Talent v. City of Abilene

• Decision Date: 14 September 1973
• Docket Number: No. 4619,4619
• Parties: Tommy J. TALENT, Appellant, v. CITY OF ABILENE et al., Appellees.
• Court: Texas Court of Appeals

Page 724

499 S.W.2d 724

Tommy J. TALENT, Appellant, v. CITY OF ABILENE et al., Appellees.

No. 4619.

Court of Civil Appeals of Texas,

Eastland.

Sept. 14, 1973.

Rehearing Denied Oct. 5, 1973.

Robinson, Wilson & Holloway (James E. Robinson), Abilene, for appellant.

Quay Parker, Asst. City Atty., Abilene, for appellees.

WALTER, Justice.

Appealed from the 42nd Judicial District of Taylor County.

Our opinion and judgment rendered on June 8, 1973, is withdrawn and the following opinion is rendered in lieu thereof.

This is a substantial evidence case.

The nature and result of this case is accurately set forth in Appellant's brief as follows:

'TOMMY J. TALENT is a Senior Fireman with the Fire Department of the City of Abilene, Taylor County, Texas. The Police recovered a pickup from Fireman TALENT on the basis that it was stolen. Fireman TALENT reported the recovery to the Firechief and subsequently reported the fact that he had been charged with an offense in connection with the pickup and has been released on bond. The Firechief and one BILL OLSON, Personnel Director and Civil Service Director, suggested, and Fireman TALENT did take his vacation leave. When TALENT'S vacation leave expired, and the charge had not been 'cleared up', the Firechief ordered TOMMY J. TALENT to submit to a polygraph examination. Upon advice of his counsel, TOMMY J. TALENT, refused and because of his refusal to submit to a polygraph examination, he was permanently dismissed from the Fire Department. By 'majority' vote, the Civil Service Commission upheld that Firechief and upon appeal to the 42nd Judicial District Court of Taylor County, Texas, the learned Trial judge upheld the decision of the Civil Service Commission.'

Appellant contends the Court erred in not rendering judgment reinstating him as a fireman because the special order issued to Appellant was unreasonable and unrelated to his duties as a fireman. He further contends that the fire chief has no power or authority to order him to submit to a polygraph examination. He also contends that he was permanently dismissed in disregard of his constitutional rights and in disregard of the Civil Service Rules.

The order of the Firemen's and Policemen's Civil Service Commission of the City of Abilene is presumed to be a valid exercise of the power and discretion conferred upon it. Gerst v. Guardian Savings and Loan Association,434 S.W.2d 113 (Tex.1968). If the findings of the commission had any reasonable basis in fact and were not arbitrary and capricious, its order must be affirmed. Shupee v. Railroad Commission of Texas, 123 Tex. 521, 73 S.W.2d 505 (Tex.Sup.Ct.1934).

In Lewis, Savings & Loan Commissioner et al. v. Southmore Savings Association, 480 S.W.2d 180, at page 184 (Tex.1972), the Court said:

'The rule was further clarified in Trapp v. Shell Oil Co., (145 Tex. 323, 198 S.W.2d 424) supra, to be that the Commission's order would be upheld if the prevailing party could produce substantial evidence in support of the order. The court determines from all of the evidence before it, the entire record, whether the Commissioner's action is or is not reasonably supported by substantial evidence. The court is not to substitute its discretion for that committed to the agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the Court. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942); Hawkins v. Texas Co., 146 Tex. 511, 209 S.W.2d 338 (1948); Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198 (1949); Guinn, Administrative Law, 24 Southwestern Law Journal 216 (1970); Guinn, Judicial Review of Administrative Orders, 23 Baylor Law Rev. 34 (1971).'

Applying the appropriate rule set forth in the above authorities, we have carefully reviewed the record and find that the Appellant has not discharged his burden of establishing that the trial court erred. Appellant contends this is a case of first impression in Texas. Our conclusion that the special order did not violate Talent's constitutional rights is supported by the following out of State authorities:

Seattle Police Officers' Guild v. City of Seattle, 80 Wash.2d 307, 494 P.2d 485 (1972); Coursey v. Board of Fire and Police Commissioners, 90 Ill.App.2d 31, 234 N.E.2d 339 (1st Dist., 3rd Div.1967); and Frazee v. Civil Service Board of City of Oakland, 170 Cal.App.2d 333, 338 P.2d 943 (1959); Roux v. New Orleans Police Department, 223 So.2d 905 (La.Ct.App., 4th Cir., 1969, writ ref'd, 254 La. 815, 227 So.2d 148, cert. denied, 397 U.S. 1008, 90 S.Ct. 1236, 25 L.Ed.2d 421 (1970).

We have considered all of Appellant's points and find no merit in them. They are overruled.

The judgment is affirmed.

RALEIGH BROWN, J., not participating.

McCLOUD, Chief Justice (concurring).

Section 5 of Article 1269m, Vernon's Ann.Civ.Stats., authorizes the civil service commission of a city to enact rules and regulations providing for the dismissal of firemen or policemen who violate 'special orders'. The Civil Service Commission of the City of Abilene adopted such a rule. Section 23(13) Civil Service Rules and Regulations. Pursuant to such authority the fire chief issued a special order directing Talent to take a polygraph test. The special order was in writing, informed Talent that no criminal charges or prosecution would result from the examination, and set forth the question which would be asked. All questions related directly to a stolen pickup which was found in Talent's possession.

Talent has raised serious and penetrating questions concerning the validity of the special order. He forcefully argues that the order was invalid because it was unrelated to his duties as a fireman.

In Jackson v. Firemen's & Policemen's Civil Service Commission of Galveston, 466 S.W.2d 412 (Tex.Civ.App.--Houston (1st Dist.) 1971, writ ref. n.r.e.) the fire chief issued a 'special order' requiring a fireman to move his residence into the city limits of Galveston. While holding the order valid the Court said:

'In this case there is a suspension for disciplinary reasons, authorized by a rule adopted by the Civil Service Commission. Appellant refused to obey a special order. The order was given to require obedience to a policy promulgated by the chief executive officer of the city. It must be presumed that the trial court found that the policy bears a reasonable relationship to maintenance of an efficient fire fighting force.'

The Court further stated:

'It would be an unreasonable interpretation to hold that suspension is authorized for the violation of a special order if it is clearly unreasonable or unrelated to the duties of a fireman.'

Talent relies upon the above quoted sentence to support his position that the order must be related to his duties as a fireman. The crucial question, as I view the matter, is not whether the order relates to Talent's functional duties but the determinative factor is whether the order bears any reasonable relationship to his fitness or capacity to properly function as a fireman. As I read Jackson, Supra, this is the test the Court applied. I think this test has been recognized and inferentially approved in prior Texas cases involving special orders. In Bryant v. City of San Antonio, 464 S.W.2d 888 (Tex.Civ.App.--San Antonio 1971, no writ) the Court upheld the suspension of an off-duty police officer who violated an order of his superior directing him to stay away from the Holiday Inn where the officer's ex-wife worked. The superior's action was prompted because the police officer had previously created a disturbance while arguing with his ex-wife. Also, in Lombardino v. Firemen's & Policemen's Civil Service Commission, 310 S.W.2d 651 (Tex.Civ.App.--San Antonio 1958, writ ref. n.r.e.) the Court upheld the suspension of a police officer for failing to obey an order to discontinue his ownership and operation of a creditor's association.

Talent was charged with receiving and concealing a stolen pickup. He was arrested and released on bond. There is evidence in the record that Talent told conflicting stories, concerning his involvement, to both the fire chief and an intelligence agent with the Department of Public Safety. The chief doubted that Talent was telling the truth. The chief testified that in the past, five firemen had taken polygraph tests to 'clear things up' and that some of these men were still working as firemen. He testified further that he had 128 men working for him and he had to maintain good discipline in order to function properly as a fire department. He stated that Talent's refusal to comply with the special order would hurt the discipline of the force. The chief believed that a polygraph examination was the only way he 'had of finding the truth'.

Statements obtained from Talent under threat of dismissal could not be used as evidence in a subsequent criminal prosecution, Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), nor would the results of a polygraph test be admissible in the trial of a criminal case. Lee v. State, 455 S.W.2d 316 (Tex.Cr.App.--1970). In Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968) the Supreme Court pointed out that public employees subject themselves to dismissal if they refuse to account for their performance of public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights. Here, there was no demand or suggestion that immunity be waived as in Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L .Ed.2d 1082 (1968).

In Kammerer v. Board of Fire and Police Commissioners of the Village of Lombard, 44 Ill.2d 500, 256 N.E.2d 12 (1970). A police officer was charged, among other things, with violating a section of the Illinois Criminal Code, in that he kicked and damaged a squad car while he was offduty. The officer was dismissed and he contended he was...