Lombardino v. Firemen's and Policemen's Civil Service Commission of City of San Antonio, 13271

• Decision Date: 05 February 1958
• Docket Number: No. 13271,13271
• Court: Texas Court of Appeals
• Parties: Frank J. LOMBARDINO, Appellant, v. FIREMEN'S AND POLICEMEN'S CIVIL SERVICE COMMISSION OF the CITY OF SAN ANTONIO et al., Appellees.

Page 651

310 S.W.2d 651

Frank J. LOMBARDINO, Appellant, v. FIREMEN'S AND POLICEMEN'S CIVIL SERVICE COMMISSION OF the

CITY OF SAN ANTONIO et al., Appellees.

No. 13271.

Court of Civil Appeals of Texas, San Antonio.

Feb. 5, 1958.

Rehearing Denied March 5, 1958.

Richard C. Keene, James E. Barlow, Adrian A. Spears, San Antonio, for appellant.

Carlos C. Cadena, City Atty., Mayo J. Galindo, Asst. City Atty., San Antonio, for appellees.

BARROW, Justice.

This appeal is from a judgment of the District Court affirming an order of the Firemen's and Policemen's Civil Service Commission of the City of San Antonio, dismissing Frank J. Lombardino from the San Antonio Police Department.

It appears that on the 26th day of May, 1956, S. J. Matthews and George W. Bichsel, City Manager and Chief of Police, respectively, of the City of San Antonio, issued and caused to be delivered to appellant, Lombardino, a city detective, a notice and order indefinitely suspending him from the San Antonio Police Department as of said date. Appellant duly perfected his appeal to the Fire and Police Civil Service Commission of the City of San Antonio. Said notice and order contained four specific charges against appellant. The first charge was found by the Commission to be false and need not be further noticed. The second, third and fourth charges are as follows:

'Rule XX, Section 120 provides that the following constitute grounds for dismissal:

'Acts of insubordination, and failure or refusal to carry out instructions. You are charged with owning, operating or working for, or participating in owning and operating a collection agency, doing business under the name of 'San Antonio Creditors' Association,' during the last six months while you were a detective in the San Antonio Police Department after express instructions from your superior officers to discontinue such activity. Such activity constituted insubordination, and willful refusal to carry out instructions.

'Rule XX, Section 120, makes violations of the following rule a ground for dismissal:

"No person shall, after the adoption of these rules, be employed in any gainful employment outside of his City job without the written approval of his department head.' Violation of the rules and regulations of the department, is also a ground for dismissal. Rule 89 of the department rules provides in part: 'No police officer shall engage in any outside business or employment without the written permission of the Chief of Police * * *. No police officer shall own, operate or have any interest in any business of any kind without written permission from the Chief of Police.'

'You are charged with owning, operating, or having an interest in the San Antonio Creditor's Association, a collection agency engaged in collection of delinquent accounts in the City of San Antonio, during the past six months without the written consent of the Chief of Police. This action violates the rules quoted above.

'Rule 48 of the rules and regulations of the police department provides: 'All officers shall obey all the laws of the United States, State of Texas, and Ordinances of the City of San Antonio.' Penal Code Article 380a prohibits the collection of debts by any peace officer for compensation. You are charged with operating a collection agency for compensation in violation of the above provision and rule.'

On the 31st day of July, 1956, the said Commission signed and entered an order nunc pro tunc as of June 18, 1956. Said order found appellant, Lombardino, guilty of the second, third and fourth charges, and ordered that he be dismissed from the San Antonio Police Department, effective May 26, 1956. The specific findings of the Commission are as follows:

'The Commission finds that Mr. Lombardino was insubordinate and wilfully failed to carry out instructions by owning, operating, working and participating in the San Antonio Creditors Association after having been ordered by his superior officers to discontinue from such activity.

'The Commission finds that Mr. Lombardino violated rule 89 of the Rules and Regulations of the Fire and Ploice Department in that he engaged in an outside business without the written permission of the Chief of Police.

'The Commission finds that Mr. Lombardino did in fact violate Article 380a of the penal code in that he collected debts as a peace officer for compensation.'

The appellant appealed from said order to the District Court, and a full transcript of the evidence heard by the Commission was filed in the District Court and is before this Court. Both appellant and appellees presented motions for summary judgment, whereupon the court, after considering the same, overruled appellant's motion and sustained appellees' motion, and accordingly entered judgment that appellant take nothing.

Appellant contends that the Commission had not promulgated nor published the rules under which he had been discharged, and that therefore his motion for summary judgment should have been granted....