The opinion
BRADY, Justice,
dissenting.
I respectfully dissent.
The majority has overlooked the time-honored rule in Texas that fact findings by the trial judge in a non-jury case, have the same presumption of conclusiveness and weight on appeal as a jury verdict. Vandyke v. Austin Ind. School Dist., 547 S.W.2d 354 (Tex.Civ.App.1977, no writ). It is also the rule that where findings of fact made by the trial court are supported by any evidence of probative force, they must be sustained on appeal. Rankin v. Carpenter, 568 S.W.2d 198 (Tex.Civ.App.1978, no writ). A Court of Appeals cannot substitute its findings for those of the trial *517 court if there is any evidence in the record to sustain the trial court’s fact findings, as here. Ray v. Farmers State Bank of Hart, 576 S.W.2d 607 (Tex.1979). It seems to me that if we as an appellate tribunal attempt to supply a standard or framework for an agency determination of reasonableness before an employee may be required to submit to a lie detector test, we thus are in effect substituting our findings for that of the trial court. Further, it seems to me we are legislating by setting up standards that might in some future case withstand a constitutional attack as is made here by the appellees.
In Talent v. City of Abilene, 508 S.W.2d 592 (Tex.1974), the Texas Supreme Court in a narrow decision held only that a fire chief had no authority to order a polygraph test of a tenured employee about non-employment related subjects. The Court also said, as stated by majority, that “we do not mean to be understood as forbidding the use of polygraph tests by public officials when there is cause to believe a public employee has performed his official duties illegally.” It should further be noted that the Supreme Court stated unequivocally:
The question is not before us and we do not decide whether a law enforcement official has implied authority to order polygraph tests be taken by his or her subordinates concerning subject matters related to performance of their public trusts.
Finally, the high court concluded that “... under the circumstances of this case, the fire chief exceeded his implied authority in ordering the polygraph test.”
The Texas Department of Mental Health and Mental Retardation here is not a law enforcement agency. As the trial judge stated in his finding of fact 23:
The unique circumstances that may justify requiring police and fire personnel to take polygraph examinations do not exist with respect to TDMHMR employees.
It is not empowered by the Legislature to be a roving commission to detect crime or to enforce the criminal law. It has no indictment power, and the agency although they are intimately concerned with the welfare of patients in our mental institutions, are not employed as law enforcement officers. Careful reading of Talent, supra, should clearly instruct and convince us that the Court meant that “public officials” referred to were law enforcement officials. If every agency, board or commission in Texas decided to institute use of polygraph tests to investigate and assist it in its “ability to investigate” all of its serious problems, we would give license in Texas to overzealous state officials to engage in every manner of witch-hunt and investigate every situation which the agency managers felt involved a breach of state employee’s official duties. A State employee presumably could be given a polygraph test if he was suspected of using alcoholic beverages while on duty. A secretary in any state agency or Commission could be compelled to take a polygraph test if a supervisor believed that she was violating in some matter the Commission’s rules and regulations. A clerk in any State Department conceivably could be forced to take a polygraph test. The number and variety of situations would only be restricted by the limits of one’s imagination. Clearly, state agencies do not, and should not, have such authority.
The majority concede that the regulations of the Texas Department of Mental Health and Mental Retardation fail to specify the circumstances under which an employee may be ordered to submit to a polygraph examination. The regulations listed by the majority which prescribe the procedures to be followed in administering the polygraph test give small consolation to the obvious humiliation and scandal which would attend such an ordeal.
The crowning jewel on these procedural instructions, conclude with this statement:
By answering questions, you do not lose your constitutional rights against self-incrimination. The United States Supreme Court has held in the case of Garrity v. New Jersey, 385 U.S. 493 [ 87 S.Ct. 616 , 17 L.Ed.2d 562 ] (1967) that answers to questions asked of a public employee *518 who faces job termination for refusal to answer cannot be used against the employee in a subsequent criminal proceeding. * * *
Small solace to the public employee compelled to take a lie detector test ordered by a superior, when only evidence of his misdeed, whatever it might be, was hearsay or the gossip around the office.
Although the majority’s desire to further “an important and substantial public interest,” i.e., the State’s interest in a safe, orderly, efficient, and effective mental health system is to be commended, are we not succumbing to the temptation of what has become known as using the “cost benefit analysis” to solve our dilemma? I quote from a scholarly discussion by Judge Edmund B. Spaeth, Jr., presiding judge of the Pennsylvania Superior Court and lecturer at his University’s Law School: “Is cost-benefit analysis the right way to resolve the philosophical conflict in our law?” I think we must ask ourselves this question: Are we prepared to sacrifice the time honored constitutional right of privacy of our public employees for a more orderly and efficient mental health system? - The trial court’s fact findings included this statement:
TDMHMR’s polygraph policy includes the use of control questions which constitute an intentional interference with an employee’s interest in solitude or seclusion, either as to the person himself or as to the person’s private affairs or concerns, of a kind that would be highly offensive to a reasonable person.
The proven unreliability of the polygraph examination, as found by the trial court even when in the hands of the so-called “expert,” would under the law preclude any use of “evidence” obtained; and if used, would constitute in my view a “clear violation of the public employees’ constitutional rights against self-incrimination.”
Abraham Lincoln, responding to the Dred Scott case, put this point well. Speaking of the authors of the Declaration of Independence and what was meant by the inalienable rights to life, liberty and the pursuit of happiness,” said:
They meant to set up a standard maxim for a free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people. * * *
I would vote to affirm the judgment of the trial court.