Bryant v. City of San Antonio

• Decision Date: 17 February 1971
• Docket Number: No. 14941,14941
• Citation: 464 S.W.2d 888
• Parties: Fred F. BRYANT, Appellant, v. CITY OF SAN ANTONIO, et al., Appellees.
• Court: Texas Court of Appeals

Page 888

464 S.W.2d 888

Fred F. BRYANT, Appellant, v. CITY OF SAN ANTONIO, et al., Appellees.

No. 14941.

Court of Civil Appeals of Texas San Antonio.

Feb. 17, 1971.

Rehearing Denied March 24, 1971.

Tracy & Cook, John D. Wennermark, Robert A. Valdez, San Antonio, for appellant.

Howard C. Walker, Crawford B. Reeder, Jackson C. Hubbard, San Antonio, for appellees.

BARROW, Chief Justice.

Fred F. Bryant has appealed from a judgment which upheld an order of the Firemen's and Policemen's Civil Service Commission, dismissing him from the San Antonio Police Department pursuant to Article 1269m., Vernon's Annotated Civil Statutes.

On March 23, 1967, Chief George W. Bichsel of the San Antonio Police Department indefinitely suspended Officer Bryant by written statement filed with the Commission on March 24, 1967, a copy of which was personally delivered to Bryant. In this statement, Bryant was charged with violating Rule XX, Section 120 of the City Personnel Rules, as well as Rules 42, 82, and 85 of the San Antonio Police Department. The specific acts allegedly committed by Bryant were set forth in detail in this statement. Such acts grew out of a disturbance on March 8, 1967, at the Holiday Inn No. 2 in San Antonio, allegedly caused by Brant while in an off-duty status, in an apparent effort to embarrass or harass his ex-wife. In this connection, Bryant went to the Holiday Inn twice in violation of specific orders of a superior officer, who sought to avoid such a disturbance.

Byrant does not question the sufficiency of such written statement to comply with Section 16, Article 1269m., but urges by his first point on this appeal that appellees were required to allege such matters in the same detail in the district court. Bryant brought the suit to set aside the order of the Commission dismissing him from the Police Department. He urged only two grounds for setting aside the order--the Commission improperly refused to postpone the hearing, and there was no substantial evidence to indicate he was guilty of violating any Civil Service rule. In reply to this petition, the defendants (appellees herein) filed a general denial and further alleged that Bryant had received the benefit of all provisions of Article 1269m., that the Commission found the truth of the specific charges filed against him, and that such findings are based upon substantial evidence. No exceptions to such pleadings were levelled by either party, and the pleadings joined issue on the question of whether the Commission order was or was not supported by substantial evidence.

The case came on to be heard before the court and at such time, defendants accepted the burden of proceeding with the evidence in the case. The order entered by the Commission on May 8, 1967, was introduced without objection. Such order contains specific findings regarding each of the charges filed against Bryant by Chief Bichsel, including the evidence which supports such findings. Following introduction of such order, appellees called witnesses who testified regarding the charges against Bryant. These witnesses were permitted to testify over Bryant's objection that there was no pleading to support such testimony.

Section 16 of Article 1269m. requires the written statement filed with the Commission to point out not only the Civil Service rules alleged to have been violated, but also the act or acts complained of on the part of the employees. See City of San Antonio v. Poulos, 422 S.W.2d 140 (Tex.1968); Bichsel v. Carver, 159 Tex. 393, 321 S.W.2d 284 (1959). Section 18 thereof authorizes an appeal from the decision of the Commission, and it is seen that there is no provision, as in Section 16, requiring the City or Commission to allege the specific charges made against the employee. Bryant urges, nevertheless, that defendants' pleadings should allege the acts in the same particularity as required in the written statement.

A somewhat similar question was presented this Court in Firemen's & Policemen's Civil Service Commission v. Shaw, 306 S.W.2d 160 (Tex.Civ.App.--San Antonio 1957, writ ref'd n.r.e.). It was there held that the Commission did not have the duty to prove up the rules and regulations of the Civil Service Board and Police Department of which Shaw was charged with violating . In the absence of any allegations to the contrary, the appellate court would presume that all the proceedings were regular and proper, and that the regulations which Shaw was charged with violating had been properly promulgated. Shaw was burdened with the duty of showing that the Commission proceedings were illegal or were not supported by substantial evidence.

Here no question is raised as to the burden of proceeding or the burden of proof. Further, the sufficiency of the written statement is not attacked. On the procedural question before us, we hold that defendants' allegation regarding the Commission proceedings, when considered with Bryant's petition, was sufficient to support the admission of evidence of the acts committed by Bryant in violation of the Civil Service and Police Department rules, which the Commission found he had violated.

Bryant's second point complains of the introduction into evidence of a signed carbon copy of the written statement served upon him by Chief Bichsel. No question was...