Case Information
*1 The Attorney General of Texas O::tober 26, 1984 JIM MATTOX
Attorney General
Supreme Coufl Building Honorable Margaret :3oore Opinion No. JM-222 P. 0. BOX 12549 Travis County Attorwy Austin. TX. 78711. 2549 512/475-2501 RS: Whether article P. 0. Box 1748 Telex 9101874-1367 Austin, Texas requires warned security per- 787 5’7 Telecopier 5121475026l3 sonnel who are employees
individual retailers register with the Texas Board of Private 714 Jackson. Suite 700 Dallas. TX. 752024506. Investigators and Private Security 214/742~9944 Agents 4824 Alberta Ave., Suite 160 El Paso. TX. 79305.2793
Dear Ms. Moore: You ask whether article 4413(29bb). V.T.C.S., requires unarmed personnel who are employees Individual with the Texas Board of Private Investj~gators and Private vW1 Texas, Suite 700 Security Agents. is our opinion that registration is not required Hous~c.~. TX. 77002.3111 for such unarmed sezurity personnel when they are employed exclusively 713,223-5886 by or.e employer In connection with the affairs employer and rhe relationship the retailer the security no6 Broadway. Suite 312 Lubbock. TX. 79401.3439 0061747~5238 Prior to the enactment of chapter 523, Sixty-eighth only employees of the licensees under that 4309 N. Ter,lh. Suite B act who were employ4sd as private investigators, managers. or branch McAllen. TX. 7S501-1685 managers to register with the Board of Private 5 ! 21682.4547 Ag’ents. 32(a), as amended by Acts 1983, Legislature. 523, page 3047, now provides 200 Main Plaza. Suite 400 folloving: ssn Anlonio. TX. 18205.2797 512l2254191 (a) Al individual who is employed as a private
investigator, manager, branch off ice manager, alarm syr,tems installer, noncozmnissioned An Equal Opportunityl A,,irma,ive Action E~‘plovc- officer, or private consultant
must regis,ter with the board within 10 days after the commewement of such employment.
“Noncommissioned pl:%vate officer” is not defined but we believe that unarmed security are included in that category. However, 318,) of the act excludes numerous persons from all - of the a:~:. Section 3(a)(l) provides that: P. 998
honorable Margaret hoore
(a) This Act does not apply to: person employed exclusively (1) a regularly by one I:alployer of an empl,oyer only and where there exists an employer-empl,J:ree relationship; provided, however, any perscsn, who shall carry a firearm in the course of his employment shall be required to obtain a private saN:urity officer commission under of this Act. 3(s) (1) has ,not been expressly by Although it wss re-enacted by both 654 and legislature. chapter 969 of the Sixty-eighth it has remained unchanged in substance since the oriI:lnal enactment of article 4413(29bb) in 1969. is well established that a provision which is not expressly repealed may be repealed by i!nplication to the extent of a conflict by a subsequent enactment that clearly conflicts in such a manner that both cannot be enforced. See Cillam v. Matthews, 122 S.W.2d 348 (Tex.
Civ. App. - Fort Worth 7538, writ dism’d). Rowever, Implication is not favored or presumed and is supportable only when the conflicting are so repugnant that both cannot stand.
See Dendy v. Wilson, 179 S.II.2d 269 (Tex. 1944); Townsend v. Terrell, 16S.W.2d 1063 (Tex. Comm’n App. 1929. opinion adopted); Hunnicutt v. 16 S.W.Zd 968 (Tex. C~V. App. - Dallas 1929, no writ). Since
Lee, repeal by implication favored, old and new statutes that are not positively repugnant wil:l each be construed so as to give effect to both, if possible. See Cole v. State, 170 S.W. 1036 (Tex. 1914); Bank of Texas v. ChilK;?15 S.W.2d 810 (Tex. Civ. App. - Dallas 1981). rehearing denied, 634 S.W.Zd 2 (Tex. Civ. App. - Dallas 1982).
rev’d on other grounds, 103 S. Ct. 3369 (1983). reh’g denied, 104 S. ct. 39 (1983).
In our opinion, c,urrent provisions section section 3(s)(l) are not sufficiently repugnant to each other invoke tha doctrine implied repeal. Chapter 523 added three additional categories individuals who are required under 32 (a), namely, alarm systems install~ers. noncommissioned private officers, and private consultants. Assuming that the added category of noncommissioned officers includes the unarmed security in question and otherwise would require their registration, applies to and exemI1t.s the limited group in that category are unarmed security employed exclusively
one employer in connection wl.th only that employer’s affairs, if their relationship Any other unarmed personnel, such as those who are not employed exclusively or or who perform services on a contractual basis instead of an employer-employee basis, are not exempt by the exception provided by section 3(a)(l).
D.
Honorab1.e Margaret Moore
We conclude thti! amendment does not impliedly longstanding exemption from the act provided 3(a)(l) and that the provisions of both sections continue have effect and meaning. Wr? note that, if this construction does not that body may effect its intent reflect the intent of the l&slature, by means of a simple amendwnt to the statute.
SUMMARY
The exclusiou 4413(25’bb) grante,l to certain persons by section of that act was not expressly or lmplledly tt it: regular session Legi:!I,ature. Therefore, registration with the Texas Bos:rd of Private Agencies for
unarmed security ?r?rsonnel employed by individual when they are employed exclusively that employer and the relationship of the retailer and the security is that of an employer ant: employee.
Attorney General of Texas TOM GREEN
First Assistant Attorney Ger.eral
DAVID R. RICHARDS
Executive Assistant Attorne), General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED :
@PINION COMKITTEE
Rick Gilpin, Chairman
Susan Garrison
Jjm Moellinger
Nancy Sutton
Bruce Youngblood
n 1 nnn