Author: Athena Fleming, Owner/Vice President
Texas Marshal Protection Agency, LLC
This is probably the most common question anyone has when it comes to private security in Texas. Even a few of our own clients initially had no idea that our Security Officers could make arrests! That being said, it just made sense to write this article to help those that need any clarification on whether or not Security Officers in Texas can arrest or detain individuals. So, let’s get started!
Can Security Officers arrest? #
Absolutely! Security Officers are generally permitted to make lawful arrests for three things; felonies, offenses against the public peace, and to prevent the consequences of theft. There are two other instances where an arrest can be made under special conditions – read more on that below.
Felonies & Offenses Against The Public Peace #
Per Article 14.01(a) of the Texas Code of Criminal Procedure, “A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.”
This authority deals primarily with a citizen’s authority to arrest without a warrant. Further, “Offense against the public peace” or “breach of the peace” have been determined by case law to be those offenses found in Chapter 42 of the Texas Penal Code and include the offense of Driving While Intoxicated.
To Prevent The Consequences Of Theft #
Per Article 18.16 of the Texas Code of Criminal Procedure, “Any person has a right to prevent the consequences of theft by seizing any personal property that has been stolen and bringing it, with the person suspected of committing the theft, if that person can be taken, before a magistrate for examination, or delivering the property and the person suspected of committing the theft to a peace officer for that purpose…”
This statute authorizes the arrest of the suspected thief and seizure of the property by all persons, Peace Officers and citizens alike. It is not required that the offense occur in the presence or view of the person making the arrest, and does not restrict the offense to cases of straight theft. All that is required is reasonable grounds to believe that the property is stolen.
Out-Of-State Charges #
Per Section 14 of Article 51.13 of the Texas Code of Criminal Procedure, “The arrest of a person may be lawfully made also by any peace officer or private person, without a warrant upon reasonable information that the accused stands charged in the courts of a State with a crime punishable by death or imprisonment for a term exceeding one year…”
Texas, as well as other states, have adopted the Uniform Criminal Extradition Act. This authority to arrest is based on the provisions of that act. If a Peace Officer or any other person has reasonable information that a person has been charged in the courts of another state with a felony offense, a warrantless arrest can be made.
Bail Jumping & Failure To Appear #
Per Section 1702.3863 of the Texas Occupations Code, “A person commits an offense if the person contracts with or is employed by a bail bond surety as defined by Chapter 1704 to secure the appearance of a person who has violated Section 38.10, Penal Code, unless the person is: (1) a peace officer; (2) an individual licensed as a private investigator; or (3) a commissioned security officer employed by a licensed guard company.”
All things considered, Security Officers have no more authority to arrest than any other person in Texas; they are just trained and equipped to do so safely and effectively.
I also urge those Peace Officers that don’t consider a Security Officer’s arrest as a real arrest, to begin recognizing that a person has already been lawfully arrested if a Security Officer advises that he/she has effected an arrest under any arrest authority listed above. In this scenario, Peace Officers are only being called upon to fulfill the duties contained in Article 14.06 of the Texas Code of Criminal Procedure, since the arrest has already been made.
Can Security Officers detain? #
Yes, but there is only one instance in which a Security Officer can detain. Per Section 124.001 of Chapter 124 of the Texas Civil Practice and Remedies Code, “A person who reasonably believes that another has stolen or is attempting to steal property is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property.”
What's the difference between "arrest" and "detain"? #
So, exactly what is the difference between “arrest” and “detain”? This is a very important question, and since we’ve already discussed both arrests and detentions, you’re probably wondering what the answer is. Well, let’s turn to case law for some definitions.
An arrest is the taking of a person(s) into custody for purposes of charging them with a crime based on an officer’s establishment of probable cause (see U.S. v. Mendenhall, 446 U.S. 544 (1980)).
A detention is the temporary seizure of a person for investigation based on an officer’s reasonable suspicion of criminal activity (see Terry v. Ohio, 392 U.S. 1 (1968)).
As you can see, there is a HUGE difference between arresting and detaining, and using the wrong term in either case can cause many issues, both civilly and criminally, for the person effecting the arrest or detention, so it’s important to know the difference between the two. A key takeaway is that, generally, someone is only detained when the person effecting the detention is investigating whether or not a crime has been committed, with an arrest following once the person effecting the arrest has established probable cause to believe an arrestable offense has been committed. A person can also be arrested without having first been detained.
Something that some Security Officers do incorrectly is use the term “detained” when they have actually arrested a person. Maybe it’s because some Peace Officers ask why a Security Officer “detained” a person when responding to a call for service where an arrest has been made, but regardless, Security Officers should make it very clear that the person they arrested is under arrest.
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