V.T.C.A., Penal Code � 39.

02

Vernon's Texas Statutes and Codes Annotated Currentness

Penal Code (Refs & Annos)

Title 8. Offenses Against Public Administration

Chapter 39. Abuse of Office (Refs & Annos)

� 39.02. Abuse of Official Capacity

(a) A public servant commits an offense if, with intent to obtain a benefit or
with intent to harm or defraud another, he intentionally or knowingly:

(1) violates a law relating to the public servant's office or employment; or

(2) misuses government property, services, personnel, or any other thing of value
belonging to the government that has come into the public servant's custody or
possession by virtue of the public servant's office or employment.

(b) An offense under Subsection (a)(1) is a Class A misdemeanor.

(c) An offense under Subsection (a)(2) is:

(1) a Class C misdemeanor if the value of the use of the thing misused is less
than $20;

(2) a Class B misdemeanor if the value of the use of the thing misused is $20 or
more but less than $500 ;

(3) a Class A misdemeanor if the value of the use of the thing misused is $500 or
more but less than $1,500;

(4) a state jail felony if the value of the use of the thing misused is $1,500 or
more but less than $20,000;

(5) a felony of the third degree if the value of the use of the thing misused is
$20,000 or more but less than $100,000;

(6) a felony of the second degree if the value of the use of the thing misused is
$100,000 or more but less than $200,000; or

(7) a felony of the first degree if the value of the use of the thing misused is
$200,000 or more.

(d) A discount or award given for travel, such as frequent flyer miles, rental car
or hotel discounts, or food coupons, are not things of value belonging to the
government for purposes of this section due to the administrative difficulty and
cost involved in recapturing the discount or award for a governmental entity.

CREDIT(S)

Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts
1983, 68th Leg., p. 3241, ch. 558, � 7, eff. Sept. 1, 1983. Renumbered from
V.T.C.A., Penal Code � 39.01 and amended by Acts 1993, 73rd Leg., ch. 900, � 1.01,
eff. Sept. 1, 1994.

HISTORICAL AND STATUTORY NOTES

2003 Main Volume

The 1983 amendment, in subsec. (a), in the introductory language, deleted "for
himself" and inserted "with intent", deleted subds. (1), (2) and (3), renumbered
former subds. (4) and (5) as (1) and (2), respectively, and in subd. (2) deleted
"takes or" preceding "misapplies any thing", substituted "has" for "may have",
inserted "office or", and deleted ", or secretes it with intent to take or
misapply it, or pays or delivers it to any person knowing that such person is not
entitled to receive it"; deleted former subsec. (b), relettered former subsec. (c)
as (b), added a new subsec. (c), and in subsec. (b), in the first sentence
substituted "Subsection" for "Subsections", deleted "through (a)(4)" following
"(a)(1)" and deleted the second sentence which read: "An offense under Subsection
(a)(5) of this section is a felony of the third degree.". Prior to amendment,
subsecs. (a)(1), (a)(2), (a)(3), and (b) read:

"(a)(1) commits an act relating to his office or employment that constitutes an

unauthorized exercise of his official power;

"(2) commits an act under color of his office or employment that exceeds his
official power;

"(3) refrains from performing a duty that is imposed on him by law or that is
clearly inherent in the nature of his office or employment;"

"(b) For purposes of Subsection (a)(2) of this section, a public servant commits
an act under color of his office or employment if he acts or purports to act in an
official capacity or takes advantage of such actual or purported capacity.";

� 12 of the 1983 amendatory act provides:

"(a) The change in law made by this Act applies only to an offense committed on or
after the effective date [Sept. 1, 1983] of this Act. For purposes of this
section, an offense is committed before the effective date of this Act if any
element of the offense occurs before the effective date.

"(b) An offense committed before the effective date of this Act is covered by the
law in effect when the offense was committed, and the former law is continued in
effect for this purpose."

The 1993 amendment rewrote the section, which previously read:

"Official Misconduct. (a) A public servant commits an offense if, with intent to
obtain a benefit or with intent to harm another, he intentionally or knowingly:
"(1) violates a law relating to his office or employment; or

"(2) misapplies any thing of value belonging to the government that has come into
his custody or possession by virtue of his office or employment.

"(b) An offense under Subsection (a)(1) of this section is a Class A misdemeanor.

"(c) An offense under Subsection (a)(2) of this section is:

"(1) a Class C misdemeanor if the value of the use of the thing misapplied is less
than $20;

"(2) a Class B misdemeanor if the value of the use of the thing misapplied is $20
or more but less than $200;

"(3) a Class A misdemeanor if the value of the use of the thing misapplied is $200
or more but less than $750;

"(4) a felony of the third degree if the value of the use of the thing misapplied
is $750 or more but less than $20,000; and

"(5) a felony of the second degree if the value of the use of the thing misapplied
is $20,000 or more."

Prior Laws:

Rev.P.C.1879, arts. 96, 97, 99, 101 to 104, 104b, 105 to 109, 117 to 119, 207,
208, 240, 241, 242 to 249, 252 to 264, 267, 270, 275 to 278, 368, 369.

Rev.P.C.1895, arts. 96, 97, 99, 101 to 104, 110, 110a, 110b, 119a, 122 to 124,
222, 223, 256 to 265, 268 to 283, 286, 289, 294 to 298, 392, 393, 489, 490, 1013,
1013a.

Rev.P.C.1911, arts. 96, 97, 99, 101, 103 to 107, 109, 119, 122 to 129, 144, 163 to
165, 167, 173, 326, 327, 363 to 373, 375, 388 to 408, 412, 417, 420, 426 to 434,
583, 584, 830, 831, 1578, 1581 to 1584, 1611.

Acts 1933, 43rd Leg., p. 771, ch. 229.

Vernon's Ann.P.C. (1925) arts. 86, 87, 89 to 91, 93 to 96, 100, 101, 107f, 108,
110, 112 to 120, 142, 143, 145, 146, 323, 324, 365 to 371, 381 to 403, 407 to 423,
425 to 427, 640, 641, 831, 832, 1041, 1157, 1158, 1539 to 1541, 1544b.

Former Sections:

A former � 39.02 was renumbered as V.T.C.A., Penal Code � 39.03 by Acts 1993, 73rd
Leg., ch. 900, � 1.01, eff. Sept. 1, 1994.

CROSS REFERENCES

"Public servant" defined, see V.T.C.A., Penal Code � 1.07.

Punishment,

Class A misdemeanor, see V.T.C.A., Penal Code � 12.21.

Class B misdemeanor, see V.T.C.A., Penal Code � 12.22.

Class C misdemeanor, see V.T.C.A., Penal Code � 12.23.

First degree felony, see V.T.C.A., Penal Code � 12.32.

Second degree felony, see V.T.C.A., Penal Code � 12.33.

State jail felony, see V.T.C.A., Penal Code � 12.35.

Third degree felony, see V.T.C.A., Penal Code � 12.34.

LAW REVIEW COMMENTARIES

Changes in criminal law. Kenneth W. Sparks, 21 Hous.Law. 20 (1983).

Crime of public drunkenness. Walter W. Steele, Jr. 33 Tex.B.J. 95 (1970).

LIBRARY REFERENCES

2003 Main Volume

Officers and Public Employees 121.

Westlaw Topic No. 283.

C.J.S. Officers and Public Employees �� 255 to 259.

RESEARCH REFERENCES

2006 Electronic Pocket Part Update

Encyclopedias

TX Jur. 3d Criminal Law � 1271, Elements of Offense.

TX Jur. 3d Criminal Law � 1272, Intent and Motive.

TX Jur. 3d Criminal Law � 1273, Proscribed Conduct; Misusing Thing of Value

Belonging to Government.

TX Jur. 3d Criminal Law � 1275, Degree of Offense.

TX Jur. 3d Criminal Law � 1276, Indictment and Information.

TX Jur. 3d Criminal Law � 2112, What Constitutes Official Misconduct or Oppression

for Purposes of District Court Jurisdiction.

TX Jur. 3d Criminal Law � 2666, Following Language of Statute.

TX Jur. 3d Employer & Employee � 55, Retaliatory Discharge; Illegal Acts --
Whistleblowing.

TX Jur. 3d Municipalities � 455, Funds, Generally.

TX Jur. 3d State of Texas � 22, Criminal Liability.

Forms

Texas Jurisprudence Pleading & Practice Forms 2d Ed � 9:12, Introductory Comments.

Treatises and Practice Aids

McDonald & Carlson Texas Civil Practice � 5:38, Criminal Statutes Relating to
Appellate Judges.

Charlton, 6 Tex. Prac. Series � 23.3, Official Oppression.

McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 22.1, Abuse of Official
Capacity -- by Violating Law.

McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 22.2, Abuse of Official
Capacity -- by Misuse.

McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 128.1, Official

Misconduct.

Brooks, 22 Tex. Prac. Series � 3.11, Official Misconduct.

Brooks, 35 Tex. Prac. Series � 17.9, Interest and Sinking Funds-Investment of

Funds.

Brooks, 35 Tex. Prac. Series � 7.19, Criminal Official Misconduct.

Brooks, 36 Tex. Prac. Series � 20.35, Service of Process.

Dix and Dawson, 40 Tex. Prac. Series � 1.24, Misdemeanors Involving Official
Misconduct -- Eligible Conduct.

Dix and Dawson, 41 Tex. Prac. Series � 20.255, Intent and Details of Required
Objective.

NOTES OF DECISIONS

In general 2

Admissibility of evidence 14

Burden of proof 15.5

Custody or possession by virtue of employment, taking or misapplying thing of

value 8

Defenses 12
Double jeopardy 10

Indictment 11

Instructions 16

Intent, generally 3

Jurisdiction 9

Official duty 5

Presumptions and burden of proof 13

Public servants 4

Review 17

Sufficiency of evidence 15

Taking or misapplying thing of value 7, 8

Taking or misapplying thing of value - In general 7

Taking or misapplying thing of value - Custody or possession by virtue of

employment 8

Thing of value, generally 6

Validity 1

1. Validity

Rev.P.C.1911 art. 427 (now, this section) was constitutional. Logan v. State
(1908) 54 Tex.Crim. 74, 111 S.W. 1028; Huddleston v. State (1908) 54 Tex.Crim. 93,
112 S.W. 64; Brown v. State (1908) 54 Tex.Crim. 121, 112 S.W. 80; Smith v. State
(1908) 54 Tex.Crim. 298, 113 S.W. 289; Jones v. Same (1908) 54 Tex.Crim. 507, 113
S.W. 761; Northern Texas Traction Co. v. Danforth (1909) 53 Civ.App. 419, 116 S.W.
148; Dallas Consol. Electric St. R. Co. v. Chase (Civ.App.1909) 118 S.W. 783; Same
v. Chambers (1909) 55 Civ.App. 331, 118 S.W. 851; Oates v. State (1909) 56
Tex.Crim. 571, 121 S.W. 370; Rasor v. State (1909) 57 Tex.Crim. 10, 121 S.W. 512;
Beaver v. State (1912) 63 Tex.Crim. 581, 142 S.W. 11.

2. In general

Proceedings involving official misconduct are sui generis. Talamantez v. State

(Cr.App. 1992) 829 S.W.2d 174. Officers And Public Employees 122

Penal Code does not create private causes of action and, thus, alleged violations
of Penal Code by state prison officials could not be basis for damages claim by
inmate. Aguilar v. Chastain (App. 12 Dist. 1996) 923 S.W.2d 740, rehearing
overruled, writ denied. Action 3; Prisons 10

3. Intent, generally

One engages in "official misconduct" whenever one forms requisite specific intent
at outset or in course of or after misusing anything of value belonging to
government. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Officers And Public
Employees 121

Only requisite intent in offense of abuse of official capacity by misuse of

government property with intent to obtain benefit is to obtain a benefit; intended
beneficiary is not an element of that intent. State v. Goldsberry (App. 1 Dist.
2000) 14 S.W.3d 770, rehearing overruled, petition for discretionary review
refused. Officers And Public Employees 121

4. Public servants

The demand of illegal fees constituted "official misconduct" subjecting a county

judge to removal from office. Brackenridge v. State (App. 1889) 11 S.W. 630.

Where act of trustees of Hedley independent school district in designating accused

as collector of taxes for the district created the office of school district
collector of taxes, accused's subsequent qualification as county assessor and
collector vacated the district office and he could not thereafter be regarded as a
"de facto officer" of the district subject to prosecution as such for conversion
of the district's funds. Adamson v. State (Cr.App. 1943) 145 Tex.Crim. 570, 171
S.W.2d 121. Schools 106.4(5)

Duration of county commissioner's impulse or purpose over period of several months

did not mean that alleged official misconduct was singular; regardless of
continuing purpose, when county equipment stood idle, commissioner was not engaged
in conduct constituting an offense, but new and discrete misapplication offenses
were committed when the bodily movement resumed. Talamantez v. State (Cr.App.
1992) 829 S.W.2d 174. Counties 60

A cashier in the accounting department of the school may or may not be a clerk or
other employee of "an officer of the government" so as to become subject to
Vernon's Ann.P.C. (1925) art. 86 (now, this section), that issue being a mixed
question of fact and law; however, the monies collected by such cashier are public
monies. Op.Atty.Gen.1972, No. M-1189.

A member of the house of representatives who intentionally or knowingly charges

expenditures to the state in excess of the amount authorized by H.S.R. No. 4 could
be subject to prosecution under this section. Op.Atty.Gen.1975, No. H-666.

5. Official duty

Constable who demanded and received $8 from eight young people who were singing
and telling stories around bonfire which they had built near a road at night, as
fee for not arresting such young people on vagrancy charge, was not guilty of
extortion in that he willfully collected money as purported fee for service or act
not done, where young people had not violated any law and no duty rested on
constable to arrest any of them or take them before a magistrate. Chancellor v.
State (Cr.App. 1937) 131 Tex.Crim. 617, 101 S.W.2d 570. Extortion And Threats 1

Officer could not be convicted under Rev.P.C.1895, art. 256 (now, this section)
prohibiting officer authorized to collect fees from willfully collecting money as
purported fee for service or act not done, unless there were a service or act
within official duty of such officer which he had not done or did not do, but for
asserted doing of which he had demanded and received money as a fee. Chancellor v.
State (Cr.App. 1937) 131 Tex.Crim. 617, 101 S.W.2d 570. Extortion And Threats 1

6. Thing of value, generally

"Any thing of value" within meaning of statutory prohibition against official

conduct by misapplying anything of value includes any money, property, or other
thing of value belonging to government. Talamantez v. State (Cr.App. 1992) 829
S.W.2d 174. Officers And Public Employees 121

Value of county commissioner's intermittent use of county equipment for his family
was sum of fair value for purpose of determining whether the official misconduct
was misdemeanor or felony. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174.
Criminal Law 27

"Value of the use of the thing misapplied" within meaning of statute making
official misconduct misdemeanor or felony according to value of the use of the
thing misapplied is sum of fair value in use of thing, accruing with use of the
thing. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Criminal Law 27

Although a special discount or travel bonus resulting from a public servant's

travel on official business, paid for by public entity, is a "thing of value"
under subsec. (a) of this section and belongs to the government; if the financial
management division of the public entity determines that the travel discount or
bonus could not be used for the business of the public entity, the discount or
bonus may be used for personal purposes. State Ethics Advisory Commission Opinion
1984-6.

7. Taking or misapplying thing of value--In general

A city secretary could not be convicted of misapplying a warrant belonging to the

city, where he actually deposited the warrant in a bank to the credit of the city,
although he deposited it to the credit of a wrong fund for the purpose of covering
up a shortage in that fund. Dickey v. State (Cr.App. 1912) 65 Tex.Crim. 374, 144
S.W. 271.

That taxpayer paid taxes by canceling tax collector's note, and collector did not
transmit such amount to county, would not support conviction for misapplication of
county funds. Miller v. State (Cr.App. 1932) 122 Tex.Crim. 59, 53 S.W.2d 790.
Embezzlement 6

For purposes of removal of county sheriff for misconduct, willfully using county
vehicles and fuel for private benefit constitutes misapplication or
misappropriation, even though same activity accomplishes legitimate public
function. State ex rel. Hightower v. Smith (Sup. 1984) 671 S.W.2d 32, on remand
673 S.W.2d 704. Sheriffs And Constables 6
"To apply" in sense germane to statutory prohibition against official misconduct
by misapplying anything of value belonging to government means to put to use.
Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Officers And Public Employees
121

"To misapply" in sense germane to statutory prohibition against official

misconduct by misapplying anything of value belonging to government means to apply
wrongly or to misuse or spend without proper authority. Talamantez v. State
(Cr.App. 1992) 829 S.W.2d 174. Officers And Public Employees 121

"Use" within meaning of statute making official misconduct misdemeanor or felony

according to value of use of the thing misapplied contemplates the duration of
misuse. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Criminal Law 27

Wife of chief investigator for district attorney, who is also an employee of

district attorney, does not misuse government property by riding as passenger
commuting to and from work in official vehicle assigned to chief investigator.
Op.Atty.Gen. 1997, LO 97-083.

Incidental use of state telephones by state employees to make local personal calls
does not violate this section, such use of telephones not being a "misapplication"
as contemplated by this section, provided such use does not result in additional
costs or damage to the state and generally will not hinder the day to day
operation of government. State Ethics Advisory Commission Opinion 1984-9.

Office-holder commits offense under subd. (a) of this section if, with intent to
obtain benefit, he intentionally or knowingly uses his office stationery,
secretary, and typewriter for letter of application seeking appointment to another
office outside state government, but misapplication does not occur when he writes
recommendation for any person, including himself, to another state office. State
Ethics Advisory Commission Opinion 1984-20.

It is a matter for legislature, subject to constitutional limitations, to

determine the appropriate uses for legislative resources and to determine whether
there are circumstances in which a member of the legislature may use for personal
purposes computers owned by the state and reimburse the state for any costs to the
state. Tex.Ethics Comm.Op. No. 260 (1995).

An employee who has used state agency work time to work on a lawsuit the employee
had filed against the state would be misusing a thing of value belonging to the
state in violation of Penal Code � 39.02(a)(2). Tex.Ethics Comm.Op. No. 294
(1995).

Penal Code section 39.02 does not require state agencies to adopt policies
absolutely prohibiting any personal use of telephones or computer services as long
as the state is reimbursed for any direct costs incurred. In adopting policies
about the use of agency equipment, agencies should make sure that any permissive
personal use does not result in direct costs paid by the state and does not impede
agency functions. Agency policies should also ensure that state resources are not
used for private commercial purposes and that only incidental amounts of employee
time--time periods comparable to reasonable coffee breaks during the day--are used
to attend to personal matters. Tex.Ethics Comm.Op. No. 372 (1997).

The use of state computers or personnel to prepare campaign reports for

officeholders would be a misuse of government property. Tex.Ethics Comm.Op. No.
386 (1997).

A state employee's incidental use of state telephones to place long-distance

personal calls is not a misapplication of government resources as long as the
calls do not result in any charges to the state. Tex.Ethics Comm.Op. No. 395
(1998).

Since funds derived from sale of road district bonds do not constitute funds
belonging to or under the control of state, a county commissioner who takes road
bond money voted in one road district and spends it in another road district
cannot be successfully prosecuted under Vernon's Ann.P.C. (1925) art. 94 (now,
this section). Op.Atty.Gen.1941, No. 0-3703.

8. ---- Custody or possession by virtue of employment, taking or misapplying thing

of value

A city secretary could not be convicted of misapplying funds of the city, where
the charter did not require him to handle any such funds, since they did not come
into his custody by virtue of his office. Dickey v. State (Cr.App. 1912) 65
Tex.Crim. 374, 144 S.W. 271.

For officer to be guilty of misapplying or converting public funds, funds must

have "come into his custody or possession" by virtue of his office, which means
that he must be in actual possession thereof at time of conversion or
misapplication. Reynolds v. State (Cr.App. 1936) 130 Tex.Crim. 78, 92 S.W.2d 458.
Embezzlement 11(2)

Tax collector's drawing of drafts on county depository after depositing money

collected by him therein did not constitute conversion or misapplication of public
funds within Vernon's Ann.P.C. (1925) art. 95 (now, this section) since funds
passed from collector's possession and custody on deposit thereof in county
depository. Reynolds v. State (Cr.App. 1936) 130 Tex.Crim. 78, 92 S.W.2d 458.
Embezzlement 11(2)

Where an officer is charged with embezzling or misapplying public funds, his

duties as such officer must authorize or require him to receive money in his
official capacity. Dupuy v. State (Cr.App. 1937) 132 Tex.Crim. 539, 106 S.W.2d
287. Embezzlement 11(2)

Where deputy county tax assessor and collector accepted money from a taxpayer in
corridor of county courthouse instead of at office at a time when he was
authorized to collect taxes and delivered a receipt to taxpayer, collector was
acting in his official capacity in receiving the money, instead of as agent of
taxpayer, for purposes of determining criminal liability for misapplication of
public funds. Hibbetts v. State (Cr.App. 1938) 136 Tex.Crim. 170, 123 S.W.2d 898.
Embezzlement 21

A county commissioner filing fictitious account and securing and cashing warrant
and giving portion of proceeds in excess of payment due on automobile to seller of
automobile could not be convicted for misapplication of public funds, in absence
of evidence that money involved was in hands of commissioner in his official
capacity. Hanna v. State (Cr.App. 1940) 138 Tex.Crim. 183, 135 S.W.2d 105.
Counties 60

Where county judge as ex officio county school superintendent was not authorized
by statute or by trustees of school district to act as fiscal agent for
independent school district or to receive in his official capacity money belonging
to district or to write checks on school funds in depository bank without a
voucher issued by trustees, school funds were not in possession of county judge
and hence he could not be guilty of offense of misapplication of funds. McMorries
v. State (Cr.App. 1955) 161 Tex.Crim. 608, 279 S.W.2d 90. Schools 48(8)

Although a legislator's staff's services, the legislator's office facilities,

supplies, and equipment are things of value belonging to the government that have
come into the legislator's custody or possession by virtue of the legislator's
office, efforts to solicit support among voters for a constitutional amendment is
an activity connected with the legislator's office, and, thus a legislator may use
his or her office facilities, supplies, and equipment to support or oppose the
adoption of a constitutional amendment when the amendment becomes a ballot issue.
State Ethics Advisory Commission Opinion 1984-10.

9. Jurisdiction

Offense of "official oppression" charged against police officer was within ambit
of phrase "official misconduct" and thus district court had jurisdiction to hear
matter. Emerson v. State (App. 1 Dist. 1983) 662 S.W.2d 92, petition for
discretionary review granted, affirmed 727 S.W.2d 267. Criminal Law 93

County court had jurisdiction over Class A misdemeanor information alleging theft
by deception by public servant. Martinez v. State (App. 13 Dist. 2006) 2006 WL
563040. Criminal Law 93

10. Double jeopardy

Prosecution of county attorney for theft of funds from county and official
misconduct in the misapplication of those funds was not barred by verdict for
county attorney in removal suit alleging the same acts, where at the time of the
criminal trial the results of the removal suit had not reached finality, there was
an additional issue favorable to the county attorney in the removal suit, and
county attorney ultimately prevailed in the removal suit as a matter of law and
not of fact. Knorpp v. State (App. 8 Dist. 1983) 645 S.W.2d 892. Criminal Law 43

11. Indictment

An indictment for misapplication of public funds need not describe the money
embezzled, though the better practice is to describe it generally by name, kind
and ownership. State v. Brooks (1875) 42 Tex. 62; Lewis v. State (1890) 28
Tex.Crim. 140, 12 S.W. 736.

To properly charge the offense of the misapplication of county or city funds, the
indictment must allege the ownership of the funds in the county, city or town;
that the funds came into defendant's possession by virtue of his office; and that
he converted the money fraudulently to his own use. Crane v. State (1888) 26
Tex.Crim. 482, 9 S.W. 773; Steiner v. State (1894) 33 Tex.Crim. 291, 26 S.W. 214;
Hartnett v. State (1909) 56 Tex.Crim. 281, 119 S.W. 855.

Indictment for "misapplication of public funds" need not aver fraud; averment and
proof of county ownership of misapplied road funds was sufficient. Hooper v. State
(Cr.App. 1925) 102 Tex.Crim. 345, 279 S.W. 449. Embezzlement 34

Indictment which charged that accused was district clerk of county and that as
such officer and by virtue of such office $50 belonging to county had come into
and was in accused's custody and possession, and that accused fraudulently took,
misapplied, and converted the $50 to his own use, sufficiently charged offense
under Vernon's Ann.P.C. (1925) art. 95 (now, this section). Beard v. State
(Cr.App. 1940) 140 Tex.Crim. 127, 143 S.W.2d 967. Embezzlement 26

Indictment charging director of city treasury with the taking, misapplication and
conversion of lumber belonging to city, was not fatally defective for failure to
specify quantity of lumber taken, since value of property misapplied is
immaterial. Floyd v. State (Cr.App. 1956) 164 Tex.Crim. 50, 296 S.W.2d 523.
Embezzlement 29

Indictment for official misconduct was sufficient where it followed precisely the
language of this section by alleging that money which was allegedly wrongfully
appropriated by defendant "came into his custody by virtue of his employment";
indictment likewise was not invalid for failure to describe such money by number
and kind. Powell v. State (Cr.App. 1977) 549 S.W.2d 398. Officers And Public
Employees 122

Omission of words "intent to promote or assist the commission of the offense" from
indictment under which defendant, a nonpublic official, was convicted of official
misconduct was not fundamental error as although defendant could not commit the
offense, as opposed to aiding the public official in committing the offense,
defendant could be charged as if he had directly committed the offense and
indictment facially complied with requirements of culpable mental state (� 6.02).
Wooley v. State (App. 3 Dist. 1982) 629 S.W.2d 867, review refused. Criminal Law
1032(5)

Indictment which alleged official misconduct sufficiently stated an offense,

although it did not allege elements of this section; official misconduct only
involved violation of Open Meeting Law [Civ. St. art. 6252-17] and indictments
properly alleged all elements of offense of violating Civ. St. art. 6252-17. State
v. Williams (App. 4 Dist. 1989) 780 S.W.2d 891. Officers And Public Employees 122

Indictment for third-degree felony official misconduct by misapplying thing of

value belonging to government could allege county commissioner's misapplication of
county equipment over period of time with intent to obtain benefit for so long as
county equipment was being used to complete the described undertaking for members
of commissioner's family. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174.
Counties 60

Indictment may allege official misconduct in gross consisting of misapplication of

anything of value over period of time with intent to benefit others as long as the
thing is being thus used. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174.
Officers And Public Employees 122

How defendant or another benefitted from alleged misuse of government property was
evidentiary in nature, and thus state was not required to allege further details
about benefit in indictment charging defendant with abuse of official capacity by
misusing government property with intent to obtain benefit. State v. Goldsberry
(App. 1 Dist. 2000) 14 S.W.3d 770, rehearing overruled, petition for discretionary
review refused. Indictment And Information 65

Indictment charging abuse of official capacity that alleged defendant misused

services in the value of more than $1,500 "on or about" two particular dates was
sufficient, so long as the act occurred before the date of the presentation of the
indictment, but within the relevant limitations period. Megason v. State (App. 6
Dist. 2000) 19 S.W.3d 883, petition for discretionary review refused. Indictment
And Information 87(2)

Facts constituting offense of abuse of official capacity were not alleged so that
conclusion of law as to necessary harm or fraud could be arrived at from facts
stated in indictment, and thus indictment was properly quashed, where indictment
alleged that defendant did not work on three days, harm of taking day off from
work was not apparent from face of indictment, manner and means by which someone
was harmed was essential to permit defendant to prepare defense, and such
allegations should have been contained within charging instrument and not left to
speculation of defendant. State v. Campbell (App. 12 Dist. 2000) 113 S.W.3d 9,
petition for discretionary review refused. Indictment And Information 137(6);
Officers And Public Employees 122

Inclusion of word custody in indictment charging defendant, a police lieutenant,

with abuse of official capacity regarding instructing police sergeant to install
computer at defendant's residence did not render indictment unconstitutionally
vague, since inclusion of word custody tracked statutory language, and indictment
specified that nature of relationship was that defendant was sergeant's
supervisor. Campbell v. State (App. 7 Dist. 2003) 2003 WL 22974606. Indictment And
Information 110(3)

Failure to define term misuse in indictment charging defendant, a police

lieutenant, with abuse of official capacity did not render indictment
impermissibly vague; statute defined misuse only with respect to misuse of
property, defendant was charged with misuse of government personnel by having
sergeant install computer at defendant's residence, and indictment specified
conduct constituting misuse. Campbell v. State (App. 7 Dist. 2003) 2003 WL
22974606. Indictment And Information 110(1)

12. Defenses

Where an employee of the state embezzles public funds, a repayment of the amount
embezzled does not excuse, extenuate, or justify the offense. Busby v. State
(Cr.App. 1907) 51 Tex.Crim. 289, 103 S.W. 638. Embezzlement 23

It was not a defense to charge against county attorney of misapplication of county

funds that county attorney had a greater right to possession of the check
representing those funds because of his payee status. Knorpp v. State (App. 8
Dist. 1983) 645 S.W.2d 892. Larceny 26

Former county law enforcement agent's deposition testimony, together with

statements contained in affidavit submitted to show waiver of state's immunity
under Whistleblower Act, were sufficient to show that he believed conduct of
associate he reported constituted violation of state law, as prerequisite to
determination whether agent reported violation in good faith, where he stated his
belief that associate's conduct in using government property for her own personal
use violated statute governing misuse of county property. Bexar County v. Lopez
(App. 4 Dist. 2002) 94 S.W.3d 711. Counties 67

13. Presumptions and burden of proof

State must establish beyond reasonable doubt that defendant, charged with
misapplying city funds, held office of tax collector as charged in indictment.
Germany v. State (Cr.App. 1928) 109 Tex.Crim. 180, 3 S.W.2d 798. Municipal
Corporations 174

In prosecution against tax assessor-collector of school district for

misapplication of funds of district, where testimony was uncontroverted that
district was in existence and carrying on functions of a political subdivision of
state government, it was unnecessary to show creation of district in accordance
with procedure provided by law. Dupuy v. State (Cr.App. 1938) 135 Tex.Crim. 595,
121 S.W.2d 1003. Embezzlement 35

In prosecution against county commissioner for misapplication of public funds,

state must prove commissioner's possession in his official capacity of funds
belonging to county. Hanna v. State (Cr.App. 1940) 138 Tex.Crim. 183, 135 S.W.2d
105. Counties 60

In prosecution of deputy sheriff for misapplication of county funds, the main

thing to be proven was whether defendant was a deputy sheriff, and as such
received money, but did not pay the money where the law directed. Reed v. State
(Cr.App. 1941) 141 Tex.Crim. 503, 149 S.W.2d 119. Embezzlement 35

In prosecution of deputy county clerk for misapplication of county funds, wherein

deputy county clerk denied her guilt and raised the issue of her identity and
intent in the transaction, it was incumbent on the state to prove her identity and
fraudulent intent. Campbell v. State (Cr.App. 1956) 163 Tex.Crim. 545, 294 S.W.2d
125. Embezzlement 35; Indictment And Information 166

Justice of the peace, in receiving funds collected from various defendants in an

official capacity, became, in effect, a trustee of the funds for the county and,
in order to prove misapplication of the funds, State was not required to show that
justice of the peace converted any particular sum from a particular source to his
own use but could rely on a circumstantially proven case. Kirkpatrick v. State
(Cr.App. 1974) 515 S.W.2d 289. Embezzlement 21; Embezzlement 44(1)

14. Admissibility of evidence

In prosecution against school district tax collector for conversion of district's

funds, other transactions involving collection of state, county, and district
taxes by accused which were handled in the same way as the ones under
investigation were admissible to show system, intent, motive and circumstance of
guilt, where prosecution was submitted upon circumstantial evidence. Adamson v.
State (Cr.App. 1943) 145 Tex.Crim. 570, 171 S.W.2d 121. Schools 106.4(5)

In prosecution against school district tax collector for conversion of district's

funds, tax receipts taken from the back of the tax roll was admissible as showing
motive, intent, and a circumstance of guilt, where such receipts were made out in
accused's handwriting and presence of regular receipts in the roll would evidence
nonpayment of the tax. Adamson v. State (Cr.App. 1943) 145 Tex.Crim. 570, 171
S.W.2d 121. Schools 106.4(5)

In prosecution of deputy county clerk for misapplication of county funds, evidence

of other transactions similar to the transaction charged was admissible to show
system and in proof of identity and fraudulent intent of deputy county clerk.
Campbell v. State (Cr.App. 1956) 163 Tex.Crim. 545, 294 S.W.2d 125. Criminal Law
369.15; Criminal Law 371(2); Criminal Law 372(8)

In prosecution of deputy county clerk for misapplication of county funds, fact

that some of the altered receipts, which were written and issued in department
over which deputy county clerk had supervision, may not have been issued by deputy
county clerk, did not render them inadmissible to show system and in proof of
identity and fraudulent intent of deputy county clerk. Campbell v. State (Cr.App.
1956) 163 Tex.Crim. 545, 294 S.W.2d 125. Criminal Law 374

In prosecution of a justice of the peace for misapplication of public funds with

respect to fines collected by him, evidence of other transactions similar to that
forming basis of prosecution was admissible to show intent, knowledge and system
of defendant and to combat his theory of mistake, inadvertence, hot check, charge
backs, hardship cases, and application of money on other cases in arrears. Vernon
v. State (Cr.App. 1960) 170 Tex.Crim. 150, 338 S.W.2d 728. Criminal Law 370;
Criminal Law 371(2); Criminal Law 372(8)

15. Sufficiency of evidence

Evidence was sufficient to sustain district attorney's conviction of official

misconduct by unlawfully taking and misapplying warrant for payment of office
employees and expenses to personal and private business expenses. Neal v. State of
Tex., C.A.5 (Tex.)1989, 870 F.2d 312, rehearing denied. Embezzlement 44(1)

Evidence failing to show fraudulent intent of accused in delivering road bonds did
not support conviction for misapplied county funds, where averment and proof of
county ownership of misapplied road funds was sufficient. Hooper v. State (Cr.App.
1925) 102 Tex.Crim. 345, 279 S.W. 449. Embezzlement 44(2)

Evidence that justice of the peace failed to account to the county for a total of
$1,594 which he had collected from individual defendants as fines in criminal
cases, that the monies were withheld for up to 14 months in justice of the peace's
bank account while he was periodically turning over a portion of the funds to the
county and falsely reporting that he was turning over all of the monies collected,
and that justice of the peace paid the county the $1,594 only when audit was
instituted was sufficient to support finding that justice of the peace converted
the funds to his own use and sustained his conviction for misapplication of county
funds. Kirkpatrick v. State (Cr.App. 1974) 515 S.W.2d 289. Embezzlement 44(1)

Evidence that State issued warrant to defendant to pay salaries of secretaries and
investigators, that defendant deposited warrant in account bearing his name and
obtained credit with it and then drew on this credit to pay obligations other than
salaries of secretaries and investigators, and to obtain cash for himself was
sufficient to show that defendant obtained benefit for himself from warrant, as
required to support conviction for official misconduct. Neal v. State (Cr.App.
1984) 689 S.W.2d 420, certiorari denied 106 S.Ct. 65, 474 U.S. 818, 88 L.Ed.2d 53.
Officers And Public Employees 122

Evidence that state treasury warrant was evidence of an indebtedness of State to

payee in amount named and that defendant obtained credit in face amount when he
endorsed and deposited warrant in his bank was sufficient to show that warrant was
thing of value, as required to support conviction for official misconduct. Neal v.
State (Cr.App. 1984) 689 S.W.2d 420, certiorari denied 106 S.Ct. 65, 474 U.S. 818,
88 L.Ed.2d 53. Officers And Public Employees 122

Evidence was sufficient to prove that defendant, as county clerk, misused services
in the value of more than $1,500 on or about the two particular dates set out in
the indictment, and thus, was sufficient to support conviction for abuse of
official capacity; defendant's twice billing the company hired to microfilm and
move old record books for $1,800 and $2,500 for work her children never performed,
and her accepting the checks for those amounts, was an admission of the value of
the work done. Megason v. State (App. 6 Dist. 2000) 19 S.W.3d 883, petition for
discretionary review refused. Counties 102

Defendant's evidence of possible public benefit, even a primary benefit, from use
of government resources to install computer at residence of defendant, who was a
police lieutenant, did not negate state's proof of elements of offense in
prosecution for abuse of official capacity, and thus factually sufficient evidence
existed to support conviction. Campbell v. State (App. 7 Dist. 2003) 2003 WL
22974606. Municipal Corporations 190

Variance between indictment's allegation that defendant, a police lieutenant,

ordered police sergeant to appear at defendant's residence at start of sergeant's
shift to install defendant's computer and proof that defendant instructed sergeant
to do so was not material and did not render evidence legally insufficient in
prosecution for abuse of official capacity. Campbell v. State (App. 7 Dist. 2003)
2003 WL 22974606. Municipal Corporations 190

Legally sufficient evidence existed that defendant, a police lieutenant, misused

government personnel under his control for his own benefit to support conviction
for abuse of official capacity; evidence indicated that defendant instructed
police sergeant to arrive at defendant's home at start of sergeant's shift,
sergeant installed computer at defendant's home, defendant instructed another
sergeant that sergeant installing computer was on "special assignment," and
defendant told sergeant after installation that sergeant was not to go to the jail
that evening. Campbell v. State (App. 7 Dist. 2003) 2003 WL 22974606. Municipal
Corporations 190

Legally sufficient evidence existed that defendant, a police lieutenant, intended

to obtain a personal benefit to support conviction for abuse of official capacity;
evidence indicated that defendant had police sergeant install personal computer in
defendant's home while sergeant was being paid by police department, defendant
planned to use computer for personal as well as work-related purposes, and
computer would have been useful in pursuing defendant's real estate investments.
Campbell v. State (App. 7 Dist. 2003) 2003 WL 22974606. Municipal Corporations
190

15.5. Burden of proof

In prosecution for abuse of official capacity, state was not required to prove
that defendant, a police lieutenant, gave a direct order to police sergeant to
install computer at defendant's home; conduct prohibited by statute was misuse
rather than misuse by ordering. Campbell v. State (App. 7 Dist. 2003) 2003 WL
22974606. Municipal Corporations 190

State did not have the burden to prove that defendant held both intent to obtain a
benefit and intent to defraud, to prove abuse of official capacity, even though
indictment stated allegations in the conjunctive; statute presented those intent
elements disjunctively as alternatives. Campbell v. State (App. 7 Dist. 2003) 2003
WL 22974606. Indictment And Information 125(20)

16. Instructions

In prosecution against tax assessor-collector of school district for misapplying

funds of district, charge that if jury believed that assessor-collector was short
in his accounts but that shortage was not brought about by reason of any
fraudulent intent, or if they had a reasonable doubt thereof, he should be
acquitted, was not erroneous on ground that it shifted burden of proof to
defendant, in view of special charge given at defendant's request covering same
matter. Dupuy v. State (Cr.App. 1938) 135 Tex.Crim. 595, 121 S.W.2d 1003. Criminal
Law 778(5)

Charge which explained to jury intent required under Vernon's Ann.P.C. (1925) art.
95 (now, this section) prohibiting misapplication of county funds, and which
instructed on the law of circumstantial evidence fully protected rights of justice
of the peace charged with converting county funds to his own use. Kirkpatrick v.
State (Cr.App. 1974) 515 S.W.2d 289. Embezzlement 48(1); Embezzlement 48(2)

City employees who testified that defendant city maintenance director ordered them
to purchase paint with city funds for improper purpose were "accomplices as a
matter of law," and thus, defendant was entitled to jury instruction on accomplice
witness testimony in prosecution for misdemeanor abuse of official capacity; both
employees admitted participation in crime and, although they testified that they
did so because defendant threatened to fire them if they did not, such threat was
not "force or threat of force" that would warrant finding that they were coerced
into participating in scheme. State v. Trevino (App. 13 Dist. 1996) 930 S.W.2d
713, rehearing overruled, petition for discretionary review refused. Criminal Law
780(2)

Trial court did not abuse its discretion by granting new trial on ground that
defendant was entitled to, but did not receive, accomplice witness instruction,
even though defendant did not object or request such instruction. State v. Trevino
(App. 13 Dist. 1996) 930 S.W.2d 713, rehearing overruled, petition for
discretionary review refused. Criminal Law 922(2); Criminal Law 922(7)

17. Review

Had Court of Appeals been correct in finding defendant was improperly convicted by
trial court of nepotism and official misconduct, correct remedy would have been
dismissal of indictment, not acquittal. Cain v. State (Cr.App. 1993) 855 S.W.2d
714. Criminal Law 1181(1)

V. T. C. A., Penal Code � 39.02, TX PENAL � 39.02

Current through the end of the 2006 3rd Called Session of the 79th Legislature.

� 2006 Thomson/West
END OF DOCUMENT

(C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.