I am in accord with the majority opinion and remain convinced that Firemen's Policemen's Civil Service Commission ofthe *Page 583 City of Laredo v. Martinez, 643 S.W.2d 770 (Tex.App. — San Antonio, 1982) was correctly decided.
Ordinarily there would be little need for additional commentary when joining a majority decision. However, in the instant case the dissenting opinion advocates a result contrary to well documented human experience which the majority opinion fails to address. Lest it be believed that such a position cannot be responded to I shall briefly address it.
The dissent engages in fiction when it states that an officer or fireman charged with a violation necessarily knows that the violation refers to the Civil Service Act and that the charging party will always rely upon Civil Service rules.
A cursory examination of the case law touching upon Tex.Rev.Civ.Stat.Ann. art. 1269m (Vernon 1963) clearly reveals that attempted suspensions and dismissals were often made because of alleged violations of City personnel rules, departmental rules, regulations, special orders and other sundry rules and regulations. See Talent v. City of Abilene,508 S.W.2d 592 (Tex. 1974) (special written order from fire chief); City of San Antonio v. Poulos, 422 S.W.2d 140 (Tex. 1968) (Civil Service Rules and Police Department Regulations); Nixon v. City of Houston, 560 S.W.2d 447 (Tex.Civ.App. — Houston [14th Dist.] 1977, writ ref'd n.r.e.) (Civil Service Rules and Houston Police Department Rules); Bryant v. City of San Antonio, 464 S.W.2d 888 (Tex.Civ.App. — San Antonio 1971, no writ) (City Personnel Rules and Police Department Rules); Harless v. Bichsel, 327 S.W.2d 791 (Tex.Civ.App.-San Antonio 1959, no writ) (Civil Service Commission adopted City's Personnel Rules).
Admittedly, some of these divers and sundry rules, regulations and special orders were engrafted into Civil Service rules by special adoption. Article 1269m, § 5. But a city is under no compulsion to incorporate into its Civil Service rules all preexisting departmental rules, regulations and special orders, nor may we assume that they have. It is entirely possible that a Civil Service Commission was implemented by a city as provided for under the provisions of article 1269m, supra, without wholesale incorporation of preexisting rules and regulations.
While agreeing with the dissent that a policeman or fireman cannot [validly] be disciplined unless the procedures outlined in article 1269m are followed, I refuse to believe that no effort will ever be made to discipline for infractions outside the scope of adopted rules, regulations or special orders.
The legislature refused to impute this knowledge to the city employee and nothing in the dissent convinces me that this Court, or any court for that matter, should impose a "bound to know" burden upon the employee when in fact the burden is placed upon the accusing party. See article 1269m, § 16.
Finding little logic in the dissent I continue to adhere to our prior holding in Martinez as followed by the majority opinion.