THE ATTORNEY GENERAL 

OF TEXAS 

July 9, 1987 

Mr. Fred Toler Opinion No. .lM-742 

Executive Director 

Commission on Law Enforcement Re: Whether the Port of Houston 

Officer Standards and Education Authority may employ armed 

1606 Headway Circle, Suite 100 security officers who are not 

Austin, Texas 78754 commissioned peace officers 

Dear Mr. Toler: 

You ask whether the Port of Houston Authority may employ armed 

security personnel who have not been commissioned as peace officers. 

We conclude that the authority may not employ such persons. 

The authority, formerly known 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 

the origin and evolution of the authority in the law). The authority 

is a political subdivision of the state. Guaranty Petroleum Corporation v. Armstrong, 609 S.W.2d 529, 530 (Tex. 1980); Smith v. Harris 

Count y - Eouston Shi p Channel Navigation District, 330 S.W.2d 672 

(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 authority may exercise 

either those powers which are expressly delegated to it or are clearly 

implied from the express powers.. Tri-City Fresh Water Supply District 

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.). 

Implied powers are those that are "indispensable to 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. (Emphasis added). 

Several chapters of the Water Code furnish the authority with the 

express powers necessary to fulfill its constitutional mandate. As an 

article XVI, section 59, navigation district, the authority operates 

under chapter 60 (navigation district - general provisions) and 

chapter 62 (article XVI, section 59, navigation districts - specific 

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Mr. Fred Toler - Page 2 (JM-742) 

duties and powers). Additionally, because the authority originally 

was organized pursuant 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 the Water Code. Water Code 5560.246. 

A survey of the Water Code demonstrates that the authority has 

broad express powers to arrange for the conduct of its vital 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 deployment of an armed security force composed exclusively of 

persons who are not commissioned, certified peace officers stands on 

an entirely different footing. Although the use of such employees may 

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 

County v. 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 

village may 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 the health, safety,,and general welfare of 

persons using the property. 1_ (Emphasis added). 

1. We take no 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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Mr. Fred Toler - Page 3 (JM-742) 

C 

Water Code 060.071. Moreover, the authority has very specific powers 

to carry out section 60.071: 

To accomplish the purposes stated in Section 

60.071 of this code, the commission may exercise 

the following powers: 

(1) control the operation of 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 

these vehicles; 

(2) prohibit loitering on 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 

requirements of these vessels; 

(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 other properties 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 determined to be 

dangerous to any of the property or inimical to 

the safety or general welfare of persons'using 

the property 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 and punish offenders; 

(6) suppress and prevent any riot, 

affray, disturbance, or disorderly assembly on 

any of the property; and 

(7) license and regulate or suppress and 

prevent hawkers and peddlers utilizing or 

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Mr. Fred Toler - Page 4 (JM-742) 

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, 

certified peace officers to protect the interests of the authority in 

enforcing the law within its precincts: 

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 

constituted peace officer of the State of Texas in 

enforcing other laws of this state. 

Water Code 160.077. This provision of the Water 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, including measures necessary 

to assure the security of the authority's property and that of its 

customers, can be discharged by authority employees who are the w 

and functional equivalents of duly constituted peace officers. 

Security guards are not the legal and functional equivalent of 

duly constituted peace officers. Peace officers must 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 peace within their jurisdictions. Code 

Crim. Proc. arts. 2.12, 2.13. Peace officers are vested with a 

privileged authority to make arrests , see article 14.03 of the Code of 

Criminal Procedure, and to possess handguns in a wide range of 

circumstances where such implements are denied to everyone else, see - 

sections 46.02 and 46.03 of the Penal Code. 

By contrast, security guards are 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)t person 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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Mr. Fred Toler - Page 5 (JM-742) 

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 

they may not take their weapons off of the property of their employer. 

Penal Code 046.03(2); Attorney General Opinion E-185 (1973); see also 

Robinson v. 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 

guards by the authority. The question was never raised directly, and 

that opinion only considered the general circumstances in which 2 

security guard could carry a handgun. 

Thus, the broad law enforcement powers granted to commissioned, 

certified peace officers employed by the authority, but unavailable 

to security guards, indicates that the legislature intended for law 

enforcement activities necessary 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 

impermissible enlargement of the express powers of the authority. 

SUMMARY 

The Port of Houston Authority, a navigation 

district organized under article XVI, section 59, 

of the Texas Constitution, has no authority to 

hire armed security guards. Rather, the legislature specifies that law enforcement activities 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 employed by it need not be licensed under the terms of the 

Private Investigators and Private Security Agencies Act. See V.T.C.S. 

art. 4413(29bb), 53(a)(2). A political subdivision may seeklicensing 

for security guards if it chooses. V.T.C.S. art. 4413(29bb), 03(e). 

Licensing adds nothing to the power of security guards -- it does not 

convert them into the functional or legal equivalent of duly constituted peace officers. 

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Mr. Fred Toler - Page 6 (m-742) 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE ST!&W.EY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Donald Bustion 

Assistant Attorney General 

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