Attorney General Opinion JM-0878

THE ATTORNEY GENERAL OF TEXAS P 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 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 Article 4413(29aa) has been repealed and codified in section 415 of the Government Code.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. v. iarris Armstronq, 609 S.W.2d 529, 530 (Tex. 1980); Smith Countv - Houston ShiD Channel Na iaation - Pistri ct, 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: of Harris Countv v. Mann, 142 SWW.2d 945 946"tGeEt J,ower Nueces River Water Suvolv District v. mrtwriaht Antonio 1944 274 S.W.2d 199, 207 (Tex. Civ. App. - San writ ref'd n.r.e.). those that ake llindisnensable Implied powers are 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. Leg., ch. See ae?eraJJ,y Acts 1987, 70th 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. Representative Oakley. 559, 70th Legislature as filed by 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