dissenting.
I agree with the concurring opinion of Chief Justice McCloud of the Court of Civil Appeals; the judgment of that Court should be affirmed.
The police found a stolen 1972 pickup truck in the possession of Fireman Talent, who then went to Fire Chief Musick to explain how he came to have the truck. It was the first word the Fire Chief received of the matter. Fireman Talent’s explanation was enough to leave doubts. He said that he bought the truck by giving $500 cash and a $2700 draft to be cashed later to someone he did not know and could not name. He had no receipt, no title papers, and no address or means of obtaining further proof or papers. This is the account of a 28 year old man, a fireman for over 6 years, who has spent time at his father’s used car lot and owned several vehicles previously.
Fireman Talent was arrested and charged with receiving stolen property. Fire Chief Musick then tried to obtain from Talent a better explanation of his involvement. Instead he found Talent’s response to be unconvincing and inconsistent.
The Fire Chief had a responsibility to Fireman Talent: to respect the rules of job tenure and to treat Talent fairly. He also had a responsibility to the other 127 people in his department where discipline and mutual trust are necessary. He had the people of the City of Abilene to serve. Abilene’s ordinances provide that its firemen and policemen must be persons of good moral character. The Civil Service Rules and Regulations of Abilene include as a cause for removal or suspension: “Acts or conduct of an employee showing a lack of good moral character.” The reasons for removal are not limited to conduct while on duty; they include intoxication while off duty, refusal or neglect to pay just debts, as well as the aforementioned lack of good moral character. These same grounds are included in Section 5, Article 1269m, Vernon’s Ann.Civ.St.
By providing these grounds for discharge, I would say that the Legislature and City of Abilene recognized that policemen and firemen should be credible and trustworthy. It is not enough to say that a fireman has never taken off a firehose; if he is a dishonest person, the City of Abilene does not want him staying at the fire station or coming into their homes and stores. This is their right, and in my opinion Fireman Talent’s rights must accede thereto.
Fire Chief Musick sought to meet these responsibilities and resolve his doubts by ordering Talent to answer certain questions under the observation of an experienced polygraph examiner. The Fire Chief had resolved similar problems on five prior occasions; those five people had all passed their examinations satisfactorily and had been retained in employment. Fireman Talent refused to obey the order and was discharged.
The order was justified if the inquiry was a proper one. This Court now holds “that a fire chief has no authority to order such a test of a tenured employee about non-employment related subjects.” As I understand the distinction by the majority of Jackson v. Firemen’s & Policemen’s Civil Service Commission, 466 S.W.2d 412 (Tex.Civ.App.1971, writ ref’d n. r. e.), it is that the fireman’s place of residence is related to the efficiency of the fire fighting force, but that the honesty of the fireman is not. It appears, further, that the majority would hold differently if the honesty of a policeman were the inquiry. I regard the holding to be contrary to the statute (Art. 1269m) and without any justification.
WALKER, STEAKLEY and DANIEL, JJ., join in this dissent.