MAMA!! Seems like a little knowledge is a dangerous thing and a Reader decided to weigh in on the best one yet.
If this and other things aren’t abuses of Official Capacity, what is. I like it it’s short, sweet and concise.
You?
H
The crime when an elected official uses one of his employees to do personal work like remodeling the official’s home while the employee is on the clock on county payroll can potentially fall under the category of “Abuse of Official Capacity” as defined under Texas law.
The relevant statute, V.T.C.A., Penal Code § 39.02(a)(2), specifies that a public servant commits an offense if, with the intent to obtain a benefit, they intentionally or knowingly misapply anything of value belonging to the government that has come into their custody or possession by virtue of their office (
Campbell v. State, 139 S.W.3d 676 (2003))[1], (
Ex parte Perry, 483 S.W.3d 884 (2016))[2]. This statute clearly encompasses scenarios where a public servant misuses government resources, including personnel, for personal gain. The definition of “misapply” includes applying wrongly or to misuse or spend without proper authority.
In a closely analogous case, a public servant was indicted for having misused government personnel by having a subordinate perform work at his home during working hours, as per the indictment (
Campbell v. State, 139 S.W.3d 676 (2003))[1]. This aligns with the current scenario where a county employee is used for personal tasks while being paid by the county.
Therefore, the scenario described in the query where an elected official uses a county employee for personal remodeling work during paid hours would likely constitute an “Abuse of Official Capacity” under Texas Penal Code § 39.02(a)(2), and is punishable as a criminal offense.
The above response is AI-generated and may contain errors. It should be verified for accuracy.
Cases, statutes, and regulations
1.
Campbell v. State
Court of Appeals of Texas, Amarillo.December 17, 2003139 S.W.3d 6762003 WL 22974606
“…Appellant was indicted in July 2000, for the offense of Abuse of Official Capacity. The indictment alleged appellant had misused government personnel who had “come into his custody by virtue of his office and employment” when he had a subordinate perform work at his home during working hours. It also alleged the value of the misuse was greater than $20 and less than $500.…”
“…The indictment alleged that appellant: (W)hile a public servant . and with intent to obtain a benefit and defraud another, intentionally and knowingly misuse(d) government personnel, . that had come into his custody by virtue of his office and employment, in that defendant was Sergeant J.C. Meyers’ supervisor, by ordering (Meyers) to report to the defendant’s home on a paid work day rather than to report to his work location (to) install the defendant’s personal home computer system(.)…”
2.
Ex parte Perry
Court of Criminal Appeals of Texas.February 24, 2016483 S.W.3d 8842016 WL 738237
“…The offense of abuse of official capacity is committed when a public servant, with intent to harm another, intentionally or knowingly misuses government property that has come into his custody or possession by virtue of his office or employment. “Public servant” includes an officer of government, such as a governor. Count I alleged the following:…”
“…On or about June 14, 2013, in the County of Travis, Texas, James Richard “Rick” Perry, with intent to harm another, to-wit, Rosemary Lehmberg and the Public Integrity Unit of the Travis County District Attorney’s Office, intentionally or knowingly misused government property by dealing with such property contrary to an agreement under which defendant held such property or contrary to the oath of office he took as a public servant, such government property being monies having a value of in excess of $200,000 which were approved and authorized by the Legislature of the State of Texas to fund the continued operation of the Public Integrity Unit of the Travis County District Attorney’s Office, and which had come into defendant’s custody or possession by virtue of the defendant’s office as a public servant, namely, Governor of the State of Texas.…”
3.
Gándara v. State
Court of Appeals of Texas, El Paso.November 16, 2016527 S.W.3d 2612016 WL 6780081
“…Texas case law is replete with examples in which a government official is charged with accepting a financial gain in exchange for a wrongful exercise of his governmental duties. In Davis v. State, Sheriff Davis accepted money in exchange for ignoring and not investigating individuals manufacturing whiskey. 101 Tex.Crim. 243, 247-248, 275 S.W. 1060, 1062 (1925). In Selvidge v. State, Selvidge paid $200 to Sheriff Sanders to permit the transportation of intoxicating liquors in violation of the Sheriff’s duty. 126 Tex.Crim. 489, 490, 72 S.W.2d 1079, 1079-80 (1934). The Selvidge court characterized bribery as an offense in which a public official for a valuable reward agrees to refrain from performing his official duties or corruptly perform his duties contrary to the law. Id. In Roseman v. State, the appellant was convicted of bribing a police officer with $20 so as to refrain from being arrested for gaming and liquor law violations. 382 S.W.2d 261, 263 (Tex.Crim.App. 1964). In McClelland v. State, Probate Judge McClelland was found to have accepted bribes from five individuals in exchange for appointing those individuals as appraisers, administrators, and guardians in the Probate Court. 390 S.W.2d 777, 778-79 (Tex.Crim.App. 1965). In Bates v. Texas, Judge Bates was convicted of bribery by accepting money in exchange for a defendant sentenced in his court to probation. 587 S.W.2d 121, 125-27 (Tex.Crim.App. 1979). The Bates Court noted that ” ‘(T)he inequity of the procuring of public officials, be it intentional or unintentional, is so fatally destructive to good government that a statute designed to remove the temptation for a public official to give preferment to one member of the public over another, by prohibiting all gifts ‘for or because of an official act,’ is a reasonable and proper means of insuring the integrity, fairness and impartiality of the administration of the law.” Id. at 128, citing U.S. v. Irwin, 354 F.2d 192, 196 (2nd Cir. 1965). In a second McCallum case, the court described the effect of bribery is to ” ‘subvert the function of government to the advantage of the few who can or will pay for special advantages, but more important is the lack of confidence in government which such practices cause.’ ” McCallum v. State, 686 S.W.2d 132, 133-34 (Tex.Crim.App. 1985)(citing Explanatory Comment in Branch’s Ann.P.C., 3rd Ed., Vol. III, S 36.02, V.T.C.A., Penal Code S 36.02 (1974)).…”
“…Cox v. State, 166 Tex.Crim. 587, 591, 316 S.W.2d 891, 893-94 (1958). The dissent in Cary v. State, declares that bribery involves “quid pro quo of paying a public servant so that the recipient will make decisions desired by the payor .” No. 05-12-01421-CR, 2014 WL 4261233, at *43 (Tex.App.-Dallas Aug. 28, 2014, pet. granted)(not designated for publication). Further, “bribery addresses graft and corruption.” Id. at *43.…”
4.
Talamantez v. State
Court of Criminal Appeals of Texas, En Banc.March 25, 1992829 S.W.2d 1741992 WL 55271
“…In Powell v. State, 549 S.W.2d 398 (Tex.Cr.App.1977), the Court dealt with a conviction for “official misconduct” under the 1974 rendition of S 39.01(a)(5). Powell, a public servant responsible for supervising a division of an independent school district, was alleged with requisite intent to have used money coming into his possession by virtue of his employment as payment for building materials and labor supplied by a lumber company for his personal uses. The evidence showed that during one year Powell caused four separate checks totaling some twelve thousand dollars payable to the lumber company to be withdrawn from a school district fund in its bank depository; to cover the amounts drawn, the payee lumber company prepared fictitious invoices, while actually crediting the proceeds to its costs for materials and labor in repairing or remodeling a ranchhouse belonging to Powell, who spent none of his own funds for the work done. The Court upheld the indictment and sufficiency of the evidence to support a conviction for a single “official misconduct” offense and concomitant punishment for a third degree felony.…”
“…At common law “misfeasance” and “malfeasance” in public office were criminal offenses. Interpretive Commentary following Article V, S 24, Constitution of the State of Texas. In Article V, S 8, the district court was granted jurisdiction over “all misdemeanors involving official misconduct,” and in S 24 one cause for removal from public office the term is “official misconduct,” viz:…”
5.
McKinney v. State
Court of Criminal Appeals of Texas.April 29, 1925104 Tex.Crim. 315283 S.W. 798
“…The statute under which the appellant is prosecuted denounces the fraudulent misapplication or conversion of public funds by the officer into whose hands they are committed as a felony punishable by confinement in the penitentiary for a period of not less than two nor more than ten years. Article 95, P. C. 1925. The penalty is not measured by the sum misapplied.…”
“…In embezzlement prosecution of public officer for funds misappropriated after re-election, evidence of similar conversion prior to re-election was admissible only to show system. Vernon’s Ann.Civ.St. art. 5986.…”
6.
Beard v. State
Court of Criminal Appeals of Texas.October 23, 1940140 Tex.Crim. 127143 S.W.2d 967
“…The offense is misapplication of public funds. The punishment assessed is confinement in the state penitentiary for a term of two years.…”
“…Article 95 of the Penal Code, 1925, reads as follows: “If any officer of any county, city or town, or any person employed by such officer, shall fraudulently take, misapply, or convert to his own use any money, property or other thing of value belonging to such county, city or town, that may have come into his custody or possession by virtue of his office or employment, or shall secrete the same with intent to take, misapply or convert it to his own use, or shall pay or deliver the same to any person knowing that he is not entitled to receive it, he shall be confined in the penitentiary not less than two nor more than ten years.”…”
7.
State v. Denton
Court of Appeals of Texas, Austin.January 18, 1995893 S.W.2d 1251995 WL 17102
“…While the Robinson-Gallagher-Hall trilogy establish a legal definition of official misconduct under article 4.05, they are less instructive in determining what acts are “related to the duties of the defendant’s office.” Under Gallagher, official oppression is always a form of official misconduct. Likewise, theft of money entrusted to a public official is related to official duties and therefore is official misconduct under Robinson. Under Hall, in contrast, negligent operation of a motor vehicle by a public official is not related to official duties and therefore falls outside the scope of official misconduct. With this guidance, we must decide whether compliance with the Election Code’s requirements for officeholder reports is a duty related to the office of a state legislator.…”
8.
§ 253.035. Restrictions on Personal Use of Contributions
TX ELECTION § 253.035
“…(d) In this section, “personal use” means a use that primarily furthers individual or family purposes not connected with the performance of duties or activities as a candidate for or holder of a public office. The term does not include: (1) payments made to defray ordinary and necessary expenses incurred in connection with activities as a candidate or in connection with the performance of duties or activities as a public officeholder, including payment of rent, utility, and other reasonable housing or household expenses incurred in maintaining a residence in Travis County by members of the legislature who do not ordinarily reside in Travis County, but excluding payments prohibited under Section 253.038; or…”
9.
Kirkpatrick v. State
Court of Criminal Appeals of Texas.November 06, 1974515 S.W.2d 289
“…OPINION. The offense is misapplication of county funds under Article 95, Vernon’s Ann.P.C.; the punishment, two years probated.…”
“…Where defendant, a justice of the peace charged with misapplication of county funds, referred in his closing argument to his status as an elected official and a politician, prosecutor’s reference to people in office and crooked politicians were invited by defendant and did not improperly refer directly or indirectly to the Watergate scandal. Vernon’s Ann.P.C.art. 95.…”
10.
Margraves v. State
Court of Appeals of Texas, Houston (14th Dist.).June 10, 1999996 S.W.2d 2901999 WL 374095
“…To establish a violation of penal statute governing a public servant’s abuse of official capacity through misuse of government property, the state must prove beyond a reasonable doubt that: (1) use of property involved absolutely no official state business; or (2) the use of state property for both personal and official business purposes caused state to incur additional costs because of the personal use. V.T.C.A., Penal Code S 39.02(a)(2).…”
“…Here, appellant was indicted under section 39.02(a)(2), which provides that a public servant commits an offense if, with the intent to obtain a benefit, he intentionally or knowingly misapplies anything of value belonging to the government that has come into his custody or possession by virtue of his office. See tex. Pen.Code Ann. S 39.02(a)(2) (Vernon 1994). The indictment specified that the thing of value belonging to the government was an aircraft owned by Texas A & M University System. The charge defined the term misapply as “to apply wrongly or to misuse or spend without proper authority.” The statute clearly provides for criminal liability for the intent to use state property for personal benefit, but does not purport to criminalize the “mixed use” of state property in a manner that realizes both an official and personal benefit. The State disagrees and contends that the statute passes constitutional muster because a reasonable person would know that section 39.02(a)(2) prohibits the use of state aircraft to travel to a relative’s college graduation. We would agree with the State, had appellant only attended his son’s graduation while in Baton Rouge. The record reflects, however, that appellant also conducted state business while he was there. We echo the concerns of Amici Curiae that the State’s construction of section 39.02(a)(2) allows prosecutors to “second guess” public officials who may, quite innocently, mix business and personal matters while conducting state business.…”
“…Under penal statute proscribing a public servant’s misuse of government property, a public official cannot be prosecuted for a mixed use of state property, one involving both personal and official business, when the evidence conclusively establishes that the use of the state property benefits both the individual and the state. V.T.C.A., Penal Code S 39.02(a)(2).…”
“…Some time later, appellant was indicted for official misconduct under section 39.02 of the Texas Penal Code, a third degree felony. See tex. Pen.Code Ann. S 39.02(a)(2) (Vernon 1994). The main questions to be decided on appeal are (1) whether a public servant who uses government property that results in both an official benefit and personal benefit has violated section 39.02(a)(2); and (2) whether section 39.02(a)(2) gives adequate notice to public servants that they may be prosecuted for the mixed use of state property, i.e., a use that benefits both the State and the public servant. We hold that a “mixed use” does not violate section 39.02(a)(2) and that the statute does not provide adequate notice that a public official can be prosecuted for the “mixed use” of state property.…”
11.
Harrelson v. State
Court of Appeals of Texas, Beaumont.December 22, 2004153 S.W.3d 752004 WL 2954994
“…S 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:…”
12.
Rendon v. State
Court of Appeals of Texas, Corpus Christi-Edinburg.November 08, 1984695 S.W.2d 1
“…In the 1974 Penal Code, Chapter 39, titled “Abuse of Office,” replaced the multitude of old penal provisions relating to misconduct in office. TEX.PENAL CODE ANN. art. 39.01 was titled “official misconduct.” TEX.PENAL CODE art. 39.02 was titled “official oppression,” and TEX.PENAL CODE art. 39.03 was titled “Misuse of Official Information.” Other sections have since been added to this chapter of the Penal Code by the legislature. See generally, TEX.PENAL CODE ANN. Chapter 39 (Vernon Supp.1985).…”
13.
Mayse v. State
Court of Criminal Appeals of Texas.May 23, 1951156 Tex.Crim. 360242 S.W.2d 371
“…The conviction is under the count of the indictment charging a violation of Art. 95, P.C., making unlawful the embezzlement by a city secretary of funds belonging to the city and coming into his possession by virtue of his office. The punishment was assessed at two years in the penitentiary.…”
14.
Dupuy v. State
Court of Criminal Appeals of Texas.June 22, 1938135 Tex.Crim. 595121 S.W.2d 1003
“…We quote the provisions of Art. 95, P.C.: “If any officer of any county, city or town, or any person employed by such officer, shall fraudulently take, misapply, or convert to his own use any money, property or other thing of value belonging to such county, city or town, that may have come into his custody or possession by virtue of his office or employment, or shall secret the same with intent to take, misapply or convert it to his own use, or shall pay or deliver the same to any person knowing that he is not entitled to receive it, he shall be confined in the penitentiary not less than two nor more than ten years.”…”
15.
Knorpp v. State
Court of Appeals of Texas, El Paso.January 26, 1983645 S.W.2d 892
“…In prosecution of county attorney for theft of funds from county and official misconduct in the misapplication of those funds, there was sufficient evidence, under the preponderance standard, to support jury’s conclusion that the misapplication occurred in the county named in the venue allegation in the indictment. Vernon’s Ann. Texas C.C.P. art. 13.17; V.T.C.A., Penal Code SS 31.03, 39.01(a)(5).…”https://1.next.westlaw.com/Document/I717f9d43ed2211d9b386b232635db992/View/FullText.html?transitionType=AIAssistantSearch&contextData=(sc.Default)&list=All&listSource=WebsiteInternal&relevantPortionId=I717f9d43ed2211d9b386b232635db992-opinion-2-14-18&relevantPortionXPath=//n-docbody[1]/decision[1]/content.block[1]/opinion.block[1]/opinion.block.body[1]/opinion.lead[1]/opinion.body[1]/section[3]/section.body[1]/para[15]/paratext[1]&navigationPath=V1/Report/Shared/ListProvider?returnTo=%2FConversation%2FLandingPage%2Fconversation%2F53a331aa-d369-4381-a0d5-6e7d07b5d49f%3FtransitionType%3DDefault%26contextData%3D(sc.Default)%26VR%3D3.0%26RS%3Dcblt1.0%26selectedQaId%3D1%26selectedSupportingMaterialId%3DI717f9d43ed2211d9b386b232635db992&conversationEntryId=f12a94ec-527d-4e72-87c3-a307e4d4ef51#co_anchor_I717f9d43ed2211d9b386b232635db992-opinion-2-14-18
