Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
OF TEXAS
Mr. Fred Toler Opinion No. ``-878
Executive Director
Commission on Law Re: Whether the Texas Com-
Enforcement Officer mission on Law Enforcement
Standards and Education Officer Standards and Edu-
1606 Headway Circle, Suite 100 cation is authorized to
Austin, Texas 78754 accept license applica-
tions for public security
officers employed by the
Port of Houston (RQ-1322)
Dear Mr. Toler:
you ask whether the Commission on Law Enforcement
P
Officer Standards and Education may accept applications
submitted by the Port of Houston Authority (the Authority)
for licenses that would allow certain of the Authority's
employees to act as "public security officers" as defined
in article 4413(29aa), section 6(h), V.T.C.S.1 Because
the Authority has no power to employ "public security
officers," it has no authority to submit applications for
licenses for such individuals.
The Authority, formerly known as the Harris County -
Houston Ship Channel Navigation District, is a "navigation
district" organized pursuant to article XVI, section 59,
of the Texas Constitution. See aenerailv Attorney General
Opinion H-137 (1973) for a discussion of the origin and
evolution of the Authority in the law. The Authority is a
1. Article 4413(29aa) has been repealed and codified
in section 415 of the Government Code. Sections 6(c) and
6(h) of article 4413(29aa) were amended subsequent to the
general codification of article 4413(29aa). The
effectiveness of the amendments is not hindered by the
action of the same legislature in providing for repeal of
the statute precedent to its codification. Gov't Code
5311.031(c).
p. 4288
Mr. Fred Toler - Page 2 (JM-878)
political subdivision of the state. Guara&y Petroleum
Corworati n v. Armstronq, 609 S.W.2d 529, 530 (Tex. 1980);
Smith v. iarris Countv - Houston ShiD Channel Na iaation -
Pistrict, 330 S.W.2d 672 (Tex. Civ. App. - Ft. Wozh 1959
no writ). The Authority derives its powers from th;!
constitution and the statutes governing the discharge of
its duties. Attorney General Opinions Nos. JM-742 (1987);
JM-258 (1984); and M-171 (1967).
The Authority may exercise only those powers that are
expressly delegated to it or that are clearly implied from
such express powers. Tri-Citv Fresh ater Su~olv Di 1
Er of Harris Countv v. Mann, 142 SWW.2d 945 946"tGeEt
&Of: J,ower Nueces River Water Suvolv District v.
mrtwriaht 274 S.W.2d 199, 207 (Tex. Civ. App. - San
Antonio 1944 writ ref'd n.r.e.). Implied powers are
those that ake llindisnensable to the accomplishment of the
purpose" for which the political subdivision was created;
powers "merely convenient" or Vseful" cannot be implied
and may not be assumed by the subdivision. Tri-Citv
Freshwater SUDW~Y District No. 2 of Harris County, suvra,
at 947 (emphasis added).
In Attorney General Opinion No. ~JM-742 (1987) we -
considered whether the Authority may employ armed security
guards who are not commissioned peace officers as defined
in article 2.12 of the Code of Criminal Procedure, to
perform law enforcement duties on its property. We
concluded that the Authority is permitted to employ only
commissioned peace officers:
PIhe legislature specifies that law
enforcement activities on the authority's
property , and necessary to its functions,
are to be carried out by commissioned peace
officers, who are to act with all of the
authority of a commissioned peace officer,
such as a county sheriff or constable.
Attorney General Opinion No. JM-742 (1987). See also
Water Code 560.077.
We are aware that the legislature has created a new
class of potential licensees in the field of security ?
personnel. A l'public security officer" is "any person
employed or appointed as an armed security officer by the
state or by any political subdivision of the state," and
all "public security officers" must be licensed. The
provisions of article 4413(29aa) that apply to the -
p. 4289
Mr. Fred Toler - Page 3 (JX-878)
issuance or revocation of a license to a peace officer
also apply to the issuance or revocation of a license for
a public security officer. See ae?eraJJ,y Acts 1987, 70th
Leg., ch. 758, §§2 and 3, amendlna article 4413(29aa),
sections 6(c) and (h), V.T.C.S., to be codified in chapter
415 of the Government Code. The Commission has
established permanent standards for the licensing of
"public security officers" that are different, and less
stringent, than those applicable to commissioned peace
officers. See 37 T.A.C. 5211.102 and comoare 37 T.A.C.
5211.77.2
The statute requiring public security officers to be
licensed does not permit the Commission to act on the
applications for licenses submitted by the Port of Houston
Authority. Such would be the case if the Authority were
permitted to employ "public security officers" for law
enforcement purposes. The Authority is not permitted to
do so, and nothing in the recent legislation requiring the
licensing of public security officers grants to the
Authority the power to use other than commissioned peace
officers to enforce the law on its property. Because the
Authority has no power to employ public security guards
for law enforcement purposes, it has no power to submit
applications to the Commission for the licensing of such
personnel. Tri-Citv Freshwater Sunvlv District No. 2,
sunra.
SUMMARY
The Port of Houston Authority,
navigation district organized pursuant tt
article XVI, section 59, of the Texas
Constitution, has no authority to employ
public security officers for law enforcement
purposes. Rather, the legislature specifies
2. The legislation which amended article 4413(29aa) to
include a definition of "public security officer" and to
require such personnel to be licensed initially contained
language defining a "public security officer" as a "peace
officer." See H.B. 559, 70th Legislature as filed by
Representative Oakley. That language was removed prior to
final passage.
p. 4290
Mr. Fred Toler - Page 4 (JH-878)
that law enforcement activities on the
Authority's property, and necessary to its
functions are to be carried out by commis-
sioned peace officers. Water Code 560.077.
JIM MATTOX
Attorney General of Texas
MARYKELLJZR
First Assistant Attorney General
L.aJ MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General
p. 4291