## THE ATTORNEY GENERAL OF TEXAS

July 9, 1987

Mr. Fred Toler OpinionNo. .lM-742 ExecutiveDirector Commissionon Law Enforcement Re: Whether thePort of Houston Officer Standardsand Education Authority may employ armed 1606Headway Circle, Suite 100 security officers who are not Austin,Texas 78754 commissionedpeace officers

Dear Mr. Toler:

You ask whether the Port of Houston Authority may employ armed security personnelwho have not been commissionedas peace officers. We conclude that the authoritymay not employ suchpersons.
The authority, formerlyknown as the Barris County - Eouston Ship Channel Navigation District, is a "navigation district" organized pursuant to article XVI, section 59, of the Texas Constitution. See generally Attorney General Opinion H-137 (1975) (for a discussion7 theorigin and evolution of the authority in the law). The authority is a political subdivisionof the state. Guaranty Petroleum Corporation v. Armstrong, 609 S.W.2d 529, 530 (Tex. 1980); Smith v. Harris p Channel Navigation District, 330 S.W.2d 672 Count y - Eouston Shi (Tex.Civ. ADO. - Fort Worth 1959. no writ). The authority derives its powers at large from the cqnsktution and specifically-from the statutes governing the discharge of its duties. Attorney General Opinion Nos. JM-258 (1984);M-171 (1967). The authoritymay exercise either thosepowerswhich are expresslydelegated to it or are clearly implied from the expresspowers..Tri-City FreshWater SupplyDistrict No. 2 of Barris County v. Manor, 142 S.W.2d 945, 946 (Tex. 1940); Lower Nueces River Water Supply District v. Cartnight, 274 S.W.2d 199, 207 (Tex. Civ. App. - San Antonio 1954, writ ref'd n.r.e.). Impliedpowers are those thatare "indispensableto the accomplishment of the purpose" for which the political subdivision was created; powers "merely convenient" or "u&ful" cannot be implied and may not be assumed by the subdivision. Tri-City Freshwater Supply District No. 2 of Harris County,supra, at 946. (Emphasisadded).

Several chaptersof theWater Code furnish the authoritywith the expresspowersnecessary to fulfill its constitutionalmandate. As an article XVI, section 59, navigation district, the authority operates under chapter 60 (navigation district - general provisions) and chapter 62 (articleXVI, section 59, navigation districts - specific

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duties and powers). Additionally, because the authority originally
was organizedpursuant to article III, section 52, of the constitution before conversion to its present constitutional status, it retains certain of the specified powers granted to navigation districts of that ilk in chapter 61 of theWater Code. Water Code 5560.246.

A survey of the Water Code demonstrates that the authority has broad expresspowers to arrange for the conductof itsvital business. Several provisions in the Water Code specifically authorize the authority to hire employees capable of performing,a wide range of duties in the ordinary course of its business. See, e.g., Water Code 1561.174(a) (a navigation district may employ all persons necessary for the construction,maintenance, operation, and development of the business and facilities of the district); 62.077a (the navigation district may employ an assistant engineer and other employees as may be necessary); see, e.g., Attorney General Opinion O-4140 (1941) (authority may contract for medical personnel to provide for the medical care of its employees.)

The deploymentof an armed security force composed exclusivelyof persons who are not commissioned, certified peace officers stands on an entirelydifferent footing. Although theuse of such employeesmay be exceedingly convenient, mere convenience is not a permissible factor in the calculus of fixing the implied powers of a political subdivision. Tri-City Fresh Water Supply District No. 2 of Barris Countyv. Manor, supra, at 946. ?

The Water Code grants the authority general rulemaking power to protect its property and persons using that property, when the facilities are not within the boundaries of an incorporated city, town,or village:

The commission of a district which owns, operates, and maintains wharves, docks, piers, sheds, warehouses, and other similar terminal facilities which are not located inside the boundaries of any incorporated city, town, or villagemay pass, amend, and repeal any ordinance, rule, or police regulation which is not contrary to the constitution or laws of this state and which is necessary to protect the property and to promote thehealth, safety,,andgeneralwelfare of persons using theproperty.1_ (Emphasisadded).

1. We takeno position on the exact reach of this provision in the case of the Port of Houston Authority,because we have no way of knowing which of the authority's facilities are outside incorporated --. municipalities.

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C Water Code 060.071. Moreover, the authorityhas very specific powers

to carry out section 60.071:

To accomplish the purposes stated in Section 60.071 of this code, the commissionmay exercise the followingpowers:

(1) control the operationof all types of vehicles using the roads maintained by the district, other than roads dedicated to public
use by formal dedication, and prescribe the speed, lighting, and other requirements of thesevehicles;
(2) prohibit loiteringon docks,wharves, piers, warehouses, sheds, or other properties of the district;
(3) control the operation of all types of vessels using harbors, turning basins, basins,
or navigable channels of the district and prescribe the speed, lighting, and other requirementsof thesevessels;
(4) prohibit smoking and the use of flares, open fires, and inflammable, highly combustible, or explosive substances and materials on docks,wharves,piers,warehouses, sheds, and otherproperties of the district, or on those parts of the properties and at those times or during those periods as may, in the judgment of the commission,be determinedto be dangerousto any of thepropertyor inimicalto the safety or generalwelfare of persons'using theproperty or parts of it;
(5) prevent on any of the property all trespasses, breaches of the peace and good order, assaults and batteries, fighting, quarrels,use of abusive.profane,or insulting language, disorderly conduct, and misdemeanor theft andpunish offenders;
(6) suppress and prevent any riot, affray, disturbance, or disorderly assembly on any of theproperty;and
(7) license and regulate or suppress and prevent hawkers and peddlers utilizing or

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attempting to utilize the roads and other property of the district.

Water Code 960.072. See also 960.073.

The statutes clearly direct the authority to use commissioned, certifiedpeace officers to protect the interests of the authority in enforcing the lawwithin itsprecincts:

In prosecutions involving the enforcement of [the relevant provisions of the Water Code] or the enforcement of any ordinance, rule, or regulation of the district, any sheriff, constable, or other duly constituted peace officer of the state of Texas or any peace officer employed or appointed by the [navigation district] may make arrests, serve criminal warrants, subpoenas, or writs, and perform any other service or duty which may be performed by a sheriff, constable or other duly constitutedpeace officerof the State of Texas in enforcingother laws of this state.

Water Code 160.077. This provision of theWater Code clearly empowers a navigation district to employ commissioned, certified peace officers. Attorney General Opinion E-549 (1977). Thus, the law enforcement activities of the authority, includingmeasures necessary to assure the security of the authority's property and that of its customers, can be dischargedby authority employeeswho are thew and functionalequivalentsof duly constitutedpeace officers. Security guards are not the legal and functional equivalent of duly constitutedpeace officers. Peace officersmust be certified by the state, article 4413(19aa), V.T.C.S., after meeting stringent educational, character, and fitness requirements, and they have a specific duty to preserve the peacewithin their jurisdictions. Code Crim. Proc. arts. 2.12, 2.13. Peace officers are vested with a privilegedauthority tomake arrests, see article 14.03of the Code of Criminal Procedure, and to possesshandguns in a wide range of circumstanceswhere such implements are denied to everyone else, see - sections 46.02 and 46.03 of the Penal Code.
By contrast, security guardsare agents of the sovereign for "law enforcement"purposes to an extent no greater than a loyal citizen or mere bystander. They may not make arrests, except in the limited circumstances ordinary persons can. Code Crim. Proc. art. 14.01(a) (an)tperson may arrest an offender when the offense is committed "in

. . .view or presence" and is classified as a felony or an offense against the public peace). Security guards may not serve warrants or issue citations for misdemeanor offenses, or perform any

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of the other %?

w enforcement functions of a commissioned, certified peace officer. Water Code art. 60.077, B. Security guards may not be armed, except in an extremely limited set of circumstances.and theymay not take theirweapons off of theproperty of their employer. Penal Code 046.03(2);Attorney General Opinion E-185 (1973); see also Robinsonv. State, 280 S.W. 776 (Tex.Crim. App. 1926). We note that
a brief submitted on behalf of the authority argues that in Attorney General Opinion H-549 this office approved the hiring of security guardsby the authority. The questionwas never raised directly, and that opinion only considered the general circumstances in which 2 securityguard could carry a handgun.
Thus, the broad law enforcementpowers granted to commissioned, certifiedpeace officers employed by the authority, but unavailable to security guards, indicates that the legislature intended for law enforcementactivitiesnecessary to the operation of the authority to be exercised by commissioned, certified peace officers. To find implied power for the authority to hire security guards is an impermissibleenlargementof the expresspowers of the authority.

SUMMARY

The Port of Houston Authority, a navigation district organizedunder article XVI, section 59, of the Texas Constitution, has no authority to hire armed security guards. Rather, the legislature specifies that law enforcementactivities on the authority's property, and necessary to its functions, are to be'carried out by commissioned peace officers, who are to act with all of the authority of a commissioned peace officer, such
as a county sheriff or constable. Water Code 560.077.

2. Because the authority is a political subdivision.security guards employedby itneed not be licensedunder the termsof the Private Investigatorsand Private SecurityAgenciesAct. SeeV.T.C.S. art. 4413(29bb), 53(a)(2). A political subdivisionmay seeklicensing for securityguards if it chooses. V.T.C.S. art. 4413(29bb), 03(e). Licensing addsnothing to thepower of securityguards -- it doesnot convert them into the functionalor legal equivalentof duly constitutedpeace officers.

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JIM MATTOX AttorneyGeneral of Texas

MARY KELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE ST!&W.EY SpecialAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee
Preparedby Donald Bustion AssistantAttorney General

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