concurring.
Nine years ago, the right of privacy under the Texas Constitution prevented the state from asking employees whether they had ever stolen or whether they had beaten their children. See Texas State Employees Union v. Texas Dep’t of Mental Health and Mental Retardation, 746 S.W.2d 203, 204, 206 (Tex. 1987). Today, the majority announces that the Texas constitutional right of privacy has somehow shriveled to the point that the most personal aspects of our lives are the government’s business. The majority seizes the opportunity to abridge this fundamental right in a case in which the core dispute between the parties is moot: Otis Henry, who filed this suit after he was denied a promotion because he had an affair with Ser*475geant Tom Pollard’s wife, has long since been promoted. The Pollards have divorced, reconciled, and remarried. I concur in the Court’s judgment, but I cannot join in a gratuitous opinion that so narrowly and unreasonably circumscribes a precious fundamental right.
In TSEU, a unanimous Court expressed no doubt “that a right of individual privacy is implicit among those ‘general, great, and essential principles of liberty and free government’ established by the Texas Bill of Rights.” Id. at 205 (citing Tex. Const., art. I, Introduction to the Bill of Rights). Then, we held that “the Texas Constitution protects personal privacy from unreasonable intrusion.” Id. That was then.
In order to pronounce its views on morality (and transform them into law), the majority resorts to a time-honored rhetorical tactic: Reframe the issue in a way that assures the answer you want. This case is no more about Henry’s fundamental “right to have a sexual affair with the wife of another,” supra, 928 S.W.2d at 473, than TSEU was about the fundamental right of public employees to conceal theft or child abuse; instead, “this case is about ‘the most comprehensive of rights and the right most valued by civilized men,’ namely, ‘the right to be let alone.’” See Bowers v. Hardwick, 478 U.S. 186, 199, 106 S.Ct. 2841, 2848, 92 L.Ed.2d 140 (1986) (Blackmun, J., dissenting) (quoting Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting)); see also Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex.1973) (holding that an unwarranted invasion of the right of privacy constitutes a legal injury for which a remedy will be granted).
The only issue here concerns the individual’s right to enter into intimate personal relationships, secure in the knowledge that our Constitution protects the relationship from intrusion by the government in the absence of a compelling state interest. See TSEU, 746 S.W.2d at 206; see also Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247-48, 22 L.Ed.2d 542 (1969) (“For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.”). I strongly disagree that Henry’s claim does not implicate a privacy interest protected by the Texas Constitution. If the right Henry asserts is not “implicit in the concept of liberty,” then the right we recognized in TSEU is no more than a hollow shell.
I believe that the City infringed Henry’s privacy rights at two points: First, when the police chief ordered his internal affairs division to investigate rumors of Henry’s liaison, and later, when it denied Henry the promotion to which he would clearly have been entitled. See Thorne v. City of Segundo, 726 F.2d 459, 468 (9th Cir.1983) (stating that the plaintiffs constitutional privacy interests were implicated both when the defendants “forc[ed] her to disclose information regarding personal sexual matters” in a polygraph test and when the defendants “refused to hire her as a police officer based in part on her prior sexual activities”). The majority’s assertion that “there can be no serious contention ... that the City intruded into the private affairs of Henry” is unfathomable. Henry never volunteered information about his relationship with Kelly Olson until after he had been denied the promotion. It was only at the hearing on his appeal to the Civil Service Commission that Henry finally stipulated that the affair actually occurred.
While the majority downplays the City’s investigation in this case, it is undisputed that the police chief ordered his internal affairs officer to investigate the rumored affair. In this unique situation, the affair was substantiated by Sergeant Pollard, the offended husband, and required no further investigation. The report Pollard provided indicated that he had driven by Henry’s house and the couple’s trysting spots to confirm his suspicions. He searched for and found deeply personal love letters and cards from Henry to his wife that she had hidden in a box, under dried flowers, in the bottom of her closet. All of this “evidence” was given to the internal affairs investigator, who in turn, reported to the police chief. After denying the promotion, the City then offered Pollard’s report and one of the letters as evidence in the hearing before the Civil Service Commission. These sensitive documents now form part of the public record in this *476ease. Pollard’s personal stake makes his attempt to learn the truth understandable but does not justify the official investigation that was ordered here. The City clearly invaded Henry’s constitutionally-protected privacy interests when it inquired into his off-duty, consensual sexual conduct. See Woodland v. City of Houston, 918 F.Supp. 1047, 1054 (S.D.Tex.1996).
Even if there had been no investigation and Henry had voluntarily disclosed the affair, however, Henry’s privacy rights were implicated when the police chief denied the promotion based solely upon his affair with Olson. See Thorne v. City of Segundo, 726 F.2d at 468, 471. The majority’s conclusion that Henry does not assert a constitutionally-protected right rests almost entirely on the fact that “adultery was a crime” at the time our Constitution was ratified. 928 S.W.2d at 473. The majority’s constitutional analysis thus implies that the scope of individual rights under the Texas Constitution is frozen in time, limited to conduct or actions that were legal and accepted more than one hundred years ago. This analysis is inconsistent with this Court’s opinion in Davenport v. Garcia, 834 S.W.2d 4, 10, 19 (Tex.1992) (“[Historical analysis is only a starting point_ In no way must our understanding of [our Constitution’s] guarantees be frozen in the past; rather, our concept of freedom of expression continues to evolve over time.”) (citations omitted). If it is true that Henry asserts no constitutionally-protected right because adultery was illegal in 1876,. then the privacy right we recognized in TSEU also does not protect a woman’s right to choose to terminate a pregnancy, see Tex Penal Code art. 536 (1879), or the right of an interracial couple to marry, see Tex Penal Code art. 326 (1879).1
The fact that Henry asserts a constitutionally-protected right to privacy is not disposi-tive, however. In TSEU, we recognized that the right to privacy is not unlimited, but should “yield ... when the government can demonstrate that the intrusion is reasonably warranted for the achievement of a compelling governmental objective_” TSEU, 746 S.W.2d at 205. The trial court in this case concluded that the police chief erred in denying Henry’s promotion. I differ from the trial court because I believe the record shows that the department had a compelling interest justifying its action.
We acknowledged in TSEU that police departments, unlike most public agencies, are quasi-military organizations that may require “unquestioning obedience.” Id. at 206. Here, the record contains substantial evidence that Henry’s conduct had, at some point, intruded into the workplace and cast doubt upon his ability to command the trust and obedience necessary in a paramilitary organization. It was not unreasonable for the chief to conclude that Henry’s betrayal of his fellow officer’s trust had undermined his ability to assume a leadership position. Under these circumstances, the police chiefs decision to pass Henry over until this volatile situation was resolved was justified.
Because I believe that the record contains substantial evidence that the City had a compelling interest in denying Henry’s promotion, I join in the Court’s judgment. I cannot, however, join in the majority’s unnecessary and unjustified constriction of the fundamental constitutional right to privacy.
. Interestingly, interracial marriage was a far more serious crime than adultery at the time our constitution was adopted: While adultery was subject only to a fine of $100 to $1000, interracial marriage called for at least two years’ ¡un-prisonment. See Tex. Penal Code art. 333, art. 336 (1879). Further, adultery was punishable only if the couple was living together or engaging in "habitual carnal intercourse.” Tex. Penal Code art. 333 (1879) (emphasis added).