23.3.

Official oppression West's Key Number Digest West's Key Number Digest, Municipal Corporations 174 West's Key Number Digest, Officers and Public Employees 120 West's Key Number Digest, States 81 Legal Encyclopedias C.J.S., Municipal Corporations §§ 411 to 415 C.J.S., Officers and Public Employees § 255 C.J.S., Officers and Public Employees § 257 C.J.S., Officers and Public Employees § 274 C.J.S., States § 129

If a public servant, acting under color of office, either subjects another to mistreatment, arrest, detention, search, seizure, or other legal process that the public servant knows is unlawful, or unlawfully prevents another from exercising a right or privilege, or subjects another to sexual harassment, the public servant is guilty of a Class A misdemeanor and has violated Section 39.02. An official acts under color of office if he or she either acts or purports to act in an official capacity or takes advantage of actual or purported capacity. Sexual harassment means

any explicit or implicit unwelcomed sexual advance, request for sexual favor, or other verbal or physical conduct of a sexual nature, the submission to which is made a condition of a person's exercise of his or her rights or privileges.[FN1] Section 39.02 has no predecessor statute in the 1925 Code. There were earlier statutes that prohibited certain conduct, such as enforcing unauthorized punishment on prisoners[FN2] and related offenses.[FN3] Section 39.02, however, is considered broader than these statutes. The genesis of Section 39.02 was the Model Penal Code. The Model Code's statute applied to any person who acted or purported to act in an official capacity. Section 39.02 applies only to those who are actual public officials or servants. The defendants, therefore, must be those who are acting under color of their own office or employment. Thus, where a defendant, as city mayor, displayed a badge and demanded admission to a bar, creating the impression that he was a police officer, Section 39.02 was held not to have been violated because he was purporting to act not in the capacity of his own office, that of mayor, but in that of another office, police officer.[FN4] The statute prohibits any unlawful mistreatment, which includes conduct that could be either criminal or tortious but for a defense not amounting to a justification or privilege.[FN5] The state must show not only that the mistreatment was, in fact,

unlawful, but also that the defendant knew that it was unlawful.[FN6] It is not clear whether the charging instrument must allege the facts that give rise to the unlawful nature or simply that the act the state will prove was unlawful. More likely than not the latter standard will prevail.

[FNa0] Taos, New Mexico

-------------------------------------------------------------------------------[FN1] V.T.C.A., Penal Code § 39.02. [FN2] Penal Code art. 353 (1925). [FN3] See Penal Code arts. 1157, 1175, 1176 (1925). Citing V.T.C.A., Penal Code § 39.02, Practice Commentary. [FN4] Blasingame v. State, 706 S.W.2d 682 (Tex.App.—Houston [14th Dist.], 1986, pet. ref'd). See also Tovar v. State, 777 S.W.2d 481 (Tex.App.—Corpus Christi 1989, pet. ref'd). [FN5] Zuniga v. State, 664 S.W.2d 366 (Tex.App.—Corpus Christi 1983, no pet.), citing V.T.C.A., Penal Code § 1.07(a)(36).

[FN6] Prevo v. State, 778 S.W.2d 520 (Tex.App.—Corpus Christi 1989, pet. ref'd.); The state must also plead the defendant's knowledge that his conduct was unlawful. State v. Edmond, 903 S.W.2d 856 (Tex.App.—Fort Worth 1995, pet. granted)