L3R – 3.8 Penal Code

Penal Code

I    General Principles of Criminal Responsibility

a.     PC §6.01 Requirement of Voluntary Act or Omission

A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.

Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.

A person who omits to perform an act does not commit an offense unless a law provides that the omission is an offense or otherwise provides that he has a duty to perform the act.

b.      PC §6.02 Requirements of Culpability

A person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.

If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility.

Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:

  • intentional;
  • knowing;
  • reckless;
  • criminal negligence

Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.

An offense defined by municipal ordinance or by order of a county commissioners court may not dispense with the requirement of a culpable mental state if the offense is punishable by a fine exceeding the amount authorized by Section PC §12.23.

c. PC §6.04 Causation: Conduct and Results

A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.
A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:
• a different offense was committed; or
• a different person or property was injured, harmed, or otherwise affected.

II Burglary and Criminal Trespass
a. PC §30.05 Criminal Trespass

A person commits an offense if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, a general residential operation operating as a residential treatment center, or an aircraft or other vehicle, without effective consent and the person:
• had notice that the entry was forbidden; or
• received notice to depart but failed to do so.

b. PC §30.06 Trespass by License Holder with a Concealed Handgun

A license holder commits an offense if the license holder:
• Carries a concealed handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and
• Received notice that entry on the property by a license holder with a concealed handgun was forbidden.

c. PC §30.06 Trespass by License Holder with an Openly Carried Handgun

A license holder commits an offense if the license holder:

  • Openly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and
  • Received notice that entry on the property by a license holder openly carrying a handgun was forbidden.

3.9 Arrests

  • The Texas Code of Criminal Procedure (CCP) allows any person, including security officers, to make an arrest without a warrant under certain circumstances. Articles 14.01 and 18.16 states that the requirements for making a citizen’s arrest as a security officer are:
    • a felony is committed in your view,
    • a breach of the peace is committed in your view, and
    • you are acting to prevent the consequences of theft.

You cannot lead someone to believe you are a public servant just because you can make a citizen’s arrest. It is a third-degree felony to impersonate a public servant with the intent to gain compliance using a pretended official authority. This is also true of someone who knowingly exercises any function of a public servant.

It is important to remember that the CCP also requires that an offender be taken before a magistrate in Article 14.06.

Should it be deemed necessary to make a citizen’s arrest, it is vitally important that the individual be presented to local law enforcement with jurisdiction. This ensures they will be brought before a magistrate in the proper time so as not to interfere with their sixth amendment right to a public trial without delay.

Although a security officer is allowed to do so according to the CCP verbiage, you should always refer to the company’s policies and procedures.

I Offense Within View

A security officer may arrest an individual for a felony offense, or a breach of the peace committed within their presence or view.

II Preventing Consequences of Theft

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. To justify a seizure under this article, there must be reasonable ground to believe the property is stolen, and the seizure must be openly made, and the proceedings had without delay.

III Must Take Offender Before Magistrate

The person making the arrest or the person having custody of the person arrested shall take the person arrested or have him taken without unnecessary delay, but not later than 48 hours after the person is arrested, before the magistrate of the county where the arrest was made.

IV PC §42.01 Disorderly Conduct

  • A person commits an offense if he intentionally or knowingly:
  • uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;
  • makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;
  • creates, by chemical means, a noxious and unreasonable odor in a public place;
  • abuses or threatens a person in a public place in an obviously offensive manner;
  • makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;
  • fights with another in a public place;
  • discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code;
  • displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;
  • discharges a firearm on or across a public road;
  • exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act; or
  • for a lewd or unlawful purpose:
    • enters on the property of another and looks into a dwelling on the property through any window or other opening in the dwelling;
    • while on the premises of a hotel or comparable establishment, looks into a guest room not the person’s own through a window or other opening in the room; or
    • while on the premises of a public place, looks into an area such as a restroom or shower stall or changing or dressing room that is designed to provide privacy to a person using the area.

Note: The term “public place” includes a public school campus or the school grounds on which a public school is located.

It is a defense to prosecution under that the actor had significant provocation for his abusive or threatening conduct. For purposes of this section:

  • an act is deemed to occur in a public place or near a private residence if it produces its offensive or proscribed consequences in the public place or near a private residence; and
  • a noise is presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance.

An offense under this section is a Class C misdemeanor unless committed under Subsection (a)(7) or (a)(8), in which event it is a Class B misdemeanor.

It is a defense to prosecution for an offense under Subsection (a)(7) or (9) that the person who discharged the firearm had a reasonable fear of bodily injury to the person or to another by a dangerous wild animal as defined by Section 822.101, Health and Safety Code.

Subsections (a)(1), (2), (3), (5), and (6) do not apply to a person who, at the time the person engaged in conduct prohibited under the applicable subdivision, was a student younger than 12 years of age, and the prohibited conduct occurred at a public school campus during regular school hours.

Implementation

Remember that language or gestures outlined in items 1 and 2 of the above legislation must cause the public to become incited to a breach of the peace. As an individual you may be offended, and the law would seem to allow you the power to arrest, but recent court decisions have provided that peace officers may not always be the offended party, and as you are acting as an agent, those decisions may not fall in your favor if others are not offended.

The term “breach of the peace” is generic, and includes all violations of the public peace or order, or decorum. The right of a private individual to arrest without a warrant for a breach of the peace is limited to the time the offense is committed, or while there is continuing danger of its renewal.

Whether or not a given act or state of conduct amounts to a breach of the peace depends upon the circumstances surrounding the act.

The right of a private individual to arrest without a warrant does not include the right to pursue and arrest for the purpose of ensuring apprehension and trial of the offender.


V Impersonating a Public Servant

A person commits an offense if they:

  • impersonate a public servant with intent to induce another to submit to the person’s pretended official authority or to rely on the person’s pretended official acts; or
  • knowingly purport to exercise, without legal authority, any function of a public servant or of a public office, including that of a judge and court.

Note: An offense under this section is a felony of the third degree.

VI False Identification as a Peace Officer; Misrepresentation of Property

A person commits an offense if the person makes, provides to another person, or possesses a card, document, badge, insignia, shoulder emblem, or other item bearing an insignia of a law enforcement agency that identifies a person as a peace officer or a reserve law enforcement officer, and the person who makes, provides, or possesses the item bearing the insignia knows that the person so identified by the item is not commissioned as a peace officer or reserve law enforcement officer as indicated on the item.

It is a defense to prosecution under this section that:

  • the card, document, badge, insignia, shoulder emblem, or other item bearing an insignia of a law enforcement agency clearly identifies the person as an honorary or junior peace officer or reserve law enforcement officer, or as a member of a junior posse;
  • the person identified as a peace officer or reserve law enforcement officer by the item bearing the insignia was commissioned in that capacity when the item was made; or
  • the item was used or intended for use exclusively for decorative purposes or in an artistic or dramatic presentation.

Note: In this section, “reserve law enforcement officer” has the same meaning as is given that term in Section 1701.001, Occupations Code.

A person commits an offense if the person intentionally or knowingly misrepresents an object as property belonging to a law enforcement agency.

Note: For purposes of this subsection, intentionally or knowingly misrepresenting an object as property belonging to a law enforcement agency includes intentionally or knowingly displaying an item bearing an insignia of a law enforcement agency in a manner that would lead a reasonable person to interpret the item as property belonging to a law enforcement agency.

An offense under this section is a Class B misdemeanor.

a. Security Officer Uniforms

The Private Security Act prohibits the use of a title or an insignia, or the wearing of a uniform, that is intended to give the impression that the person is connected with a government entity. The offense is a Class A misdemeanor and may also subject the licensee to administrative suspension under
§1702.361.

b.   Vehicles

In addition, the Texas Transportation Code 547.305 prohibits the use of red, white, or blue beacons, or flashing or alternating lights, on a motor vehicle.

Security patrol vehicles are limited to green, amber, or white lights.

The licensee is responsible for ensuring the company’s name, initials, uniform color and type, patches, markings on vehicles, and vehicle equipment comply with the above laws and do not create the impression the security