Firemen's & Policemen's Civil Service Commission, City of Austin, Texas v. Burnham

SHANNON, Chief Justice.

The Firemen’s and Policemen’s Civil Service Commission of the City of Austin appeals from a judgment of the district court of Travis County setting aside the order of the Commission dismissing appellee Robert Burnham from the Austin Police force. The Commission’s order sustained Bum-ham’s dismissal by the chief of police for refusal to submit to a polygraph examination concerning an alleged rape. This Court will reverse the judgment of the district court.

The facts underlying the dispute are not contested. In May of 1983 Burnham was a policeman for the City of Austin. In early May, 1983, the police department began an investigation of a rape complaint lodged against Burnham. The chief of police ordered Burnham to take a polygraph examination. When Burnham refused to do so the police chief fired him.

The district court determined that the incident, out of which the claimed rape arose, was not related to Burnham’s employment as a policeman because the charge arose out of an off-duty incident which occurred while Burnham “was not in uniform.” The district court concluded that the subject of the proposed polygraph examination “was not specifically, directly, and narrowly related to the performance of [Burnham’s] official duties” as a policeman. The district court concluded further that the police chief’s order requiring Burn-ham to take the polygraph examination was illegal as a violation of the Fifth and Fourteenth Amendments of the Constitution of the United States.

The question, then, is whether the claimed rape was related to Burnham’s employment as a police officer. This Court concludes that it was related and, accordingly, the police chief was empowered to *811order Burnham to submit to the polygraph examination.

One is, of course, protected from unwarranted intrusions into his private affairs. Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973). Nevertheless, the government as an employer has authority to question its employee concerning matters relevant to his employment. The government may dismiss or discipline an employee, after proper proceedings, if he refuses to account for the performance of his employment duties. If he is not coerced into waiving a constitutional right, there is no constitutional impediment to such dismissal or discipline. Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Uniformed Sanitation Men Assoc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423 (1958); Slochower v. Board of Higher Education of the City of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Garner v. Board of Pub. W. of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951); Tex. Dept. of Mental Health and Mental Retardation v. Tex. State Employees Union, 708 S.W.2d 498, (Tex.App.1986, writ pending). Incriminating information obtained from a com pelled examination is inadmissible, of course, in a subsequent criminal prosecution. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Gulden v. McCorkle, 680 F.2d 1070 (5th Cir.1982).

In Talent v. City of Abilene, 508 S.W.2d 592 (Tex.1974) the Supreme Court determined that the Abilene fire chief had no authority to order a tenured fireman to take a polygraph examination concerning non-employment related subjects. The Court, however, distinguished a law enforcement officer from a fireman, who “has no roving commission to detect crime or to enforce the criminal law.” Id. at 596. The Court implied that the official duties of a police officer are far broader than those of a fireman.

In McLean v. Rochford, 404 F.Supp. 191 (N.D.Ill.1975), the United States district court affirmed the dismissal of a police officer for refusing to answer questions concerning his knowledge of and participation in a rape. The district court concluded that the questions did relate to the officer’s official duties, and rejected the officer’s argument that he could not be questioned about incidents which occurred while he was off duty. The court stated:

The argument is not supported by the Illinois law which is controlling on the issue. A police officer has an official duty to report criminal conduct if he is technically off duty.
Id. at 198 n. 4 (Citations omitted).

Texas has similar laws providing that a police officer has official duties even when he is off duty. See Tex.Code Cr.P. Ann. arts. 2.13, 6.05, and 6.06 (1977 & Supp.1986). Article 6.06 provides:

Whenever, in the presence of a peace officer, or within his view, one person is about to commit an offense against the person or property of another, ... it is his duty to prevent it ...

(Emphasis added.)

The Court of Criminal Appeals has written on several occasions that a police officer is on duty twenty-four hours a day. Wood v. State, 486 S.W.2d 771 (Tex.Cr.App.1972); Monroe v. State, 465 S.W.2d 757 (Tex.Cr. App.1971); Simms v. State, 167 Tex.Cr.R. 315, 319 S.W.2d 717 (1958). A police officer’s off-duty status is not a limitation upon his discharge of police authority in the presence of criminal activity. Morris v. State, 523 S.W.2d 417 (Tex.Cr.App.1975).

Because a police officer has an obligation to prevent crime even when off duty, the district court erred in concluding that the alleged rape was not related to Burnham’s employment with the Austin Police Department and that the subject of the polygraph examination was not specifically, directly, and narrowly related to the performance of Burnham’s official duties as an Austin police officer. The polygraph examination, because it related to Bum-ham’s official duties, did not violate any of *812his constitutional rights, and the department was, therefore, within its authority in dismissing Burnham for refusing to obey a direct order to submit himself to the examination.

The judgment is reversed and the cause is remanded to the district court for entry of judgment sustaining the order of the Commission.