Dissenting Opinion
POPE, Justice.I respectfully dissent. The Commission ruled that the charges lodged against of*146ficer Poulos were sufficient and that he had violated these rules set out in the charges:
“RULE XX, Section 120. Neglect of duty;
Failure or refusal to carry out instructions;
Violation of any of the rules and regulations of the department.
1. That portion of Rule 16 which provides :
‘Officers shall report promptly * * * all information they may receive about any violation or suspected violation.’
2. That portion of Rule 29 which provides :
‘No member of the Department shall willfully misrepresent any matter, sign any false official statement or report * * ”
The district court on appeal held that the charges did not assert any specific rule violation and also that there was no substantial evidence to support any of the charges. The court of civil appeals ruled that the charges were sufficient, but there was not substantial evidence which supported either a violation of rule 16 or Rule 29. The opinion is silent about the Commission’s conclusion that Poulos was guilty of neglect of duty. The majority therefore, does not reach the question of substantial evidence. In my opinion, the majority has imposed requirements for the assertion of civil service violations more suitable to an indictment for violation of the penal code, a thing with which we are not concerned.
Section 5, art. 1269m, Tex.Rev.Civ.Stat. Ann., authorizes the adoption of rules and regulations for the government of policemen. It lists a number of reasons for the removal or suspension of an officer. Neglect of duty is one of those listed. Violation of the rules of the Police Department is another. The original charges against Poulos first stated three general charges: (1) Neglect of duty, which is not discussed by the majority, (2) failure or refusal to carry out instructions, and (3) violation of the rules and regulations of the department. The charges then specify Rules 16 and 29 as those which were violated. The majority regards and treats the two rules as relevant only to the third general charge. The violation of those rules is equally relevant to the charge of neglect of duty. Throughout all of these appellate proceedings, the neglect of duty charge has been ignored by the courts, but it has been insistently urged by the Commission as a sound independent basis for upholding the Commission order.
The first charge made by the Chief of Police, Bichsel, was that Poulos was guilty of neglect of duty in that he violated Rule 16. This Court has committed the same error as the court of civil appeals in requiring proof of elements not embraced within the charged offenses. This is illustrated by that court’s holding that “ * * the crux of the allegations against Poulos was that he was fencing stolen property in attempting to sell this expensive shotgun, the appellants wholly failed to prove that the shotgun Poulos was attempting to sell was stolen from Cowles or from any other person.” The majority opinion makes the same mistake by holding that the charges are insufficient, because “the statement nowhere alleges that the gun he (Poulos) had was the same gun taken in the burglary.” These holdings add elements not found in nor required by a charge of neglect of duty or the charge of failure to report a suspected offense. Such holdings require proof of a crime in addition to proof of a rule violation. The holdings mean that, if the criminal defendant goes free, the carelessness and neglect of officers who broke the departmental rules would also be free of charges. The holdings add to a rule, which requires reports for “suspected violations,” the words, “if a crime is later proved.” Stated conversely, an officer need report no suspected violations which are later proved to be unfounded.
*147Two charges, one that Poulos was guilty of neglect of duty in failing to report promptly a suspected violation, as well as the independent charge of violating Rule 16 based upon the facts specified in the charges were stated with the certainty required by law. Section 16 of art. 1269m embodies the required standards:
“The written statement above provided to be filed by the department head with the Commission, shall not only point out the civil service rule alleged to have been violated by the suspended employee, but shall contain the alleged acts of the employee which the department head contends are in violation of the civil service rules. It shall not be sufficient for the department head merely to refer to the provisions of the rules alleged to have been violated and in case the department head does not specifically point out the act or acts complained of on the part of such employee, it shall be the duty of the Commission promptly to reinstate him. * *
In Bolieu v. Firemen’s & Policemen’s Civil Service Commission, 330 S.W.2d 234 (Tex.Civ.App.1959, writ ref. n. r. e.) it was held that civil service hearings are not subject to “the stringency of the criminal law * * * and that § 5 of art. 1269m recognizes that a general charge, supported by an assertion of specific acts, is a suitable procedure “for a profession which demands a state of readiness, strict discipline, and a measure of obedience and valor not expected of ordinary callings.” This is a civil action administered by laymen in which courts have not required charges that meet the precision of an indictment. City of Evansville v. Nelson, 245 Ind. 430, 199 N.E.2d 703 (1964); Sudduth v. Board of Fire and Police Commissioners, 48 Ill.App.2d 194, 198 N.E.2d 705 (1964); Marchiafava v. Baton Rouge Fire and Police Civil Service Board, 233 La. 17, 96 So.2d 26 (1957); Sullivan v. Municipal Court of Roxbury Dist., 322 Mass. 566, 78 N.E.2d 618 (1948); Hogan v. Fausz, 243 Ky. 514, 49 S.W.2d 333 (1932). In Marchiafova, supra, the policeman was charged with “engaged in handing out campaign literature and wearing a badge advocating the election of a candidate in the Mayor-President race on election day.” He complained that the notice was too uncertain. The Louisiana Supreme Court reasoned that the notice informed the officer with sufficient particularity because there was only one Mayor-President election and it occurred on July 31, 1956. The court said that the charge was not an indictment by the grand jury and the Chief of Police who preferred the charges was not an attorney. The very nature of the charge, neglect of duty, is that it consists often of non-action. It has been held that in such charges, even time and place may not be necessary to the validity of the charge. Evansville v. Nelson, supra.
Contrary to the view taken by the majority, it is my opinion that the charges were rather carefully drawn so as to give Poulos notice of the event for which he was charged. They follow the format suggested in two earlier cases in which the City of San Antonio was involved. Bolieu v. Firemen’s and Policemen’s Civil Service Commission, supra; Harless v. Bichsel, 327 S.W.2d 791 (Tex.Civ.App.1959, no writ). After stating the general charge and the rules, they specifically state that about six weeks or two months before the charges were filed, which would be between the fifth and nineteenth of January, 1965, Poulos had in his possession a model 21 Winchester, 12 gauge, side by side, shotgun with an extra set of barrels bearing a serial number, the first three digits of which were 147. He offered that.gun for sale to Detective Gomez; Poulos said he would not give the buyer a receipt for a sale, and he told Gomez not to remove an adhesive covering on the breech of the gun “since there was something there which he did not want Detective Gomez to see.” The charges stated that Gomez saw the first three digits of the serial number on the gun and they were 147. The charges further stated that Gomez discovered from the police records that a gun of the same *148model, make, gauge, and with the same first three serial numbers had been reported stolen in the burglary detail. The charges assert that Gomez told Poulos that the burglary detail had reported such a gun as stolen. The charges then state, “Detective Poulos filed no report on the shotgun in question.”
We come then, to the question which the majority has not reached, was there substantial evidence to support the order of the Commission in suspending Poulos ? The trial court’s and our power in an appeal from an order of an administrative agency is stated in Fire Department v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664 (1962). “The extent of such a review has been rather generally held to be limited to an ascertainment of whether there was substantial evidence reasonably sufficient to support the challenged order.” The question is not whether a court agrees with the decision upon the basis of weighing the conflicting evidence. Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 183, 27 A.L.R.2d 965 (1951).
Poulos, himself, made a number of admissions. He admitted trying to sell the gun to Detective Gomez on January 16, 1965 and that he was asking $550.00 for it. He admitted he had never seen such a handmade gun in his life, though he had sold a number of guns. He admitted telling his superior, Captain Benfer, who questioned him in late January about his sale of guns, that he had obtained this gun from Norman Spears. He admitted that Captain Benfer during that same conference called in Norman Spears, a local businessman, who denied Poulos’ statement to his face. In the trial court, he admitted that he had not obtained the gun from Spears. He admitted he made no report about the gun. He admitted he was evasive in answering Captain Benfer’s questions about the gun. He said it was possible that there was on file a burglary report of a gun that had the same first three serial numbers as the gun he showed Gomez and that he did not check the burglary reports. He denied telling Gomez he would give no receipt, that the gun had an adhesive covering over the breech or suggesting to Gomez that the gun could be reengraved.
Detective Gomez testified. He said that he remembered the first three digits of the serial number as 147, the gun had a tape across the breech, Poulos told him “Don’t take that off * * * don’t mess with that part there.” He said the gun was a rare one, handmade, expensive, that he told Poulos it would be easy to trace that kind of a gun to its original owner by writing to the factory. He said that Poulos told him he would not give a receipt for the sale. He said that about one week after Poulos tried to sell him the gun, he told Poulos that he thought the gun was stolen, but Poulos said that he thought it was a different gun.
Captain Benfer, who began the investigation against Poulos, testified that Poulos evaded his questions, that Norman Spears denied in the presence of Poulos that he had supplied Poulos with the gun and testified that the morning after the first questioning, Poulos again refused to tell him where he obtained the gun. Lieutenant W. J. Robitzsch, Poulos’ superior, had been present while Captain Benfer questioned Poulos. He said that Poulos mentioned several names of persons from whom he had obtained guns — Spears, Meyers, Snyder, Neal Beard estate. He never did mention the true source of the gun which other evidence showed was from a man named Brooks in Austin, to whom Poulos returned the gun.
Poulos justified his admitted concealment of the true facts on the grounds that Captain Benfer did not like him and he thought that Captain Benfer was trying to involve him in a burglary. He attributed other discrepancies in his statements to the fact that he had dealt with a number of guns for a number of people and did not recall all the facts. He made no effort to prove that there was no suspected viola*149tion by reason of facts he knew or any investigation he made. Instead of disclosing such facts, if he had them, he refused to tell his superior officers the true source of the gun.
By way of summary, the majority states three elements which the charges should include to constitute a valid charge for violation of Rule 16, failure to report suspected violations. The first is an allegation of an actual or suspected violation of the penal code. The charges are that Detective Gomez told Poulos “that burglary detail had a case in which a shotgun of the same model and type including an extra set of barrels had been taken.” The proof of that element was that this statement was made to Gomez one week after January 16, but Poulos did nothing. The second requirement stated by the majority, is that the charges must assert the officer received information about such a suspected violation. The charges state that Gomez actually told Poulos a gun like the one he was trying to sell was included in a burglary report at the police station. The proof is that the police records included a description of such a gun which was stolen from the home of Dr. A. Cowles in San Antonio on December 9,1964. These records were easily accessible to Poulos, a member of the theft detail. The third requirement stated by the majority is that there must be an allegation that this information was not promptly reported by the officer. The charges allege, “Detective Poulos filed no report on the shotgun in question.” The proof is that Poulos never did file a report on the gun as a suspected violation.
In my opinion the charges were adequate to assert neglect of duty and also a violation of Rule 16 of the police regulations. We cannot say that the Commission acted arbitrarily in suspending Poulos from the service. I would reverse and render the judgments of the courts below and uphold the order of the Commission. .
GRIFFIN, WALKER and NORVELL, JJ., join in this dissent.