CITY OF SAN ANTONIO et al., Petitioners, v. Bill POULOS, Respondent, 422 S.W.2d 140

HAMILTON, Justice. This is a statutory appeal under

Article 1269m of a civil service commission proceeding discharging a police detective. The trial court set aside the permanent dismissal by the commission; the Court of Civil Appeals affirmed. 403 S.W.2d 168. Petitioners here are the City of San Antonio, its Firemen’s and Policemen’s Civil Service Commission and Chief of Police. Respondent is Detective Investigator Bill Poulos. The Chief of Police indefinitely suspended Poulos effective March 6, 1965. He timely filed the following statement with the Commission and furnished a copy thereof to Poulos: «⅜ * * “There is probable cause to believe that Detective-Investigator Bill Poulos has violated certain provisions of Rule XX,

Section 120, Personnel Rules of the City of San Antonio, said rules having been adopted on July 17, 1952, by the Firemen’s and Policemen’s Civil Service Commission as the Civil Service Rules for the Fire and Police Departments of the City of San Antonio and violation of which are grounds for dismissal from the said Police Department. “Section 120 of the aforesaid Personnel Rules of the City of San Antonio provides that the following shall be grounds for removal: “Neglect of duty; “Failure or refusal to carry out instructions ; “Violation of any of the rules and regulations of the department. “Instructions to members of the Police Department of the City of San Antonio are found in the Rules and Regulations of the Police Department and the ones that Detective-Investigator Bill Poulos violated are as follows: “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 17 which provides: “ ‘Officers having information regarding any felony * * *, and immediate action is not required, shall give all details to his Superior Officer and submit a written report as specified in the Reporting Regulations.’ “3.

That portion of Rule 29 which provides: “ ‘No member of the Department shall wilfully misrepresent any matter, sign any false official statement or report * * *.’ “The specific acts allegedly committed by Detective-Investigator Bill Poulos which are in violation of the aforesaid Civil Service Rules were: “About six weeks or two months ago Detective-Investigator Bill Poulos showed Detective C. M. Gomez two pistols and a Model 21 Winchester, 12 gauge side by side shotgun with an extra set of barrels having ‘147’ for the first three digits of the serial number of the gun, and offered to sell Detective-Gomez the gun.

At that time there was a piece of adhesive tape covering a part of the breech of the gun which Detective Poulos told Detective Gomez not to remove since there was something there which he did not want Detective Gomez to see. Detective Poulos told Detective Gomez that he had a friend who could re-engrave over anything that had been engraved on a gun and you wouldn’t be able to tell what was on the gun in the first engraving. Detective Gomez was willing to buy the gun but would not do so unless he was given a receipt for it.

Detective Poulos told Detective Gomez that he was not going to give anyone a receipt so Detective Gomez refused to buy the shotgun and the pistols. “Subsequently Detective Gomez checked the police records and discovered that a Model 21 Winchester 12 gauge shotgun with extra barrels with the serial number ‘14767’ had been reported stolen in a burglary and the stolen gun had the name ‘A. C. Cowles’ engraved upon the breech at the location of the adhesive tape upon the shotgun Detective Poulos had shown him.

A few days thereafter Detective Gomez told Detective 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. Detective Poulos said he did not believe it was the same gun. Detective Poulos filed no report on the shotgun in question. “When subsequently question (sic) concerning the guns he claimed he had been given them by Norman Spears to be sold if possible.

When Norman Spears was asked about the gun he, in the presence of Detective Poulos, said he had never had a Model 21 Winchester and he had not given Detective Poulos the two pistols to sell for him. Subsequently Detective Poulos stated he had obtained the shotgun and the two pistols from Earl M. Brooks to whom he returned the guns after he had shown them to Detective Gomez. Mr. Brooks states he had been asked to sell the guns by a customer whose name is Charlie Powers of Austin, Texas, and that he asked Detective Poulos to try to sell the guns for him. Mr. Brooks further states that upon request of Mr.

Powers, he secured the guns from Detective Poulos and returned them to Mr. Powers. a * * * » The above statement filed by the Chief of Police with the Civil Service Commission charges the Respondent Poulos with violating portions of three of the Rules and Regulations of the Police Department; Rules 16, 17 and 29 as set out above. Respondent Poulos filed exceptions to the statement saying that the specific acts of Respondent alleged by the Chief do not constitute a violation of either of the above rules.

Respondent, further, excepted on the grounds that the statement does not point out which specific acts of Respondent violate a particular rule. The Commission overruled these exceptions, and after the hearing found that Respondent had violated two of the three rules he was charged with violating; i. e., Rules 16 and 29.

The District Court on appeal found that the charges on their face failed to allege any specific violation of any Civil Service Rule (and for that reason the failure of the Commission to sustain Poulos’ special exceptions was arbitrary, capricious and unreasonable), and that the order of permanent dismissal was not supported by substantial evidence. The Court of Civil Appeals in affirming the judgment of the trial court held that the statement by the Chief was not sufficient to charge Poulos with the violation of Rule 29, but was sufficient to charge Poulos with the violation of Rule 16.

However, it further held that, there was not substantial evidence produced at the trial to support the charge. We agree with the Court of Civil Appeals that the statement was not sufficient to charge Poulos with a violation of Rule 29, but for a different reason than given by that court. Petitioners argue that Poulos violated Rule 29 of the Police Department regulations when he made a false representation to Captain Benfer.

The entire rule is as follows: “No member of the department shall willfully misrepresent any matter, sign any false statement or report, perjure himself, or give false testimony before any court, grand jury, board, hearing or commission.” (Emphasis added.) That portion of the rule italicized above was omitted from the Chief’s charges. The Court of Civil Appeals held that “willfully misrepresent any matter” only applied to statements made “before any court, grand jury, board, hearing or commission,” We disagree with the construction given this rule by the Court of Civil Appeals.

Such a construction is redundant and inconsistent, for “willfully misrepresent” includes perjury and giving false testimony, while the application of the phrase in question to “sign any false statement or report” would be meaningless. It is contended by Petitioner that the construction of the rule as given by the Court of Civil Appeals would greatly restrict its intended scope.

Four distinct types of misconduct relating to the performance of the duties of a member of the San Antonio Police Department are comprehended in Rule 29: willful misrepresentation, whether oral or written; the signing of any false statements or reports; the commission of perjury; and the giving of false testimony before a court or grand jury, or in an administrative hearing of a board or commission. It is clear from its terms that the final clause of Rule 29 “before any court, grand jury, board, hearing or commission” was not intended to qualify and limit all the preceding proscribed acts.

A police officer does not ordinarily sign official statements or • reports in connection with court, grand jury, or administratrive proceedings. Perjury is not limited in statutory definition to such proceedings but is committed by a deliberate and willful false statement under the sanction of an oath or affirmation required or authorized by law. See Art. 302 of the Vernon’s Ann.Penal Code.

False testimony, on the other hand, may be given under circumstances where perjury has not been committed, e. g., in an administrative hearing in which the law does not require an oath or affirmation but where, nevertheless, a person assumes an oath before testifying. Compare the definition of false swearing, Art. 310 of the Penal Code. Respondent argues that the construction we have given Rule 29 would render the phrase “willfully misrepresent any matter” applicable to statements made to all persons under all circumstances.

The whole answer is that the rules and regulations of the San Antonio Police Department necessarily are, and must be, referable to the performance of the duties of a member of the department, and to the accomplishment of the statutory purpose of securing and maintaining an efficient police department composed of trusted and competent personnel. See Art. 1269m, §§ 5 and 16a. In our view a proper application of this rule requires the holding that a willful misrepresentation by a police officer of a matter arising in the course of official duties constitutes a violation of the rule.

Having held that the Court of Civil Appeals was in error in holding that the Chief’s allegation of a violation of Rule 29 was insufficient because it did not allege that the purported misrepresentation was made before some court, grand jury, board, commission, or at a hearing, we must determine whether the trial court’s action in sustaining Respondent’s exception to this part of the charge must be sustained on some other ground. Respondent contends that the alleged specific acts contained in the statement are insufficient to charge a violation of Rule 29.

He correctly assumes that the last paragraph set out in the above charge manifests those specific acts which are deemed to constitute a violation of Rule 29. He points out that Poulos is charged with making a statement to someone, sometime, and later making another statement inconsistent therewith to someone without stating to whom the first statement was made, or to whom the second statement was made; or under what circumstance either statement was made, or which statement was the misrepresentation. It follows from this

interpretation of Rule 29, that for a charge of “willful misrepresentation” to be valid in this situation it must at least allege to whom such misrepresentation was made, and the official capacity in which it was made. Under the charges as made the misrepresentation could have been made to anybody, under any circumstance and about any matter, whether in the line of duty or not. Such misrepresentation could have been made to Gomez, a newspaper reporter, or some prospective purchaser of the guns in question, without being a violation of Rule 29 as we have construed it.

We therefore, hold that the statement of the Chief of Police is insufficient to charge a violation of Rule 29. We do not agree with the Court of Civil Appeals holding that the alleged acts of Poulos contained in said statement are sufficient to charge a violation of that part of Rule 16, reading as follows: “Officers shall report promptly * * * all information they may receive about any violation or suspected violation.” To allege a violation of this part of Rule 16, there must be an allegation of at least three facts. First, there must be an allegation of an actual or suspected violation of the Penal Code.

Second, there must be an allegation that the suspended officer had received information about such violation or suspected violation. Third, there must be an allegation that this information was not promptly reported by the officer. There is no question but that in the charge the Chief stated a violation wherein a shotgun of a certain model and type had been taken in a reported burglary. The information which Poulos is charged with having received is that he had in his possession a shotgun of the same model and type which had been taken in the burglary.

I/i our opinion this allegation falls short of charging Poulos with having received information about the alleged burglary. The statement charges that Poulos said he did not believe the gun he had was the same one taken in the burglary, and it does not allege that the gun he had was the same gun taken in the burglary. Neither does the statement anywhere allege that the Chief believed the gun which Poulos had was the one that was taken in the burglary. If it was not the same gun, then the possession of the gun that Poulos had shown to Detective Gomez does not constitute information about the burglary.

Furthermore, whatever information about the burglary Poulos is charged with receiving, there is no charge that Poulos failed to promptly report it. There is a charge, however, in the statement: “Detective Poulos filed no report on the shotgun in question.” It will be noted that Rule 16 does not require 'that a report be filed. For a report to be filed, such report must necessarily be in writing. Rule 17 required that a written report be submitted, but as we have noted above, the Commission did not find that Poulos had violated Rule 17.

We, therefore, hold that the statement failed to specifically point out the act, or acts, by Poulos which constituted a violation of Rule 16. The written statement required to be filed with the Commission by the Department Head, when he suspends an officer, need not be highly technical, but

Section 16,

Article 1269m does contain a simple requirement which in our opinion should be strictly followed. Said

Section provides that the statement: “* * * [S]hall 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.” If the Department Head is going to fire an officer for having in his possession a stolen gun which he failed to report, then the Department Head ought to be able to allege those facts and make proof thereof.

From six weeks to two months had transpired after the alleged transaction occurred before the officer was suspended and before charges were filed. In that length of time the Chief should have been able to learn sufficient facts to charge this officer with a rule violation, if there had been one. Having held that the statement filed by the Chief of Police was insufficient to charge a violation of Rule 16, we do not reach the question of whether or not there is substantial evidence to support such charge.

We think one reason the Chief of Police fell into error in making his charges against the officer is that he alleged that the officer violated three different rules, and then to support these violations he alleged a group of facts without pointing out the facts which applied to a particular rule violation. The better procedure for a Department Head in such a situation would be to consider separately each rule which was alleged to have been violated and then state the precise factual basis for the violation. The judgments of the trial court and the Court of Civil Appeals are affirmed.

GRIFFIN, WALKER, NORVELL and POPE, JJ., dissenting. . All references to articles herein are to Vernon’s Texas Revised Civil Statutes Annotated.