Non-LEO CHL to escort county employees

[Texian]

On duty LE should not be used to provide the escort.

I think the resident is committing a Class A Misdemeanor (operating as a security company without a license) and UCW, another misdemeanor. (the armed security officer must be in uniform with the weapon in plain view. There are several other laws and rules being broken.

Here is a recent opinoin regarding providing a regulated service with no compensation, from The Texas DPS Private Security Board

Church Volunteer Security Patrol May, 2007
A volunteer security patrol made up of church members would generally require licensing under the provisions of Section 1702.108 or 1702.222, regardless of whether any compensation is received as a result of the activities. The only exception to licensing provided by the legislature for nonprofit and civic organizations is found in Section 1702.327, which applies specifically to nonprofit and civic organizations that employ peace officers under certain circumstances and would not be applicable here.
However, there is one exception to licensing under Chapter 1702 provided by the legislature that could arguably apply, which can be found in section 1702.323 (“Security Department of Private Business�). This exception would allow volunteers to provide security services exclusively for one church, as long as they do not carry firearms and as long as they do not wear “a uniform with any type of badge commonly associated with security personnel or law enforcement or a patch or apparel with ‘security’ on the patch or apparel.� See TEX. OCC. CODE §1702.323(a) & (d)(2). Thus, the wearing of a uniform or any apparel containing the word “security� would subject them to the licensing requirements of the act.

(emphasis added: large print text)

IANAL, but just examining the language here raises some questions. My understanding of the law is that the only "opinions" that count are the opinions of the attorney general and those established through case law.

The laws are rife with ambiguity and uncertainty but consider what the quoted material from the DPS does not say:

It does not say that this an official legal opinion from either the AG or the courts.

It does not say anything about concealed handgun licensees when the "may not carry a gun" wording was used. (It is, of course, illegal for someone who is not a LEO, nor licensed by the Texas Private Security Bureau, or is a CHL holder, to carry on or about their person, whether concealed or not.)

The part about the uniform and patches is correct and as I understand the news item, since no uniforms or other security identification is being worn, and no compensation is being provided, there is no requirement for licensing.

[txinvestigator]

On duty LE should not be used to provide the escort.

I think the resident is committing a Class A Misdemeanor (operating as a security company without a license) and UCW, another misdemeanor. (the armed security officer must be in uniform with the weapon in plain view. There are several other laws and rules being broken.

Here is a recent opinoin regarding providing a regulated service with no compensation, from The Texas DPS Private Security Board

Church Volunteer Security Patrol May, 2007
A volunteer security patrol made up of church members would generally require licensing under the provisions of Section 1702.108 or 1702.222, regardless of whether any compensation is received as a result of the activities. The only exception to licensing provided by the legislature for nonprofit and civic organizations is found in Section 1702.327, which applies specifically to nonprofit and civic organizations that employ peace officers under certain circumstances and would not be applicable here.
However, there is one exception to licensing under Chapter 1702 provided by the legislature that could arguably apply, which can be found in section 1702.323 (“Security Department of Private Business�). This exception would allow volunteers to provide security services exclusively for one church, as long as they do not carry firearms and as long as they do not wear “a uniform with any type of badge commonly associated with security personnel or law enforcement or a patch or apparel with ‘security’ on the patch or apparel.� See TEX. OCC. CODE §1702.323(a) & (d)(2). Thus, the wearing of a uniform or any apparel containing the word “security� would subject them to the licensing requirements of the act.

(emphasis added: large print text)

IANAL, but just examining the language here raises some questions. My understanding of the law is that the only "opinions" that count are the opinions of the attorney general and those established through case law.

The laws are rife with ambiguity and uncertainty but consider what the quoted material from the DPS does not say:

It does not say that this an official legal opinion from either the AG or the courts.

It does not say anything about concealed handgun licensees when the "may not carry a gun" wording was used. (It is, of course, illegal for someone who is not a LEO, nor licensed by the Texas Private Security Bureau, or is a CHL holder, to carry on or about their person, whether concealed or not.)

The part about the uniform and patches is correct and as I understand the news item, since no uniforms or other security identification is being worn, and no compensation is being provided, there is no requirement for licensing.

That is wrong. I have already shown that compensation does not matter.

I am a PSB licensed manager, meaning I qualified under experience and have passed a licensing exam administered by the PSB in Austin.

A person acting as a guard cannot carry a firearm, even under a CHL, while providing licensed services unless the person is commissioned, carrying a firearm of the category listed on the pocket card issued by the board, and they are wearing a distinctive uniform.

A person providing an armed escort for the Tax office who is not an employee of the Tax Office is clearly violating the licensing requirement of 1702 of the Texas Occupations Code. The person does not have to receive compensation to require licensing. The code never mentions compensation, consideration or remuneration.

Since the person IS acting as a Guard or Armored car company without a license, they are subject to a Class A misdemeanor. DPS can, has and will file criminal charges against those who violate the licensing requirement.

Since he is carrying a firearm, he would also be guilty of UCW, as the Occupations Code requires licensed persons performing guard or armored services to be commissioned.

[numist]

The whole issue here is the word "security". You can't use that word or perform duties that would make a reasonable person believe that you are security or LEO or similar creature. "If it walks like a duck..."

[txinvestigator]

The private security companies have good lobbiest . They probably don't like it much when someone does their work for free. Its not all that unusual, you can get in trouble for fixing someones airconditioner for free if you don't have the right license. Its the folks that have the licenses that right typically write the rules.

We oppose UNLICENSED people doing the work. I have to carry minimum amounts of liability insurance just to be licensed. I have to pay a fee to the state every year. I have to have specific training, and receive continuing education every 2 years. I have to qualify under more strict eligibility than CHLers. By being licensed and performing services that require a license, I have a whole set of rules, laws and conduct code I have to adhere to.

I don't care if Joe Schmoe does it for free, but he needs to obey the law and get himself a license. BTW, it is illegal to accept services from an unlicensed person too. ;)

[txinvestigator]

The whole issue here is the word "security". You can't use that word or perform duties that would make a reasonable person believe that you are security or LEO or similar creature. "If it walks like a duck..."

True. Also, regardless of what a reasonable person would believe, 1702 of the occupations code lists specific services that require licensing, regardless of whether a reasonable person would believe that the service is security related or not.

[GrillKing]

I agree escorting the Tax man looks like a licensed service and shouldn't be done.

I can't gather from the thread whether unarmed 'security' at the church is considered a licensed service. I don't see how if the intent is while unarmed to merely to look out for the property and people and call LE if needed. Heck, our own PD has a citizens on patrol, and the local PD hasn't yet arrested any of their own sponsered citizens on patrol (in a marked city vehicle even) for performing licensed services w/o a license. Is it the addition of the CHL and carrying that causes the issue?

[GrillKing]

I can't gather from the thread whether unarmed 'security' at the church is considered a licensed service. I don't see how if the intent is while unarmed to merely to look out for the property and people and call LE if needed. Heck, our own PD has a citizens on patrol, and the local PD hasn't yet arrested any of their own sponsered citizens on patrol (in a marked city vehicle even) for performing licensed services w/o a license. Is it the addition of the CHL and carrying that causes the issue?

Looking at the code references TXI gave indicates that unarmed is a violation. Strictly interpreting the statute, watching my friends house for them while they are on vacation is also a violation as I am providing a licensed service. Please tell me this isn't so!!! A courtesy parking lot patrol at church or watching a friends house shouldn't be a criminal violation IMHO. BTW, our church hires 2 LEOs for traffic, Nursery security and guarding the counting of the offering.

TXI, am I reading this wrong. Thanks.

[Mike1951]

Let's look at another situation.

Decades before legal CHL, one of the 'unofficial' justifications for carrying a handgun was the businessman who transported receipts to the bank. It wasn't unheard of for a local judge or chief of police to write out an 'authorization' for Joe Blow to carry a handgun. It had no standing, but might keep Joe from getting arrested by the local police.

The point is, take someone whose job requires them to carry assets. Now they are in violation because they happen to have a CHL, which they got to protect themselves in just this situation.

[Xander]

No, its not OK. It is clear that being paid is not a requirement to be performing a service requiring registration with the Board. One of the services that require registration is to "engage in the business of or undertakes to provide a private watchman, guard, or street patrol service
on a contractual basis for another person to protect an individual from bodily harm".

Contractual means on-going or one time, and does not require the contract to be written.

The decision by the board I posted makes it clear that a written contract or compensation is irrelevant.

Not according to the contract law that I learned. Without consideration, (payment) you don't have a valid contract, so regardless of the board's opinion on the matter, I can't see how he falls under the OCC's definition. Yes, I understand their concern in the same way I understand that you wouldn't want an untrained electrician working on your house, but I haven't seen anything in the code that I would understand to make what he's doing illegal.

[Xander]

A person providing an armed escort for the Tax office who is not an employee of the Tax Office is clearly violating the licensing requirement of 1702 of the Texas Occupations Code. The person does not have to receive compensation to require licensing. The code never mentions compensation, consideration or remuneration.

The code does mention being an employee or contractor repeatedly however, and since it's illegal under federal labor law to be an uncompensated employee, then compensation is implied.

[srothstein]

Sorry, Xander, but it is not illegal to be an uncompensated employee, and there are many. Every volunteer firefighter and reserve police officer is an uncompensated employee and is governed by the laws applying to employee relations. If you can find the law about uncompensated employees, i would love to be corrected.

I believe that TXI has correctly analyzed the situation and the CHL escorting the tax collector is committing several crimes. There is an old saying in law enforcement (and many other fields) that no good deed goes unpunished. I can see that happening here. He is trying to be helpful but is committing crimes to do so.

On the church lot, I see no reason members of the church cannot volunteer to patrol the parking lot in plainclothes. I do not see a problem with a CHL carrying while they do it. This would be nothing more than a neighborhood watch program, similar to what the police set up all of the time. I can see a difference if the patrol member has no tie to the church.

But, I do not see any reason why the escort was not performed by either the Sheriff's or Constable's office. Many LE agencies provide voluntary escorts, especially in small towns. I did it occasionally with San Antonio and quite often in Luling. And, the county would have been protecting its own property at that time. I can see the Freindswood PD saying it was not their job, but I really do not have an objection to the police doing it.

[Photoman]

Another example of crazy Texas law. After hanging out here for a few years, I'm coming to the conclusion that you can't blow your own nose without breaking half a dozen Texas laws.

[Xander]

Sorry, Xander, but it is not illegal to be an uncompensated employee, and there are many. Every volunteer firefighter and reserve police officer is an uncompensated employee and is governed by the laws applying to employee relations. If you can find the law about uncompensated employees, i would love to be corrected.

As I understand it, that is not technically the case. Those individuals would be classified for legal purposes as "volunteers" not "employees"

I did a quick search for documentation and here's one of the relevant results that I found describing the constraints that must be met for an individual to be classified as a volunteer.

"Volunteers" are individuals who "without promise or expectation of compensation, but solely for their own personal purpose or pleasure, work in activities carried on by other persons either for their pleasure or profit." Walling v. Portland Terminal Co., 330 U.S. 148 (1947). In order to be classified properly as a volunteer, the following requirements must be met: (1) the individual must not be characterized unilaterally by the entity as a volunteer in order to avoid minimum wage or overtime obligations; (2) the individual must serve as a volunteer for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation, although expenses, reasonable benefits, or a nominal fee may be provided; (3) the individual must offer his services freely and without coercion, direct or implied, from the entity; and (4) the individual must not be otherwise employed by the same entity to provide the same services for which he volunteers.

http://www.ballardspahr.com/press/article.asp?ID=1315

Further down in that same article there's an interesting case where the Department of Labor issues an opinion on one of the groups you specifically mentioned, reserve police officers and whether a situation the county in question was in would trigger a conversion of their status from volunteers to employees.

[numist]

This thing is getting muddied up pretty good here. Let's look at things from a new angle.
Widget Manufacturing employees people to work there in the process of manufacturing widgets. If one of those employees walks out to the parking lot for a smoke and witnesses someone hop the fence, bash a window of a car and crawl in he calls 911. The employee hasn't run to the car, hasn't produced a weapon, just called the cops. Has he performed the services of a security officer?
Now, same company hires a person to specifically watch the parking lot for just such activity. He sees the the same thing and heads toward the lot to confront the bad actor.
Since the first guy was not hired to protect anything or perform any functions that would normally require registration or license I wouldn't believe that he has broken any laws in calling 911. He just happened to witness criminal activity and being the good citizen he is, reports it.
The second scenario is a little more involved sinced the person was hired to perform a specific function that would require registration/license even though no mention of security was made. He and Widget Manufacturing could both be in violation.

[stevie_d_64]

The constable's office declined to provide protection for this employee.

The tax collector then asked the city manager of Friendswood to provide a police escort. He also declined.

So a Friendswood city councilman and "and a resident with a concealed handgun permit agreed to escort the county employees for the Friday deposit, ..."

This is actually very simple to figure out...

#1 a person carrying under the CHL provisions are not doing so in any capacity, or can act under any authority that a certified law enforcement officer in this state act under...Nuf Said!

#2 The tax office, if they are that concerned about security of cash monies being transported to a bank at the end of the day...Then they need to budget for a certified "armed" escort, or have a Brinks organization come by and pick up those monies and let them do it...

Pretty simple and if Friendswood hasn't thought about that, or the County for that matter, then I believe they will soon solve this issue by one of those ways...

I find it hard to believe that this will go on for very long without the proper solution being applied here...

CHL's are not law enforcement, at all!!!

If you are a Law Enforcement officer who also has a CHL...Well then you guys know the score and the parameters you operate under...

Nuf Said...