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. Intent, generally

3; Prisons

10

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