September 7, 2007
The question has arisen regarding whether the providers of fire watch and safety watch services must be licensed under the Private Security Act, Chapter 1702 of the Texas Occupations Code (“the Act”). It has been suggested that the services of fire and safety officers are arguably within the Act’s terms, insofar as the providers of such services may prevent fire; prevent, observe, or detect unauthorized activity on private property; protect individuals from bodily harm; or perform similar functions. Tex. Occ. Code §1702.108.
The crux of the matter appears to involve the phrase “prevent fire” in the above list. We believe that the legislature meant for that phrase to be interpreted in the context of the surrounding guard-related terms rather than to be taken in isolation. When so interpreted, an individual who watches over property to ensure against arson is “preventing fire,” just as he or she might be “preventing theft,” whereas one whose general purpose is to ensure compliance with safety codes is not “preventing fire” for purposes of the Act.
In one particular case, for instance, the “fire watch” officer is charged with maintaining safe conditions in the workplace and extinguishing fires when feasible. The “safety watch” officers are charged with controlling access, but only of company personnel, not the public.
However the conclusion might be otherwise were the officers to perform “double-duty” as it were, such as controlling ingress and egress to the facility or patrolling the site for the purpose of detecting or preventing unauthorized activity (such as theft or trespass).
Another issue could be the nature of the officers’ purported authority over the employees and the public. If, for instance, these individuals were to impersonate security officers with the intent of inducing others to submit to their pretended authority, or to rely on their pretended acts of as security officers, they could be subject to criminal prosecution under Section 1702.3875 of the Act.
Finally, if these fire and safety officers wear uniforms that are intended to or are likely to create the impression that they are performing security services, they would be subject to the Act. See HB 2833, effective Sept. 1, 2007, amending Section 1702.323(d).
The analysis is necessarily fact-specific. There may very well be some providers of “fire and safety watch services” that are regulated by the Act. But based on the general descriptions so far reviewed, it appears that they are not so regulated.