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V.T.C.A., Penal Code � 39.03
(a) A public servant acting under color of his office or employment commits an
offense if he:
(b) For purposes of this section, a public servant acts 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.
(c) In this section, "sexual harassment" means unwelcome sexual advances, requests
for sexual favors, or other verbal or physical conduct of a sexual nature,
submission to which is made a term or condition of a person's exercise or
enjoyment of any right, privilege, power, or immunity, either explicitly or
implicitly.
CREDIT(S)
Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts
1989, 71st Leg., ch. 1217, � 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 16,
� 19.01(34), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Penal Code � 39.02 by
Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994.
The 1989 amendment inserted subd. (a)(3), and added subsec. (c).
The 1991 amendment relettered subsec. (c), as added by Acts 1973, 63rd Leg., ch.
399, � 1, as subsec. (d).
The 1993 amendment, which amended the whole Penal Code, made no apparent change to
this section.
Prior Laws:
Vernon's Ann.P.C. (1925) arts. 261, 349, 353, 1157, 1158, 1175, 1176.
Former Sections:
A former � 39.03 was renumbered as V.T.C.A., Penal Code � 39.06 by Acts 1993, 73rd
Leg., ch. 900, � 1.01, eff. Sept. 1, 1994.
CROSS REFERENCES
LIBRARY REFERENCES
RESEARCH REFERENCES
Encyclopedias
Emp. Discrim. Coord. Analysis of State Law � 48:2, Survey of Statutory Prohibited
Bases.
Emp. Discrim. Coord. Analysis of State Law � 48:44, Public Servant Sexual
Harassment Law.
Emp. Discrim. Coord. Analysis of State Law � 48:62, Freedom from Sexual
Harassment.
Dix and Dawson, 40 Tex. Prac. Series � 1.24, Misdemeanors Involving Official
Misconduct -- Eligible Conduct.
Dix and Dawson, 41 Tex. Prac. Series � 20.113, Allegation of a Matter as "Known"
Also Constitutes an Allegation of the Matter Itself.
Dix and Dawson, 41 Tex. Prac. Series � 20.228, Allegation in Terms of Statutory
Definition of "Manner or Means" is Sufficient.
Dix and Dawson, 41 Tex. Prac. Series � 20.283, Statutory Language as Sufficient.
NOTES OF DECISIONS
In general 3
Admissibility of evidence 13
Denial of right 8, 9
Double jeopardy 11
Instructions 15
Jurisdiction 10
Mistreatment 5
Official capacity 7
Sufficiency of evidence 14
Unwelcome conduct 6
Validity 1
1. Validity
This section which prohibited mistreatment of citizens by public servants was not
unconstitutionally vague; this section proscribed only "unlawful" mistreatment,
defined as conduct which was criminal or tortious or both. Prevo v. State (App. 13
Dist. 1989) 778 S.W.2d 520, petition for discretionary review refused. Officers
And Public Employees 121
Term "another," within meaning of this section, includes both private individual
or employee of public servant's office. Bryson v. State (Cr.App. 1991) 807 S.W.2d
742, on remand 820 S.W.2d 197. Extortion And Threats 4
3. In general
Constable unlawfully arrested bar's security guard for disorderly conduct and,
therefore, committed official oppression; guard asked constable to remove his gun
from counter and, according to constable, waved his arms at constable. Tovar v.
State (App. 13 Dist. 1989) 777 S.W.2d 481, petition for discretionary review
refused. Extortion And Threats 4
5. Mistreatment
6. Unwelcome conduct
7. Official capacity
Mayor who used badge to gain entry to nightclub, and who was thus mistaken for
vice officer, was not guilty of official oppression under statute proscribing
illegal actions under color of public servant's officer or employment, where there
was no authority for mayor of city to have a badge and there was no evidence
complainant thought he was acting under his authority as mayor. Blasingame v.
State (App. 14 Dist. 1986) 706 S.W.2d 682, petition for discretionary review
refused. Municipal Corporations 174
Official oppression statute (this section) applies only to public servants acting
under color of their own offices or employments. Blasingame v. State (App. 14
Dist. 1986) 706 S.W.2d 682, petition for discretionary review refused. Officers
And Public Employees 121
Police chief acted "under color of office," for purposes of this section, when he
placed his hand on female subordinate's buttocks and persistently engaged in other
sexual mistreatment of subordinate; his position as police chief was not
incidental to his harassment of subordinate but, rather, was means to
accomplishing that harassment without fear of rejection. Bryson v. State (Cr.App.
1991) 807 S.W.2d 742, on remand 820 S.W.2d 197. Extortion And Threats 6
Const. Art. 1, � 10, guarantees the right of counsel, and this makes it a penal
offense for an officer having charge of a prisoner to willfully prevent
consultation and communication with his counsel, and the refusal by officers in
charge of a prisoner to let him see counsel is an adequate reason for reversal in
a proper case. Nothaf v. State (Cr.App. 1922) 91 Tex.Crim. 378, 239 S.W. 215.
Criminal Law 641(1)
10. Jurisdiction
Absent motion to quash, failure to allege facts that give rise to conclusion of
unlawfulness of mistreatment of citizen by public official is not fatal in
prosecution of official under this section; allegation of unlawfulness is
sufficient to invest court with jurisdiction through inclusion of elements of
crime within indictment. Prevo v. State (App. 13 Dist. 1989) 778 S.W.2d 520,
petition for discretionary review refused. Officers And Public Employees 122
By alleging that defendant had knowledge that his conduct was unlawful, indictment
charging official oppression properly alleges that relevant conduct actually was
unlawful. State v. Edmond (Cr.App. 1996) 933 S.W.2d 120. Extortion And Threats 13
Evidence that civilian tried to stop victim from leaving hotel room was admissible
in prosecution of constable for official oppression; civilian's conduct in
assisting constable was closely interwoven with constable's unlawful detention of
victim. Tovar v. State (App. 13 Dist. 1989) 777 S.W.2d 481, petition for
discretionary review refused. Criminal Law 369.2(3.1)
That earlier indictment indicated defendant would fire victim if she did not have
an affair and that she would get an office, secretary, and a raise was
insufficient to provide notice in amended indictment of those rights, privileges,
powers, and immunities of victim that were withheld by defendant, as element of
official oppression based on sexual harassment. Sanchez v. State (App. 4 Dist.
2000) 32 S.W.3d 687, rehearing overruled, petition for discretionary review
granted, vacated 120 S.W.3d 359, on remand 182 S.W.3d 34. Officers And Public
Employees 122
15. Instructions
Trial court was required to impose a punishment with the statutory range after the
jury found defendant guilty of official oppression; penal code required punishment
of a fine, confinement in jail, or both, and the trial court did not impose any
punishment against the defendant. Mizell v. State (App. 4 Dist. 2001) 70 S.W.3d
156, rehearing overruled, petition for discretionary review granted, affirmed 119
S.W.3d 804. Officers And Public Employees 122
� 2006 Thomson/West
END OF DOCUMENT
(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:
(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.
(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.
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:
"(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."
"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:
"(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.
"(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.
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
Punishment,
LIBRARY REFERENCES
RESEARCH REFERENCES
Forms
McDonald & Carlson Texas Civil Practice � 5:38, Criminal Statutes Relating to
Appellate Judges.
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.
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
value 8
Defenses 12
Double jeopardy 10
Indictment 11
Instructions 16
Intent, generally 3
Jurisdiction 9
Official duty 5
Public servants 4
Review 17
Sufficiency of evidence 15
employment 8
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
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
4. Public servants
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.
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
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
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
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.
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).
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.
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.
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)
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
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)
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
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
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
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
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 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
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
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)