holding that United States and Texas Constitutions do not provide right of privacy “to maintain a sexual relationship with the spouse of someone else”
How later courts described this case
- holding that United States and Texas Constitutions do not provide right of privacy “to maintain a sexual relationship with the spouse of someone else”
- examining whether disclosure of an extramarital affair was protected by the right to privacy under § 19 of the Texas Constitution and holding that there was no indication that at the passing of the Texas Constitution, the ratifiers "would have considered the right to have a sexual affair with the wife of another an essential component of life, liberty, or property”
- holding that there is no constitutional right to engage in adultery under either the Texas or United States Constitution
- police officer was passed over for promotion despite being first on list of eligible candidates based on police chief’s “valid reason” that officer’s affair with the wife of a fellow officer would adversely affect the department and promotion of the officer would have a detrimental impact on morale and ability to perform the job. On appeal, however, the Commission’s fact findings were not challenged; the issue for review was whether the “valid reason” violated the officer’s constitutional rights
Written by the judges who cited it.
The opinion
OWEN, Justice,
concurring.
I join only in the judgment of the Court. The opinion of the Court is broader than necessary to decide the very narrow issue in this case, which is: assuming Officer Henry had a cognizable constitutional right, could the City of Sherman deny him a promotion when his adulterous affair with the wife of a fellow police officer led to disruption in the department. The answer obviously is yes. The Court need not engage in an extended discussion of a host of constitutional issues and principles of constitutional law to resolve this case.
*477 I
The right of privacy which the United States Supreme Court and this Court have recognized is not absolute. Roe v. Wade, 410 U.S. 113, 154 , 93 S.Ct. 705, 727 , 35 L.Ed.2d 147 (1973); Texas State Employees Union v. Texas Dep’t of Mental Health and Mental Retardation, 746 S.W.2d 203, 205 (Tex. 198T)(“TSEU”). Even where fundamental rights are implicated, some regulation of those rights may be justified by a compelling state interest. Roe, 410 U.S. at 155 , 93 S.Ct. at 728 (citing Kramer v. Union Free Sch. Dist., 395 U.S. 621, 627 , 89 S.Ct. 1886, 1889-90 , 23 L.Ed.2d 583 (1969)).
In defining the parameters of the right of privacy, this Court has also observed that a state may have interests as an employer that differ significantly from those it possesses with regard to the public generally. TSEU, 746 S.W.2d at 205 . See also Pickering v. Board of Educ., 391 U.S. 563, 568 , 88 S.Ct. 1731, 1734 , 20 L.Ed.2d 811 (1968)(“the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general”). The interests of the State are even more compelling in the oversight of police officers and other quasi-military organizations because of the state’s goal of protecting the safety of the general public. TSEU, 746 S.W.2d at 205-06 . In contrasting the differences between employees of the Texas Department of Mental Health and Mental Retardation and of a police department, we noted with approval a trial court’s finding that:
the Department [of Mental Health and Mental Retardation] serves a different function and stands in a different posture in regard to the public as compared with a police department and that the unquestioning obedience required of police officers and members of other quasi-military organizations is not required of Department employees. Texas courts have shown deference to the important interests served by public agencies that are directly involved in the compelling state goal of protecting the safety of the general public.
Id. at 206 . We agreed with the trial court that “the unique circumstances that may justify requiring police and fire personnel to take polygraph examinations” did not exist with respect MHMR employees. Id.
Accordingly, the right to privacy precludes intrusion into the lives of some state employees, but there are circumstances that warrant such an intrusion into the lives of police officers. See generally Vernonia Sch. Dist. 47J v. Acton, 515 U.S.-,-, 115 S.Ct. 2386, 2391 , 132 L.Ed.2d 564 (1995)(noting the Supreme Court has upheld random drug testing of federal customs officers who carry arms or are involved in drug interdiction in upholding random drug testing of high school and middle school athletes against Fourth Amendment and right of privacy challenges).
In the case before us today, Officer Henry sought a promotion. He was denied that promotion because he had an affair with the wife of Tom Pollard, a fellow officer. There is no question that the affair was highly disruptive to the relationship between that officer and Henry. There is evidence that Henry’s conduct was also disruptive within the police department generally. Henry was seeking to assume a position of greater leadership. Yet, he had jeopardized his ability to command within an organization that requires “unquestioning obedience” from its members. The City’s decision to deny a promotion to Henry under these circumstances was an action “narrowly drawn to express only the legitimate state interests at stake.” Roe, 410 U.S. at 155 , 93 S.Ct. at 728 . Indeed, Henry was promoted when another position became available and presumably, when the disruption created by his relationship with the wife of a fellow officer had dissipated.
The exercise of a fundamental right, even if Henry's association with Pollard’s wife could be so characterized, is not absolutely immune from regulation. Suppose that Officer Henry’s conduct had not been an affair with Pollard’s wife, but that Henry had insulted, derided and ridiculed Pollard and other officers during off-duty hours over a course of months, to the point that there was strong hostility and disruption within the department. Henry has a right of free speech, *478 but at some point that must give way to the needs of the state in disciplining its police officers. Under some circumstances, a police officer’s exercise of free speech rights can be taken into account by the City in deciding if there is “a valid reason” within the meaning of Texas Local Government Code section 143.036(f) to deny promotion. 1 The United States Supreme Court has indicated that even comments by a state employee on matters of public concern may furnish grounds for discharge where a question of maintaining harmony among coworkers is presented and personal loyalty and confidence are necessary to the proper functioning of close working relationships. Pickering, 391 U.S. at 570 & n. 3, 88 S.Ct. at 1735 -36 & n. 3. But see Rutan v. Republican Party of Illinois, 497 U.S. 62, 74-75 , 110 S.Ct. 2729, 2736-37 , 111 L.Ed.2d 52 (1990)(promotions, transfers and recalls of state employees other than certain high-level ones could not be based on political affiliation).
Under the facts of this case, the conduct of Henry was directly related to his job as a police officer and involved the wife of another police officer. There was evidence that Henry’s conduct impaired his ability to command the trust and respect of those with whom he would work very closely in preserving the peace and protecting the public. The City was justified in denying the promotion even if the constitutional test of a “compelling state interest” is applied.
II
The potential breadth of the Court’s opinion causes me some concern. The opinion may be read to decide issues not before us, issues that we have not carefully considered in light of our own decisions and decisions of the United States Supreme Court. Assume, for example, that Henry had an adulterous affair with the wife of someone wholly unrelated to the police department and that Henry’s conduct had no disruptive effect within the police department. Could Henry be denied a promotion because of his immoral but legal association with a married woman? What if Henry were not a man, but an unmarried woman who gave birth to the child of a married man who had no connection with the police department? Would we say that the City could discharge her or deny her a promotion because of her adulterous conduct? Would such actions raise a constitutional question about the right to bear or beget a child which the United States Supreme Court has said is a fundamental “right of the individual, married or single” that must be free from unwarranted governmental intrusion? Eisenstadt v. Baird, 405 U.S. 438, 453 , 92 S.Ct. 1029, 1038 , 31 L.Ed.2d 349 (1972)(emphasis in original). See also Skinner v. Oklahoma, 316 U.S. 535, 541 , 62 S.Ct. 1110, 1113 , 86 L.Ed. 1655 (1942)(striking down statute calling for involuntarily sterilization of a thrice convicted felon, and holding that “[mjarriage and procreation are fundamental to the very existence and survival of the race”). I do not presume to answer these questions, but the Court’s opinion today could be viewed as doing so.
* * * * * ⅜
For the foregoing reasons, I join only in the judgment of the Court.
. Section 143.036(f) 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. If the department head has a valid reason for not appointing the eligible promotional candidate having the highest grade, the department head shall personally discuss the reason with the person being bypassed before appointing another person. The department head shall also file the reason in writing with the commission. 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).