Texas Stamp


PD-0314-18 06/06/2018

“Is a peace officer moonlighting as private security ‘lawfully discharging an official duty’ for purposes of proving assault on a public servant when acting under Tex. Alco. Bev. Code § 101.07, which dictates: ‘all peace officers in the state’ ‘shall enforce the provisions of this code.’”

Constable Clifford Bagwell and his brother Clinton were working security at a wedding reception venue. Cuevas and his brother were guests. Clinton twice confronted an intoxicated Cuevas to tell him he could not have alcohol outside the dance hall. Clinton sought his uniformed brother’s assistance, and the constable confronted Cuevas outside, poured out his beer, and refused to allow him to reenter the dance hall. A fight (that also involved Cuevas’s brother) ensued, and Cuevas began striking the constable while driving him to the ground. Constable Bagwell was injured and Cuevas was charged and convicted of assault on a peace officer, which requires proof that the officer was “lawfully discharging an official duty” at the time of the assault.  Tex. Penal Code § 22.01(b)(1).

On appeal, Cuevas argued that Constable Bagwell was acting in a private security capacity at the time of the offense and that he was not “discharging an official duty.” The court of appeals agreed and found there was no evidence he was investigating a crime, preventing its commission, or seeking to arrest Cuevas at the time of the assault. It observed that while Tex. Alco. Bev. Code § 28.10(b) prohibited the reception venue from allowing patrons to remove alcohol from the premises, there was no corresponding crime for a patron to possess alcohol outside the premises.

The State argues that Constable Bagwell was performing an official duty. A police officer’s “off-duty” status does not prevent him from discharging police authority. In a similar case, a plain-clothes officer moonlighting as an apartment security guard was held to be discharging official duties when breaking up a rowdy party.  The State also contends that Constable Bagwell had a statutory directive to enforce § 28.10(b) because Tex. Alco. Bev. Code § 101.07 provides that “All peace officers in the state. . .  shall enforce the provisions of [the Alcoholic Beverage] code.” Thus, as a matter of law, the constable was discharging his official duties.

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