Watson v. Watkins, No. 09-0166 (Tex. Nov. 20, 2009)(Willet) (dissenting from court's failure to take up issue
of whether off-duty police / peace officers enjoy official immunity for actions taken while working as private
security guards, official vs. private capacity and personal liability).
[T]he private-versus-public capacity of off-duty officers merits bright-line guidance,
and the Court should clarify the official-immunity standard for peace officers working off-
duty security jobs. At the very least, the important issue of a moonlighting officer’s
exposure to personal liability merits full briefing in this Court.
This case deserves much closer study, and because the Court declines to do so, I
SHANE WATSON v. SHIRLEY NEWMAN AND JILL WATKINS; from Potter County;
7th district (07 08 00203 CV, ___ SW3d ___, 11 21 08)
Justice Willett, joined by Justice Hecht, delivered an opinion dissenting from the denial.
See Opinion in pdf
View Electronic Briefs in
Watson v. Watkins (Tex. 2009) (Willet, dissenting from denial of review)
On Motion for Rehearing of Petition
Justice Willett, joined by Justice Hecht, dissenting from the denial of the motion for rehearing of
Law-enforcement professionals throughout Texas earn extra money by moonlighting as private
security officers. This case affords the Court an opportunity to clarify when official immunity extends to
off-duty peace officers who, while working private security jobs, encounter situations that require them
to discharge their assigned public-servant duties.
Here, Shane Watson, a Potter County deputy sheriff, was providing off-duty security at a Dillard’s
department store. Respondents attempted to return a pair of jeans, and a heated dispute arose
between them and the sales clerk, who phoned her manager and requested security after
Respondents allegedly threatened her. Watson, dressed in his sheriff’s office uniform (and married to
the sales clerk), confronted Respondents, who left the store and refused Watson’s requests to stop.
Watson called for back-up from the sheriff’s department, pursued Respondents around the mall on
foot, and ultimately arrested them for various class B misdemeanors (evading detention, failure to
identify, and interference with public duties). These criminal charges ultimately went away via
dismissal or acquittal.
Respondents then sued Watson and Dillard’s for several intentional torts (assault, willful detention,
lack of consent, and abuse of process), and Watson moved for summary judgment on official-
immunity grounds. Respondents argued there was a fact issue as to whether Watson was
discharging his duties as a peace officer or rather acting as a citizen-husband and/or private security
guard. The trial court denied the summary-judgment motion, and the court of appeals — where only
Watson filed a brief — affirmed,1 concluding (in rather conclusory fashion) that parsing public
capacity from private capacity “presents embedded fact issues that are best left to the trier of fact.”2
The ubiquity of Texas peace officers supplementing their incomes by working off-duty security
jobs — directing Sunday church parking, patrolling shopping malls, securing private parties —
makes this case worth the Court’s attention. When does the role change from private security guard
to public peace officer? The official-immunity doctrine serves a vital purpose: to enable public
officials “to act in the public interest with confidence and without the hesitation that could arise from
having their judgment continually questioned by extended litigation.” Ballantyne v. Champion Builders,
Inc., 144 S.W.3d 417, 424 (Tex. 2004). Accordingly, the private-versus-public capacity of off-duty
officers merits bright-line guidance, and the Court should clarify the official-immunity standard for
peace officers working off-duty security jobs. At the very least, the important issue of a moonlighting
officer’s exposure to personal liability merits full briefing in this Court.
This case deserves much closer study, and because the Court declines to do so, I respectfully
Don R. Willett
OPINION DELIVERED: November 20, 2009.
1 As the court of appeals put it, “Appellees did not favor us with a brief nor did they request additional
time in which to do so.” ___ S.W.3d ___, ___.
2 Id. at ___.