Case Information
*1 The Attorney General of Texas March 26, 1984 JIM MATTOX
Attorney General
Supreme P. 0. Box 12548 512l475~2501 Austin. Telecopier Telex 9101874.1367 TX. 78711. Court Building 5121475.0266 [2548] Employees Retirement System of Texas Executive Director Austin. Texas P. 0. Box 13207 78711 Opinion No. 351-140 Re: Whether vhile working security enforcement guard officer as a private a state is entitled
to occupational disability benefits from the State 714 Jackson. Suite 700 Dallas. TX. 75202.4508 Texas 2141742.8944 Dear Mr. Garrison:
4824 Alberta 9151533.3484 El Paso. TX. 79905.2793 Ave.. Suite [160] received
You have provided an application us with for occupational following information. disability retirement You have
benefits from a law enforcement who has been employed by the f- 7131223-5886 ,-lous,on. 1001 Texas. Suite TX. 77002-3111 According Department “off-duty in early September of 1982. Two persons in plain to of Public the police clothes Safety offense as security” report, four in a grocery robbed years the officer the store and shot the eight months. was working Houston them. Your medical board has when he tried to apprehend
806 Broadway, Suite 312 determined the applicant Is now disabled as a result Lubbock. TX. 79401.3479 injury. Workers’ compensation benefits are being paid to the officer, 8061747.5238 with the grocery store designated as the employer. 4309 N. Tenth. Suite B You request our opinion on the following four questions: McAllen. TX. 78501.1685 5121682.4547 1. Is a commissioned considered even when being to be on duty at all times, 200 Main Plaza. Suite 400 compensated by another employer? San An,onio. TX. 78205-2797 5121225-4191 2. Was applicant
employment store or for the state at the time of his injury? A” Equal OpportunityI Affirmative Action Employer
3. Was the disabling Injury the applicant’s 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?
The relevant statutory language governing occupational disability retirement benefits is found in Title llOB, which sets forth powers and duties of the Public Retirement Systems. Section 24.207 of Title 1lOB provides following in pertinent part: annuity payable because an
(a) An occupational disability that directly results from a risk or hazard to which law enforcement or custodial officers are exposed because nature of law enforcement or custodial payable under iamemteris and conditions that apply to other occupational disability retirement annuities under this subtitle, except that source and amount of 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 disease that directly results from a specific act or occurrence determinable by a definite time and place, and directly results from an inherent or hazard peculiar to a duty that arises from and (Emphasis added).
Section 21.001(g) ~further provides
‘Law enforcement offfcer’ means a member of retirement system who has been commissioned as a law enforcement officer by the Department 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 enforcement officer by the Commission on Law Enforcement Officer Standards and Education. (Emphasis added).
An officer by the Department of Public Safety is a peace 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 proposition a commissioned is. unlike other employees, on duty at all times and is therefore obligated his authority whenever there is a breach the peace within his jurisdiction.
The Texas Court of Criminal Appeals has declared:
It is in this that a police the . officer's 'off duty' status a limitation not upon the discharge of police authority in 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 (Tex. Grim. App. 1958). Accordingly, we conclude that a commissioned peace officer is on duty all of the time insofar as he is obligated his authority whenever he observes a breach of the peace
You next ask whether injured was injured in of employment 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 course of official The determining factor appears to be whether the commissioned is acting furtherance is acting in a private and only incidentally to his official duties.
There is a line cases in which, under the given facts, was held to have acted In Jaanes rather than in furtherance 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 constable was not at time of his assault engaged 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 justice 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 party was discharging any official 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 the purpose of guarding and protecting other's property, and the test of liability for a *4 Mr. Clayton T. Garrison
tort emitted by such officer or employee seems to be in what he was acting at the time the act was done. One may be both a public peace and a private employee as watchman for an individual or corporation, at the same time, and it does not of course follow the official character of individual be any protection to an action against the employer his acts done the course and within scope of employment. The question is. ‘Whose servant was he? ’ And, further, ‘Uas the act complained of committed while he was acting within scope if a servant another?’ . . .
. . . . The material Inquiry is whether or not at the time of the killing he was an employee y within scope 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 officers are not concerned with the guarding of private property. Their pertain primarily the public -- arresting of offenders the suppression and prevention of crime, in a measure. The guarding of nrivate property is not function of a public official; and. when he is thus engaged, he stepped aside from his has (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 killing was not the decedent of his public duty. incident to a lawful arrest and not in self-defense. The court concluded that the officer was acting, then, as an employee 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. (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. 506 S.W.2d 275 (Tex. Civ. App. - Houston App. 1975); George v. State, [lst Dist.] 1974, no writ).
Another line of cases has held, under the facts given, that a peace officer was acting 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 the particular activity in which the peace officers were engaged when they were assaulted was in 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 by the grocery at time he was injured, he was nonetheless acting in furtherance duties -- specifically, the duty apprehend an armed robbery suspect. The moment that he observed a breach of the peace he was no longer acting capacity. At that moment, his conduct was no longer subject to the control of .manager store. Rather, it was dictated by his obligation as a peace officer to apprehend the suspect. Had the peace been coincidently in the grocery store as a customer, example, the duty to apprehend the suspect would clearly have devolved upon him. There is no question that, in such an instance, the peace would be acting within the scope of his employment 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 incidental to his public to apprehend suspects committing felonies.
Your third question asks whether risk the disability injury was peculiar to the applicant’s as the state trooper.
We conclude 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 to a duty that arises from and employment .I’ We are hard-pressed to think of a risk more inherent a hazard more peculiar to the duty imposed upon peace officers than or hazard of being injured or killed while furtherance of official Because a commissioned peace officer is obligated his authority anytime that he witnesses breach the peace it is manifest that he constantly runs the risk of being in the line of duty. We therefore answer your third question in the affirmative.
Your fourth question asks whether our answers to any of preceding questions be affected in any way if it were established that the grocery store hired only off-duty state police to Recause serve as security guards. We conclude they would not. the peculiar imposed upon peace officers to be “on duty” at all times, the fact that a peace officer was injured in furtherance his duties while being secondarily employed by a ptiv&te third party in no way affects the duty owed by peace offjcer 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 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 the peace which he observes In an instance in which commissloned peace officer is secondarily employed by a privat~e third, party and injured while duties, is considered to be injured while the course of his employment the state. The of being disabled through injury incurred while in the course of attempting to apprehend a suspected felon is a risk clearly to a officer's as a state trooper. Our conclusions no way be affected by the fact the private third party hires only “off-duty” troopers.
- JIM JIM MATTOX MATTOX Attorney General of Texas Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICUARDS
Executive Assistant Attorney General
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton