JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Austin. TX. 78711. 2548 

512l475~2501 

Telex 9101874.1367 

Telecopier 5121475.0266 

714 Jackson. Suite 700 

Dallas. TX. 75202.4508 

2141742.8944 

4824 Alberta Ave.. Suite 160 

El Paso. 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 

The Attorney General of Texas 

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 

Dear Mr. Garrison: 

You have provided us with the following information. You have 

received an application for occupational disability retirement 

benefits from a law enforcement officer who has 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 a grocery store in Houston 

in early September of 1982. Two persons robbed the store and shot 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 

You request our opinion on the following four questions: 

200 Main Plaza. Suite 400 

San An,onio. TX. 78205-2797 

5121225-4191 

1. Is a commissioned peace officer considered 

to be on duty at all times, even when being 

compensated by another 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 be established that the grocery 

store hired only off-duty state police to serve as 

security guards, would your answer to the above be 

affected in any way? 

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

The relevant statutory language governing occupational disability 

retirement benefits is found in Title llOB, which sets forth the 

powers and duties of the Public Retirement Systems. Section 24.207 of 

Title 1lOB provides 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 

by this section. (Emphasis added). 

Section 21.001(12) of Title 1lOB declares that “occupational death or 

disability” 

means death or disability from an injury or 

disease that directly results from a specific act 

or occurrence determinable by a definite time and 

place, and directly results from an inherent risk 

or hazard peculiar to a duty that arises from and 

in the course of state employment. (Emphasis 

added). 

Section 21.001(g) ~further provides that 

‘Law enforcement offfcer’ means a member of the 

retirement system who has 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 who is 

recognized as a commissioned law enforcement 

officer by the Commission on Law Enforcement 

Officer Standards and Education. (Emphasis 

added). 

An officer 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 

must be certified by the state. V.T.C.S. art. 4413(29aa) $2(c). They 

are vested with privileged authority to make arrests, article 14.03 of 

the Code of Criminal Procedure, and to possess handguns, sections 

46.02 and 46.03 of the Penal Code. There is ample authority for the 

proposition that a commissioned peace officer is. unlike other 

employees, on duty at all times and is therefore obligated to exercise 

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

his authority whenever there is a breach 

jurisdiction. 

of the peace within his 

The Texas 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. 

Wood V. 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 a commissioned peace officer is on duty all of the time 

insofar as he is obligated to exercise his authority whenever he 

observes a breach 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. The mere fact that a commissioned peace officer 

is on duty at all times does not mean that any injury which he 

receives occurs in the course of official employment. The determining 

factor appears to be whether the commissioned peace officer is acting 

in furtherance of his official duties or is acting in a private 

capacity and only incidentally to his 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. In Jaanes 

v. State, 132 S.W. 352 (Tex. Crim. App. 1910). a constable requested 

the accused to step aside for a private discussion of a private matter 

which resulted in an assault of the constable. The court held that 

the constable was not at the time of his assault engaged in the 

performance of any lawful duty of his office. Id. at 353. In Curlin 

v. State, 209 S.W. 666 (Tex. Crim. App. 1919),~ustice of the peace 

was assaulted by the defendant while the justice of the peace was 

walking on the sidewalk toward his office. The court held that, even 

though the defendant knew the status of the injured party, there was 

no evidence that the injured party was discharging any official duty 

at the time ore attempting to discharge any such 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 a wrongful death action which arose as a result of a state 

ranger being employed to protect the property of a railway company. 

The court's opinion should be quoted in extenso: 

It seems to be well settled that a public peace 

officer may become the private employee of another 

for the purpose of guarding and protecting such 

other's property, and the test of liability for a 

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

tort emitted by such officer or employee seems 

to be in what capacity he was acting at the time 

the act was done. One may be both a public peace 

officer and a private employee as watchman for an 

individual or corporation, at the same time, and 

it does not of course follow that the official 

character of the individual would be any 

protection to an action 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 he was acting within 

the scope of his employment. if a servant of 

another?’ . . . 

. . . . 

The material 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 a peace officer is of little or no practical 

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 a measure. The guarding 

of nrivate property is not the function of a 

public official; and. when he 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. 

In Hudson. there was no evidence showing that the officer killed 

the decedent in furtherance of his public duty. The killing was not 

incident to a lawful arrest and not in self-defense. The court 

concluded that the officer was acting, then, in a private capacity as 

an employee of the company. The company was accordingly held to be 

liable for any tortious act committed by such employee who was acting 

within the scope of his employment. See Lancaster v. Carter, 255 S.W. 

392 (Tex. Conm’n App. 1923, judgmt adopted); Rucker v. Barker, 192 

S.W. 528 (Tex. 1917); Texas and New Orleans Railroad Co. v. Parsons, 

113 S.W. 914 (Tex. 1908); Morris v. State, 523 S.W.Zd 417 (Tex. Crim. 

App. 1975); George v. State, 506 S.W.2d 275 (Tex. Civ. App. - Houston 

[lst Dist.] 1974, no writ). 

p. 599 
Mr. 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. and Wood v. 

State, m, the injured parties were police officers. in uniform, 

who were employed secondarily as, respectively, a security guard in a 

nightclub and a parking lot attendent. Both were injured as they 

attempted to make lawful arrests of defendants. In Thompson v. State, 

426 S.W.2d 242 (Tex. Grim. App. 1968). an “off-duty” policeman in 

plain clothes who was 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 when they were assaulted was in 

the lawful discharge of their duties as peace officers. See Moore v. 

State. 562 S.W.2d 484 (Tex. Grim. App. 1978) ; Simms v. State. supra. 

On the basis of the facts which you provide , we conclude that although 

the peace officer was employed in a private 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 he was no longer acting in a private capacity. At 

that moment, his conduct was no longer subject to the control of the 

.manager of the grocery store. Rather, it was dictated by his 

obligation as a peace officer to apprehend the suspect. Had the peace 

officer been coincidently in the grocery store as a customer, for 

example, the duty to apprehend the suspect would clearly have devolved 

upon him. There is no question that, in such an instance, 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 an employee 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. 

We conclude that it was. Section 21.001(12) of Title IlQB defines 

“occupational death or disability” to refer to a death 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’ We are hard-pressed to think of a risk more inherent or 

a hazard 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 a commissioned 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 - Page 6 (JM-140) 

established that the grocery store hired only off-duty state police to 

serve as security guards. We conclude that they would not. Recause 

of the peculiar duty imposed upon peace officers to be “on duty” at 

all times, the fact that a peace officer was injured in furtherance of 

his duties while being secondarily employed by a ptiv&te third party 

in no way affects the duty owed by the peace offjcer to LIX public. 

Accordingly. we answer your fourth question in the nepativo. 

We do not here address the issue as to whether the state would be 

liable for damages in a suit brought by someone injured by a peace 

officer who was employed by a private employer at the time the injury 

took place. 

SUMMARY 

A conssissioned peace officer is on duty 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 to be injured 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 by the fact that the private 

hires only “off-duty” state troopers. 

as a state 

no way be 

third party 

- JIM JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICUARDS 

Executive Assistant Attorney General 

Prepared by Jim Moellinger 

Assistant Attorney General 

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

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Jon Bible 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

p. 602