by Colin Ellison, Smith Protective Services
January 2004
Directives issued by property management should be carefully screened for legal terminology and the interpretation of this terminology by both the client and security provider. As a state licensed security course academics instructor, I also must be very specific on term explanation when it pertains to power and authority. Written officer post operating instructions must state duties and responsibilities very clearly when dealing with legal matters. Property managers should always request a written copy of these instructions for their files, and assure that the security provider cannot make revisions without first submitting them in advance to the client for review and approval.
Article 14.01(a) of the Texas Code of Criminal Procedures establishes the power and authority of a security officer. All security officers in Texas, whether hired as in-house (client’s own personnel on payroll) or contracted must be registered and licensed by the state. Security officers do have the power of arrest in Texas. Unlike law enforcement officers who have exclusive power, a security officer may lawfully arrest only under the following conditions: (1) the offense committed was within their view, (2) the offense is classed as a felony under the Texas Penal Code, (3) the offense is a breach of public peace, and (4) the action by the officers was to prevent the "consequences" of theft. There are no exceptions.
Security officers may "stop and question" individuals on the property they are hired to protect. Here is the smoking gun; if this procedure is not properly handled it is a violation of not only state but also federal statutes. The definitions of arrest, detain and apprehend are synonymous. The word "detain" is all too frequently used in security officer directives by clients and security providers alike. At no time may a security officer stop an individual’s freedom of movement against their will, unless they are prepared to arrest the person. Criminal trespass is a violation of law, but it is a misdemeanor, not a felony. Security personnel must request police support in the removal of a subject from private property, unless the subject freely submits to leaving the property of their own accord. Under Texas statutes, an individual is not required to show a positive form of identification. Be very careful not to confuse or integrate rules of employment with criminal statutes. You can not “unarrest” a person once you have detained them unwillingly. Carefully discuss the duties that you desire of officers on your properties with your security provider before implementing any procedure or directive. Should the provider not be cognizant of the law, you are now looking directly at the second smoking gun.
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