By: Carona S.B. No. 1245

(In the Senate - Filed March 2, 2009; March 17, 2009, read first time and referred to Committee on Business and Commerce; April 23, 2009, reported favorably by the following vote: Yeas 6, Nays 0; April 23, 2009, sent to printer.)

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of the business of private security.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 1702.002, Occupations Code, is amended by amending Subdivision (1-a) and adding Subdivisions (16-a) and (20-a) to read as follows:

(1-a) For purposes of Subdivision (1), the term "alarm system" does not include a telephone entry system, an operator for opening or closing a residential or commercial gate or door, or an accessory used only to activate a gate or door, if the system, operator, or accessory is not connected to a computer or data processor that records or archives the voice, visual image, or identifying information of the user [an alarm system].

(16-a) "Personal protection officer" means a person who performs the activities described by Section 1702.202.

(20-a) "Security officer" means a person who performs the activities described by Section 1702.222.

SECTION 2. Section 1702.047, Occupations Code, is amended to read as follows:

Sec. 1702.047. ADMINISTRATIVE STAFF. The department shall designate a department employee who shall report directly to the board. The employee designated under this section shall provide administrative assistance to [assist] the board in the performance [administration] of the board's duties. [The salary for an employee designated under this section may not exceed the salary specified in the General Appropriations Act for an employee subject to salary group A10.]

SECTION 3. Subsection (e), Section 1702.082, Occupations Code, is amended to read as follows:

(e) On written request, the department [The commission, at least quarterly until final disposition of the complaint,] shall inform [notify] the person filing the complaint and each person who is a subject of the complaint of the status of the investigation unless the information [notice] would jeopardize an ongoing [undercover] investigation.

SECTION 4. Subchapter A, Chapter 1702, Occupations Code, is amended by adding Section 1702.006 to read as follows:

Sec. 1702.006. FOREIGN ENTITY REGISTRATION. Licensure under this chapter does not exempt a foreign entity from the registration requirements of Chapter 9, Business Organizations Code.

SECTION 5. Subsection (a), Section 1702.1056, Occupations Code, is amended to read as follows:

(a) A person acts as a locksmith company for the purposes of this chapter if the person:

(1) sells, installs, services, or maintains, or offers to sell, install, service, or maintain, mechanical security devices, including deadbolts and locks;

(2) advertises services offered by the company using the term "locksmith"; or

(3) includes the term "locksmith" in the company's name.

SECTION 6. Section 1702.110, Occupations Code, is amended to read as follows:

Sec. 1702.110. APPLICATION FOR LICENSE. (a) An application for a license under this chapter must be in the form prescribed by the board [commission] and include:

(1) the full name and business address of the applicant;

(2) the name under which the applicant intends to do business;

(3) a statement as to the general nature of the business in which the applicant intends to engage;

(4) a statement as to the classification for which the applicant requests qualification;

(5) if the applicant is an entity other than an individual, the full name and residence address of each partner, officer who oversees the security-related aspects of the business, and director of the applicant, and of the applicant's manager;

(6) if the applicant is an individual, two classifiable sets of fingerprints of the applicant or, if the applicant is an entity other than an individual, of each officer who oversees the security-related aspects of the business and of each partner or shareholder who owns at least a 25 percent interest in the applicant;

(7) a verified statement of the applicant's experience qualifications in the particular classification in which the applicant is applying;

(8) a report from the department [Texas Department of Public Safety] stating the applicant's record of any convictions for a Class B misdemeanor or equivalent offense or a greater offense;

(9) the social security number of the individual making the application; and

(10) other information, evidence, statements, or documents required by the board [commission].

(b) An applicant for a license as a security services contractor shall maintain a physical address within this state and provide that address to the board. The board shall adopt rules to enable an out-of-state license holder to comply with this subsection.

SECTION 7. Section 1702.112, Occupations Code, is amended to read as follows:

Sec. 1702.112. FORM OF LICENSE. The board [commission] shall prescribe the form of a license, including a branch office license. The license must include:

(1) the name of the license holder;

(2) the name under which the license holder is to operate; [and]

(3) the license number and the date the license was issued; and

(4) a photograph of the license holder, affixed to the license at the time the license is issued by the board.

SECTION 8. Section 1702.121, Occupations Code, is amended to read as follows:

Sec. 1702.121. TERMINATION OF MANAGER. (a) A license holder shall notify the board [commission] in writing not later than the 14th day after the date a manager ceases to be manager of the license holder's business. The license remains in effect for a reasonable period after notice is given as provided by board [commission] rule pending the board's [commission's] determination of the qualification of another manager under this subchapter.

(b) A manager shall be immediately terminated on the effective date of any summary action taken against the manager. Any period of temporary operation authorized under this section or Section 1702.122 starts on the date of termination.

SECTION 9. Section 1702.127, Occupations Code, is amended by amending Subsections (b) and (c) and adding Subsection (d) to read as follows:

(b) A license holder shall maintain a record containing information related to the license holder's employees as required by the board [commission].

(c) A license holder shall maintain for [commission] inspection by the department at the license holder's principal place of business or branch office two recent color photographs, of a type required by the board [commission], of each applicant, registrant, commissioned security officer, and employee of the license holder.

(d) A license holder shall maintain records required under this chapter at a physical address within this state and provide that address to the board.

SECTION 10. Section 1702.163, Occupations Code, is amended by adding Subsection (d-1) to read as follows:

(d-1) For the purposes of determining eligibility under Subsection (b)(2), the department may require the applicant to authorize the release to the department of any relevant medical records.

SECTION 11. Section 1702.201, Occupations Code, is amended to read as follows:

Sec. 1702.201. PERSONAL PROTECTION OFFICER AUTHORIZATION REQUIRED. An individual [A commissioned security officer] may not act as a personal protection officer unless the individual [officer] holds a personal protection officer authorization.

SECTION 12. Section 1702.202, Occupations Code, is amended to read as follows:

Sec. 1702.202. PERSONAL PROTECTION OFFICER. An individual acts as a personal protection officer if the individual, while carrying a firearm,[:

[(1) has been issued a security officer commission to carry a concealed firearm; and

[(2)] provides to another [an] individual personal protection from bodily harm.

SECTION 13. Section 1702.206, Occupations Code, is amended to read as follows:

Sec. 1702.206. LIMITED AUTHORITY TO CARRY [CONCEALED] FIREARMS. (a) An individual acting as a personal protection officer may not carry a [concealed] firearm unless the officer:

(1) is either:

(A) engaged in the exclusive performance of the officer's duties as a personal protection officer for the employer under whom the officer's personal protection officer authorization is issued; or

(B) traveling to or from the officer's place of assignment; and

(2) carries the officer's security officer commission and personal protection officer authorization on the officer's person while performing the officer's duties or traveling as described by Subdivision (1) and presents the commission and authorization on request.

(b) An individual who is acting as a personal protection officer and is wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), may not conceal any firearm the individual is carrying and shall carry the firearm in plain view. An individual who is acting as a personal protection officer and is not wearing the uniform of a security officer shall conceal the firearm.

SECTION 14. Subsection (a), Section 1702.221, Occupations Code, is amended to read as follows:

(a) An individual must register in accordance with the requirements of this chapter and related administrative rules if the individual:

(1) is employed as an alarm systems installer, alarm systems monitor, electronic access control device installer, locksmith, dog trainer, manager or branch office manager, noncommissioned security officer, private investigator, private security consultant, or security salesperson; or

(2) is an owner, officer who oversees the security-related aspects of the business, partner, or shareholder of a license holder.

SECTION 15. Section 1702.230, Occupations Code, is amended by amending Subsection (b) and adding Subsection (c) to read as follows:

(b) The employer of the applicant shall make a reasonable attempt to verify the information required under Subsection (a)(1) before the earlier of:

(1) the date the application is submitted; or

(2) the date the applicant begins to perform the duties of employment that require registration.

(c) An applicant must submit an application that substantially meets the requirements of this section before employment in a capacity for which registration is required.

SECTION 16. Subsection (c), Section 1702.232, Occupations Code, is amended to read as follows:

(c) The pocket card must:

(1) state the name of the registrant;

(2) contain a color photograph, affixed to the pocket card by the board at the time the card is issued, and the signature of the registrant; and

(3) state the date the card was issued and the card's expiration date.

SECTION 17. Subsection (a), Section 1702.282, Occupations Code, is amended to read as follows:

(a) The board shall conduct a criminal history check, including a check of any criminal history record information maintained by the Federal Bureau of Investigation, in the manner provided by Subchapter F, Chapter 411, Government Code, on each applicant for a license, registration, security officer commission, letter of approval, permit, or certification. As part of its criminal history check, the board may request that the applicant provide certified copies of relevant court documents or other records. The failure to provide the requested records within a reasonable time as determined by the board may result in the application being considered incomplete. An applicant is not eligible for a license, registration, commission, letter of approval, permit, or certification if the check reveals that the applicant has committed an act that constitutes grounds for the denial of the license, registration, commission, letter of approval, permit, or certification. Except as provided by Subsection (d), each applicant shall include in the application two complete sets of fingerprints on forms prescribed by the board accompanied by the fee set by the board.

SECTION 18. Section 1702.286, Occupations Code, as added by Chapter 1102 (H.B. 2243), Acts of the 79th Legislature, Regular Session, 2005, is renumbered as Section 1702.2865, Occupations Code, to read as follows:

Sec. 1702.2865 [1702.286]. CUSTOMER AUTHORIZATION REQUIRED FOR CERTAIN LOCKSMITH SERVICES. (a) A locksmith company or locksmith may not perform services for a customer who seeks entry to a structure, motor vehicle, or other property unless the customer, in the course of the transaction:

(1) shows the locksmith company or locksmith a government-issued identification; and

(2) provides a signed authorization stating that the customer owns or is otherwise entitled to legal access to the structure, motor vehicle, or other property.

(b) A locksmith company or locksmith is exempt from Subsection (a) if the locksmith is requested to perform services in a case of imminent threat to a person or property.

SECTION 19. Section 1702.322, Occupations Code, is amended to read as follows:

Sec. 1702.322. LAW ENFORCEMENT PERSONNEL. This chapter does not apply to:

(1) a person who has full-time employment as a peace officer and who receives compensation for private employment on an individual or an independent contractor basis as a patrolman, guard, extra job coordinator, or watchman if the officer:

(A) is employed in an employee-employer relationship or employed on an individual contractual basis directly by the recipient of the services;

(B) is not in the employ of another peace officer;

(C) is not a reserve peace officer; and

(D) works as a peace officer on the average of at least 32 hours a week, is compensated by the state or a political subdivision of the state at least at the minimum wage, and is entitled to all employee benefits offered to a peace officer by the state or political subdivision;

(2) a reserve peace officer while the reserve officer is performing guard, patrolman, or watchman duties for a county and is being compensated solely by that county;

(3) a peace officer acting in an official capacity in responding to a burglar alarm or detection device; or

(4) a person engaged in the business of electronic monitoring of an individual as a condition of that individual's community supervision, parole, mandatory supervision, or release on bail, if the person does not perform any other service that requires a license under this chapter.

SECTION 20. Subsection (a), Section 1702.361, Occupations Code, is amended to read as follows:

(a) The [Subject to the board's final order under the hearing provisions of this subchapter, the] department, for conduct described by Subsection (b), may:

(1) deny an application or revoke, suspend, or refuse to renew a license, registration, or security officer commission;

(2) reprimand a license holder, registrant, or commissioned security officer; or

(3) place on probation a person whose license, registration, or security officer commission has been suspended.

SECTION 21. Section 1702.367, Occupations Code, is amended by amending Subsection (a) and adding Subsections (f) and (g) to read as follows:

(a) For an investigation conducted under this chapter, if necessary to enforce this chapter or the board's rules, the department [commission] may issue an administrative [a] subpoena to any person in this state compelling:

(1) the production of information or documents; or

(2) the attendance and testimony of a witness [compel the attendance of a witness or the production of a pertinent record or document. The hearings officer may administer oaths and require testimony or evidence to be given under oath].

(f) A person licensed or otherwise regulated under this chapter who fails without good cause to comply with a subpoena issued under this section may be subject to suspension of a license under Section 1702.361.

(g) If a subpoena issued under this section relates to an ongoing criminal investigation by the department and the department determines that disclosure could significantly impede the investigation, the subpoena may provide that the person to whom the subpoena is directed may not:

(1) disclose that the subpoena has been issued;

(2) identify or describe any records requested by the subpoena; or

(3) disclose whether records have been furnished in response to the subpoena.

SECTION 22. Subchapter P, Chapter 1702, Occupations Code, is amended by adding Section 1702.3835 to read as follows:

Sec. 1702.3835. DECEPTIVE TRADE PRACTICE. (a) A person who performs or offers to perform an activity regulated under this chapter, but who is not licensed or otherwise authorized under this chapter to perform the activity, commits a false, misleading, or deceptive act or practice within the meaning of Section 17.46, Business & Commerce Code.

(b) A public or private right or remedy under Chapter 17, Business & Commerce Code, may be used to enforce this chapter.

SECTION 23. Subsection (d), Section 46.03, Penal Code, is amended to read as follows:

(d) It is a defense to prosecution under Subsection (a)(5) that the actor possessed a firearm or club while traveling to or from the actor's place of assignment or in the actual discharge of duties as:

(1) a member of the armed forces or national guard;

(2) a guard employed by a penal institution; or

(3) a security officer commissioned by the Texas [Board of Private Investigators and] Private Security Board [Agencies] if:

(A) the actor is wearing a distinctive uniform; and

(B) the firearm or club is in plain view; or

(4) [(5)] a security officer who holds a personal protection authorization under Chapter 1702, Occupations Code, provided that the officer is either:

(A) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer's firearm in plain view; or

(B) not wearing the uniform of a security officer and carrying the officer's firearm in a concealed manner [the Private Investigators and Private Security Agencies Act (Article 4413(29bb), Vernon's Texas Civil Statutes)].

SECTION 24. Subsection (b), Section 46.15, Penal Code, as amended by Chapters 647 (H.B. 964), 693 (H.B. 1815), and 1048 (H.B. 2101), Acts of the 80th Legislature, Regular Session, 2007, is reenacted and amended to read as follows:

(b) Section 46.02 does not apply to a person who:

(1) is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 431.001, Government Code, or as a guard employed by a penal institution;

(2) is traveling;

(3) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor's residence or motor vehicle, if the weapon is a type commonly used in the activity;

(4) holds a security officer commission issued by the Texas Private Security Board, if the person[:

[(A)] is engaged in the performance of the person's duties as an officer commissioned under Chapter 1702, Occupations Code, or is traveling to or from the person's place of assignment[;] and

[(B)] is [either:

[(i)] wearing the officer's uniform and carrying the officer's weapon in plain view; [or]

(5) acts [(ii) acting] as a personal protection officer and carries [carrying] the person's security officer commission and personal protection officer authorization, if the person:

(A) is engaged in the performance of the person's duties as a personal protection officer under Chapter 1702, Occupations Code, or is traveling to or from the person's place of assignment; and

(B) is either:

(i) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer's weapon in plain view; or

(ii) not wearing the uniform of a security officer and carrying the officer's weapon in a concealed manner;

(6) [(5)] is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;

(7) [(6)] holds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises; or

(8) [(7)] is a student in a law enforcement class engaging in an activity required as part of the class, if the weapon is a type commonly used in the activity and the person is:

(A) on the immediate premises where the activity is conducted; or

(B) en route between those premises and the person's residence and is carrying the weapon unloaded.

SECTION 25. The change in law made by this Act to Section 1702.110, Subsection (a), Section 1702.221, and Subsection (a), Section 1702.282, Occupations Code, applies to an application under Chapter 1702, Occupations Code, submitted on or after the effective date of this Act. An application submitted before the effective date of this Act is governed by the law in effect on the date the application was submitted, and the former law is continued in effect for that purpose.

SECTION 26. To the extent of any conflict, this Act prevails over another Act of the 81st Legislature, Regular Session, 2009, relating to nonsubstantive additions to and corrections in enacted codes.

SECTION 27. This Act takes effect September 1, 2009.

* * * * *