Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
March 26, 1984
JIM MATTOX
Attorney General
Supreme Court Building Mr. Clayton T. Garrison Opinion No. 351-140
P. 0. Box 12548 Executive Director
Austin. TX. 78711. 2548 Employees Retirement System of Texas Re: Whether a state law
512l475~2501 P. 0. Box 13207 enforcement officer injured
Telex 9101874.1367
Austin. Texas 78711 vhile working as a private
Telecopier 5121475.0266
security guard is entitled
to occupational disability
714 Jackson. Suite 700 benefits from the State of
Dallas. TX. 75202.4508
Texas
2141742.8944
Dear Mr. Garrison:
4824 Alberta Ave.. Suite 160
El Paso. TX. 79905.2793 You have provided us with the following information. You have
9151533.3484 received an application for occupational disability retirement
benefits from a law enforcement officer who has been employed by the
f-
1001 Texas. Suite 700
Department of Public Safety for four years and eight months.
,-lous,on. TX. 77002-3111 According to the police offense report, the officer was working
7131223-5886 “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
806 Broadway, Suite 312
Lubbock. TX. 79401.3479
determined that the applicant Is now disabled as a result of the
8061747.5238 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
You request our opinion on the following four questions:
5121682.4547
1. Is a commissioned peace officer considered
to be on duty at all times, even when being
200 Main Plaza. Suite 400
compensated by another employer?
San An,onio. TX. 78205-2797
5121225-4191
2. Was the applicant in the course of
employment for the grocery store or for the state
A” Equal OpportunityI at the time of his injury?
Affirmative Action Employer
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 of the peace within his
jurisdiction.
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 as a state
trooper. Our conclusions would in no way be
affected by the fact that the private third party
hires only “off-duty” state troopers.
-
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