Texas Penal Code 39.02 – Abuse of Official Capacity

WHAT IS ABUSE OF OFFICIAL CAPACITY IN TEXAS?

The Texas law against abuse of official capacity prohibits a public servant from violating a law relating to his or her office or employment, or misusing government property, services, personnel, or other thing of value belonging to the government with the intent to obtain a benefit, or to harm or defraud another.

WHAT IS THE ABUSE OF OFFICIAL CAPACITY LAW IN TEXAS?

Tex. Penal Code § 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 $100;

(2) a Class B misdemeanor if the value of the use of the thing misused is $100 or more but less than $750;

(3) a Class A misdemeanor if the value of the use of the thing misused is $750 or more but less than $2,500;

(4) a state jail felony if the value of the use of the thing misused is $2,500 or more but less than $30,000;

(5) a felony of the third degree if the value of the use of the thing misused is $30,000 or more but less than $150,000;

(6) a felony of the second degree if the value of the use of the thing misused is $150,000 or more but less than $300,000; or

(7) a felony of the first degree if the value of the use of the thing misused is $300,000 or more.

(e) If separate transactions that violate Subsection (a)(2) are conducted pursuant to one scheme or continuing course of conduct, the conduct may be considered as one offense and the value of the use of the things misused in the transactions may be aggregated in determining the classification of the offense.

WHAT IS THE PENALTY CLASS FOR ABUSE OF OFFICIAL CAPACITY IN TEXAS?

Abuse of official capacity committed by violating a law relating to the public servant’s office or employment is a Class A misdemeanor, punishable by up to one year in county jail. The penalty classification for abuse of official capacity depends on the value of the use of the thing misused.

• Class C misdemeanor, punishable by a maximum $500 fine, if:
  • the value of the misused thing’s use is less than $100;
• Class B misdemeanor, punishable by up to 180 days in county jail, if:
  • the value of the misused thing’s use is $100 or more but less than $750;
• Class A misdemeanor, punishable by up to one year in county jail, if:
  • the value of the misused thing’s use is $750 or more but less than $2,500; or
  • the public servant violates a law relating to his or her employment of office;
• State jail felony, punishable by 180 days to two years in a state jail facility, if:
  • the value of the misused thing’s use is $2,500 or more but less than $30,000;
• Third degree felony, punishable by two to ten years in prison, if:
  • the value of the misused thing’s use is $30,000 or more but less than $150,000;
• Second degree felony, punishable by two to 20 years in prison, if:
  • the value of the misused thing’s use is $150,000 or more but less than $300,000;
• First degree felony, punishable by five to 99 years in prison, if:
  • the value of the misused thing’s use is $300,000 or more.

WHAT IS THE PUNISHMENT RANGE FOR ABUSE OF OFFICIAL CAPACITY IN TEXAS?

The punishment range for abuse of official capacity increases based on the value of what the person misused.

• First degree felony (value of $300,000 or more):
  • five to 99 years or life in prison, maximum $10,000 fine;
• Second degree felony (value of $150,000 or more but less than $300,000):
  • two to 20 years in prison, maximum $10,000 fine;
• Third degree felony (value of $30,000 or more but less than $150,000):
  • two to ten years in prison, maximum $10,000 fine;
• State jail felony (value of $2,500 or more but less than $30,000):
  • 180 days to two years in a state jail facility, maximum $10,000 fine;
• Class A misdemeanor (value of $750 or more but less than $2,500):
  • up to one year in jail, maximum $4,000 fine;
• Class B misdemeanor (value of $100 or more but less than $750):
  • up to 180 days in jail, maximum $2,000 fine;
• Class C misdemeanor (value of less than $100):
  • maximum $500 fine.

WHAT ARE THE PENALTIES FOR ABUSE OF OFFICIAL CAPACITY IN TEXAS?

A person charged with abuse of official capacity may be eligible for probation after a conviction, or deferred adjudication without a conviction. The period of community supervision for a Class A or Class B misdemeanor may not exceed two years. A person may be placed on deferred adjudication for a Class C misdemeanor for up to 180 days.

Community supervision for abuse of official capacity charged as a state jail felony may range from two to five years, with the possibility of extending supervision for up to ten years. If charged with a third degree felony, second degree felony, first degree felony, the period of community supervision may not exceed ten years.

WHAT ARE THE DEFENSES TO ABUSE OF OFFICIAL CAPACITY IN TEXAS?

The statute does not authorize specific defenses to abuse of official capacity. A person accused thereof may attempt to negate at least one of the elements the State must prove at trial.

WHAT IS THE STATUTE OF LIMITATIONS FOR ABUSE OF OFFICIAL CAPACITY IN TEXAS?

The limitation period for abuse of official capacity categorized as a misdemeanor is two years. For felony abuse of official capacity, the limitation period is three years.

It is possible the conduct constituting abuse of official capacity may also fit the elements of theft, and the limitation period for theft of government property by a public servant or committed in the public servant’s official capacity is ten years.

ABUSE OF OFFICIAL CAPACITY IN TEXAS

Public servants are held to higher ethical and moral standards in Texas, and are expected to act in the best interests of those they represent. Misusing government property or resources, or violating a law in a public servant’s official capacity, is a crime in Texas.

TEXAS ABUSE OF OFFICIAL CAPACITY COURT CASES

The case law regarding abuse of official capacity in Texas casts doubt on the constitutionality of the statute.

• In Ex parte Perry, former Governor Rick Perry was charged with abuse of official capacity after threatening to veto State funds for the Travis County Public Integrity Unit if District Attorney Rosemary Lehmberg did not resign.The Texas Court of Criminal Appeals held the governor’s exercise of veto power is not illegal conduct, and quashed the indictment. An allegation of abuse of official capacity requires proof of “misuse” to “obtain a benefit,” rather than the mere exercise of delegated authority for a legitimate—albeit distasteful—purpose. To the extent the abuse of official capacity law criminalizes the former governor’s veto power, it is unconstitutional as violating separation of powers.

• In Becker-Ross v. State, the defendant, a city administrator in Mount Enterprise, Texas, was convicted of abuse of official capacity after allegedly pressuring a city marshal to meet a traffic-ticket quota. She fired the previous city marshal for not writing enough tickets, and told the new one the city needed more tickets to meet their budget revenue.The appellate court affirmed, holding the defendant knowingly insisted on a traffic ticket quota to generate city funds, even after they showed her it was illegal under Texas Transportation Code Section 720.002.