Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
O::tober 26, 1984
JIM MATTOX
Attorney General
Supreme Coufl Building
P. 0. BOX 12549 Honorable Margaret :3oore Opinion No. JM-222
Austin. TX. 78711. 2549 Travis County Attorwy
512/475-2501 P. 0. Box 1748 RS: Whether article 4413(29bb)
Telex 9101874-1367
Austin, Texas 787 5’7 requires warned security per-
Telecopier 5121475026l3
sonnel who are employees of
individual retailers to register
714 Jackson. Suite 700 with the Texas Board of Private
Dallas. TX. 752024506. Investigators and Private Security
214/742~9944
Agents
4824 Alberta Ave., Suite 160 Dear Ms. Moore:
El Paso. TX. 79305.2793
91515333494 You ask whether article 4413(29bb). V.T.C.S., requires unarmed
security personnel who are employees of Individual retailers to
vW1 Texas, Suite 700
register with the Texas Board of Private Investj~gators and Private
Hous~c.~. TX. 77002.3111 Security Agents. It is our opinion that registration is not required
713,223-5886 for such unarmed sezurity personnel when they are employed exclusively
and regularly by or.e employer In connection with the affairs of only
that employer and rhe relationship of the retailer and the security
no6 Broadway. Suite 312
personnel is that of an employer and employee.
Lubbock. TX. 79401.3439
0061747~5238
Prior to the enactment of chapter 523, Sixty-eighth Legislature,
article 4413(29bb) required 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
5 ! 21682.4547
managers to register with the Board of Private Investigators and
Private Security Ag’ents. Section 32(a), as amended by Acts 1983,
Sixty-eighth Legislature. chapter 523, page 3047, now provides the
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,
An Equal Opportunityl alarm syr,tems installer, noncozmnissioned private
A,,irma,ive Action E~‘plovc- security officer, or private security consultant
must regis,ter with the board within 10 days after
the commewement of such employment.
“Noncommissioned pl:%vate security officer” is not defined but we
believe that unarmed security personnel are included in that category.
However, section 318,) of the act excludes numerous persons from -all
provisions of the a:~:. Section 3(a)(l) provides that:
P. 998
honorable Margaret hoore - Page 2 (JM-222)
(a) This Act does not apply to:
(1) a person employed exclusively and
regularly by one I:alployer in connection with the
affairs 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
the provisions of this Act.
Section 3(s) (1) has ,not been expressly repealed by the
legislature. Although it wss re-enacted by both chapter 654 and
chapter 969 of the Sixty-eighth Legislature, it has remained unchanged
in substance since the oriI:lnal enactment of article 4413(29bb) in
1969. It 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, repeal by
Implication is not favored or presumed and is supportable only when
the conflicting provisions 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.
Lee, 16 S.W.Zd 968 (Tex. C~V. App. - Dallas 1929, no writ). Since
repeal by implication is not 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, the c,urrent provisions of section 32(a) and
section 3(s)(l) of article 4413(29bb) are not sufficiently repugnant
to each other to invoke tha doctrine of implied repeal. Chapter 523
added three additional categories of individuals who are required to
register under section 32 (a), namely, alarm systems install~ers.
noncommissioned private security officers, and private security
consultants. Assuming that the added category of noncommissioned
private security officers includes the unarmed security personnel in
question and otherwise would require their registration, section
3(a)(l) applies to and exemI1t.s the limited group in that category that
are unarmed security personnel employed exclusively and regularly by
one employer in connection wl.th only that employer’s affairs, if their
relationship is that of an employer and employee. Any other unarmed
security personnel, such as those who are not employed exclusively or
regularly by one employer or who perform services on a contractual
basis instead of an employer-employee basis, are not exempt from
article 4413(29bb) by the exception provided by section 3(a)(l).
D. 999
Honorab1.e Margaret Moore - Page 3 (JM-222)
We conclude that thti! amendment to section 32(a) does not
impliedly repeal the longstanding exemption from the act provided by
section 3(a)(l) and that the provisions of both sections continue to
have effect and meaning. Wr? note that, if this construction does not
reflect the intent of the l&slature, that body may effect its intent
by means of a simple amendwnt to the statute.
SUMMARY
The exclusiou from the provisions of article
4413(25’bb) grante,l to certain persons by section
3(a)(l) of that act was not expressly or lmplledly
repealed by tt it: regular session of the
Sixty-eighth Legi:!I,ature. Therefore, registration
with the Texas Bos:rd of Private Investigators and
Private Security Agencies is not required for
unarmed security ?r?rsonnel employed by individual
retailers when they are employed exclusively and
regularly by one employer in connection with the
affairs of only that employer and the relationship
of the retailer and the security personnel 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