dissenting.
I concur in the court’s analysis of the factors set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine that due process did not mandate that Davis be provided the names of his accusers prior to termination of his employment. The government’s interests in the prompt removal of unsatisfactory employees and in the protection of complainants against retaliation by the accused are especially strong in the preter-mination stage under the particular circumstances presented here. The analysis of interests, however, shifts significantly once the employee has been terminated, and it is here that I definitely part company with *666the court. Because due process required that Davis be provided the names of the complainants prior to his post-termination hearing, I dissent.
In ascertaining whether notice is required during the termination proceedings, the court correctly refers to “three distinct factors” used to measure the constitutionality of procedures:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews, 424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33 (1976); see also Zinermon v. Burch, — U.S.-, 110 S.Ct. 975, 984, 108 L.Ed.2d 100, 115 (1990). Applying these factors to Davis’s post-termination hearing, the requirements of due process were not met.
First, an individual’s interest in retaining employment is substantial at all stages of the termination proceedings.1 The Supreme Court has “frequently recognized the severity of depriving a person of the means of livelihood,” and has noted that “[w]hile a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the questionable circumstances under which he left his previous job.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 1494, 84 L.Ed.2d 494, 504 (1985) (citations omitted); see also FDIC v. Mallen, 486 U.S. 230, 243, 108 S.Ct. 1780, 1789, 100 L.Ed.2d 265, 280 (1988).
Second, the risk of an erroneous deprivation increases when an employee is not advised of the complainants’ identities. The record reflects that Davis learned which specific individuals would testify against him only as each took the witness stand at the Commission’s hearing and that the sole person identified to him never appeared. The court ignores this handicap, focusing instead on the length and depth of the defense offered at the hearing, as well as the availability of cross-examination. The fact that Davis’s attorneys were able to mount a creditable defense even though deprived of advance notice of the names of his accusers does not remove the impediment that affected the ability of counsel to prepare. Even the very best player at blind man’s bluff is still blindfolded.
Third, I agree that the employer may have a significant interest in non-disclosure prior to termination,2 where the complainants are co-workers, to minimize disruption in the work place.3 Refusing to identify such persons protects co-workers reporting allegedly unacceptable behavior from harassment and retaliation. This justification in non-disclosure, however, is significantly diminished after termination.
By deciding that pretermination procedures “though necessary, need not be elaborate” when a prompt post-termination hearing is available, the Supreme Court recognized a continuum of rights and interests. Loudermill, 470 U.S. at 545, 105 S.Ct. at 1495, 84 L.Ed.2d at 506 (1985). At the beginning, during the pretermination stage, the employer has much more latitude, since its interests in avoiding workplace disruption are usually more signifi*667cant. At the end — after termination — the interest of employees in a full and fair resolution of charges against them is paramount; any interest of the employer in secrecy can rarely be justified.
Although informing the accused of the names of the accusers was not specifically addressed in Loudermill, the court of appeals properly relied on the reasoning of that opinion to support such a requirement. 775 S.W.2d at 810.4 A similar conclusion was reached in Hatcher v. Board of Public Education and Orphanage, 809 F.2d 1546, 1554 (11th Cir.1987), in which the court concluded that notice of adverse witnesses is constitutionally mandated prior to a post-deprivation hearing. To the same effect is Tolson v. Sheridan School Dish, 703 F.Supp. 766, 772 (E.D.Ark.1988), outlining procedural steps necessary to satisfy due process:
Regardless of whether pre-termination proceedings are adequate, the equivalent of a full evidentiary hearing is necessary either pre or post-termination in order to meet the demands of due process. Loudermill, 105 S.Ct. at 1496.
At a minimum, to support the termination of a governmental employee who possesses a property interest, the employer must provide to the employee ... notice of both the names of those who have made allegations and the specific nature and factual basis for the charges....
Other cases recognize that prehearing identification of complainants is a “minimal” due process requirement. Levitt v. Univ. of Tex., 759 F.2d 1224, 1228 (5th Cir.), cert. denied, 474 U.S. 1034, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985); Brouillette v. Board of Directors of Merged Area IX, 519 F.2d 126,128 (8th Cir.1975); see also Agarwal v. Regents of Univ. of Minn., 788 F.2d 504, 508 (8th Cir.1986).
Examining these cases, the court states that it “do[es] not quarrel with the particular results reached,” 802 S.W.2d at 665, yet strangely it refuses to follow them because purportedly the flexibility of due process must be preserved. I would hold that federal due process requires identification of complainants at a reasonable time before the post-termination hearing except in those rare circumstances where the employer satisfies the burden of showing a specific and substantial interest in protecting the anonymity of the accusers. This approach would allow flexibility, but it would be flexibility within meaningful constitutional constraints.
Any governmental interest in secrecy cannot be merely presumed or supposed into being as the court attempts to do here; rather it must be established in the record. While the court concedes that usually “there is little reason to withhold such notice,” 802 S.W.2d at 665, in this particular case there is no reason. The Bexar County Sheriff’s Department offered no evidence that any interest would have been jeopardized by identifying the accusers after Davis’s discharge but prior to the Commission’s hearing. Absolutely nothing in the record or even the argument of counsel indicates that providing Davis a list of these names would have resulted in the slightest “additional administrative burdens and legal costs.” 802 S.W.2d at 664. With regard to any governmental interest that must be considered in a due process evaluation of procedures under Mathews, here the court conveniently substitutes presumption for proof. In so doing, it reinforces government’s natural tendency toward secrecy.
By advising employees before the post-termination hearing of the names of complainants, the public employer substantially decreases the risk of an erroneous deprivation. Providing this information to employees promotes the true governmental interest by facilitating the full development of relevant facts and detecting attempts to color the truth. As a result, the govern*668ment’s ultimate decision is founded upon the merits, not the unexpected.
Prehearing notice of the names of the accusers is a fundamental element of due process. It has long been recognized that a person surprised is half beaten. With no information as to the source of allegations, the person charged with wrongdoing cannot be prepared to challenge the credibility of witnesses, develop inconsistencies, or gather rebuttal evidence. Due process demands that termination procedures be more than some Kafkaesque tale5 in which the query “who is accusing me of this?” is answered only by “we’ll tell you when you get there.” A proceeding in which valuable rights will be denied should not be shrouded in mystery or converted into a contest by surprise. The right to cross-examine a witness cannot substitute for constitutionally required notice; rather notice is a predicate to meaningful cross-examination.
Certainly, sexual harassment of the type alleged against Davis is unacceptable. Without proper procedures, however, a public employer could dismiss on manufactured charges an innocent employee for any number of reasons including rejection of improper advances by a supervisor. Constitutional due process is blind to those entitled to receive its protection; it does not draw a line between the justly and unjustly accused. Rather, it applies to those deprived by government of a protected interest without sufficient notice to present a proper defense.
Nor is today’s opinion truly fair to employers. Public entities today learn only that “due process might well require” releasing names of complainants in many, but not all, situations. 802 S.W.2d at 664. In attempting to interpret and apply the court’s opinion, one about to terminate an employee cannot with any assurance determine whether notice is required. For any prudent employer, the court may, as a practical matter, have produced the same result as that which would be achieved by holding that due process was violated by failing to notify the accused employee of the identity of the accusers. Courts must now examine the adequacy of procedures on a case-by-case basis. The potential for reversal of the termination proceedings and reinstatement of employees with back pay,6 for the failure to complete the hardly burdensome task of identifying complainants, will most likely cause prudent employers to adopt what the court itself terms the “good practice” of providing the names in termination cases. 802 S.W.2d at 665. Although denying that it has done so, the court has in effect constitutionalized a notice requirement, but it is one that involves an unacceptable level of uncertainty. The court’s hesitancy and ambivalence is a disservice to employees and employers alike.
An apparent need to await further instructions from Washington is offered as final justification by the court for having disregarded the better reasoned federal authorities cited above to reach a result for which the record provides no support. In essence, today’s decision would resolve questions of constitutional rights against the citizen and in favor of the government whenever the precise issue has not previously weaved its way through the judicial processes and been the subject of writing by the highest court in the land.7 Surely *669proper reliance upon Supreme Court precedents does not require that we must inevitably defer to its silence. Indeed, I believe the state courts share an important responsibility in assisting the federal judiciary to shape the fundamental constitutional fabric of our country. The court deprives Texas a voice in that basic process. Unlike today’s opinion, I prefer a little more Texas thinking to be available in Washington instead of waiting for Washington to think for Texas.
Urging that too much due process would be “just as surely wrong” as too little, 802 S.W.2d at 665, the court approves a standard of deference to government — at the expense of the individual — that undercuts the framers’ carefully crafted controls:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
The Federalist No. 51, at 337 (A. Hamilton or J. Madison) (Bicentennial ed.1976). The slightest erosion of these protections eventually destroys the foundation of all.
RAY, MAUZY and HIGHTOWER, JJ„ join in this dissent.
. While not contested here, "[a]t some point, a delay in the post-termination hearing would become a constitutional violation.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547, 105 S.Ct. 1487, 1496, 84 L.Ed.2d 494, 507 (1985); see also Barry v. Barcki, 443 U.S. 55, 74, 99 S.Ct. 2642, 2654, 61 L.Ed.2d 365, 381 (1979) (Brennan, J., concurring).
. This will not, however, be invariably true under all circumstances. Where complaints resulting in dismissal do not originate from coworkers the employer may not be able to show a significant interest in denying pretermination notice identifying accusers.
.Disruption could potentially ensue if co-workers were made known as complainants prior to the termination of a wrongdoer. To eliminate sexual harassment from the workplace, the state must rely upon its employees to report this unacceptable conduct. If such pretermination identification was required, the potential exposure to abuse from the accused would frustrate efforts to discourage misconduct.
. Charged on grounds unstated, accused by persons unknown, and tried in courts he cannot locate, Joseph K., a character depicted by Kafka, asks about this system cloaked in secrecy:
[T] hough I am accused of something, I cannot recall the slightest offense that might be charged against me. But that even is of minor importance, the real question is, who accuses me?
F. Kafka, The Trial 16 (1937) (emphasis supplied).
. I do not reach the question of whether Davis should be reinstated with back pay. Only if, after a procedurally correct hearing, it had been properly determined that he was fired without just cause would this have become an issue appropriate for consideration.
.Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570, 576 (1975), the only authority cited for this proposition, offers support only for a more limited and correct view that when the Supreme Court addresses an issue and "specifically refrains from imposing” a particular requirement, state courts may not impose greater restrictions under the federal constitution. (emphasis supplied).