23.2.

Abuse of official capacity

West's Key Number Digest

West's Key Number Digest, Municipal Corporations 174

West's Key Number Digest, Officers and Public Employees 10
West's Key Number Digest, States 81

Legal Encyclopedias

C.J.S., Municipal Corporations §§ 411 to 415

C.J.S., Officers and Public Employees §§ 37 to 39

C.J.S., States § 129

Public servants violate Section 39.02 if, with the intent to obtain a benefit or
harm another or with the intent to harm or defraud another, the public
servant
either violates a law relating to the public servant's office or misuses
government
property, services or personnel or that belongs to the government and comes
into the
public servant's custody by virtue of his office or that comes into their
possession
by virtue of their office or employment. The offense is a Class A
misdemeanor when
it is a violation of the law relating to the office. If the public servant is
convicted under the misapplication theory, the offense is graded according to
the
value of the property misapplied. The grading standard is identical to that
established in the theft offense, based on the value of the property
taken.[FN1]
Section 39.02, when originally enacted in 1974, contained three other
theories by
which the offense could be committed: (1) by an unauthorized exercise of
official
power; (2) by committing an act under color of the office that exceeded the
official
power; and (3) by refraining from performing a duty imposed by law. These
three
statutory alternatives were repealed in 1983. “Public servant” is defined in
Section
1.07 of the Code.[FN2]

Section 39.02 requires a public servant to act with the intent either to obtain
a
benefit or to harm another.[FN3] Because Section 39.02 is most frequently
prosecuted
by utilizing the misapplication theory, the culpable mental state is not
satisfied
by showing that the official exercised control over the property, or even by
showing
that he or she was improperly exercising control. The control must be of
such nature
as to be inconsistent with the normal purposes of such property. It is from
that
type of use that the necessary intent can be inferred.[FN4] Further, misuse of
government property can only be established by evidence demonstrating that
the
property was used solely for the personal benefit of the public official or, if
used
for both personal and official use, then the personal use must have incurred
an
additional expense or loss to the governmental agency. A public official
cannot be
prosecuted for a mixed use of state property where the evidence establishes
that the
use benefitted both the actor and the state. The statute does not criminalize
the
inefficient use of state property.[FN5]
Theoretically, misapplication does not require conversion of the property to
the
official. The predecessor statute clearly required such an element, but it was
dropped from the 1974 Code.[FN6] In reality, there is little difference
between the
two concepts. Because of the culpable mental state requirement, the
prosecution
will, in all likelihood, have to establish the fact that the official misapplied
the
property in such a manner as to be tantamount to theft.[FN7]

The property misapplied need not be described in the indictment in order to

comply
with Article 21.09 of the Code of Criminal Procedure.[FN8] Neither the
concept of
benefit nor the beneficiary of the actor's misconduct need also be set forth in
the
charging instrument.[FN9] The pleading requirements of Section 39.02 are
considered
to be similar to those of aggravated robbery. The sine qua non of the offense
is not
the illegal appropriation of property, but the official misconduct.

[FNa0] Taos, New Mexico

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[FN1] V.T.C.A., Penal Code § 39.01; V.T.C.A., Penal Code § 31.03.

[FN2] V.T.C.A., Penal Code § 1.07(a)(3).

[FN3] Neal v. State, 689 S.W.2d 420 (Tex.Crim.App.1984).

[FN4] Neal v. State, 689 S.W.2d 420 (Tex.Crim.App.1984).

[FN5] Masgraves v. State, 996 S.W.2d 290 (Tex.App.—Houston 14, 1999).

[FN6] Penal Code art. 95 (1925).

[FN7] See Powell v. State, 549 S.W.2d 398 (Tex.Crim.App.1977). The Court
held that
the transfer of funds into the defendant's account was sufficient to show
misapplication.

[FN8] Knorpp v. State, 645 S.W.2d 892 (Tex.App.—El Paso 1983, no pet.).

[FN9] State v. Goldsberry, 14 S.W.2d 770 (Tex.App.—Houston 1 2000).