Talent v. City of Abilene , 499 S.W.2d 724 ( 1973 )

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Our opinion and judgment rendered on June 8, 1973, is withdrawn and the following opinion is rendered in lieu thereof.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