Private Employers, Off-Duty Police, and Vicarious Liability:
Justice Busby’s Framing of an Open Question in Texas Law

I. Introduction

The concurring opinion by Justice Brett Busby in Chad Seward, Home Depot U.S.A., Inc., and Point 2 Point Global Security, Inc. v. Rogelio Santander Sr., Julia Garcia, and Crystal Almeida (Tex. May 9, 2025) addresses an issue of growing importance in modern tort and employment law: when, if ever, can a private business avoid vicarious liability for the torts of an off-duty police officer it hires as a security guard, on the ground that the officer was acting within the scope of his governmental employment?

Justice Busby joins the Court’s opinion in full, but writes separately for a limited and strategic purpose: to warn Texas businesses and practitioners what the Court has not decided and to survey how other jurisdictions have approached this problem. In doing so, he effectively frames the doctrinal battlefield for future Texas cases and points toward a likely analytical framework grounded in traditional agency law and the “dual master” doctrine.

Because only the concurrence is provided, this commentary focuses on that opinion and the doctrinal and policy signals it sends, rather than on the details of the (unreproduced) majority opinion.

II. Background and Case Overview

A. Parties and Roles

• Petitioner Chad Seward – An off-duty peace officer (police officer) working as a private security guard for Home Depot at the time of the incident.
• Petitioner Home Depot U.S.A., Inc. – The retailer that hired security services for its store.
• Petitioner Point 2 Point Global Security, Inc. – A private security vendor that contracted with Home Depot and, in turn, engaged Seward to provide security.
• Respondents –
  • Rogelio Santander Sr. and Julia Garcia, individually and as co-administrators of the estate of Rogelio Santander Jr., an on-duty police officer who was shot and killed.
  • Crystal Almeida, another on-duty officer who was shot and injured.

B. Factual Setting (As Framed in the Concurrence)

The case arises out of a violent incident at a Home Depot store. At the key moment:

• Seward, off duty from his police department, was working as a private security guard for Home Depot under a contract between Home Depot and Point 2 Point.
• Seward detained a suspect at the store.
• Two on-duty police officers, Santander Jr. and Almeida, arrived in the course of their official duties.
• The plaintiffs allege that Seward’s negligent handling of the detained suspect enabled the suspect to produce a firearm and shoot the on-duty officers.

The officers and the estate sued Seward, Point 2 Point, and Home Depot under various theories of negligence and vicarious liability. Core to the legal analysis is whether, and in what capacity, Seward was acting:

• As a peace officer (public employee, potentially entitled to governmental or official immunity);
• As a private security guard (servant of Home Depot and/or Point 2 Point, potentially triggering private vicarious liability); or
• Both simultaneously.

C. Procedural Posture (As Described in the Concurrence)

According to Justice Busby’s concurrence:

• The Supreme Court of Texas holds that Seward was acting within the scope of his employment as a peace officer and dismisses the claims against him on immunity grounds.
• The Court also reinstates the trial court’s summary judgment for Home Depot and Point 2 Point on certain vicarious liability claims that were predicated on Seward’s conduct while acting as a peace officer.
• Critically, the plaintiffs did not ask the Court to decide whether a private employer may be vicariously liable for the conduct of an off-duty officer that is simultaneously within the scope of his governmental employment:

  The plaintiffs "do not challenge those rulings" here, instead "conced[ing] that whether a private employer can be held [vicariously] liable for an off-duty officer's conduct [that is also within the scope of his employment] as a peace officer 'is simply not an issue presently before the Court.'"

This concession is what allows the Court to avoid that broader question. Justice Busby’s concurrence is aimed squarely at ensuring that avoidance is not misread as an indirect answer.

III. Summary of Justice Busby’s Concurrence

A. Purpose of the Concurrence

Justice Busby identifies a foreseeable misunderstanding:

"Texas businesses that hire security guards are likely to wonder whether this case allows them to immunize themselves from liability for a guard's torts within the scope of employment by hiring an off-duty police officer to perform that function. That is a rational question for businesses to ask, and it is one that has important public policy implications. I write to emphasize that the Court's opinion—which I join—does not provide an answer because the parties here have not asked for one."

He underscores that:

• The Court has not decided whether hiring an off-duty police officer as a security guard shields a business from vicarious liability for the officer’s torts.
• The question remains open and "must await a different case."

B. Survey of Approaches in Other States

To assist future litigants and courts, Justice Busby:

• Identifies the key legal question framed by this case.
• Summarizes the divergent approaches taken in other jurisdictions.
• Focuses in particular on the Tennessee Supreme Court’s decision in White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713 (Tenn. 2000), which conducts a comprehensive survey and then adopts a traditional agency-based approach.

C. Key Holding of the Court, as Context for the Concurrence

While the full majority opinion is not reproduced, Busby’s concurrence makes clear that, for purposes of this commentary, the following points are established:

• Seward’s conduct at the time of the incident fell within the scope of his governmental employment as a peace officer.
• He is therefore immune from suit on the plaintiffs’ claims.
• Summary judgment for Home Depot and Point 2 Point is affirmed or reinstated only to the extent that the vicarious liability claims depend on conduct that is classified as within the scope of Seward’s governmental employment, and those specific rulings were not challenged on appeal.

The unresolved question, and the one Busby devotes his concurrence to, is: Can a private employer be vicariously liable for an off-duty officer’s tortious conduct that is also, at the same time, within the scope of the officer’s public employment?

IV. Detailed Legal Analysis

A. Precedents and Legal Sources Cited

1. Texas Statutes on Peace Officer Duties

Busby notes that Texas law not only permits, but sometimes requires, off-duty peace officers to act as police officers when they witness crime:

• Texas Code of Criminal Procedure art. 14.01(a) – Authorizes a peace officer (and in some circumstances a private citizen) to make an arrest without a warrant for an offense committed in their view or presence.
• Texas Code of Criminal Procedure art. 6.06 – Imposes a duty on peace officers to take reasonable measures to prevent an offense that is about to be committed in their presence or view.

These provisions bolster the idea that an off-duty officer can seamlessly transition into on-duty status when confronted with criminal activity.

2. Garza v. Harrison (Texas 2019)

Busby cites Garza v. Harrison, 574 S.W.3d 389 (Tex. 2019), where the Court held that:

an off-duty officer who observes a crime immediately goes on duty "as a matter of law" under art. 6.06.

This case stands for the proposition that an officer’s official duty is continuous and that off-duty status does not negate his authority or obligation to act as a peace officer when required.

3. St. Joseph Hospital v. Wolff (Texas 2002)

Busby references St. Joseph Hospital v. Wolff, 94 S.W.3d 513 (Tex. 2002), to make an important clarification: regulatory duties imposed by the State on a professional do not automatically preclude vicarious liability of a private employer. He quotes the Restatement (Second) of Agency:

"[T]he mere 'fact that the state regulates the conduct of an employee through the operation of statutes requiring licenses or specific acts to be done or not to be done does not prevent the employer from having such control over the employee as to constitute him a servant.'"

This suggests that even though Texas statutes impose duties on peace officers, those statutes do not by themselves shield private employers from potential vicarious liability for the officers’ conduct.

4. Painter v. Amerimex Drilling I, Ltd. (Texas 2018)

In Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125 (Tex. 2018), the Court reaffirmed the modern rationale of vicarious liability as a deliberate allocation of risk:

• Liability is placed on the employer who "set the whole thing in motion" and "sought to profit by it".
• The employer is usually best positioned to exercise control and to spread the cost of accidents through pricing or insurance.

Busby quotes Prosser and Keeton’s classic torts treatise here, reinforcing that vicarious liability is grounded in risk allocation and enterprise responsibility, not moral blame.

5. Newspapers, Inc. v. Love (Texas 1964)

In Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex. 1964), the Court identified the "right to control" as the "supreme test" for vicarious employer liability. This concept is crucial: a person or entity that has the right to direct the details of the work of another is generally the one held vicariously liable for that person’s torts committed in the course and scope of employment.

6. Dual Master Doctrine and Texas Cases

Busby turns to the dual master doctrine as articulated in the Restatement (Second) of Agency § 226 and notes:

"A person may be the servant of two masters ... at one time as to one act, if the service does not involve abandonment of the service to the other[,]" so that "both employers [may] be responsible for an act ... within the scope of employment for both."

He cites:

• In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 199 (Tex. 2007) (Hecht, J., concurring and dissenting), noting that the law permits one to serve two masters and generally makes both liable for the agent’s actions.
• Waste Management of Texas, Inc. v. Stevenson, 622 S.W.3d 273, 281 n.4 (Tex. 2021), and Wingfoot Enterprises v. Alvarado, 111 S.W.3d 134 (Tex. 2003), indicating that Texas courts have applied dual or co-employment principles, particularly in the workers’ compensation context.

Although the Court has not expressly adopted the dual master doctrine across all vicarious liability cases, Busby’s references signal that it is a plausible and doctrinally compatible path for Texas.

7. White v. Revco Discount Drug Centers, Inc. (Tennessee 2000)

The centerpiece of Busby’s comparative analysis is the Tennessee Supreme Court’s decision in White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713 (Tenn. 2000). There, as in this case:

• An off-duty police officer was working as a private security guard.
• The officer engaged with suspected criminal activity on the premises.
• The question arose whether the private employer (Revco) could be held vicariously liable for the officer’s actions that might also qualify as official police conduct.

White is important for three reasons:

1. It recognizes that peace officers have a special legal status that can blur the line between public and private roles.
2. It surveys two main competing approaches used in other states:
   • The "nature-of-the-act" approach (majority view in other states), and
   • The no-liability public-policy approach (minority view).
3. It rejects both and adopts a traditional agency / dual master analysis.

Busby presents White as a valuable roadmap for Texas courts and litigants.

B. The Competing Approaches to Off-Duty Officer Liability

1. The “Nature-of-the-Act” Test (Majority Approach Elsewhere)

Under this test, courts ask: What is the nature of the officer’s act that gave rise to the alleged tort?

• If the act is deemed private in nature and in service of the private employer’s business interests, then the private employer can be vicariously liable.
• If the act is deemed official in nature (i.e., taken to enforce public law, vindicate public rights, or benefit the public at large), then the employer is not vicariously liable because the officer is seen as acting solely as a public servant.

The focus is on categorizing each action as either:

• "within the scope of his private employment," or
• "official" and therefore within the scope of his public employment only.

Busby, following White, highlights two main criticisms of this approach.

a. Overlap Between Official and Private Acts

White observed that many acts deemed “official”—such as making an arrest—can also lawfully be performed by private citizens. Busby notes that:

• In Tennessee, private citizens may make arrests in certain situations (Tenn. Code Ann. § 40-7-109).
• Similarly, in Texas, Code of Criminal Procedure art. 14.01 permits certain citizen’s arrests.

Therefore, an act such as detaining a suspect, which could be legally undertaken by a private citizen or a private security guard, may simultaneously serve both:

• the interests of the private employer (e.g., preventing shoplifting, protecting store property), and
• public law enforcement interests (e.g., apprehending a suspected criminal, preserving public order).

White (and Busby by endorsement) conclude that trying to label such acts as either private or official rests on “negligible” or artificial distinctions.

b. Off-Duty Officers’ Continuing Authority and Duty

White also emphasizes that an officer’s authority as a public law enforcement officer is continuous; working for a private employer does not diminish his power or duty to act as an officer. Busby reinforces this with Texan authority (Garza v. Harrison).

This reality further undermines a rigid line between “private” and “official” acts when an officer is performing security work that overlaps heavily with traditional policing functions.

White concludes—and Busby agrees—that the nature-of-the-act test risks:

• Over-insulating private employers from liability in situations where, but for the officer’s dual status, the employer would plainly be liable under ordinary respondeat superior principles.

2. The No-Liability Public-Policy Approach (Minority View)

A smaller group of jurisdictions adopt a categorical rule: a private employer is not vicariously liable for the torts of an off-duty officer it hires as a security guard, based chiefly on public policy. Courts taking this approach reason that:

• Hiring off-duty police officers as security guards deters crime and enhances public safety.
• Public policy should encourage such hiring by insulating private employers from the risk of tort liability associated with officers’ law-enforcement actions.

Busby cites White’s discussion of cases such as Duncan v. State (Georgia) and State v. Brown (Washington Ct. App.), which adopt this reasoning.

White (and Busby) are skeptical of this approach for two principal reasons:

1. Crime deterrence is also served by hiring private security personnel generally, not only by hiring sworn officers. Offering immunity only when the guard is an off-duty officer creates an arbitrary distinction.
2. Allowing employers to escape liability merely because their security guards have additional status as public officers undermines the modern rationale of vicarious liability and shifts the loss from the enterprise that “set the whole thing in motion” to innocent injured parties or to municipalities (and by extension, taxpayers).

In other words, the no-liability rule rewards employers who choose off-duty officers over civilian guards by freeing them from risks that are an ordinary cost of doing business when hiring any other security personnel.

C. White’s Third Way: Traditional Agency and Dual-Master Liability

Rejecting both the nature-of-the-act and the no-liability approaches, the Tennessee Supreme Court in White turned to traditional agency principles. Justice Busby highlights this “third path” as worthy of consideration in Texas.

1. Core Idea: Apply Ordinary Agency Law

White’s central move is deceptively simple: treat the off-duty officer like any other employee for purposes of vicarious liability and ask:

• Was the officer acting within the scope of his employment for the private employer?
• Did the private employer have a right to control the officer’s conduct in that role?
• Was the officer also acting within the scope of his public employment at the same time?

If the answer to both employer questions is “yes,” then the dual master doctrine permits holding both the municipality and the private employer vicariously liable.

2. How Dual Master Doctrine Addresses the Problem

White and Busby emphasize several advantages of the dual master / agency approach:

• It acknowledges that an act can serve two masters at once—the public and the private employer. There is no need to force an either/or choice.
• It fits the practical reality that security work and law enforcement overlap significantly. Many acts—like detaining a suspect, calling in on-duty officers, or maintaining order—benefit both the store and the public.
• It aligns with the risk allocation rationale behind vicarious liability: businesses that seek the advantages of employing off-duty officers (heightened deterrence, perceived authority, reduced shrinkage) should also bear the corresponding risks of their conduct, just as they would when employing a civilian security guard.

Thus, if an off-duty officer’s tortious conduct occurred while:

• performing tasks assigned by the private employer, and
• furthering the business’s interests,

then both the governmental body and the private employer could be vicariously liable, even if the officer was also simultaneously fulfilling statutory duties as a peace officer.

3. Busby’s Implicit Endorsement

While Justice Busby does not purport to decide the issue, he describes White’s analysis as having:

"the 'advantages of experience and straightforward application'" and as addressing "many—if not all—of the drawbacks associated with the approaches previously discussed."

He further notes that:

"[E]mployers who assume the benefits of employing off-duty officers must also assume the corresponding risk of harm for acts committed by such security guards within the scope of their employment."

This is an unmistakable signal that an agency-based, dual-master framework is not only doctrinally coherent but also attractive on policy grounds for Texas courts to consider.

D. Legal Reasoning and Policy Themes in the Concurrence

1. Clarifying What the Court Has Not Decided

Busby’s primary legal move is negative but important: to prevent misinterpretation of the Court’s opinion as establishing a rule that:

"Texas businesses that hire security guards ... can immunize themselves from liability for a guard's torts within the scope of employment by hiring an off-duty police officer to perform that function."

He insists that:

• The Court’s holding on Seward’s governmental immunity does not answer the vicarious liability question regarding private employers.
• The plaintiffs’ litigation strategy (conceding the issue was not before the Court) prevents the Court from addressing it.
• The question remains open and will require careful consideration of Texas law and policy in a future case.

2. Integrating Texas Law with White’s Framework

Busby subtly connects White’s approach with existing Texas doctrine by:

• Citing Texas cases that:
  • Embrace the right-to-control test (Newspapers, Inc. v. Love).
  • Affirm risk allocation as a key rationale (Painter).
  • Recognize dual or co-employment concepts (Wingfoot, Waste Management).
  • Hold that state regulation of conduct does not preclude servant status (St. Joseph Hosp. v. Wolff).
  • Treat off-duty officers as on-duty as a matter of law when they observe crime (Garza v. Harrison).
• Highlighting that Texas, like Tennessee, allows citizen’s arrests (Tex. Code Crim. Proc. art. 14.01).

The combined effect is to suggest that the legal building blocks for adopting a White-style solution already exist in Texas law. The Court need only synthesize them.

3. Policy Emphasis: Risk Allocation and Fairness

Busby leans heavily on Prosser & Keeton’s articulation of vicarious liability as a deliberate allocation of risk:

• Private employers benefit from hiring security guards, including off-duty officers.
• They are generally in the best position to:
  • Choose whom to hire (civilian guard vs. off-duty officer);
  • Set training and operational policies;
  • Obtain and structure liability insurance;
  • Spread costs through pricing.
• Innocent third parties and municipalities (and their taxpayers) are less able to manage or distribute these risks.

Against this backdrop, he expresses concern that approaches which categorically exculpate private employers merely because their guards are also police officers would:

• "over-insulat[e] private employers who would otherwise be subject to liability if the security guard were not also employed by a municipal police department," and
• "undermine[] the modern rationale of vicarious liability."

The concurrence therefore subtly advances a fairness-based argument: enterprises that profit from off-duty officers’ security work should not be uniquely privileged to externalize the resulting risks.

E. Impact and Future Implications for Texas Law

1. No Safe Harbor for Businesses – Yet

For Texas businesses, the most immediate takeaway is negative but crucial:

• This case does not create a safe harbor whereby hiring off-duty police officers as security guards automatically immunizes the business from vicarious liability.
• Any belief that simply labeling guards as "off-duty officers" neutralizes the risk of tort liability would be after Busby’s clarification.

Businesses must therefore continue to:

• Assess the potential liability exposure associated with using off-duty officers vs. civilian guards;
• Structure contracts, training, and supervision in light of possible dual master liability; and
• Ensure appropriate insurance coverage.

2. Likely Doctrinal Development: Toward a Dual-Master Framework

While the Court remains officially neutral, the concurrence strongly indicates that:

• Traditional agency principles will likely play a central role in resolving the question in future cases.
• The dual master doctrine is a candidate framework for dealing with overlapping public/private roles of off-duty officers.
• White’s careful reasoning and rejection of both the nature-of-the-act and no-liability approaches provide a persuasive model for Texas courts.

Future litigants should be prepared to:

• Offer detailed evidence and argument on:
  • the private employer’s right to control the off-duty officer’s work;
  • whether the officer’s tortious acts were within the course and scope of private employment (e.g., enforcing store policies, protecting property, managing customer conflicts); and
  • whether those acts simultaneously fulfilled statutory police duties.
• Address how any proposed rule would:
  • allocate risk between municipalities, private enterprises, and injured third parties;
  • affect incentives to hire off-duty officers;
  • interact with Texas’s existing governmental immunity and indemnity frameworks.

3. Implications for Victims and Municipalities

From the perspective of injured parties (such as the plaintiffs in this case) and municipalities, the stakes are substantial:

• If courts adopt a broad no-liability rule for private employers, then:
  • Victims may be limited to suing the officer (often shielded by official immunity) and/or the governmental entity (subject to sovereign immunity limits and statutory damage caps).
  • Municipalities and taxpayers may bear a greater share of the costs of off-duty officers’ conduct in private commercial settings.
• If courts adopt a dual master approach, then:
  • Victims may have additional viable defendants (the private employers) with broader insurance resources.
  • Municipal exposure may be moderated by the presence of co-defendant private employers.
  • Private employers would have stronger incentives to establish robust training, supervision, and protocols governing how off-duty officers perform security work.

4. Practical Effects on Contracting Practices

Busby’s concurrence is also likely to influence how:

• Large retailers, venue operators, and other businesses draft contracts with security vendors and off-duty officers;
• Security firms allocate responsibility and insurance obligations vis-à-vis client businesses and individual officers;
• Police departments structure their off-duty employment policies, including:
  • the extent to which they permit officers to exercise official authority while in private employment;
  • indemnification standards; and
  • required training or oversight concerning secondary employment."

V. Complex Concepts Simplified

A. Vicarious Liability and Respondeat Superior

Vicarious liability means holding one party legally responsible for the actions of another. In employment law, this usually takes the form of respondeat superior:

• An employer is liable for the torts (e.g., negligence) of an employee if those torts occur within the course and scope of employment.

In plain terms: if an employee is doing his job (or something closely related) and negligently injures someone, the employer can be made to pay, even if the employer itself did nothing negligent.

B. Scope of Employment

An employee acts within the scope of employment when:

• He is doing the kind of work he was hired to do;
• At a time and place reasonably connected with his job; and
• At least partly motivated by a purpose to serve the employer’s interests.

For a private security guard, this may include:

• Detaining suspected shoplifters;
• Escorting disruptive customers off the premises;
• Calling police; and
• Maintaining order on store property.

C. The Right-to-Control Test

Texas uses the right-to-control test to decide whether someone is an employee (servant) of a particular employer for vicarious liability purposes. Courts ask:

• Who has the right to tell the worker how to do the job, not just what job to do?
• Who sets the methods, details, and means of the work?

If a business retains the right to direct how a guard handles shoplifting, customer interactions, and use-of-force protocols, that business is likely to be considered the guard’s employer for respondeat superior purposes.

D. Dual Master Doctrine

The dual master doctrine acknowledges that a person can be the employee of two employers at once, as to a particular act, so long as:

• Service to one employer does not entail abandoning service to the other.

Applied here, this means an off-duty police officer working as a security guard could:

• Be acting within the scope of his public employment as a peace officer (fulfilling statutory duties, exercising police authority); and
• Simultaneously be acting within the scope of his private employment as a store security guard (protecting property, enforcing store rules) for which the store or security company has the right to control his work.

If both are true, both the municipality and the private employer may be vicariously liable.

E. Governmental / Official Immunity

Public employees, including peace officers, are often shielded by official immunity (and their employers by sovereign or governmental immunity) when performing:

• Discretionary acts
• In good faith
• Within the scope of their authority and employment.

In this case, the Court concluded that Seward’s actions were within the scope of his public employment as a peace officer, and therefore he was immune from suit. What remains unresolved is whether that same conduct could simultaneously support vicarious liability for a private employer under a dual master analysis.

VI. Conclusion: Significance of the Concurrence

Justice Busby’s concurrence in Seward v. Santander does not establish a new binding rule, but it performs several significant functions in the evolution of Texas law:

1. It expressly confirms that Texas law does not yet answer whether businesses can insulate themselves from liability by hiring off-duty police officers as security guards. Any belief in an automatic immunity for private employers is unfounded after this opinion.
2. It frames the future doctrinal debate by:
   • Identifying and critiquing the nature-of-the-act and no-liability approaches used elsewhere;
   • Highlighting White v. Revco as a sophisticated and attractive alternative grounded in traditional agency law and dual-master principles; and
   • Connecting White’s reasoning to existing Texas case law and statutes on control, risk allocation, and off-duty officer duties.
3. It underscores fundamental policy considerations:
   • Vicarious liability is a mechanism for deliberate risk allocation;
   • Private employers who benefit from employing off-duty officers should reasonably expect to bear the corresponding risks, not shift them entirely to victims or municipalities;
   • A rule that uniquely favors businesses who employ off-duty officers over those using civilian security would be difficult to justify in terms of fairness and deterrence.
4. It provides a roadmap for litigants and lower courts:
   • Future plaintiffs will likely rely on this concurrence (and White) to argue for a dual-master framework;
   • Defendants will respond with statutory, doctrinal, and policy arguments about crime deterrence, governmental immunity, and the scope of private control;
   • Lower courts now have a well-articulated menu of options and critiques to consider until the Supreme Court resolves the issue in a case squarely presenting it.

In sum, while the majority opinion in Seward resolves the immediate immunity question for Seward himself, Justice Busby’s concurrence ensures that Texas law remains clearly open—and intellectually prepared—for a future, more definitive confrontation with the complex problem of private employers’ vicarious liability for off-duty police officers acting as security guards. His analysis suggests that when that case arrives, traditional agency principles and the dual master doctrine are likely to be central to the Court’s solution.

Note: This commentary is a general analytical discussion based on the concurring opinion text provided and does not constitute legal advice for any specific situation.