 S.W.2d 275 (Tex. Civ. App. - Houston [lst Dist.] 1974, nowrit).

p. 599Mr. 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. andWoodv. State, m, the injured parties were police officers. in uniform, whowere employed secondarily as, respectively, asecurity guard in a nightclub and a parking lot attendent. Both were injured as they attempted tomakelawful arrests of defendants. InThompsonv. State, 426 S.W.2d 242 (Tex. Grim. App. 1968). an “off-duty” policeman in plain clothes whowas 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 whenthey were assaulted was in the lawful discharge of their duties as peace officers. SeeMoore v. State. 562 S.W.2d 484 (Tex. Grim. App. 1978); Simmsv. State. supra. Onthebasis of the facts which you provide
,weconclude that although the peace officer was employed in aprivate 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 hewasnolonger acting inaprivate capacity. At that moment, his conduct wasnolonger subject to the control of the .manager of the grocery store. Rather, it was dictated by his obligation asapeace officer toapprehend the suspect. Hadthe peace officer been coincidently in the grocery store as a customer, for example, the duty toapprehend the suspect would clearly have devolved upon him. There is noquestion that, in such aninstance, 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 anemployee 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. Weconclude that it was. Section 21.001(12) of Title IlQB defines

“occupational death or disability” to refer to adeath 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’ Weare hard-pressed to think of arisk more inherent or ahazard 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 acommissioned 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 - Page6 (JM-140)

established that the grocery store hired only off-duty state police to serve as security guards. Weconclude that they would not. Recause of the peculiar duty imposed upon peace officers to be “on duty” at all times, the fact that apeace officer wasinjured in furtherance of his duties while being secondarily employed by aptiv&te third party in noway affects the duty owed by the peace offjcer to LIX public. Accordingly. weanswer your fourth question in thenepativo.

Wedonot here address the issue as towhether the state would be liable for damages in a suit brought by someone injured by a peace officer whowasemployed byaprivate employer at the time the injury took place.

SUMMARY

Aconssissioned peace officer is onduty 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 tobeinjured 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 trooper. Our conclusions would in affected bythe fact that the private hires only “off-duty” state troopers. as a state no way be third party

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# JIM JIM MATTOX Attorney General ofTexas
TOMGREEN First Assistant Attorney General

DAVIDR. RICUARDS Executive Assistant Attorney General Prepared byJimMoellinger Assistant Attorney General

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

APPROVED: OPINIONCOMMITTEE
Rick Gilpin, Chairman JonBible Colin Carl SusanGarrison JimMoellinger NancySutton

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