Does an off-duty Texas police officer need a private security license to work as a guard?

Plain-English summary

Texas requires private security businesses (guard companies and the like) to be licensed, but the Private Investigators and Private Security Agencies Act exempts certain off-duty peace officers who do guard, patrol, or watchman work on the side. The exemption in section 3(a)(3) was written in the passive voice and did not say who the officer had to be employed by, which created an ambiguity. The Executive Director of the state board asked the Attorney General whether the exemption covered an officer hired by an intermediary, or only one hired directly by the business needing the security.

The office concluded the exemption reached only officers hired directly by the security recipient, as an employee or on an individual contract. An officer who worked through a middleman company that contracts security services out to clients was not exempt. The office found the answer in the 1975 floor debate on House Bill 431, where the bill's author explained that an officer who just works on his own for the business needing security is exempt, but a sergeant who runs it as a business, hiring other officers and taking a cut, has to be licensed.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The statute construed here, article 4413(29bb), V.T.C.S., was later repealed and recodified into the Texas Occupations Code, so the section numbers cited here no longer match current law, and the exemption language may have been changed. Read this page for how the office interpreted the 1994 exemption, not for the current licensing rules for off-duty officers.

What the opinion meant for those who asked

For the Texas Board of Private Investigators and Private Security Agencies: The opinion concluded that the section 3(a)(3) exemption applied only to an off-duty peace officer hired directly by the security recipient, so officers working through an intermediary company fell outside the exemption and remained subject to the act.

For off-duty peace officers and the businesses that hire them: The opinion explained that an officer hired directly by the business or person needing security (as an employee or on an individual contract) was exempt, but an arrangement run through a separate company contracting out the officers' services was not covered by the exemption.

Common questions

Is an off-duty officer working security exempt from the Texas private security license law?
Under this opinion, yes, but only if the officer is hired directly by the business or person receiving the security services, either as an employee or on an individual contract.

What if the officer works through a security company?
The office concluded the exemption did not reach officers employed by an intermediary that contracts security services out to clients; that arrangement was not "directly with the security recipient."

How did the office resolve the statute's ambiguity?
The exemption was written in the passive voice and did not name who the officer had to be employed by. The office relied on the 1975 House floor debate on House Bill 431, where the author said an officer working on his own for the business is exempt, but someone who runs it as a business and takes a cut of others' work must be licensed.

Background and statutory framework

The Private Investigators and Private Security Agencies Act (V.T.C.S. art. 4413(29bb)) created the state board and required a license for anyone engaging in the business of, or performing services as, an investigations company, guard company, alarm systems company, armored car company, courier company, or guard dog company (§ 13(a)). Section 3 listed exceptions. Subsection (a)(3) exempted a full-time peace officer (as defined by article 2.12 of the Code of Criminal Procedure) who is compensated for private work as a patrolman, guard, or watchman, if the person is employed in an employee-employer relationship or on an individual contractual basis, is not in the employ of another peace officer, and is not a reserve peace officer.

Because subsections (A) and (B) used the passive voice, they did not specify the other party to the employment or contract. The office resolved the ambiguity with the legislative history: the 64th Legislature added the provision in 1975 by House Bill 431 (Acts 1975, 64th Leg., ch. 494), and during second reading the author, then-Representative Carl Parker, explained that the exemption covered an officer hired directly by the security recipient to do the work himself, but not someone running a security business who hires other officers and takes a cut. The office therefore concluded that subsections (A) and (B) apply only to a person employed or contracted directly by the security recipient for the individual rendering of security services.

Citations

Statutory provisions discussed:

• V.T.C.S. art. 4413(29bb) (Private Investigators and Private Security Agencies Act; §§ 3, 3(a)(3), 4(a), 13(a))
• Code of Criminal Procedure art. 2.12 (definition of "peace officer")

Legislation referenced: House Bill 431, Acts 1975, 64th Leg., ch. 494, § 1 (adding the predecessor of § 3(a)(3)).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0287
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1994/dm0287.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 29, 1994

Ms. Clema D. Sanders
Executive Director
Texas Board of Private Investigators and Private Security Agencies
P.O. Box 13509
Austin, Texas 78711

Opinion No. DM-287

Re: Whether section 3(a)(3) of article 4413(29bb), V.T.C.S., exempts a full-time peace officer working as a private patrolman, guard, or watchman from the requirements of the Texas Board of Private Investigators and Private Security Agencies Act when the entity receiving the private services is not directly employing the peace officer (RQ-488)

Dear Ms. Sanders:

Your request for an opinion asks us to construe section 3 of the Texas Board of Private Investigators and Private Security Agencies Act ("act"), V.T.C.S. article 4413(29bb). In the act the legislature created the Texas Board of Private Investigators and Private Security Agencies, V.T.C.S. art. 4413(29bb) § 4(a), and imposed a licensing requirement for "any person . . . engag[ing] in the business of, or perform[ing] any service as an investigations company, guard company, alarm systems company, armored car company, courier company or guard dog company or . . . offer[ing] his services in such capacities or engag[ing] in any business or business activity required to be licensed" by the act, id. § 13(a).

Section 3 of the act sets forth various exceptions to the act's application. The relevant portion of section 3 is set forth below:

Sec. 3. (a) This Act does not apply to:

(3) a person who has full-time employment as a peace officer as defined by Article 2.12, Code of Criminal Procedure, who receives compensation for private employment on an individual or an independent contractor basis as a patrolman, guard, or watchman if such person is:

(A) employed in an employee-employer relationship; or

(B) employed on an individual contractual basis;

(C) not in the employ of another peace officer; and

(D) not a reserve peace officer.

Id. § 3(a)(3) (emphasis added).

Your request letter notes the ambiguity of the emphasized language in the above-quoted provision. That language is in passive voice, so there is no expression of the identity of the person with whom an employee or independent contractor must be in an employment or contractual relationship in order to be exempted from the act. You ask us whether the above-quoted subsections (A) and (B) exempt from the act only those persons who are employed directly by security recipients (for example, supermarkets that need night-time security guards) or, additionally, those persons who are employed by intermediaries who contract with security recipients.

We have found a clear expression of the meaning of the ambiguous language in the legislative debate of the bill that added that language to the act. The 64th Legislature in 1975, by enactment of House Bill 431, added the original version of the current subsection (a)(3) to section 3. See Acts 1975, 64th Leg., ch. 494, § 1, at 1314. The author of House Bill 431, then-Representative Carl Parker, answered questions from the floor during the second reading of the bill, clarifying that the exemption applied only to persons employed directly by the security recipient.

Q: How does this [House Bill 431] affect the policeman who, in off-duty hours, serves as a guard at a 7-Eleven, or grocery store, or whatever it may be?

A: If he's just working on his own and hired to do security work for one employer and he doesn't employ any people under him, it doesn't touch him top, side, or bottom, he is specifically exempted by language that was drafted in conjunction with me and the representatives of the Texas Municipal Police Association.

Let's take a police officer--Austin police officer--and they [organizers of a big fiesta at Fiesta Gardens] call down there [the police station] and say, "We need 15 police officers off-duty tonight, and we want to pay them to act as security for this function." If all 15 of them show up down there, fine, they can all work--they're not touched by this act--they're specifically exempted by the act.

Now, if they do it as a business, if they hire people--if you have a sergeant who hires a bunch of patrolmen and he gets a cut of what they do, he has to be licensed under this act.

Q: [If] the chief of police or the sheriff is called and they just say to the chief of police or the sheriff, "Send 15 deputies out there"--

A: If he's not charging for that service--

Q: If he's not getting a cut off the top--

A: That's right.

Q: --then that's exempt, isn't it? Right?

A: That's right.

Debate on H.B. 431 on the Floor of the House of Representatives, 64th Leg. (May 5, 1975) (tape recording available from House Video/Audio Services Office).

The above-quoted colloquy shows the legislature's intention that subsections (A) and (B) exempt from the act only those persons who are employed (as an employee or an independent contractor) directly by security recipients for the individual rendering of security services. We therefore conclude that those provisions apply only to a person who is "employed in an employee-employer relationship" or "on an individual contractual basis" directly by the security recipient.

SUMMARY

Section 3, subsection (a)(3), of article 4413(29bb), V.T.C.S., applies only to a person who is "employed in an employee-employer relationship" or "on an individual contractual basis" directly with the security recipient, for the individual rendering of security services.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

DREW T. DURHAM
Deputy Assistant Attorney General for Criminal Justice

WILL PRYOR
Special Counsel

RENEA HICKS
State Solicitor

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James B. Pinson
Assistant Attorney General