SUPREME
COURT OF TEXAS
City
of Sherman,
Petitioner
v.
Otis
Henry,
Respondent
No.
95-1195
928
S.W.2d 464
1996
Tex. Lexis 96;
39
Tex. Sup. J. 920
11
IER Cases (BNA) 1569
February
14, 1996, Argued
July
8, 1996, Delivered
Certiorari denied February
24, 1997 at 1997 U.S. Lexis 1408.
On application for Writ of
Error to the Court of Appeals for the Fifth District of Texas.
JUSTICE ABBOTT delivered the opinion of the Court, in which CHIEF JUSTICE PHILLIPS, JUSTICE GONZALEZ, JUSTICE HECHT, JUSTICE CORNYN, JUSTICE ENOCH and JUSTICE BAKER join. JUSTICE SPECTOR and. JUSTICE OWEN filed concurring opinionz. [*465]
The City of Sherman Police Chief denied Patrolman Otis
Henry a promotion to the rank of sergeant because Henry was having a sexual
affair with the wife of a fellow police officer. The Firemen’s and Police Officers’ Civil Service Commission of the
City of Sherman, Texas (the Commission) upheld that decision by finding that
the Police Chief had a valid reason for not promoting Henry. Henry appealed to
district court which held that the basis of the Police Chief’s decision
violated Henry’s right to privacy under the United States and Texas
Constitutions and was not a valid reason for denying the promotion.
Accordingly, the district court ordered the promotion of Henry. That decision
was affirmed by the court of appeals.
910 S.W.2d 542. We reverse the judgment of the court of appeals and hold
that Henry’s constitutional rights were not violated when he was denied a
promotion for having a sexual affair with another officer’s wife.
Sergeant Tom Pollard and Dispatcher Kelly Olson worked for the
Sherman Police Department. Pollard and Olson were married in September 1989,
but kept their marriage secret for nearly two years because they believed the
police department had a nepotism policy prohibiting marriage between employees.
Henry and Olson developed a relationship in April 1991 that
progressed into a sexual affair. When the relationship began, Henry knew that
Olson and Pollard lived together and were dating, but he did not know they were
married. In June 1991, Olson admitted to Henry that she was married to Pollard.
A month later, Olson and Pollard informed the department they were married.
Olson and Pollard separated in December 1991 and Pollard filed for
divorce. Meanwhile, the sexual affair
between Henry and Olson continued.
Police Chief Stephen Pilant first heard allegations of the
affair in the late summer or early fall of 1991. After that, Chief Pilant
noticed that Pollard seemed distraught on occasion and missed work due to
illness. Rumor and innuendo about the affair increased in December 1991, about
the same time it became known in the department that a sergeant’s position
would become available in January 1992.
Henry ranked first on the city’s civil service list of eligible
candidates for promotion to the sergeant’s position. Additionally, Henry had
completed all Texas Commission on Law Enforcement certification procedures,
earned a bachelor’s degree in criminal justice, received numerous
commendations, and was honored as “Outstanding Officer of the Year” in 1991.
Absent a valid reason to the contrary, Henry was entitled to the promotion to
sergeant. See TEX. LOC. GOV’T CODE §
143.036(f).
In mid-January, and before making the promotion decision, Chief
Pilant asked Lieutenant Mayo to investigate the validity of the rumors
regarding Henry’s relationship with Olson. The investigation consisted of
Lieutenant Mayo getting from Pollard a memorandum detailing facts about the
affair and a love letter from Henry to Olson. Pollard’s memorandum simply
described how he had already verified the existence of the affair. The record
reveals that several months before Chief Pilant requested an informal
investigation, Pollard had already confirmed the affair between Olson and
Henry. Moreover, Pollard did not engage in clandestine conduct to “investigate”
the affair; instead, he discovered Olson and Henry together while he was
driving on the public streets. He also found in his own home love letters from
Henry to Olson. Mayo did not pursue further investigation after receiving
Pollard’s memorandum, and he did not interrogate Henry or anyone else about the
matter.
On January 17, 1992, a sign appeared on a department bulletin
board and in the departmental mailboxes of most police officers that stated in
its entirety: “If
you can’t trust another officer with your wife, how can you trust him with your
life?” Henry assumed the author directed the jab at him and
complained about the sign to Lieutenant Mayo and another Lieutenant. Henry also
requested [*466]an investigation by the Internal Affairs Division.
One month later, Chief Pilant announced that Henry would be
passed over for the promotion. In a written memorandum, Chief Pilant stated the reason for denying the
promotion was his belief that Henry would not command respect and trust from
rank-and-file officers and that promoting Henry would adversely affect the
efficiency and morale of the department. Chief Pilant orally
expressed to Henry that the sole basis of these conclusions was the affair
Henry had with Olson.
Henry appealed Chief Pilant’s decision to the Commission. At the
hearing, Chief Pilant admitted that Henry was very qualified for the sergeant’s
position. Nevertheless, Pilant testified that he did not promote Henry because
of the impact the relationship between Henry and Olson would have both on Henry’s
ability to perform his work and on the morale of the department. As evidence
that the affair was disruptive, the Chief pointed to the rumors and innuendo
among officers, the sign posted on the bulletin board, and the emotional
distress suffered by Pollard. The Chief acknowledged that he had never before
passed over a candidate for promotion and that there was no written rule in the
department’s manual or in state law authorizing him to deny Henry’s promotion
due to the affair. He also conceded that there was never any indication that
Henry and Olson engaged in sex while on duty. Nonetheless, the Chief stated he
had an unwritten policy that he would not promote anyone having an affair with
the spouse of a fellow officer.
In explaining why the affair established a valid reason for not
promoting Henry, Pilant stated:
A police officer, by the very nature of his work, often times must put his complete faith and trust in fellow officers, to some point even as much as trust him with his life. If a police officer, in my opinion, cannot be trusted to take care of and protect a fellow officer’s family . . ., you would have serious doubts about whether that police officer can be trusted with your own life. It also hinders the harmony of police officers between each other.
Several more witnesses
testified at the Commission hearing that the affair adversely affected the
department and that Henry’s promotion would have a detrimental impact on morale
and on Henry’s ability to perform his job. That evidence was contested by
testimony from Henry and Olson.
After hearing all of the evidence presented by the City and by
Henry, the Civil Service Commission voted unanimously that Chief Pilant had a
valid reason for not promoting Henry. Henry appealed the Commission’s decision
to state district court where both Henry and the City of Sherman moved for
summary judgment. Significantly, neither party challenged the Commission’s fact
findings or claimed the Commission’s decision was not based on substantial
evidence. Indeed, both parties submitted their summary judgment motions to the
district court upon stipulated facts. One of the stipulated facts was that
Henry was denied the promotion because he had a sexual affair with Olson.
Based upon the stipulated facts, both parties requested the
district court to decide whether the evidence considered by the Commission
demonstrated a valid reason for denying Henry’s promotion. Henry argued the
reason was invalid because his conduct was protected by the United States and
Texas Constitutions. The City argued that the stipulated reason for not
promoting Henry was constitutionally valid. The district court agreed with
Henry, granted his motion for summary judgment, ordered his promotion with back
pay, and granted him attorney’s fees in the amount of $36,343.75. The court of
appeals affirmed the district court, holding that Henry’s constitutional rights
were violated when he was denied a promotion because of his sexual affair with
Olson.
During the oral argument of this case, the parties represented
that, after the trial court’s judgment, Henry was promoted to sergeant and the
Pollards subsequently remarried. Thus, the issue for us to decide is whether
Henry is entitled to the back pay and the attorney’s fees awarded to him by the
trial court. To make that determination, we must decide whether the Police
Chief’s [*467] reason for denying Henry the promotion infringed upon Henry’s
constitutional rights. Because both parties have a financial interest in the
outcome of the case, a contested case and controversy has been presented which
must be decided by the Court. Camarena
v. Texas Employment Comm’n, 754 S.W.2d 149, 151 (Tex. 1988); cf. Speer v. Presbyterian Children’s Home, 847
S.W.2d 227, 229 (Tex. 1993). Neither Henry nor the City of Sherman claim the
case is moot, and both parties have squarely presented the constitutional issue
to this Court for resolution.
Chief Pilant could properly deny the promotion to Henry for a “valid
reason.” Section 143.036(f) of the Texas Local Government Code provides:
Unless the department head has a valid reason for not appointing
the person, the department head shall appoint the eligible promotional
candidate having the highest grade on the eligibility list. . . . On
application of the bypassed eligible promotional candidate, the reason the
department head did not appoint that person is subject to review by the
commission.
TEX. LOC. GOV’T CODE §
143.036(f)(emphasis added). The Commission upheld Chief Pilant’s
reason for not promoting Henry even though Henry had the highest grade on the eligibility list at the time the promotion was available.
An appeal of the Commission’s decision to district court is
authorized by Section 143.015 of the Local Government Code. n1 Ordinarily, judicial review of the
Commission’s decision requires application of the substantial evidence test. See
Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116-17 (Tex.
1988), cert. denied, 490 U.S. 1080, 104 L. Ed. 2d 662, 109 S. Ct. 2100 (1989);
Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662 S.W.2d 953,
956 (Tex. 1984).
In this case, however,
traditional substantial evidence analysis is not required because neither party
challenges the Commission’s fact findings or claims the Commission’s decision
was not based on substantial evidence. As a result, substantial evidence to
support the Commission’s ruling is presumed. The focus of Henry’s appeal to the
district court, the focus of the court of appeals, and thus our concern, is
whether the reason for not promoting Henry--having a sexual affair with the
wife of another officer--is constitutionally valid. Accordingly, if the reason
for denying Henry’s promotion is constitutional, the substantial evidence test
is satisfied, the promotion is properly denied, and the judgment of the court
of appeals is reversed.
Henry maintains his conduct is protected by the right to privacy
under both the United States and Texas Constitutions. Neither Constitution
expressly provides a right of privacy. Indeed, neither Constitution even
contains the word “privacy.” However, the United States Supreme Court has
recognized that at least two different
kinds of privacy interests are protected by the United States Constitution.
The first type of privacy protects an individual’s interest in
avoiding the disclosure of personal information. Whalen v. Roe, 429 U.S. 589, 599, 51 L. Ed. 2d 64, 97 S. Ct. 869
(1977). This interest is the “right to be let alone,” which has been
characterized as “the right most valued by civilized men.” Id. at 599 &
n.25 (quoting Olmstead v. United States, 277 U.S. 438, 478, 72 L. Ed. 944, 48
S. Ct. 564 (1928)(Brandeis, J., dissenting)). The second constitutionally
protected privacy interest is the right to make certain kinds of important
decisions and to engage in certain kinds of conduct. Whalen, 429 U.S. at 600. This interest protects individual
autonomy in making decisions and conduct relating to marriage, procreation,
contraception, family relationships, child rearing, and education. Id. at [*468] 600 & n.26. The first
privacy interest focuses on government action that is intrusive or invasive;
the second concerns decisions or conduct by individuals. The United States
Supreme Court and lower federal courts have consistently recognized the
dichotomy between these two distinct aspects of the privacy right. See, e.g.,
United States v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762,
103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989); Bellotti v. Baird, 443 U.S. 622,
655, 61 L. Ed. 2d 797, 99 S. Ct. 3035 (1979)(Stevens, J., concurring); Woodland
v. City of Houston, 940 F.2d 134, 138 (5th Cir. 1991); Fleisher v. City of
Signal Hill, 829 F.2d 1491, 1497 n.5 (9th Cir. 1987), cert. denied, 485 U.S.
961, 99 L. Ed. 2d 425, 108 S. Ct. 1225 (1988); Thorne v. City of El Segundo,
726 F.2d 459, 468 (9th Cir. 1983), cert. denied, 469 U.S. 979, 83 L. Ed. 2d
315, 105 S. Ct. 380 (1984); Schachter v. Whalen, 581 F.2d 35, 37 (2d Cir.
1978).
In Texas State Employees Union v. Texas Department of Mental
Health & Mental Retardation, 746 S.W.2d 203 (Tex. 1987)(hereinafter TSEU), this
Court noted that the Texas Constitution contains “several provisions similar to
those in the United States Constitution that have been recognized as implicitly
creating protected ‘zones of privacy.’“ Id. at 205. We also noted 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. (quoting TEX. CONST. art. I, Introduction to the Bill of Rights).
In TSEU, the Texas Department of Mental Health and Mental
Retardation had instituted a mandatory polygraph policy requiring employees to
submit to a polygraph during the course of an investigation of suspected
patient abuse, theft, or other criminal behavior. Id. at 204. The case did not concern the constitutionality of
individual conduct; instead it focused on the constitutionality of the
governmental intrusion. Obviously, patient abuse or criminal behavior is not
constitutionally protected by the autonomy aspect of privacy. The government
could typically regulate such conduct or make an employment decision based on
such conduct. But the government nevertheless does not have license to
intrusively pry into the affairs of its employees. Thus, we held in TSEU that
the Texas Constitution protected the personal privacy of the employees from the
unreasonable intrusion of the mandatory polygraph policy. Id. at 205-06. The meaning of TSEU was not
that the employees’ conduct was constitutionally protected; but rather that the
government impermissibly intruded on the employees’ “right to be let alone.”
Henry’s claim presents the opposite scenario. Henry does not
claim that Chief Pilant or the City of Sherman invaded his right to be let
alone. Similarly, he does not complain that the government’s method of
obtaining information regarding his affair with Olson constituted any type of
intrusion into his personal life. Instead, Henry urges that the basis of Chief
Pilant’s decision (Henry’s adulterous
affair with another officer’s wife) was invalid because it violated his
constitutionally protected privacy rights. This is a claim only under the
autonomy aspect of the right to privacy--the right to make certain fundamental
decisions and engage in certain conduct without state interference. Thus, the
sole issue for our review is whether conduct involving an affair by one police
officer with the wife of another officer is a fundamental, constitutionally
protected right. n2 We will not address
or express any [*469] opinion on whether Henry could have maintained an action
against the City of Sherman for unreasonably investigating his private affairs
since that argument is not in issue.
A
The United States Supreme Court has construed the United States Constitution to confer a
limited right of privacy for individuals to make certain fundamental decisions
or engage in certain conduct. Whalen,
429 U.S. at 600. In Bowers v. Hardwick, 478 U.S. 186, 190, 92 L. Ed. 2d 140,
106 S. Ct. 2841 (1986), the Supreme Court thoroughly analyzed this right to privacy
and concluded that its scope has been limited to child rearing and education,
see Pierce v. Society of Sisters, 268
U.S. 510, 534-35, 69 L. Ed. 1070, 45 S. Ct. 571 (1925) and Meyer v. Nebraska,
262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); family relationships, see
Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944);
procreation, see Skinner v. Oklahoma, 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct.
1110 (1942); marriage, see Loving v. Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010, 87
S. Ct. 1817 (1967); contraception, see Eisenstadt v. Baird, 405 U.S. 438, 31 L.
Ed. 2d 349, 92 S. Ct. 1029 (1972) and Griswold v. Connecticut, 381 U.S. 479, 14
L. Ed. 2d 510, 85 S. Ct. 1678 (1965); and abortion, see Roe v. Wade, 410 U.S.
113, 35 L. Ed. 2d 147, 93 S. Ct. 705
(1973).
Bowers concerned a challenge to Georgia’s sodomy statute brought
by a homosexual adult male who had been charged with (but not indicted for)
violating the sodomy law. The Court ruled
there was no fundamental right to engage in homosexual sodomy. 478 U.S.
at 191. In so doing, it emphasized that its prior decisions do not “stand for
the proposition that any kind of private sexual conduct between consenting
adults is constitutionally insulated.” Id. The Court reasoned that there was no
resemblance or connection between the claimed constitutional right to engage in
homosexual sodomy and the recognized privacy rights concerning marriage,
procreation, and family. Id. at 190-91.
The Bowers Court also analyzed whether it should recognize a
substantive due process right for homosexual activity under the Fourteenth
Amendment. It held that only those rights which are “implicit in the concept of
ordered liberty” such that “neither liberty nor justice would exist” if they
were sacrificed, or those liberties which are “deeply rooted in this Nation’s
history and tradition” receive constitutional protection under the substantive
component of the due process clause.
Id. at 191-92 (quoting Palko v. Connecticut, 302 U.S. 319, 325-26, 82 L.
Ed. 288, 58 S. Ct. 149 (1937) and Moore v. East Cleveland, 431 U.S. 494, 503,
52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977)). The Court held that neither of these
formulations applied to create a fundamental right for homosexuals to engage in
acts of consensual sodomy. Id. at 192.
In reviewing the history of sodomy, the Court noted it was a
criminal offense at common law, forbidden by all the original thirteen states
when they ratified the Bill of Rights, and the vast majority of the states when
the Fourteenth Amendment became the law of the land. Id. at 192-93. The Court
concluded that, based on this history, the claim that the right to engage in
homosexual sodomy was “implicit in the concept of ordered liberty” or “deeply
rooted in this Nation’s history and tradition” was, at best, facetious. Id. at
194.
Using the Supreme Court’s framework, we conclude that Henry’s
affair with Pollard’s wife is unlike the recognized privacy rights concerning
child rearing, family relationships, procreation, marriage, contraception, and
abortion. Indeed, Henry’s adulterous [*470] conduct is the very antithesis of
marriage and family. Adultery, by its very nature, undermines the marital
relationship and often rips apart families. Rather than suffering an invasion
of privacy, Henry invaded the “privacy surrounding the marriage relationship”
so revered by Justice Douglas in Griswold. 381 U.S. at 486.
Moreover, sexual relations with the spouse of another is not a
right that is “implicit in the concept of ordered liberty” or “deeply rooted in
this Nation’s history and tradition.” Prohibitions against adultery have
ancient roots. In the latter half of the 17th century in England, adultery was
a capital offense. 4 WILLIAM
BLACKSTONE, COMMENTARIES *64. The common law brought to this country by the
American colonists included the crime of adultery as previously defined by the
canon law of England. United States v.
Clapox, 13 SAWY. 349, 35 F. 575, 578 (D. Or. 1888); FRANCIS WHARTON, A TREATISE
ON CRIMINAL LAW vol. 11, §§ 1719-20, p. 524 (9th ed. 1885). Adultery was still
considered a crime by courts and commentators in the latter half of the 19th
century when the Fourteenth Amendment was ratified. See Clapox, 35 F. at 578;
WHARTON, supra. In fact, adultery is a crime today in half of the states and
the District of Columbia. n3
While other states, including Texas, have recently repealed
laws criminalizing adultery, the mere fact that such conduct is no longer
illegal in some states does not cloak it with constitutional protection. Even
in most states where adultery is not criminal behavior, civil laws still burden
those engaging in adulterous activity. See Note, Constitutional Barriers to
Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 HARV. L. REV.
1660, 1672-74 (1991). A right to
engage in adultery simply cannot be said to be either “implicit in the concept
of ordered liberty” or “deeply rooted in this Nation’s history and tradition.”
Our conclusion that adultery is not a fundamental right protected
under the United States Constitution is buttressed by dicta contained in
several Supreme Court opinions. Justice Goldberg’s concurrence in Griswold,
which was joined by Chief Justice Warren and Justice Brennan, stated that the
constitutionality of statutes prohibiting adultery and fornication was “beyond
doubt.” 381 U.S. at 498 (Goldberg, J., concurring). Similarly, the Court in
Bowers expressed concern that, if it granted a right of privacy to homosexual
conduct, “adultery, incest, and other
sexual crimes” would also be protected.
478 U.S. at 195-96. The Court opined that it was “unwilling to start
down that road.” Id. at 196. Even the dissenting justices in Bowers (Justices
Blackmun, Brennan, Marshall, and Stevens) claimed that a court “could find simple,
analytically sound distinctions between certain private, consensual sexual
conduct, on the one hand, and adultery . . . on the other.” Id. at 209 n.4
(Blackmun, J., dissenting). One major distinction noted by the dissent was that
adultery often injures third persons, such as spouses and children. Id. Thus,
every justice in the Bowers case joined an opinion that either equated adultery
with homosexual conduct or concluded that adultery was more egregious than
homosexual conduct. Because homosexual conduct is not a fundamental right under
the United States [*471]Constitution, adultery likewise cannot be a fundamental
right.
Several federal courts of appeals have followed the Bowers
decision to conclude that certain types of sexual conduct are not constitutionally
protected. E.g., Steffan v. Perry, 309 U.S. App. D.C. 281, 41 F.3d 677, 684 n.3
(D.C. Cir. 1994)(en banc); Schowengerdt v. United States, 944 F.2d 483, 490
(9th Cir. 1991), cert. denied, 503 U.S. 951, 117 L. Ed. 2d 650, 112 S. Ct. 1514
(1992); Walls v. City of Petersburg, 895 F.2d 188, 193 (4th Cir. 1990);
Ben-Shalom v. Marsh, 881 F.2d 454, 464-65 (7th Cir. 1989), cert. denied, 494
U.S. 1004 (1990); Woodward v. United States, 871 F.2d 1068, 1074 (Fed. Cir.
1989), cert. denied, 494 U.S. 1003, 108 L. Ed. 2d 473, 110 S. Ct. 1295 (1990);
Fleisher v. City of Signal Hill, 829 F.2d 1491, 1498 (9th Cir. 1987), cert.
denied, 485 U.S. 961, 99 L. Ed. 2d 425, 108 S. Ct. 1225 (1988); Padula v.
Webster, 261 U.S. App. D.C. 365, 822 F.2d 97, 102 (D.C. Cir. 1987).
Similarly, several federal district courts have concluded that
adultery is not protected by the right to privacy. E.g., Oliverson v. West
Valley City, 875 F. Supp. 1465, 1480 (D. Utah 1995)(“Extramarital sexual
relationships are not within the penumbra of the various constitutional
provisions or the articulated privacy interests protected by the Constitution”);
Suddarth v. Slane, 539 F. Supp. 612, 617 (W.D. Va. 1982)(holding that federal
privacy rights do not include protection for adultery); Johnson v. San Jacinto
Junior College, 498 F. Supp. 555 (S.D. Tex. 1980)(stating that right to privacy
does not protect adulterous conduct).
Despite this authority, Henry claims that two lower federal
court cases establish that his conduct is protected by a constitutional right
to privacy. In Briggs v. North Muskegon Police Dep’t, 563 F. Supp. 585 (W.D.
Mich. 1983), aff’d mem., 746 F.2d 1475 (6th Cir. 1984), cert. denied, 473 U.S.
909, 87 L. Ed. 2d 659, 105 S. Ct. 3535 (1985), a Michigan federal district
court held that Briggs’ right of sexual privacy was infringed when Briggs, a
married man, was fired from his police officer position for living with a
married woman who was not his wife. In Thorne v. City of El Segundo, 726 F.2d
459 (9th Cir. 1983), cert. denied, 469 U.S. 979, 83 L. Ed. 2d 315, 105 S. Ct.
380 (1984), the appellate court ruled that Ms. Thorne’s right to privacy had
been infringed when she was denied employment as a police officer because,
among other things, she stated in response to polygraph questions that she had
become pregnant by an officer on the police force who was married to another
woman.
We are unpersuaded by Briggs and Thorne. Thorne involved a
polygraph and was based in part on an individual’s interest in avoiding
disclosure of personal matters, an interest not implicated in this case.
Moreover, both Thorne and Briggs were issued prior to the Supreme Court’s decision in Bowers and both decisions fail
to provide the detailed analysis required by the Supreme Court to determine
whether the conduct was “implicit in the concept of ordered liberty” or “deeply
rooted in the traditions of our Nation.” Instead, the courts summarily
concluded that private sexual conduct was protected by the United States
Constitution.
Indeed, the author of Bowers, Justice White, dissented from the
decision to deny certiorari in the Briggs case, stating: “This case presents an
important issue of constitutional law regarding the contours of the right of
privacy afforded individuals for sexual matters. It is an issue over which
courts are divided, and I would grant certiorari to address it squarely.”
Briggs, 473 U.S. at 910. In Bowers, Justice White and the Supreme Court took
the opportunity to clarify the contours of the right to privacy regarding
sexual matters.
The other cases relied upon by Henry, Wilson v. Taylor, 733 F.2d
1539 (11th Cir. 1984), and Rutan v. Republican Party, 497 U.S. 62, 111 L. Ed.
2d 52, 110 S. Ct. 2729 (1990), are freedom of association and freedom of
political expression cases and are irrelevant to Henry’s claim to a privacy
right.
We conclude that the right to privacy under the United States
Constitution does not include the right to maintain a sexual relationship with
the spouse of someone else. Such conduct is the antithesis of the
constitutionally protected rights of marriage and family; a right to engage in
that conduct can hardly be said to be “implicit in the concept [*472] of
ordered liberty” or “deeply rooted in this Nation’s history and tradition.” We
turn now to Henry’s claim to a privacy right under the Texas Constitution.
B
Although the Texas Constitution does not expressly provide a
right of privacy, our opinion in TSEU recognized constitutionally protected
zones of privacy emanating from several sections of article I of the Texas
Constitution: section 6, concerning freedom of worship; section 8, concerning
freedom of speech and press; section 9, concerning searches and seizures;
section 10, concerning the rights of an accused in criminal prosecutions; section
19, concerning deprivation of life, liberty and property, and due course of
law; and section 25, concerning quartering soldiers in houses. TSEU, 746 S.W.2d at 205. No court has
recognized any other provision of the Texas Constitution as establishing a
right to privacy. n4 Other than section
19, none of these provisions even remotely addresses the situation of an
individual who is denied a promotion because he is having an affair with the
wife of someone else. We are thus faced with the task of determining whether
Henry’s conduct is protected by article I, section 19 of the Texas
Constitution.
The method to interpret and apply the Texas Constitution has
been defined as follows:
In construing [a section of the Texas Constitution], we
consider “the intent of the people who adopted it.” In determining that intent,
“the history of the times out of which it grew and to which it may be
rationally supposed to have direct relationship, the evils intended to be
remedied and the good to be accomplished, are proper subjects of the inquiry.”
However, because of the difficulties inherent in determining the intent of
voters over a century ago, we rely heavily on the literal text. Edgewood v.
Kirby, 777 S.W.2d 391, 394 (Tex. 1989)(citations omitted); see also Ex parte
Tucci, 859 S.W.2d 1, 18 (Tex. 1993)(Phillips, C.J., concurring) and Davenport
v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992). Another articulation of this standard
states that we:
“look to such things as the language of the constitutional provision itself, its purpose, the historical context in which it was written, the intentions of the framers [and ratifiers], the application in prior judicial decisions, the relation of the provision to [other parts of the constitution and] the law as a whole, the understanding of other branches of government, the law in other jurisdictions, state and federal, constitutional and legal theory, and fundamental values including justice and social policy.”
Ex parte Tucci, 859 S.W.2d
1, 18 n.3 (Tex. 1993)(Phillips, C.J., concurring)(unbracketed material quoting
Davenport v. Garcia, 834 S.W.2d at 30 (Hecht, J., concurring)).
Applying this method of constitutional analysis, there is no
reason to believe that article I, section 19 of the Texas Constitution provides
a right of privacy for Henry’s conduct. That constitutional provision states:
No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.
This language is remarkably similar to the Fourteenth Amendment
to the United States Constitution n5
upon which the United States [*473] Supreme Court has relied when defining
right to privacy parameters. While the Texas Constitution has been recognized
to possess independent vitality, separate and apart from the guarantees
provided by the United States Constitution, see In the Interest of J.W.T., 872 S.W.2d 189, 197
(Tex. 1994) and LeCroy v. Hanlon, 713 S.W.2d 335, 339 (Tex. 1986), there is no reason
to expand Texas constitutional protections to protect Henry’s conduct.
Neither Henry nor Justice Spector’s concurring opinion provides
any support for the proposition that the framers or ratifiers of the Texas
Constitution would have considered the right to have a sexual affair with the
wife of another an essential component of life, liberty, or property. Nor has there been any showing
that Henry’s conduct is among those “general, great, and essential principles”
of our government. In fact, when our state charter was ratified in 1876,
article 392 of the Texas Penal Code of 1857 provided that adultery was a crime
punishable by fine. A mere three years after the passage of the 1876 Texas
Constitution, the Texas Legislature revised the Penal Code, but retained the
provision criminalizing adultery. See TEX. PENAL CODE art. 336 (1879). The
prohibition against adultery continued for almost a century until it was
finally repealed in 1973. See Act of June 14, 1973, 63d Leg., R.S., ch. 399, §
3, 1973 Tex. Gen. Laws 883, 992, repealing TEX. PENAL CODE art. 499 (1925).
While the constitution’s framers may have been willing to die for the right of
free expression, see Davenport, 834 S.W.2d at 7, there is no indication they
were willing to make any sacrifice for the right to commit adultery. n6
Implicitly conceding that the original intent of the Texas
Constitution did not encompass a right to commit adultery, Henry contends his
conduct is constitutionally protected because it is no longer illegal. However,
there are two major fallacies with this argument. First, the mere fact that
conduct is no longer illegal does not make it constitutionally protected.
Adultery is no longer a statutory violation in Texas, but it is still not
favored by the law. In fact, Texas specifically allows courts to consider
adultery in granting a divorce or in dividing community assets. See TEX. FAM.
CODE §§ 3.03, 3.63; Young v. Young, 609 S.W.2d 758, 761 (Tex. 1980); Morrison
v. Morrison, 713 S.W.2d 377, 379 (Tex. App.--Dallas 1986, writ dism’d). Second,
the fact that constitutional guarantees continue to evolve over time does not
mean that we are allowed to create new guarantees that are not present in
either the text or the intent of the constitution. Moreover, Henry’s argument is
illogical. To follow Henry’s argument to its logical end would require us to
rule that legislative action concerning any type of conduct would establish its
constitutionality. Such an untenable position would place the Constitution at
the mercy of the Legislature.
Accordingly, we find no basis for the argument that adultery is
protected as a fundamental right under the Texas Constitution. Borrowing from
the Bowers analysis, Henry’s conduct is not a right implicit in the concept of
liberty in Texas or deeply rooted in this state’s history and tradition.
In concluding that Henry’s conduct deserves constitutional
protection, both Justice Spector’s concurring opinion and the court of appeals
ostensibly rely upon this Court’s analysis in TSEU. Infra, __ S.W.2d at __;
[*474] 910 S.W.2d at 551. However, as discussed previously, TSEU did not
concern the constitutionality of individual conduct; instead it focused on the
constitutionality of the government’s intrusion. The sole issue presented in
this case is whether conduct involving an affair by one police officer with the
wife of another officer is a fundamental right. There is simply nothing in TSEU
providing any support for the argument that adultery is such a fundamental
right. Reliance on TSEU is therefore unfounded.
While the court of appeals nominally referred to TSEU, it did
not apply the facts of this case to any of the constitutional provisions
discussed in TSEU. Instead, the appellate court relied upon the analysis in Fleisher
v. City of Signal Hill, 829 F.2d 1491 (9th Cir. 1987), cert. denied, 485 U.S.
961, 99 L. Ed. 2d 425, 108 S. Ct. 1225 (1988); Thorne v. City of El Segundo,
726 F.2d 459 (9th Cir. 1983), cert. denied, 469 U.S. 979, 83 L. Ed. 2d 315, 105
S. Ct. 380 (1984); and Fabio v. Civil Serv. Comm’n, 489 Pa. 309, 414 A.2d 82
(Pa. 1980) . Thorne, which involved a polygraph, and Fabio were both decided
before Bowers. In Fleisher, the Court actually relied upon Bowers to “hold that
the [Police] Department did not violate Fleisher’s right of privacy by
terminating him because of his admitted
misconduct.” Fleisher, 829 F.2d at 1498. These cases simply do not provide any
support for the argument that Chief Pilant could not consider Henry’s conduct
in making the promotion decision at issue in this case.
Considering the Texas Constitution as a whole and article I,
section 19 in particular, the historical context in which the Texas
Constitution was conceived and has lived, actions by the Texas Legislature, and
judicial decisions, we conclude that the Texas Constitution does not provide a
right of privacy for a police officer who was denied a promotion because he had
a sexual affair with the wife of another police officer. This conclusion does
not mean, however, that the government is free to engage in intrusive
investigation methods to determine the sexual practices of individuals.
The City requests this Court to render judgment in its favor for
attorney’s fees. The Local Government
Code provides that the trial court “may award reasonable attorney’s fees to the
prevailing party” in an appeal from a civil service determination. TEX. LOC.
GOV’T CODE § 143.015(c). The use of the word “may” in the statute vests
discretion in the trial court to either deny or award such fees. See Turner v.
City of Carrollton Civil Serv. Comm’n, 884 S.W.2d 889, 895 (Tex. App.--Amarillo
1994, no writ). The trial court has not yet exercised its discretion with
regard to this issue. Therefore, we remand this cause to the trial court for
consideration of the City’s attorney’s fees request.
In
conclusion, the failure to promote Henry for having a sexual affair with the
wife of a fellow police officer did not implicate Henry’s right to privacy
under either the United States Constitution or the Texas Constitution. Because
the parties otherwise concede that substantial evidence supports the Police
Chief’s decision not to promote Henry, we reverse the judgment of the court of
appeals and render judgment in favor of the City of Sherman. We remand
to the trial court to determine the attorney’s fees, if any, which should be
awarded to the City as the prevailing party in this cause.
Greg Abbott
Justice
July 8, 1996
Notes:
1 Section 143.015 states:
( a) If a fire fighter or police officer is dissatisfied with any commission decision, the fire fighter or police officer may file a petition in district court asking that the decision be set aside. TEX. LOC. GOV’T CODE § 143.015.
2 Both of the concurrences
object to the manner in which the controlling issue in this case has been
framed. Infra, ___ S.W.2d at ___. Despite their protestations, however, the
primary issue framed by Henry, the City, and the court of appeals was whether
Henry’s sexual conduct with the wife of another officer was a constitutionally
impermissible basis to pass him over for promotion. 910 S.W.2d at 549-50. The
actual language used by Henry is: “The court below did not err in rendering
judgment requiring Appellant City to promote Appellee Henry, because the sole
reason relied upon by the City for denial of Appellee’s promotion was
constitutionally infirm, and cannot, therefore, constitute a ‘valid reason’ as
mandated by TEX. LOC. GOV’T CODE ANN. § 143.036(f).” Later in his briefing,
Henry claims that “there can be no question that the sole and only reason that
Sherman Police Patrolman Otis Henry was denied his rightful promotion was his
private affair with Kelly Olson/Pollard.”
Justice Spector’s concurrence claims that this case does not
involve whether a right to privacy protected Henry’s conduct, but rather
whether “our constitution protects the relationship from intrusion by the
government in the absence of a compelling state interest.” __ S.W.2d at __.
That issue heretofore has been a stranger to this litigation. Neither Henry nor
the City briefed or analyzed the constitutional issue involving intrusion.
Justice Owen’s concurrence argues that we should assume that
Henry had a constitutional right and then determine that any intrusion on this
right was justified. Id. at __. The problem with this approach is that it
assumes the only issue the parties ask us to decide. We will not side-step that
issue.
3 Twenty-five states and
the District of Columbia still provide criminal penalties for adultery. ALA.
CODE § 13A-13-2 (1982); ARIZ. REV. STAT. ANN. §§ 13-1408-1409 (1989); COLO.
REV. STAT. § 18-6-501 (1981); D.C. CODE § 22-301 (1981); FLA. STAT. § 789.01
(1976); GA. CODE ANN. § 16-6-19 (1988); IDAHO CODE § 18-6601 (1987); ILL. REV.
STAT. § 720 5/11-7 (1990); KAN. STAT. ANN. § 21-3507 (1991); MD. ANN. CODE art.
27, § 4 (1987); MASS. ANN. LAWS ch. 272, § 14 (1991); MICH. COMP. LAWS ANN. §
750.30 (1991); MINN. STAT. § 609.36 (1987); MISS. CODE ANN. § 97-29-1 (1973);
NEB. REV. STAT. § 28-704 (1989); N.H. REV. STAT. ANN. § 645:3 (1986); N.Y. PENAL
LAW § 255.17 (1989); N.C. GEN. STAT. § 14-184 (1990); N.D. CENT. CODE §
12.1-20-09 (1991); OKLA. STAT. ANN. tit. 21, § 871 (1983); R.I. GEN. LAWS §
11-6-2 (1990); S.C. CODE ANN. §§ 16-15-60, 16-15-70 (1985); UTAH CODE ANN. §
76-7-103 (1990); VA. CODE ANN. § 18.2-365 (1988); W. VA. CODE § 61-8-3 (1989);
WIS. STAT. ANN. § 944.19 (1982). Coincidentally, when the Bowers opinion was
issued in 1986, twenty-five states and the District of Columbia had criminal
penalties for sodomy. See 478 U.S. at 193-94. The Bowers holding that the right
to engage in homosexual conduct was not constitutionally protected was based,
in part, on the fact that half the states still criminalized the conduct. See
id.
4 Other than in TSEU, this
Court has not examined the right of privacy under the Texas Constitution.
However, the Third Court of Appeals relied on TSEU to analyze this state’s
right of privacy in State v. Morales, 826 S.W.2d 201, 204-05 (Tex. App.--Austin
1992)(holding that the state sodomy statute violated the Texas Constitution),
rev’d, 869 S.W.2d 941 (Tex. 1994). Because we concluded that neither the
district court nor the court of appeals in Morales possessed jurisdiction to
issue a declaration regarding the constitutionality of the criminal sodomy statute, we reversed the
judgment of the court of appeals and remanded the case to the trial court with
instructions to dismiss for want of jurisdiction, without reviewing or
expressing an opinion on the court of appeals’ discussion regarding the scope
of the right to privacy. See 869 S.W.2d at 942.
5 The Fourteenth Amendment
provides: “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property without due process of law. .
. .” We have previously recognized the textual similarity between article I,
section 19 and the Fourteenth Amendment. See, e.g., University of Tex. Med.
Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995) ; Mellinger v. City of Houston,
68 Tex. 37, 3 S.W. 249, 252-53 (Tex. 1887).
6 Justice Spector’s
concurrence faults our analysis for resting “almost entirely on the fact that ‘adultery
was a crime’ at the time our constitution was ratified.” Infra, __ S.W.2d __.
This mischaracterizes our rationale. We first examined the text of our state
charter, and, finding no express provision protecting Henry’s activity, we then
analyzed whether there was any historical basis for the conclusion that the
right to commit adultery was an essential component of life, liberty, or
property. While we analyzed the criminal law that existed at the time of the
constitution’s ratification to assist us in our historical inquiry, the
criminal law was not the dispositive factor in our decision. Moreover, there is nothing in our opinion today
substantiating the concurrence’s claim that we believe individual rights are “frozen
in time, limited to conduct or actions that were legal and accepted more than
one hundred years ago.” Id. at __.