Does an off duty jailer have any duty to prevent or report a cime that happened in his presence above and beyond that of a private citizen?

Unless there is something I'm not seeing making him a peace officer, I don't think so.

That is my opinion but I wanted another view. We have one that witnessed a bad crime and then got involved in the cover up. I want to charge him as an accomplice under 7.02 Tx Penal code. My case is a litte weak on whether anyone had foreknowledge other than the actor.

Any chance of prosecuting the jailer for tampering with evidence, chapter 37? Surely he concealed or altered something....

I thought of that and may have to go that route but the felony portion of 37.09 seems to require knowing an investigation is pending. Of course the purpose of the coverup is to prevent an investigation or even knowledge of an offense. I have prosecuted a few times under that statute without it being an issue but this case is a high profile one that will have to notch defense attorney's. I have never been quite sure it was the appropriate charge. I want my ducks in a row.

If there was serious bodily injury or death, you could use Penal Code Sec. 38.171, Failure to Report a Felony.

Thanks, I had not thought of that.