Chad Seward, Home Depot U.S.A., Inc., and Point 2 Point Global Security, Inc. v. Rogelio Santander Sr. and Julia Garcia, Individually and as Co-Administrators of the Estate of Rogelio Santander Jr., and Crystal Almeida

Supreme Court of Texas
══════════
No. 23-0704
══════════

Chad Seward, Home Depot U.S.A., Inc., and
Point 2 Point Global Security, Inc.,
Petitioners,

v.

Rogelio Santander Sr. and Julia Garcia, Individually and as
Co-Administrators of the Estate of Rogelio Santander Jr. and
Crystal Almeida,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════

JUSTICE BUSBY, joined by Justice Lehrmann, concurring.

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. Instead, that answer must await a different case.
Unsurprisingly, the answer has divided courts in other states. To assist
future parties and courts that confront this important issue, I briefly
explain the issue as framed by this case and note the approaches taken
by other courts.
This is a suit for personal injuries that on-duty police officers
sustained while Chad Seward, an off-duty officer, was working as a
private security guard for Home Depot pursuant to its contract with
Point 2 Point, a private security vendor. Plaintiffs—who sued Seward,
Point 2 Point, and Home Depot under various negligence and vicarious-
liability theories—allege that Seward’s negligent handling of a detained
suspect led to that suspect shooting the on-duty officers. Concluding
that Seward was acting within the scope of his employment as a peace
officer, the Court dismisses the claims against him on immunity
grounds. Ante at 24.
The Court also reinstates the trial court’s summary judgment for
Home Depot and Point 2 Point on certain vicarious liability claims
predicated on Seward’s conduct. As the Court explains, “the trial court
and the court of appeals concluded summary judgment was proper on
those claims to the extent Seward was acting within the scope of his
governmental employment.” Id. 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.’” Id.
That issue has divided courts in other states, and the relevant
analytical steps and points of disagreement are laid out very clearly by

2
the Tennessee Supreme Court in White v. Revco Discount Drug Centers,
Inc., 33 S.W.3d 713 (Tenn. 2000). As White explains, some of the variety
in court decisions can be attributed to differences in state law while
other disagreements stem from how courts evaluate various policy
considerations.
White begins by observing that applying traditional principles of
vicarious liability for employee conduct does not provide a complete
answer “largely because the special status of peace officers in
[Tennessee] permits an off-duty officer to act within the scope of his or
her public employment, even while otherwise performing duties for the
private employer.” Id. at 718. Texas law not only permits such action,
it requires a peace officer to intervene when an individual “is about to
commit an offense” within his view or presence. TEX. CODE CRIM. PROC.
arts. 14.01(a), 6.06. On the other hand, we have recognized that statutes
requiring action do not necessarily foreclose vicarious liability.1
The White court then considered whether the “nature of the act”
approach employed by a majority of other state courts was appropriate
under Tennessee jurisprudence. 33 S.W.3d at 719. This approach—
which hinges upon the “nature” of the officer’s actions giving rise to the
alleged tort—only imposes liability upon the private employer if the
officer’s actions were taken to serve private interests—that is, the

1 See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 540 (Tex. 2002).
Adopting a relevant section of the Restatement Second of Agency, we explained
the 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.” Id. (quoting RESTATEMENT (SECOND) OF
AGENCY § 220 cmt. i (AM. L. INST. 1958)).

3
actions were “within the scope of his private employment.” Id. If the
officer’s allegedly tortious conduct is considered “official” in nature, his
private employer may not be held vicariously liable because “the officer’s
action was taken to vindicate a public right or to benefit the public in
general.” Id.
Attempting to square this test with Tennessee jurisprudence, the
White court identified two interrelated shortcomings. Id. First, the test
ignores that many actions deemed official in nature “may also be
lawfully taken by private citizens,” including the right to make arrests.
Id. (citing TENN. CODE ANN. § 40–7–109).2 Such acts may “legitimately
be viewed either as serving the interests of the private employer or
vindicating public rights.” Id. at 720. Second, considering whether the
officer’s actions are private in nature “ignores the reality that working
for a private employer does not weaken an officer’s continuing authority
and ability to act as a police officer,” especially as the officer may
undertake “official duty at any time.” Id. at 720 n.8 (citing KNOXVILLE,
TENN., CODE § 19–29).3 The White court concluded that given “the
practical difficulty in determining the proper nature of the actions
committed by a security guard,” the nature-of-the-act approach relies on
“negligible” distinctions that raise the concern of “over-insulating
private employers who would otherwise be subject to liability if the

2 See TEX. CODE CRIM. PROC. art. 14.01 (same).

3 See Garza v. Harrison, 574 S.W.3d 389, 403 (Tex. 2019) (holding that

off-duty officer who observes crime immediately goes on duty “as a matter of
law” under TEX. CODE CRIM. PROC. art. 6.06).

4
security guard were not also employed by a municipal police
department.” Id. at 721.
White next evaluated the minority approach, which declines to
impose tort liability upon private employers for the conduct of off-duty
officers employed as security guards as a matter of public policy. Id.
Jurisdictions adhering to this approach “generally reason that because
deterrence of crime is furthered by employing police officers, private
employers should be encouraged to hire such officers as security
guards.” Id. (citing Duncan v. State, 294 S.E.2d 365, 366 (Ga. 1982), and
State v. Brown, 672 P.2d 1268, 1269 (Wash. Ct. App. 1983)).
Acknowledging that hiring off-duty officers may indeed aid the
deterrence of crime, the White court emphasized that this end is also
served by the employment of private security in general, “irrespective of
whether the guards are off-duty officers or public citizens.” Id. And to
the extent this approach enables private employers to escape liability
merely because their security guards are simultaneously employed by
the local police department, White concluded that it “undermines the
modern rationale of vicarious liability” that places the risk of loss upon
the employer “rather than the innocent injured plaintiff” or the
municipality. Id. at 722 (quoting KEETON ET AL., PROSSER AND KEETON
ON THE LAW OF TORTS § 69, at 500-01 (5th ed. 1984)). This “deliberate
allocation of risk” is borne by the employer not only because it “set the
whole thing in motion” and “sought to profit by it,” but also because the
employer occupies “a position to exercise some general control over the
situation” and therefore “must exercise it or bear the loss.” PROSSER AND

5
KEETON, supra, § 69, at 499-501.4 For those reasons, White also declined
to adopt the minority approach. 33 S.W.3d at 722.
Having rejected the approaches taken by other jurisdictions, the
White court took a third approach, looking to traditional principles of
agency law to determine when a private employer should be subject to
vicarious liability. Id. A well-developed doctrine that has the
“advantages of experience and straightforward application,” White
concluded that agency also addresses many—if not all—of the
drawbacks associated with the approaches previously discussed. Id.
For example, while the nature-of-the-act test is ill-equipped to
consistently allocate liability when the tortious conduct of the officer
simultaneously serves the interests of his public and private employers,
agency law recognizes the “dual master doctrine,”5 which White found a
workable test for deciding when one or both employers may be held
vicariously liable. See id. at 724-25 (quoting RESTATEMENT (SECOND) OF
AGENCY § 226 & cmt. a (AM. L. INST. 1958)) (“A person may be the

4 See Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130-31 (Tex.

2018) (quoting parts of this passage). In Texas, we have adopted “right to
control” as the “supreme test” for vicarious employer liability. Newspapers,
Inc. v. Love, 380 S.W.2d 582, 590 (Tex. 1964).
5 See In re Merrill Lynch Tr. Co. FSB, 235 S.W.3d 185, 199 (Tex. 2007)

(Hecht, J., concurring and dissenting) (“Whether one can serve two masters,
the law allows it and generally makes both employers liable for the agent’s
actions.” (footnotes omitted) (citing RESTATEMENT (SECOND) OF AGENCY § 226
(AM. L. INST. 1958))). Although our Court has not yet decided whether to adopt
this doctrine broadly, we have applied it in the workers’ compensation context,
and several of our appellate courts have used it under the name
“co-employment” doctrine. See Waste Mgmt. of Tex., Inc. v. Stevenson, 622
S.W.3d 273, 281 n.4 (Tex. 2021) (collecting cases); Wingfoot Enters. v. Alvarado,
111 S.W.3d 134, 137-140 (Tex. 2003).

6
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.”). White observed that this doctrine takes into
account the practical realities of this kind of employment: because the
character of security work and law enforcement work are inherently
similar, many actions taken by a private security guard may fairly be
considered “within the scope” of his public and private employment at
the same time. Id. at 723 n.11. And where the nature-of-the-act test
would simply excuse the private employer from liability by concluding
such an act was official in nature, White concluded that agency law
promotes public policy interests by ensuring 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.” Id. at 724 n.12.
In sum, the Court correctly reserves the question whether and to
what extent a private employer may be subject to vicarious liability for
torts committed by an off-duty police officer it employs that are also
within the scope of the officer’s public employment. The White court
provides a detailed overview of considerations relevant to that
important question. I encourage parties in future cases to address those
considerations, along with other relevant matters of Texas law, to help
Texas courts determine the best answer. With these observations, I join
the Court’s opinion.

7
J. Brett Busby
Justice

OPINION FILED: May 9, 2025

8