Full opinion text
POWERS, Justice. The Texas Department of Mental Health and Mental Retardation (the “agency”) enacted regulations providing that its employees, under certain conditions, may be required to submit to a polygraph examination in the course of an agency investigation of alleged employee misconduct. Tex. Civ.Prac. & Remedies Code, chpt. 37 (1986). An employee’s refusal to do so may have adverse employment consequences as set out in the regulations. In a suit by the Texas State Employees Union and ten agency employees (the “appellees”), the trial court declared the regulations invalid and enjoined their enforcement. We will reverse the judgment below and remand the cause to the trial court. THE REGULATIONS The agency’s regulations provide that an employee may be dismissed if he refuses to submit to a polygraph examination in the course of certain administrative investigations by the agency or the agency facility where he is employed. He may also be dismissed if he initially submits to the examination but in the course of it refuses “to answer a question or questions directly related to the performance of his official duties.... ” Dismissal may not be ordered, however, unless the personnel director of the agency makes the following determinations after the employee’s refusal to submit to the examination or answer a particular question or questions: 1. There is reasonable cause to believe that there has been an incident of (a) Class I or Class II client abuse or neglect as defined in Rules of the Commissioner of MHMR 802.04.19.-001-.009[;] (b) drinking alcoholic beverages or taking illegal drugs while on duty or on the grounds of [an agency facility]; or (c) theft, assault, or sale or distribution of illegal drugs occurring during duty hours, or on the campus of [an agency] facility or otherwise directly related to work performance. 2. there is reasonable cause to believe that the employee acted or failed to act in the incident in a manner that violates the Commissioner’s Rules; and 8. other reasonable investigatory alternatives [to the polygraph examination] have been exhausted, including, at a minimum, an interview of the employee. The regulations do not specify the circumstances under which an employee may be ordered to submit to a polygraph examination. This omission is evidently intended to be supplied by the Commissioner’s “Notice to Employees” issued December 12, 1983. The notice provides as follows: * * * * * * Mandatory polygraph exams are intended only to assist the [agency] in its ability to investigate the following serious problems: 1. [Patient] abuse or neglect; 2. Activity which endangers or threatens the health and/or safety of other employees and/or [patients]; 3. Theft or other criminal activity on the grounds of the facility or otherwise related to [S]tate employment; and 4. Drinking alcoholic beverages or taking illicit drugs or being under the influence of alcohol or such drugs during working hours. Mandatory polygraph exams will not be used indiscriminately. Very few employees will ever be required to undergo such an exam and then only after a determination that all other reasonable alternatives have been exhausted. Results of polygraph exams are admissa-ble [sic] by either party in [an agency] grievance hearing; but such results, standing alone, cannot be the basis for a determination. There must be evidence other than the results of a polygraph examination for the presiding officer to determine that the facility has proven the allegations against an employee, (emphasis added). The foregoing is apparently intended to limit use of the polygraph examination to investigations of the four categories of employee misconduct set out above; and to limit its use still further by the proviso that an employee will not be required to submit to a polygraph examination until a determination has been made (by an unnamed official) “that all other reasonable alternatives have been exhausted.” The regulations rather carefully prescribe the procedure to be followed in administering the polygraph examination: * * * * * * (b) An employee required to participate in a polygraph exam shall be given written notice of the specific incident under investigation and the basis upon which he is suspected of having been involved in the incident at least twenty-four hours before being required to participate in a polygraph exam. (c) All polygraph examinations must be performed by a polygraph examiner licensed under Texas law. (d). An employee required to participate in a polygraph exam may be accompanied to the exam by a representative of the employee’s choice. The representative shall be allowed to monitor the exam from outside the examination room through either a two-way mirror or an audio device. (e) All polygraph exam questions must be specifically, narrowly and directly related to the employees [sic] performance of his official duties in connection with the specific incident that is the subject of the investigation or necessary for the proper administration of the polygraph exam. Unless otherwise agreed to by the employee, no polygraph exam question may inquire into the employee’s 1 — religious beliefs and affiliations; 2 — beliefs and opinions regarding racial matters; 3 — political beliefs and associations, including union membership or activity; 4 — knowledge of, or participation in, a specific crime or crimes that are not related to the specific incident that is the subject of the investigation; 5 — sexual preferences and practices that are not related to the specific incident that is the subject of the investigation. (f) An employee required to submit to a polygraph examination will be given a written list of the questions to be asked on the exam before the exam begins. (g) An employee required to participate in a polygraph exam shall have the opportunity to discuss the polygraph exam questions with his representative before the exam begins. (h) All employees who participate in a polygraph exam, the results of which indicate deception on the part of the employee, shall be given an opportunity to explain the result. Under no circumstances shall an employee be required to explain the result. (i) Neither the fact that an employee participated in a polygraph exam nor the results of a polygraph exam are admissible in a departmental grievance hearing without the agreement of the employee and the facility. The fact that an employee refused to participate in a polygraph exam is admissible only in a departmental grievance hearing arising from an alleged violation of this section .... (emphasis added). The foregoing procedural instructions are contained in Section 10 of the regulations. That section concludes with the following “Note to Employees ...”: By answering questions under [Section 10], 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 who faces job termination for refusal to answer cannot be used against the employee in a subsequent criminal proceeding. The U.S. Fifth Circuit Court of Appeals in Gulden v. McCorkle, 680 F.2d 1070 (1982), reiterated the holdings of the U.S. Supreme Court described above and applied them to a situation in which a public employee refused to submit to a polygraph examination. THE CONTROVERSY Appellees sued the agency in an original action in district court, contending among other things that the agency’s “mandatory polygraph policy” was invalid because it “violates Texas constitutional and common law rights of privacy” held by agency employees. Other allegations need not concern us here because the trial-court judgment, which enjoins the agency from requiring its employees to submit to polygraph examinations, rests solely on the ground that the regulations purport to authorize violations of the employees’ common law rights of privacy. Moreover, we need not discuss here a related cause of action, because it was severed in the trial court, or the matter of a class designation, because the trial court made no such designation under Tex.R.Civ.P.Ann. 42 and no complaint is made in that regard on appeal. The trial court filed findings of fact and conclusions of law. They revolve around two basic propositions: 1. It is the agency’s policy to employ “control questions” in administering the polygraph examinations to its employees. These control questions are designed to establish a reference mark showing the examinee’s physiological response to sensitive matters unrelated to the particular incident under investigation. Examples of such questions are: “Do members of your family smoke dope?”; “Have you stolen anything in your life or in the past 10 years?” “Have you used alcohol, prescription drugs, or marijuana?”; “Have you beaten your kids?” It is the agency’s position that such questions are necessary for a proper administration of the polygraph examination. These sensitive matters must be revealed by the employee owing to the coercive prospect of dismissal that is possible under the regulations. Such questions, if answered, constitute intentional intrusions into the employee’s solitude, seclusion, private affairs, and concerns so as to be highly offensive to a reasonable person, and thus an invasion of privacy that cannot be justified by any countervailing public interest. 2. While polygraph examinations are, under optimum conditions, capable of detecting deception at a rate greater than chance, they are unreliable to a degree. This element of unreliability precludes dismissal as a consequence of refusing to take the examination or to answer certain questions as part of the examination. While such examinations have limited utility as an investigatory tool, the dismissal would be unjust and unlawful in light of this element of unreliability. The agency appeals now by challenging the aforesaid findings of fact and conclusions of law. Appellees, by cross appeal, contend the trial court erred in not awarding attorney’s fees and damages, owing to sovereign immunity, and in not holding the mandatory polygraph examinations viola-tive of the employee’s constitutional right against self-incrimination. THE COMPETING PUBLIC AND PRIVATE INTERESTS The Public Interest The regulations are patently designed to further an important and substantial public interest — the State’s interest in a safe, orderly, efficient, and effective mental-health system. This system has been established by the Legislature for several purposes falling within the general aim of providing “for the conservation and restoration of mental health among the people of this state_” Tex.Rev.Civ.Stat.Ann. art. 5547-201(a) (Supp.1986). Among such purposes is the care of mentally ill and mentally retarded patients in eight State hospitals and 13 State schools, the care of inmates of various other institutions, and the administration of the central offices of the agency. Id., art. 5547-202, § 2.01. For such purposes, the agency employs over 25,000 persons. Tex.Adv.Comm. on Intergovt. Relations, Handbook of Governments in Texas, p. 1-191 (1973 & Ann.Supp.). The large scale of agency operations imposes various practical limitations on those operations. Some are inherent in any large-scale undertaking that requires supervision, direction, and coordination of large numbers of people, whether employees or patients. Other limitations result from funding restrictions, the imperfection of human beings, and the nature of the tasks given the agency by the Legislature. The system is, moreover, not free of the ills that plague society as a whole: assaults, thefts, reckless conduct, and drug and alcohol abuse. These do occur within agency institutions where ill-paid and insufficient numbers of employees care for the most violent individuals as well as the most placid. Finally, we should observe that the agency operates under a complex statutory framework that imposes upon the agency a duty to make adjustments and accommodations for competing interests. See generally Texas Mental Health Code, Tex.Rev.Civ. Stat.Ann. art. 5547-1 et seq. (Supp.1986); Texas Mental Health and Retardation Act, Tex.Rev.Civ.Stat.Ann. art. 5547-201 et seq. (Supp.1986); Texas Mentally Retarded Persons Act, Tex.Rev.Civ.Stat.Ann. art. 5547-300 et seq. (Supp.1986); and Tex.Rev.Civ.Stat.Ann. arts. 5561a-5561g (Supp.1986). For example, mental-health patients are statutorily entitled to receive from the agency “a humane treatment environment that affords reasonable protection from harm.” Tex.Rev.Civ.Stat.Ann. art. 5447-80(b)(5). Even without that statute, however, one would assume that the State’s custody of a patient and his property imply the same duty of protection. Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). On the other hand, the State’s paternalistic care may not go further than necessary — it may not impinge unduly upon a patient’s “rights, benefits, responsibilities, and privileges guaranteed by the constitution and laws_” Tex. Rev.Civ.Stat.Ann. art. 5547-80(a). For another example, the agency is charged to protect its patients, but it must also protect the community from its patients. See, e.g., Tex.Rev.Civ.Stat.Ann. arts. 5547-26, 5547-27, 5547-80(b)(l). The scale and complexity of the State’s interest constitute essential considerations in any comparison with the private interests of its employees, which is itself an important and substantial interest under the common law of the State. The Privacy Interest It may not be doubted that the regulations and the control questions authorized therein expose to harm the privacy interest held by agency employees under the protection of the common law of this State. As a legal concept, “privacy” most often finds expression in three areas: (1) in the common law, where the applicable rules of that body of law protect the privacy interest by familiar legal and equitable remedies; (2) in constitutional law, where the privacy interest is also protected in the course of enforcing one or more specific provisions of the Federal or State constitutions; and (3) in statutory law, where a legislative body has provided for protection of the privacy interest or qualified that interest in some particular. In the present case, we deal with the concept in a context where the agency, by administrative regulation, has attempted both to qualify and protect the privacy interest of its employees. The common law concept of privacy existed before adoption of the Federal Constitution. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Judicial development of the common law, with reference to protection of the privacy interest, has always been left to the States just as the States also developed their common law to protect individuals’ interest in property. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). All but a very few States presently recognize and protect the privacy interest. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). While some specific constitutional guarantees do encompass a privacy element or have a privacy aspect, there is no “constitutional right of privacy” in the sense of a general “right of privacy” that the Constitution protects. [T]he Fourth Amendment cannot be translated into a general constitutional “right to privacy.” That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person’s general right to privacy — his right to be let alone by other people — is, like the protection of his property and of his very life, left largely to the law of the individual states. Katz v. United States, supra, 389 U.S. at 350, 88 S.Ct. at 510 (emphasis added). In the present case, there exists no asserted conflict between one party’s privacy interest and a constitutional right of another. Rather, the conflict here is that which exists between the employees’ privacy interest and the State’s interest in a safe, orderly, efficient, and effective mental-health system, operating under State statutes and administrative regulations toward a goal of improving or ameliorating the condition of patients in the State’s custody. And, of course, included in this goal is the specific aim of protecting patients from maltreatment, neglect, theft, or other injurious acts by agency employees. It is readily apparent that such patients have constitutional and other legal rights in their life, liberty, and property, but in our view a consideration of the present case does not require analysis along that line because their interests are encompassed in what we have denominated the State or public interest. We turn then to a correct identification, under Texas common law, of the privacy interest claimed by the employees in the present case. An individual’s privacy interest formerly was not an interest that the Texas common law would protect by injunctive relief or redress by compensatory damages in an action at law. Milner v. Red River Valley Pub. Co., 249 S.W.2d 227 (Tex.Civ.App.1952, no writ). Presently, however, the contrary is true and the courts of this State “follow the rule that an unwarranted invasion of the right of privacy constitutes a legal injury for which a remedy will be granted.” Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex.1973) (emphasis added). The remedy may be either injunctive relief or compensatory damages, or both. Kramer v. Downey, 680 S.W.2d 524 (Tex.App.1984, writ ref'd n.r.e.). While Atkinson established the privacy interest as one thenceforth to be protected by the common law of Texas, it was necessary for the Supreme Court of Texas to delineate further that legally protected interest. This was done in Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex.1976). There, the Court determined that the privacy interest was not constitutionally protected in the circumstances of the case but that the tort law of the State might well protect the very same interest in those circumstances, as that law might apply directly or by analogy in the administration of the State’s Open Records Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17a (Supp. 1986). In its analysis, the Court borrowed from a law-review article, Prosser, Privacy, 48 Cal.L.Rev. 383 (1960), to establish that the privacy interest actually consists of four separate interests, and allows for “four distinct torts, each subject to different rules.... ” The four interests were described as follows: 1. Intrusion upon the plaintiffs seclusion or solitude, or into his private affairs. 2. Public disclosure of embarrassing private facts about the plaintiff. 3. Publicity which places the plaintiff in a false light in the public eye. 4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. 540 S.W.2d at 682 (emphasis added). We need concern ourselves here only with the first category. While the second category —“[pjublic disclosure of embarrassing private facts about the plaintiff” — may appear to be applicable, it is not really because the publicity element of that category refers to disclosure to the public at large, as distinguished from the law of defamation where “publication” may be actionable if communicated to a single person. See id. at 683. We assume here that an employee’s answers to a polygraph operator’s questions are not communicated to the public at large. The first category, the one with which we are concerned, contemplates the following: (1) an intentional intrusion; (2) upon the seclusion, solitude, or private affairs of another; (3) which intrusion is highly offensive to a reasonable person. Gill v. Snow, 644 S.W.2d 222 (Tex.App.1982, no writ); Restatement (Second) of Torts § 652B (1977). While this kind of intrusion is ordinarily associated with spying, wiretaps, or microphones, Gonzales v. Southwestern Bell Tel. Co., 555 S.W.2d 219 (Tex.Civ.App.1977, no writ), we see no distinction in that regard when the intrusion takes the more direct form of obtaining information (including physiological reactions) through questions directed to the individual himself when he is under a compulsion to answer them. Explicit in these statements describing the common law tort against the privacy interest is the essential element of reasonableness. It is the “unwarranted” intrusion that is actionable when it is highly offensive to a “reasonable” person. Billings v. Atkinson, supra; Gill v. Snow, supra. Or, stated another way, the common law protects only an individual’s reasonable expectations of privacy. The same element of reasonableness is found in the common-law regulation of the general relationship between government and its employees, a matter we shall now discuss because the privacy claim here occurs within and is qualified by that segment of the common law. THE COMPETING INTERESTS WITHIN THE CONTEXT OF STATE EMPLOYMENT State government has wide discretion and control over its employees in order that it may efficiently and effectively achieve the important ends of government. State employees are, consequently, subject to reasonable orders and regulations pertaining to their work and conduct. While State employees do not, of course, surrender their common law, statutory, constitutional, or other legal rights upon accepting State employment, a qualification of those rights may fall within the zone of reasonableness because of the circumstances of public employment and the particular case. See generally 67 C.J.S. Officers and Public Employees § 89, pp. 412-13 (1978). This only is the meaning of the frequent observation that State government may impose upon its employees restrictions that could not be imposed upon private persons. Id. § 218. State employment may simply invoke different or additional considerations in making a judgment about what is “reasonable.” Included among the prerogatives of State government as an employer is its authority to question a State employee concerning matters relevant to his employment. The State may dismiss or discipline an employee, after proper proceedings, if he refuses to account for the performance of his employment duties. If he is not coerced into waiving a constitutional right, there is no constitutional impediment to such dismissal or discipline. Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Uniformed Sanitation Men Asso. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423 (1958); Slochower v. Board of Higher Education of the City of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Garner v. Board of Pub. W. of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951). The Supreme Court of Texas has implied that a public employer may include in its questioning of a public employee "the use of polygraph tests ... when there is cause to believe a public employee has performed his official duties illegally.” Talent v. City of Abilene, 508 S.W.2d 592, 596 (Tex.1974). In the same paragraph, the Court implied that polygraph tests are not sanctioned if they are unrelated to the employee’s duties or if they are otherwise “clearly unreasonable.” Id. (emphasis added). In Richardson v. City of Pasadena, 500 S.W.2d 175 (Tex.Civ.App.1973), rev’d on other grounds, 513 S.W.2d 1 (Tex.1974), the court recognized that a police officer may be disciplined by his employer for refusing a direct order to submit to a polygraph examination as part of “a departmental investigation of a matter relating to efficiency and credibility when reasonable cause exists to believe that the police officer can supply relevant knowledge or information.” 500 S.W.2d at 177 (emphasis added). These two Texas decisions plainly suggest that the reasonableness of an order to submit to a polygraph examination, given to a government employee by his supervisor and enforceable by dismissal or discipline, is the criterion for determining whether the employee must obey the order or suffer the consequences. This appears to be the rationale common to those judicial decisions which uphold such orders. See Scheafer, Refusal to Submit to Polygraph Examination as Ground for Discharge or Suspension of Public Employees or Officers, 15 A.L.R. 4th 1207 (1982); Toomey, Compelled Lie Detector Tests and Public Employees: What Happened to the Fifth Amendment?, 21 S.Tex.L.J. 875, 888-85 (1981). While the case dealt specifically with a claim of self-incrimination, the Supreme Court of Washington, in Seattle Police Officers’ Guild v. City of Seattle, 80 Wash.2d 307, 494 P.2d 485 (1972), mentioned some of the factors that may bear upon the issue of “reasonableness.” In the instant case, serious and notorious charges of crime and corruption had, with appreciable cause, been leveled against members of the police department. ... [I]f, in the exercise of prudent judgment, the investigating authority determines it reasonably necessary to utilize the polygraph examination as an investigatory tool to test the dependability of prior answers to questions specifically, narrowly and directly related to the performance of their official duties, then, such investigating authority may properly request such officers to submit to a polygraph test under pain of dismissal or refusal. Id. 494 P.2d at 493 (emphasis added). The notice in City of Seattle specifically directed the officers to take the polygraph examination; assured them that the questions asked would be specifically, directly, and narrowly related to their official duties; guaranteed they would not be required to waive any immunity from criminal prosecution; and, advised them that information gained through the polygraph examination would not be used against them in any criminal proceeding. The Court noted that the nature of the charges of official corruption created serious public doubt about the integrity, morality, and fidelity of the police department and its employees, fully justifying the internal investigation wherein the polygraph was proposed to be used. The investigation itself being fully justified, what then of the department’s decision to employ the polygraph? The Court held the reasonableness of this decision was subject to judicial scrutiny to guard against abuses. Therefore, when such judicial oversight is available and where the results of the examination and the employee’s decision whether to submit to it are not admissible in any subsequent proceedings, the Court held the employees not entitled to a writ of prohibition forbidding entirely the use of the polygraph. In the present case, the regulations suggest on their face an intent to avoid abuse while permitting and controlling the use of polygraph examinations within a narrow aspect of agency employment — administrative investigations in four categories of possible employee misconduct. Stated another way, the regulations evidence an attempt to accommodate the public and private interests put in conflict by the agency’s decision to utilize polygraph examinations and its decision to employ control questions in such examinations. ACCOMMODATION OF THE COMPETING INTERESTS The trial-court judgment condemns as invalid the regulations promulgated by the Commissioner and enjoins their enforcement. While we agree with the trial court’s determination that a polygraph examination based on control questions constitutes an intrusion upon the employee’s privacy, we do not believe that to be the sole determinant of whether the regulations are valid administrative enactments nor does that one determinant render the regulations invalid in any and all circumstances. There may be circumstances where the intrusion upon employee privacy is warranted and a reasonable employment condition. This possibility precludes a determination that the regulations are invalid and unenforceable in all cases that may arise thereunder. The privacy interest is not absolute in all cases. Consequently, the trial court judgment must be reversed. Applicable Rules of Construction The regulations come before any court attended by a presumption that they are valid sublegislation by the agency. A reviewing court may not concern itself with whether the regulations — that is, the policy decisions they embody — are wise, desirable, or necessary. It is sufficient that the agency could legitimately view them as being so. Bullock v. Hewlett-Packard Co., 628 S.W.2d 754, 756 (Tex.1982). The presumption of validity includes a presumption that facts existed which justified the regulations. Id. The presumption of validity also bears upon the correct meaning to be assigned the regulations in any judicial review of their validity. We must, for example, interpret them as being intended by the agency to protect the legal rights of both the agency and its employees. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 438 (1946) (vital issue in review of agency rule is whether legal rights of parties in issue are protected, “legal rights” embracing both public and private rights.) Stated another way, we must view the Commissioner’s regulations as being valid and therefore not intended to authorize unreasonable employment conditions or unwarranted intrusions upon employee privacy. It may be that the regulations omit to provide express standards for the exercise of agency discretion thereunder. They are not to be viewed, in consequence of the omission, as a license for arbitrary agency action. That is, the regulations in the present case are not to be viewed as purporting to license unreasonable or unwarranted intrusions upon employee privacy so that they must be struck down as violative of the privacy interest protected by the tort law of the State and by that branch of the State’s common law pertaining to State employment. The regulations are, instead, to be construed in an entirely different manner: if their validity depends upon the missing standards, a reviewing court must construe the regulations as if they in fact embraced the missing standards; and, the court may itself “lay down” or prescribe what those standards are. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1026 (1942) (Agency rule must be given construction that will, if possible, sustain its validity; and if that can only be done by court laying down a standard to guide the agency in exercise of its discretion, then court must supply the standard and construe the rule as if it contained that standard.) Where, as here, the agency regulations include provisions intended to accommodate conflicting public and private interests, a reviewing court must assign considerable weight to the accommodation reached by the agency. If that accommodation is a reasonable one — that is to say, one the Legislature would have sanctioned — it may not be disturbed by a reviewing court. Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Texas State Board of Barber Examiners v. Beaumont Barber College, Inc., 454 S.W.2d 729 (Tex.1970). Statutory Basis for the Regulations The regulations of an administrative agency must have a reasonable basis in some authorizing statute or statutes. Southwestern Sav. & L. Ass’n of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917, 921 (Tex.1960). It is not contended here that the Commissioner lacked general authority to promulgate the regulations or that he failed to follow proper procedure in doing so. We should, however, refer to the statutory basis for the regulations as a useful guide in any construction to be given them. There are no applicable statutes that deal expressly with the agency’s use of polygraph examinations. In consequence, we may not impute to the Legislature any •particular intent concerning their use. The question then arises whether their use may be within the general terms and purposes of any statute or statutes. Chevron U.S.A. v. Natural Res. Def. Council, supra. We hold their use to be within the implied statutory warrant given the agency to employ reasonable means to preserve order and safety in the mental-health system so that the purposes intended for that system by the Legislature may be efficiently and effectively achieved. These statutes have been mentioned previously. Although none specifically authorizes polygraph examinations by the agency, none forbids them. The presumption of validity includes a presumption that facts existed which justified the agency in its decision to employ polygraph examinations, as pointed out above. This presumption has not been defeated in the present case by contrary evidence. Indeed, one may infer from some portions of the evidence that such examinations may, in some circumstances, legitimately be viewed by the agency as a reasonable tool to use in maintaining order and safety in the mental-health system, the ultimate problem being to preserve the controlling element of reasonableness in any decision to employ the examinations as an investigatory aid. And if the agency possesses the general power to prescribe the use of polygraph examinations in an administrative investigation, it follows necessarily that the agency possesses the power to determine such included matters as: (1) the circumstances under which a polygraph examination will be a reasonable condition of employment or a warranted intrusion upon an employee’s privacy; (2) the procedures to be followed in administering the examination and its content; (3) the use proper to be made of the examination results in light of the element of unreliability that indisputably exists in some degree in such examinations; and (4) the consequences proper to be imposed against an employee who refuses to submit to the examination or who refuses in the course of an examination to answer a particular question or questions. But the very statutes from which the agency is permitted to infer a power to employ polygraph examinations also impose an inherent limitation upon their use. The Legislature never intended that any such statute should serve as implied authority to perpetrate an injustice against an employee. State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238 (1943). Consequently, the agency’s inferred power to utilize polygraph examinations in an administrative investigation is no greater than what is reasonably necessary or essential to protect the State’s interest in an orderly, safe, efficient, and effective mental-health system. Thus, like the presumption of validity mentioned above, the statutory authority for these regulations compels the inference that they were never intended by the agency to authorize an intrusion upon employee privacy that is Mwreasonable and mwwarranted in the circumstances of the particular case. The Regulations, as Written, Omit to Provide a Sufficient Standard to Govern The Exercise of Agency Discretion The regulations evidence a conscious effort to accommodate the privacy interests of agency employees with any interest of the State intended to be furthered by use of the polygraph examination in an administrative investigation: they prohibit questioning an employee about certain specified matters; they carefully regulate the effect to be given any refusal to submit to the examination or answer particular questions; and, the Commissioner’s notice to agency employees, clarifying the regulations, specifically limits the use of such examinations to investigations where “all other reasonable alternatives have been exhausted” and impliedly limits them further to four categories of “serious problems” occurring within agency institutions. Nevertheless, the regulations suffer from several omissions, the cumulative effect of which is that unjust or arbitrary decisions are not necessarily foreclosed by the terms of the regulations. We should first observe that the regulations embody the agency’s decision that control questions may be a component part of any polygraph examination and the ex-aminee must answer them on a theory they are “necessary for the proper administration of the polygraph exam [sic].” This is tantamount to a decision that in every instance employee privacy may be intruded upon in the polygraph examination. Moreover, it neutralizes entirely the protective provision that certain matters may not be inquired about in an examination. If employee privacy may thus be invaded in each examination, it follows that each use of the examination requires a finding, under the facts of the case, that an invasion of employee privacy is justified as reasonable and warranted by the State’s supervening interest in safety and order in its mental-health system. This reference to the surrounding circumstances and a judgment based thereon contemplates an antecedent determination by the agency not the subsequent determination incongruously dictated by the regulations. The regulations omit to provide for any such determination before an employee is required to submit to a polygraph examination. A decision to require an employee to submit to the examination is apparently made without reference to any express standard apart from the apparent requirement that “all other reasonable alternatives have been exhausted.” It may, however, be entirely unreasonable to require an employee to yield his privacy in deference to some interest of the State even if “all other reasonable alternatives have been exhausted.” For example, one would not think it reasonable to order an employee at an agency institution to surrender his privacy in favor of the public interest when a single empty beer can is inexplicably found at a place frequented by employees during working hours. On the other hand, it may be reasonable to require all such employees to yield their privacy interests in favor of a greater State interest when a series of unsolved murders in an institution has created panic that must be allayed quickly if order is to be maintained, safety is to be secured, patient care is to be continued, and public confidence is not to be undermined. Even if the examination results contained the 30% chance of error imputed to them by appellees’ expert witness, one must assess the importance of that fact not in a vacuum but in comparison to the total circumstances, so that the agency’s requirement for a quick, if rough, screening device might well outweigh the 30% chance of error. The reasonableness of the agency’s decision increases, of course, if the chance of error is only 10%, which is the opinion held by the other expert witness in the case. (We do not here assess the issue of self-incrimination, of course). But the regulations, as written, provide neither a standard nor a framework for an agency determination of reasonableness before an employee may be required to submit to an examination wherein his privacy may be invaded. It may be that the agency would make such a determination; but the regulations do not require it to be made and give no standard in that regard, so that arbitrary and unjust action is possible under the regulations as they are written. Consequently, we hold the Legislature would not have sanctioned the balance between public and private rights and interests that these regulations reflect. Guidelines for Exercise of Agency Discretion Our holding relative to the possibility of arbitrary and unjust action under the regulations does not mean that we must declare them void in their entirety as the trial court did. Given that the regulations, as written, would not preclude an unreasonable governmental intrusion upon an employee’s privacy interest in contravention of the State’s common law, the regulations do not compel that result; and, moreover, we may easily supply a standard that permits the agency to avoid such result in the exercise of its discretion under the regulations. Therefore, we must supply the standard under the requirement that the regulations are to be construed under the presumption of validity. Railroad Commission v. Shell Oil Co., supra. Accordingly, we hold as follows: 1. The State has an important and substantial interest in the maintenance of order and safety in its component institutions and departments. 2. Agency employees possess a common law right of privacy protected by the tort law of this State from unwarranted intrusions by others, including the State, as well as a common law right to be free of unreasonable conditions in their employment by the State. 3. In some cases possible to arise under the regulations, a consideration of the competing interests and the surrounding factual circumstances may result in a conclusion that it is reasonable to require an employee to submit to a polygraph examination utilizing control questions so that the resulting invasion of his privacy interest is not “unwarranted” or an “unreasonable” condition of his employment. 4. The omission of the regulations to supply any standard to govern the agency in the exercise of its discretion to require an employee to submit to a polygraph examination would render the regulations invalid; and, to preserve their validity, we therefore construe them as containing the following standards applicable to any decision by the agency to require an employee to submit to such an examination: a. An employee may not be required to submit to a polygraph examination unless the agency has first determined that the requirement is a reasonable one in view of the invasion of privacy that will necessarily follow, the public interest at stake in the case, whether reasonable alternatives exist, and indeed all other circumstances of the particular case. New Jersey v. T.L.O., 469 U.S. -, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (students do not waive all rights of privacy when on school grounds, but school officials’ need for freedom to maintain order must be balanced against such rights and resulting comparison justifies search of student based merely upon reasonableness under all the circumstances rather than upon probable cause to believe student has violated the law or is doing so.) b. In order that the foregoing standard may constitute a meaningful impediment to the possibility of arbitrary agency decisions, the determination must be made by a neutral agency official having no responsibility for the investigation and after notice to the employee that he may be required to take the examination, together with a reasonable opportunity on the employee’s part to protest by evidence and argument the reasonableness of that contemplated action. Cf., Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) (decision of prison officials to withhold delivery of particular letter to inmate must be accompanied by minimum procedural safeguards to ensure that suppression of correspondence does not exceed legitimate interests of State in penal administration.) We hold these procedural safeguards to be the minimum necessary to preserve the procedural due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States. See, Paul v. Davis, 424 U.S. 693, 710-11, 96 S.Ct. 1155, 1164-65, 47 L.Ed.2d 405 (1976) (procedural guarantees of Fourteenth Amendment may apply when State seeks to remove or significantly alter legal interests previously recognized and protected by State law, even if such interest was not originally within “liberty” or “property” interest protected by substantive due process guaranteed by that amendment.) 5. Our holdings are not to be construed as limitations upon the right of an employee to obtain from a district court injunctive relief against enforcement of an agency determination in his case, on a showing in such court in an original action that the examination would be unreasonable under all the circumstances. Tex. Civil Practice & Remedies Code, § 65.011 (1986); State Board of Examiners in Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242 (1961) (unlawful acts of public officials may be restrained where they would cause irreparable injury); Missouri, K. & T. Ry. Co. of Texas v. Shannon, 100 Tex. 379, 100 S.W. 138 (1907) (contemplated acts by public officials not authorized by valid law may be enjoined where they will constitute unlawful interference with individual’s rights). Having imputed to the regulations the essential standards necessary to preserve their validity, we hold they are not invalid on the grounds they purport to authorize unreasonable conditions of State employment by permitting invasions of employee privacy in contravention of the common law of the State. We therefore reverse the judgment of the trial court declaring the regulations invalid on those grounds. We remand the case to that court for its determination of appellees’ contention that the regulations are invalid on other grounds. We make no present ruling on the question of attorney’s fees, reserving the matter until a final determination of the case. . The "polygraph,” as the word implies, combines the measurements of several physiological reactions to questions asked the individual being interrogated. The measures taken are of the individual's blood pressure, pulse, respiration, and "galvanic skin response." The theory is that the act of lying induces stress, fear or anxiety, and consequent changes in these physiological factors. The most important element in the theory is the examiner’s ability to interpret properly the changes in measurement. . For a general discussion of the questions involved in the present case, as well as unrelated legal issues raised by the use of polygraph examinations, see Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie-Detection, 70 Yale L.J. 694 (1961); Toomey, Compelled Lie-Detector Tests and Public Employees: What Happened to the Fifth Amendment?, 21 S.Tex. L.J. 375 (1981); Comment, Privacy: The Polygraph in Employment, 30 Ark.L.Rev. 35 (1976); and the several writings listed in Scheafer, Refusal to Submit to Polygraph Examination as Ground for Discharge or Suspension of Public Employees or Officers, 15 A.L.R. 4th 1207 (1982 & Supp.1985); Schopler, Supreme Court's Views as to the Federal Legal Aspects of the Right of Privacy, 43 L.Ed.2d 871 (1976 & Supp.1985); and Privacy, Polygraphs, and Employment, A Study Prepared by the Staff of the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, 93rd Congress (U.S. Govt. Printing Off., Wash. 1974). . We may summarize the evidence as follows: Patient abuse and neglect. Some evidence was adduced concerning incidents of patient abuse or neglect, ranging from the most serious to minor incidents, attributable to employee misconduct. The following tabulations summarize the number of such incidents in fiscal year 1983 and parts of fiscal year 1984: Before the regulations were enacted to authorize mandatory polygraph examinations, the agency’s experience had been that some 23% or 24% of alleged instances of employee misconduct would be confirmed. The rate of 22%, for FY 1983, approximates this general experience. The regulations were in effect in the first quarter of FY 1984, when the rate increased to 37%; and were not in effect in the second quarter when the rate fell to 25%. A reasonable inference would be that in some manner the mandatory polygraph policy assisted in confirming more instances of employee misconduct than occurred without the policy. The difference is significant. However, other evidence in the record suggests that the inference ought not to be drawn without further statistical analysis that has not been done. In light of the relatively small number of incidents alleged, we believe it plain that we impose no great burden on the agency in our requirement hereafter that the agency afford its employees notice and hearing before they may be required to submit to a polygraph examination. The evidence also summarizes, for fiscal year 1984, the causes of patient injuries: Injuries Caused by Other Patients 23.9% Self-Inflicted Injuries 16.8% Injuries Caused by Agency Employees 1.1% Accidental Injuries 30.7% Other Causes, or Cause Unknown 27.5% Reliability and Efficacy of Polygraph Examinations. The evidentiary record contains the opinion testimony of two expert witnesses, one holding that polygraph examinations are sufficiently reliable for assistance in administrative investigations so as to constitute a reasonable basis for agency decisions in such investigations; and, the other holding the opposite opinion. Agency officials testified that they adhered to the former opinion and found the examinations useful in practice. Abuse of the Polygraph Examination. A few agency employees testified that they were deceived, insulted, or otherwise mistreated in the course of a polygraph examination. There is no evidence that this mistreatment reflects agency policy in any respect or that it is systematic or characteristic of a majority of cases. We may not, of course, declare the regulations invalid in consequence of such episodes alone. Other Matters. We are unable to find any direct evidence of the number of individuals in the agency's care at any particular time. One table in evidence allows the inference that the 13 State schools had a patient population of something over 9,000 in the first quarter of 1984. Presumably, this number would not change significantly from month to month. It has been estimated that State hospitals, on the other hand, had in 1980 an average daily patient population of 5,608. Barna, State Mental Health Services: Change Under Pressure (Texas House of Representatives, House Study Group, Special Legislative Report No. 106, 1984), p. 5. It is difficult to overstate the conflicting demands made of the agency, the difficulties under which it labors, and the complexity of its administrative tasks. These are summarized in Barna, supra. While we do not attribute too much firmness to the figures, we note for example the author's assertion that a 1981 study revealed that six out of ten agency employees, engaged in the direct care of patients, had been physically assaulted by them; that half of the agency employees earned an annual salary that was |5,000 under the average salary paid State employees; and that these factors attributed to a turnover rate that was 52.2% in 1979, now down to 22%. Barna, supra, at 65. The parties have used the word “clients" in referring to those individuals who receive the services provided by the Department of Mental Health and Mental Retardation. They have used also the word “residents” in referring to the individuals who live in facilities operated and supervised by the Department. We prefer to use the word “patients” to refer to either group. We recognize that not all the individuals in either group receive medical treatment; but we are not persuaded that the word "patients” is less descriptive or appropriate. For example, we note that various statutes use interchangeably the three words. See Tex.Rev.Civ. Stat.Ann. arts. 556 If, § 1(d) (Supp.1986) (“patient”); 5547-300, § 3(12) (Supp.1986) (“client"); 5561cc, § 13(a) (Supp.1986) ("resident’s, patient’s, or client’s"). Indeed, Tex.Rev.Civ.Stat. Ann. art. 5561h, § 1(b) (Supp.1986) contains the inane expression “patient/client." . The utilization of “control questions” as a component part of the polygraph examination is the chief point of controversy in the present case, presenting a narrower privacy issue than would be posed by a use of such examinations without such questions. A “control question” is a question about an act of wrongdoing in the past, of the same general nature as the incident under investigation, and about which the individual being interrogated would be expected to lie or give a dubious answer. The theory is that the individual’s physiological responses to such questions will give a reference mark to compare to the measurements associated with his answers to (1) innocuous questions and (2) questions directed at the incident under investigation. See Herman, Privacy, the Prospective Employee, and Employment Testing: The Need to Restrict Polygraph and Personality Testing, 47 Wash.L.Rev. 73, 80-81 (1971). . We believe it necessary here to set out the interplay between the Constitution of the United States and the common law of Texas as they bear upon the privacy interest. a. Protection of privacy as a substantive legal interest under State common law. As discussed in the opinion, the general right of privacy has been left to development in the common law of the States. In our opinion, we discuss the Texas common law in that regard. We do so to sketch the outline of this interest, to show its application in the context of State employment, and to set forth the basis of the trial-court judgment. The parties, however, do not dispute that the common law of this State does recognize and protect individual privacy. The Atkinson and Industrial Foundation of the South cases preclude any doubt in that regard. b. Protection of privacy as a substantive legal interest under the Constitution of the United States. There is no general right of privacy found in the Federal Constitution. Instead, it is said that the specific guaranties in the Bill of Rights and other Constitutional provisions have "penumbras” emanating from the specific guaranties themselves. These "penumbras" encompass additional interests like those specifically protected. For example: (1)The First Amendment, in its protection of speech, press, assembly, and petition, protects by extension an individual’s involvement in partisan politics. Compelled disclosure in that regard may seriously infringe on the individual’s privacy interest which is one aspect of his involvement in partisan politics; however, a compelling public need that cannot be met in a less restrictive way will override the individual’s privacy interest, particularly when the free functioning of national institutions is involved. Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). (2) The Third Amendment, regulating the quartering of soldiers in private homes, creates a zone of privacy and protects that interest from governmental intrusion. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). (3) The Fourth Amendment protects against unreasonable searches and seizures in order that individuals may be secure in their persons, houses, papers, and effects. It is in this amendment that the framers directly addressed the subject of personal privacy. They struck a balance so that when the State’s reason to believe incriminating evidence will be found becomes sufficiently great, the invasion of privacy becomes justified and a warrant to search and seize will issue. They did not seek in still another amendment — the Fifth — to achieve a general protection of privacy but to deal with the more specific issue of compelled self-incrimination. Fisher v. United States, 425 U.S. 391, 400, 96 S.Ct. 1569, 1576, 48 L.Ed.2d 39 (1976). (4) The Fifth Amendment protects privacy, in one sense, in consequence of the privilege against compelled self-incriminating testimony. But its protection of the privacy interest is limited to those cases where self-incriminating testimony is compelled. For example, private incriminating statements may be overheard and used in evidence in a criminal proceeding if they are not compelled at the time they were uttered and disclosure of private information may be compelled if immunity removes the risk of incrimination. Fisher v. United States, supra; Katz v. United States, supra; Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The Fifth Amendment does not operate under a reasonableness standard; its strictures are not removed on a showing of probable cause. Consequently, to the extent that amendment protects the privacy interest, the public interest is irrelevant if the Fifth Amendment indeed applies to the case. Fisher v. United States, supra. (5) The Ninth Amendment protects privacy by implication from its express provision that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained by the people. Griswold v. Connecticut, supra. In Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), it was said that the Court’s decisions concerning "zones of privacy” emanating from the specific Constitutional provisions "have in fact involved two kinds of interests”: (1) an individual’s interest in avoiding disclosure of personal matters and (2) his interest in certain kinds of important personal decisions, such as those relating to marriage, procreation, contraception, family relationships, and child rearing and education, citing Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). In the present case, we deal of course with the former privacy interest. The trial court in the present case did not base its judgment on any constitutional protection given the privacy interest, but solely upon the protection given that interest by the common law of Texas. On appeal, the parties dispute the effect of this distinction. It appears to us to be a distinction without a difference. As stated in Fisher v. United States, supra, the Federal Constitution directly addresses the privacy interest in the Fourth Amendment guarantee against unreasonable searches and seizures. The scope of protection given by that amendment to the privacy interest is measured by the “reasonableness” standard. Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982). This is the identical standard established by the common law of Texas for determining the scope of protection given that same interest by that portion of its common law dealing with tortious invasions of the interest or the imposition of unreasonable conditions of employment. With one exception, no other provision of the State or Federal constitutions gives to the privacy interest a scope of protection greater than that implied by the "reasonableness" standard; and, with that same exception, none suggests that the privacy interest is absolute in the sense that it must prevail to the fullest extent in any and all circumstances. The one exception is, of course, the protection given the privacy interest by the Fif& Amendment. It is plainly not subject to the "reasonableness" standard— one may not be compelled to give self-incriminating testimony no matter how reasonable that may appear to be in the circumstances. c. Constitutional protection of a State-recognized privacy interest under the procedural due process guaranty of the Fourteenth Amendment. As distinguished from those cases involving privacy as an aspect or element of a substantive right, established by extension from some specific guaranty in the Federal Constitution, the privacy interest may also come within the procedural due process guaranty of the Fourteenth Amendment. Even though the privacy interest is not within the "penumbra” of any specific guaranty in the Constitution, a State is free under its common or statutory law to recognize and protect the interest if it sees fit to do so. If such protection is given, however, the guaranty of procedural due process in the Fourteenth Amendment precludes arbitrary State action in reference to that right. For example, having recognized by its driver’s license laws a right in individuals to drive on State highways, a State may not withdraw that statutory right without affording licensees procedural due process of law in a proceeding directed at revocation of th