If a Texas county jailer is also a deputy sheriff, does he need a private security guard commission to moonlight as an armed guard?

TX AG Opinion GA-0465: Does a jailer-deputy need a security guard commission to moonlight?

Plain-English summary

The Tom Green County Attorney asked whether a county jailer who is a certified peace officer and has been appointed a deputy sheriff is exempt from the Private Security Act. The practical context: some county jailers had earned peace officer certification, the sheriff's practice was to appoint those jailers as deputies, and some of them wanted to take private side jobs as security guards.

The Attorney General did not give a flat answer, because the question turns on facts that the AG's office does not decide. But the opinion laid out the legal framework clearly.

The Private Security Act requires a private security guard who carries a firearm on duty to hold a commission from the Texas Commission on Private Security. The Act exempts certain full-time peace officers. The exemption (section 1702.322) applies to a person with full-time employment as a peace officer who does private guard or watchman work, but only if, among other things, the person "works as a peace officer on the average of at least 32 hours a week," is paid at least minimum wage by the state or a political subdivision, and gets all the employee benefits a peace officer receives.

The opinion then drew a sharp line between two jobs. A county jailer and a deputy sheriff are statutorily distinct. A jailer needs a jailer license, not a peace officer license, and goes through different training and a different exam. The Code of Criminal Procedure's list of "peace officers" does not include a county jailer, and the legislature repeatedly refers to "peace officer" and "county jailer" as separate things. The Court of Criminal Appeals reached the same conclusion in Deltenre v. State, holding the legislature intended jailers not to be peace officers. A deputy sheriff, by contrast, is a peace officer and must hold a peace officer license.

Because the exemption covers only full-time peace officers, the AG said the key question is whether a person who is both a jailer and a deputy "has full-time employment as a peace officer," measured by the 32-hour-a-week test in section 1702.322(1)(D). Someone who works full-time as a jailer and is only nominally a deputy would not meet that test and would be subject to the Act. Someone who works full-time as a deputy while also serving as a jailer might be exempt. Whether a particular employee meets the test is fact-intensive: it depends on the nature and terms of the employment and how the employer treats the position. The AG concluded that this is a fact question for the employer to resolve in the first instance, subject to judicial review, and declined to decide it for any particular Tom Green County employee.

Currency note

This opinion was issued in 2006. 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 Private Security Act, the peace-officer licensing statutes in chapter 1701 of the Occupations Code, and the regulator named in this opinion (the Texas Commission on Private Security, and TCLEOSE) have all seen changes since 2006, including agency reorganizations. Anyone weighing this question today should check current law and the current regulator rather than relying on this opinion.

Who this opinion affected (as of 2006)

County jailers who also held deputy commissions: The opinion explained that the Private Security Act's exemption reaches only full-time peace officers, and that whether a jailer-deputy qualified depended on whether the deputy (peace officer) side of the job met the 32-hour-a-week test, not the jailer side.

Sheriffs and county employers: The opinion placed the fact determination on the employer in the first instance, subject to judicial review. It told employers the exemption hinges on the nature and terms of each individual's employment.

Anyone relying on the jailer-versus-peace-officer distinction: The opinion is a clear statement that a county jailer is not a peace officer under Texas law, while a deputy sheriff is, drawing on the Code of Criminal Procedure, multiple Occupations Code provisions, and the Court of Criminal Appeals' decision in Deltenre v. State.

Common questions

Does a jailer who is also a deputy automatically avoid the Private Security Act?
No. The opinion concluded the exemption applies only to full-time peace officers, and whether a jailer-deputy qualifies depends on the facts, in particular whether he averages at least 32 hours a week working as a peace officer.

Is a county jailer a peace officer?
No. The opinion explained that a jailer holds a jailer license, not a peace officer license, is not on the Code of Criminal Procedure's list of peace officers, and that the Court of Criminal Appeals held in Deltenre v. State that the legislature intended jailers not to be peace officers.

What is the test for the exemption?
Section 1702.322(1)(D). The opinion quoted its requirements: working as a peace officer on average at least 32 hours a week, being paid at least minimum wage by the state or a political subdivision, and receiving all employee benefits offered to a peace officer.

Why didn't the AG just say whether Tom Green County's jailers are exempt?
Because it is a fact question. The opinion explained that the AG's office does not determine facts and left the determination to the employer in the first instance, subject to judicial review.

Background and statutory framework

The Private Security Act requires a security guard who carries a firearm on duty to hold a commission from the Texas Commission on Private Security (Tex. Occ. Code Ann. § 1702.161 (Vernon 2004); see also § 1702.1675 (training)), and exempts certain full-time peace officers (§ 1702.322(1), (1)(D) (Vernon 2004)). A sheriff may employ jail guards (Tex. Loc. Gov't Code Ann. § 85.005(a) (Vernon 1999)); a jailer must hold a jailer license and complete distinct training (Tex. Occ. Code Ann. §§ 1701.301, .310 (Vernon 2004); 37 Tex. Admin. Code §§ 217.1 (2006), 221.5), while a deputy sheriff is a peace officer who must hold a peace officer license earned through additional training and testing (Tex. Occ. Code Ann. §§ 1701.304, .306-.307 (Vernon 2004); continuing requirements at § 1701.351 (Vernon Supp. 2006), § 1701.355 (Vernon 2004)).

A county jailer is not on the peace-officer list (Tex. Code Crim. Proc. Ann. art. 2.12(1) (Vernon Supp. 2006)), and the legislature treats "peace officer" and "county jailer" as separate terms throughout the statutes (e.g., Tex. Occ. Code Ann. §§ 1701.001, 1701.151, 1701.251, 1701.303, 1701.306, 1701.312, 1701.352 (Vernon 2004); Tex. Gov't Code Ann. § 607.001 (Vernon Supp. 2006)), a distinction confirmed in Deltenre v. State, 808 S.W.2d 97, 102 (Tex. Crim. App. 1991). Courts have applied the Act to part-time and reserve peace officers (Garay v. State, 940 S.W.2d 211, 218 (Tex. App.-Houston [1st Dist.] 1997, writ ref'd); Tex. Bd. of Private Investigators & Private Sec. v. Bexar County Sheriff's Reserve, 589 S.W.2d 135 (Tex. Civ. App.-San Antonio 1979, no writ)). Because the exemption depends on the facts, the AG left the determination to the employer subject to judicial review (Tex. Att'y Gen. Op. Nos. GA-0139 (2004), GA-0086 (2003); Tex. Loc. Gov't Code Ann. § 152.071 (Vernon 1999)).

Citations

Statutes:

• Tex. Occ. Code Ann. §§ 1702.161, 1702.322(1), (1)(D), 1702.1675 (Vernon 2004); §§ 1701.001, 1701.151, 1701.251, 1701.301, .303, .304, .306-.307, .310, .312, .352 (Vernon 2004); § 1701.351 (Vernon Supp. 2006); § 1701.355 (Vernon 2004)
• Tex. Code Crim. Proc. Ann. art. 2.12(1) (Vernon Supp. 2006)
• Tex. Loc. Gov't Code Ann. §§ 85.005(a), 152.071 (Vernon 1999)
• Tex. Gov't Code Ann. § 607.001 (Vernon Supp. 2006)
• 37 Tex. Admin. Code §§ 217.1 (2006), 221.5

Cases and prior opinions:

• Deltenre v. State, 808 S.W.2d 97, 102 (Tex. Crim. App. 1991)
• Garay v. State, 940 S.W.2d 211, 218 (Tex. App.-Houston [1st Dist.] 1997, writ ref'd)
• Tex. Bd. of Private Investigators & Private Sec. v. Bexar County Sheriff's Reserve, 589 S.W.2d 135 (Tex. Civ. App.-San Antonio 1979, no writ)
• Tex. Att'y Gen. Op. Nos. GA-0139 (2004), GA-0086 (2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0465
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0465.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

September 25, 2006

The Honorable Chris Taylor
Tom Green County Attorney
122 West Harris Avenue
San Angelo, Texas 76903

Opinion No. GA-0465

Re: Whether a county jailer who is a certified peace officer is required to obtain a commission from the Texas Commission on Private Security to work as a private security guard (RQ-0464-GA)

Dear Mr. Taylor:

You ask whether a county jailer who is a certified peace officer and who has been appointed as a deputy sheriff is exempt from the requirements of the Private Security Act.

While the job of jailer does not require certification as a peace officer, you inform us that some Tom Green County jailers have received peace officer certification from the Texas Commission on Law Enforcement Officer Standards and Education ("TCLEOSE"). Request Letter, supra note 1, at 3. When a jailer is also certified as a peace officer, it is the Tom Green County Sheriff's practice to appoint that person as a deputy sheriff. See id. You inform us that while such jailers may occasionally be asked to transport prisoners or patrol an area of the county outside the jail facility, a jailer's main duty is to guard the county jail. See id. at 4.

Some jailers may wish to also obtain private employment as a security guard. A private security guard position is governed by the Private Security Act which requires a private security guard who carries a firearm while on duty to hold a commission issued by the Texas Commission on Private Security. See TEX. OCC. CODE ANN. § 1702.161 (Vernon 2004). The Private Security Act contains an exemption for:

(1) a person who has full-time employment as a peace officer and who receives compensation for private employment on an individual or an independent contractor basis as a patrolman, guard, extra job coordinator, or watchman if the officer:

(A) is employed in an employee-employer relationship or employed on an individual contractual basis;

(B) is not in the employ of another peace officer;

(C) is not a reserve peace officer; and

(D) works as a peace officer on the average of at least 32 hours a week, is compensated by the state or a political subdivision of the state at least at the minimum wage, and is entitled to all employee benefits offered to a peace officer by the state or political subdivision;

Id. § 1702.322(1).

A county jailer and a deputy sheriff are statutorily distinct positions. The Local Government Code authorizes a sheriff to "employ a sufficient number of guards to ensure the safekeeping of prisoners and the security of a jail." TEX. LOC. GOV'T CODE ANN. § 85.005(a) (Vernon 1999). To be employed as a jailer, an individual must hold a jailer license issued by TCLEOSE. See TEX. OCC. CODE ANN. §§ 1701.301, .310 (Vernon 2004). A jailer must complete a different set of training courses and pass a different examination from those required to be a licensed peace officer. See 37 TEX. ADMIN. CODE §§ 217.1 (2006) (TCLEOSE, Minimum Standards for Initial Licensure), 221.5 (TCLEOSE, Jailer Proficiency). A "county jailer" is not included in the list of people who "are peace officers." TEX. CODE CRIM. PROC. ANN. art. 2.12(1) (Vernon Supp. 2006). In addition, the legislature demonstrated its intention that the term "peace officer" does not include a "jailer" by regularly referring to the two terms separately in statute. See, e.g., TEX. OCC. CODE ANN. § 1701.001 (Vernon 2004) (defining "peace officer" and "county jailer" separately); 1701.151 (referring to "officer, county jailer, or public security officer"), 1701.251 (referencing officer and jailer as distinct positions), 1701.301 (same), 1701.303 (same), 1701.306 (same), 1701.312 (same), 1701.352 (same); TEX. GOV'T CODE ANN. § 607.001 (Vernon Supp. 2006) (same). This view is confirmed by the Court of Criminal Appeals, which found that "the legislature's failure to designate jailers as peace officers as well as the distinctions the legislature made between jailers and peace officers in many pieces of legislation indicates the legislature's intent that jailers not be considered peace officers." Deltenre v. State, 808 S.W.2d 97, 102 (Tex. Crim. App. 1991).

In contrast, deputy sheriffs are peace officers and must hold a peace officer license issued by TCLEOSE. See TEX. CODE CRIM. PROC. ANN. art. 2.12(1) (Vernon Supp. 2006); TEX. OCC. CODE ANN. § 1701.301 (Vernon 2004). To obtain a peace officer license, an applicant must complete a training course, pass a licensing examination, undergo psychological and physical evaluations, and demonstrate weapons proficiency. See TEX. OCC. CODE ANN. §§ 1701.304, .306-.307 (Vernon 2004). In addition, a peace officer must meet continuing education requirements and demonstrate weapons proficiency at least annually. See id. §§ 1701.351 (Vernon Supp. 2006), 1701.355 (Vernon 2004).

While the positions of jailer and deputy sheriff are distinct in statute, they are not mutually exclusive--many counties employ one person in both positions. Yet the legislature has chosen to exempt only full-time peace officers from the requirements of the Private Security Act. See id. § 1702.322 (Vernon 2004) (exemption for full-time peace officers); cf. Garay v. State, 940 S.W.2d 211, 218 (Tex. App.-Houston [1st Dist.] 1997, writ ref'd) (upholding the application of the Act to part-time peace officers); Tex. Bd. of Private Investigators & Private Sec. v. Bexar County Sheriff's Reserve, 589 S.W.2d 135 (Tex. Civ. App.-San Antonio 1979, no writ) (upholding the application of the Act to reserve peace officers). Part-time peace officers and reserve peace officers who wish to carry a firearm in the course of a job as a private security officer must comply with training requirements and obtain a commission if they wish to carry a firearm in the course of a job as a private security officer. See TEX. OCC. CODE ANN. §§ 1702.161 (Vernon 2004) (security officer commission required), 1702.1675 (training requirements), 1702.322 (exemption for full-time peace officers). Thus, the pertinent question is whether a person who is both a county jailer and a deputy sheriff "has full-time employment as a peace officer." Id. § 1702.322(1) (emphasis added).

Section 1702.322(1)(D) provides guidance for how to determine what full-time employment as a peace officer entails, by requiring that the individual:

work[] as a peace officer on the average of at least 32 hours a week, is compensated by the state or a political subdivision of the state at least at the minimum wage, and is entitled to all employee benefits offered to a peace officer by the state or political subdivision[.]

Id. § 1702.322(1)(D). A person who works full-time as a jailer and is only nominally a deputy sheriff would not meet the requirement to work 32 hours a week as a peace officer and so would be subject to the Act. Another person might work full-time as a deputy sheriff while also serving as a jailer and would thus be exempt from the Act. Determining whether an individual meets the requirements of subsection (D) is necessarily fact-intensive: it depends upon the nature and terms of the individual's employment and how the employer views and treats the position.

Because your question depends on the factual nature of a particular individual's employment, we cannot determine whether certain Tom Green County employees are exempt from the Private Security Act. See, e.g., Tex. Att'y Gen. Op. No. GA-0139 (2004) at 3 (stating that the attorney general's office does not determine facts). Instead, we must leave the determination in the first instance to the employer, subject to judicial review. See Tex. Att'y Gen. Op. No. GA-0086 (2003); see also TEX. LOC. GOV'T CODE ANN. § 152.071 (Vernon 1999) (discussing classification and duties of sheriff's department employees).

SUMMARY

Whether a peace officer who is both a jailer and a deputy sheriff is "employed full-time as a peace officer," and thus exempt from the provisions of the Private Security Act by section 1702.322, Texas Occupations Code, is a question of fact that will vary with the nature of the employment.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter from Honorable Chris Taylor, Tom Green County Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Mar. 17, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].